Finding Your Way Through Wayfinding Regulations

In 2005, the town of Gilbert, AZ, adopted a new set of sign codes, part of which stipulated that exterior signage placed in public areas required a permit. There were many exemptions, one of which was “temporary directional signs relating to a qualifying event,” a “qualifying event” being one that was hosted by a non-profit organization. (Two other exemptions relevant to the court case that later ensued were related to “ideological signs” and “political signs.”) There were also regulations specifying how large the temporary signage could be and how long after the event it advertised it could be displayed.

The Good News Community Church, based in Gilbert and run by Pastor Clyde Reed, had no permanent location, and the weekly congregation met catch-as-catch-can in schools and other makeshift locations around town. To inform parishioners where to meet on any given weekend, volunteers would place 15 to 20 temporary signs—which included the name of the church and its temporary location—around town. The signs would go up early on Saturday and usually be taken down around midday on Sunday. The church eventually fell afoul of Gilbert’s sign compliance manager and was cited several times for, variously, failing to include the date of the event on the sign and exceeding the length of time the sign could be displayed.

The church filed suit against the town, claiming that the new signage restrictions abridged their freedom of speech. Initial decisions found for the defendants and that the sign codes “did not regulate speech on the basis of content.” In other words, signage prohibitions were deemed to be “content-neutral,” since the ban had nothing to do with what the sign said.

The case pinged around the lower courts for several years and finally made it to the Supreme Court. In 2015, in Reed v. Town of Gilbert, SCOTUS unanimously ruled in favor of the church, deeming that the ban was a First Amendment violation. The sign ordinance, Justice Clarence Thomas wrote, "singles out specific subject matter for differential treatment, even if it does not target viewpoints within that subject matter. Ideological messages are given more favorable treatment than messages concerning a political candidate, which are themselves given more favorable treatment than messages announcing an assembly of like-minded individuals."

Five other justices agreed with Thomas, while the remaining four, while still ruling in favor of the church, dissented. Writing for the minority, Justice Elena Kagan pointed out: "The consequence—unless courts water down strict scrutiny to something unrecognizable—is that our communities will find themselves in an unenviable bind: They will have to either repeal the exemptions that allow for helpful signs on streets and sidewalks, or else lift their sign restrictions altogether and resign themselves to the resulting clutter."

In other words, the majority’s test for “strict scrutiny” could wipe out just about any sign law.

The Reed decision had the effect of muddying the waters not only for city administrators trying to draft sign codes, but also those trying to comply with them. One consequence of the ruling is that many municipalities are taking a new look at their sign codes and making changes that could inadvertently violate the court’s ruling—or suddenly make longstanding signage illegal. Think of it as the law of unintended consequences.

“There are many communities that have not really looked at their sign regulations in total,” said Kenneth Peskin, Director of Industry Programs for the International Sign Association (ISA). “While they’re correcting certain things that a municipal attorney or a judge may have a problem with, the policy implications may be very different. A lot of things that may have been historically allowed, or which authorities turned a blind eye to, may not be legal.”

That is, certain signs may be technically illegal, but no one strictly enforces their removal. And now, the authorities are shocked, shocked, that these signs are being put up.

Take real estate signs. The “for sale” sign on the lawn of a home for sale is perfectly legal, but what about a realtor’s sign placed at an intersection directing prospective buyers to an open house? “That’s almost certainly been illegal for years and more people are recognizing that it’s illegal,” said Peskin. The implications go far beyond simply getting a citation or having to remove the sign. “If you make some kind of change that prohibits real estate signs, that has a huge impact on the way that industry has traditionally operated.”

Then there’s the case of local organizations or associations trying to advertise the latest homeowners association meeting, or a blood drive, or an appearance by the Bookmobile. Often, these groups place some kind of temporary sign in the median of the roadway or some other public space. As the county or municipality looks at and attempts to revise the signage regulations, they may realize that these kinds of signs have always been illegal. What to do about it? On one hand, if they make that kind of signage legal, it could open the door for the more noxious forms of temporary signage that the sign codes were designed to prevent. On the other hand, if they enforce the illegality of the signs, they can run afoul of the officers of these organizations, which may have political consequences. And on the third hand, simply turning a blind eye to these signs may not be an effective long-term solution, as there is no guarantee that a future sign code compliance officer may be as lenient. It also brings up the idea of “content-neutral” signage. The risk of being soft on some signage is now problematic post-Reed.

“Before Reed, most communities found what their sweet spot was,” said Peskin. “Maybe they didn’t care that the civic association sign is illegal, and they’re only going to care when the employee from Liberty Tax Service stands on the sidewalk dressed as the Statue of Liberty and starts waving people in.” As they revisit their sign codes, administrators need to reevaluate these issues. Maybe they do need to care about the association signage. “They’re stirring up the soil and who knows what’s in there,” said Peskin.

Ultimately, “content neutrality” is about being consistent. It means that signs should be treated without bias as to what the message is. If the blood drive advert is allowable, then the Liberty Tax guy also has to be. If the sign on a homeowner’s lawn says “For Sale by Century 21,” then it can also say “Eat at McDonald’s.” And sign codes have to be written more carefully so as not to infer bias. “Instead of ‘real estate signs,’ you say ‘signs that are located on a property that is for sale,’” said Peskin. It can be a little linguistically ungainly, but you gotta do what you gotta do.

In terms of wayfinding, the lines can get a little blurred. In many tourist or downtown areas, it’s common for sidewalk signage on a main drag to direct traffic or pedestrians to locations on a side street. To what extent can the municipality determine what points of interest can be put on the sign? Does it have to be public institutions such as libraries or post offices, or can it be bars, restaurants, or other commercial entities? Does it have to include every business or just certain kinds? Is it limited to points of interest one block away or six blocks away? When communities are developing the requirements for these kinds of signs, they need to pay attention to, said Peskin, “the development of standards that don’t treat individual speakers differently.”

The post-Reed world of signage has generated conundra for municipal authorities, but what does any of this mean for sign producers themselves? Signmakers aren’t legally required to be experts in sign regulations—compliance is ultimately the responsibility of the sign owner—but staying on top of sign regulations can be a highly valuable ancillary service that sign producers can provide for their customers. A valuable part of that is recognizing that even if signage doesn’t require a permit, it may be subject to regulation.

“There are large categories of signs that are not subject to municipal permits,” said Peskin. “If you look at most regulations, there is an exemption for temporary signs, so a lot of people will look at an ordinance and say ‘I don’t need a permit, so I’m good to go.’” However, while these signs are exempt from requiring a permit, they do need to comply with other regulations in the ordinance, such as size and duration limits, the requirement that electronic message centers be freestanding structures, and other issues that may not be entirely obvious unless you have read the whole code. Take feather signs, of the sort that are often found outside auto dealerships. Some municipalities require feather signs to be set back from the road a certain distance so that if they blow over they don’t create a road hazard. It helps to know these kinds of thing before there is a violation. It’s akin to the advice, when putting in something like a swimming pool, to “call before you dig,” lest you hit a gas line. Know the regulation before you install or erect a sign, or it can blow up in your face, figuratively speaking.

And be aware that post-Reed, some signs that may have been allowed in the past may be subject to renewed scrutiny, and follow-up court cases will only serve to clarify some of the issues raised by Reed. “We’ll see more informed guidance coming out as there are more cases,” said Peskin.

The International Sign Association can provide guidance on navigating sign codes and regulations.