Navigating Sign Regulations Michael P. Otworth, CPCU, ARM, ASLI VP & Senior Unit Manager Benjamin C. Eggert, Esq.

Goals Reed v. Town of Gilbert Changes Everything 2 Sign Regulations Generally Practical Solutions

Overview of Sign Regulations Purpose Statement Permit Procedures Prohibitions/Limits Specifications Exemptions Other provisions Basic Elements of Most Sign Regulations 3

Overview of Sign Regulations These are the powers of local government Historical Approach - Issue was whether sign regulation concern public safety/property value Modern Approach – Little impediment to regulation of sign Police Power 4

Overview of Sign Regulations Complex Issue No Single Test Governments “shall make no law” “abridging the freedom of speech” Rule: Prohibitions on speech cannot be based on content “Content Neutral” requirement First Amendment 5

Overview of Sign Regulations Literal Test: if you need to read the sign order to tell whether it complies with the regulation, the regulation is content based. Pragmatic Test: if you can justify the sign regulation without reference the sign’s content, the it is content neutral. First Amendment 6

Overview of Sign Regulations General Rule: Generally, courts have considered the intent of a sign regulation and strike it down as a “content based” regulation only when it was determined the regulation was adopted to suppress speech with which the government disagreed. First Amendment 7

Reed v. Town of Gilbert Background Plaintiff Church: Needed signs to guide people to services. Defendant Town: Wanted to regulate and limit signs Regulation of Physical Size: Non-political, non- ideological signs cannot exceed 6 sq. feet in area Regulation of Time: Maximum time allowed is 12 hours before the event, and 1 hour after the event 8

Reed v. Town of Gilbert 9 Examples of “illegal” sign at issue in Reed v. Town of Gilbert

Reed v. Town of Gilbert 10 Another example of “illegal” sign at issue in Reed v. Town of Gilbert

Reed v. Town of Gilbert 11 Example of “legal” signs at issue in Reed v. Town of Gilbert

Reed v. Town of Gilbert 12 Comparison of spacial limitations of different kinds of signs in Reed v. Town of Gilbert

Reed v. Town of Gilbert 13 Comparison of temporal limitations of different kinds of signs in Reed v. Town of Gilbert

Reed v. Town of Gilbert Result - Generally Town of Gilbert Lost 9-0 Regulation was unconstitutional No clear guidance 14

Reed v. Town of Gilbert Result - Generally Four separate opinions; little clear direction going forward Six justices joined a limited opinion and comprise the “majority.” Three of the six concurred in a separate opinion The remaining three concurred in the result, but had an entirely different rationale. 3 – 3 – 3 Split 15

Reed v. Town of Gilbert Result – Majority Opinion Any regulation of a sign that is based on the content of the speech is subject to strict scrutiny. Strong, rigid “content neutrality” rule Practical result is that the regulation is presumptively unconstitutional. Very high standard: most regulations are not going to pass this test 16

Reed v. Town of Gilbert Result – Concurring Opinion Three Justices generally agreed with majority opinion but felt that some rules are not content based Content-neutrality “lite” Would allow more regulation of more types of signs. Some examples: Size & Location Lighting/Electric Commercial/Residential Density 17

Reed v. Town of Gilbert Result – Concurrence in the Judgement Three other Justices (Breyer, Ginsberg, Kagan) agreed the Town’s regulation was unconstitutional, but for entirely different reasons Very critical of the rule of absolute content-neutrality based First Amendment should yield to some regulation and there’s no reason to strike down reasonable regulations in pursuit of some absolute constitutional principle 18

Reed v. Town of Gilbert Result – Bottom Line Regulation is suspect if it targets: Content of the sign Purpose of the sign Identity of person/entity putting up on the sign In other words, if you are differentiating a sign based on: (1) reading the sign’s content, (2) knowing the author of the content, or (3) why the sign was put up, then may be unconstitutional. 19

Practical Effects of Reed v. Town of Gilbert Permissible Regulations Regulate non-commercial signs in a content-neutral time/place/manner approach Location Size/Height Structure Materials Lighting Fixed/Moving Parts Portability 20

Practical Effects of Reed v. Town of Gilbert Permissible Regulations??? But there are numerous open questions about what you can regulate: Category/Function? Most regulations approach signs by type For example, real estate signs are governed by X, Y & Z regulations What to do now? Signs on Public Property? Public Safety Signs? 21

Practical Effects of Reed v. Town of Gilbert Permissible Regulations??? But there are numerous open questions about what you can regulate: Signs on Public Property? Public Safety Signs? Non-Commercial Speech? Commercial Speech? Political Signs? Temporary Signs? 22

Practical Effects of Reed v. Town of Gilbert Solutions – Carefully Consider Enforcement Actions If you see a violation, consider enforceability in light of lessons of Reed v. Gilbert Look for solutions short of enforcement If regulation is enforced, it may invite a lawsuit 23

Practical Effects of Reed v. Town of Gilbert Solutions – Review Existing Regulations Hire a professional Lawyer/Risk Management Professional Looking for content-based standards 24

Practical Effects of Reed v. Town of Gilbert Solutions – Review Existing Regulations Looking for content-based standards Amend regulations that are based on content 25

Practical Effects of Reed v. Town of Gilbert Solutions – Review Existing Regulations Develop strong purposes statement Cite specific factual studies relevant to regulatory purpose and intent 26

Practical Effects of Reed v. Town of Gilbert Solutions – Review Existing Regulations Severability Clause Substitution Clause No Exemptions Clause 27

Practical Effects of Reed v. Town of Gilbert Bottom Line Creates more issues than it resolves Contents-based regulations may be challenged & unconstitutional Review/Update regulations 28

Contact Information Benjamin C. Eggert, Esq.Michael P. Otworth, CPCU, ARM, ASLI Wiley Rein, LLP Genesis Mgmt and Insurance Services 1776 K Street NWP.O. Box 1255 Washington, DC 20006Stamford, CT Direct: (202) Direct: (203)

30 Proprietary Notice The material contained in this presentation has been prepared solely for informational purposes by Genesis Management and Insurance Services Corporation and Wiley Rein LLP. The material is based on sources believed to be reliable and/or from proprietary data developed by Genesis and Wiley Rein LLP, but neither Genesis nor Wiley Rein represent as to its accuracy or its completeness. The content of this presentation is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances. Disclosure Genesis Insurance Company is licensed in the District of Columbia, Puerto Rico and all states. Genesis Insurance Company has its principal place of business in Stamford, CT and operates under NAIC Number