2024 is a general election year, which means that local governments are most likely receiving complaints about political signs — either from candidates and supporters who want to place political signs, or from residents who object to the visual clutter of political signs in the community.
Historically, many local governments had special rules in their zoning ordinances for political signs. For example, the local sign ordinance in the Town of Gilbert, Arizona, permitted “the placement of political signs up to 16 square feet on residential property and up to 32 square feet on nonresidential property, undeveloped municipal property, and rights-of-way,” which “may be displayed up to 60 days before a primary election and up to 15 days following a general election.”
In 2015, however, in Reed v. Town of Gilbert, the United States Supreme Court ruled that applying special rules to “political signs,” or to any other category of signs based on their content — or what they say, in other words — violates the First Amendment in most cases. The case was a challenge to Gilbert’s sign ordinance, which distinguished between ideological signs, political signs and temporary directional signs. As the court noted, the applicable rules depended on the message of the sign, which created a content-based rule subject to strict scrutiny under the First Amendment.
Therefore, under the Reed decision and with only limited exceptions, the law states that if a sign ordinance requires someone to read the sign to know what rule applies, the ordinance probably violates the First Amendment.
The hard question after Reed is whether local governments can regulate political signs at all, and current case law makes the answer to that question very unclear. The general answer is that local governments can apply regulations based on content-neutral features like size, shape, and height; font color and font size; copy area; illumination; number allowed per parcel or by linear distance; length of time posted; materials; orientation and setback from the roadway; and visual impact on motorists, including sightlines and obstruction.
Many jurisdictions have amended their sign codes after Reed to create content-neutral rules that apply to all temporary signs. Reed seems to allow local sign ordinances to provide that all temporary signs have durational limits based on the event or condition to which they relate. For example, local governments might allow all temporary signs of a given size, regardless of content, for a fixed period before and after a specific date, like a special event or an election.
Local governments can also regulate temporary signs based on their location. A local ordinance could prohibit the placement of any temporary sign, regardless of message, within the public rights-of-way, on trees, on utility poles, or in certain designated zoning districts. Another possibility would be to allow each distinct parcel within the community to display temporary signs for a maximum number of days during a year. This approach would reduce visual clutter, but would require diligence to enforce on a per-parcel basis.
The implications of the Reed decision on a municipal government’s ability to regulate signs means that cities and towns should tread lightly, and carefully, on matters involving political signage. The South Carolina General Assembly has even seen legislation filed that would restrict the ability of local governments to regulate signage. For those local governments who engage in the complex matter of drafting or revising a sign ordinance after Reed, it is imperative that they engage their attorneys in the process.