Keeping an eye on the sign regulators

Posted by: Jason Zacher on Monday, April 18, 2016

Starting a business in America and trying to grab your piece of the American Dream can be as easy as hanging a shingle.

You craft your logo, agonize over your name and hunt for the best location. Your shingle is the most basic way you announce your presence as a business. It’s the first way that many people hear of you. It’s your first impression and how you stand out in a very crowded capitalist marketplace.

Government has good reason to regulate signs to ensure safety and promote a “positive visual environment,” as the Greenville County sign ordinance currently states. Government also has a good reason to change those regulations as it sees abuses or changes to the legal climate (the ordinance has been amended 25 times since it was enacted in 1986).

The first proposed change by county staff to the ordinance at a recent Sign Ordinance Task Force meeting in Greenville was to delete language that stated the sign ordinance was to “afford the business community equal and fair opportunity to advertise and promote its products and services without discrimination one over the other.”

Since it’s an election year, the proliferation of temporary political signs, and their haphazard removal after the election, is enough to make anyone want tighter restrictions.

Some of this attention builds off of the Reed v. Town of Gilbert U.S. Supreme Court decision from 2015, where the Supreme Court, in a unanimous decision penned by Justice Clarence Thomas, held that the town of Gilbert, Ariz., couldn’t impose content-based restrictions on speech. Gilbert had a sign ordinance that placed a tougher restriction on temporary signs advertising religious services than other text. The town cited a church for putting up temporary signs to advertise its services (since the church had no building and moved throughout the town).

Supreme Court watchers have criticized Gilbert as opening new fronts for litigation and the First Amendment. The Court has long held that commercial speech can be regulated, and when we’re discussing misleading advertising and false claims, that regulation is well-deserved.

The question before code enforcement officials across the country now is whether Gilbert can be used to dramatically restrict signs and the messaging on signs. Justice Thomas wrote such restrictions must survive “strict scrutiny” – the highest level of legal scrutiny in our country. Justice Elena Kagan, in a concurring opinion, wrote that she was concerned strict scrutiny meant the Supreme Court could become the “Supreme Board of Sign Review.”

Gilbert – in no way – changes the fact that government must have a compelling interest in regulating signs. Banning any signs because someone thinks they look like clutter is not necessarily a compelling government interest.

It is highly unlikely that our county would impose any outright ban on the temporary signs that promote open houses, new real estate development or a grand opening of your business. However, during the first meeting of the Task Force, staff compared local, legal signs to the very strict International Code Council’s sample code – a code that, if ever implemented, would seem draconian to thousands of county businesses. (County staff expressly stated in the second meeting it had no intention of implementing the ICC code but was only using it as an example.)

The Sign Ordinance Task Force has at least six more meetings in the next few months. The Greenville Chamber, the Greater Greenville Association of Realtors and the Home Builders Association of Greenville, among several local business represented on the task force, will be watching to ensure reasonable commercial speech and advertising is protected.

Local business owners, and the chamber, don’t want unregulated junk signs littering every inch of highway. But they need to be able to get their names out there with the one piece of advertising that doesn’t cost them an arm and a leg.

It’s a good reminder during this election season to watch what our public officials are doing. Justice Thomas wrote in his opinion in Gilbert: “Innocent motives do not eliminate the danger of censorship … as future government officials may one day wield such statutes to suppress disfavored speech.”

We agree, and we hope that when considering any sign changes, our county’s leaders will weigh First Amendment rights and the needs of small business owners to pursue their American Dream.

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