This article is reprinted with permission. The original appeared on Rocky Mountain Sign Law.
By: Andrew L.W. Peters, Associate, Otten Johnson Robinson Neff + Ragonetti PC
Recent litigation against the City of Fort Worth has once again confirmed that localities should steer clear of content-based sign codes . . . .
The case arose from plaintiff Brookes Baker’s efforts to place crosses in the city right-of-way alongside an abortion clinic. Fort Worth officers cited Baker under the city’s ordinance concerning flyers, handbills, signs, advertisements and other materials posted in the right of way. The ordinance contained two relevant components: (1) it prohibited posting those materials in the public right of way without city council authorization and (2) exempted “political signs” from that prohibition. Both items doomed the ordinance after Baker sought a judgment on the pleadings.
As to whether the ordinance was content-based, the court applied Reed and Fifth and Sixth Circuit opinions interpreting Reed’s revised assessment of content-based distinctions and concluded it was. Recognizing that even “cursory inquiries into content” render an ordinance content-based, the court considered the “political sign” carve-out a content-based distinction because it required a government official to determine whether the sign’s content was political before removing it for lack of city council approval.
The court also concluded that allowing city council to exempt non-political signs from the general prohibition created a prior restraint subject to strict scrutiny as well. Fort Worth’s ordinance seems to have allowed its city council to grant an exemption for any or no reason, and in practice city council delegated its approval discretion to unelected officials. This standardless approach to exemptions, the court concluded, formed a quintessential prior restraint.
Subjecting both the content-based regulation and the prior restraint to strict scrutiny, the court struck down both provisions. Notably, the court adopted the Sixth Circuit’s conclusion from Thomas v. Bright that the city’s proffered interest in “the elimination of trash and preserving aesthetics” were not compelling interests for purposes of the test. The court also found that the ordinance failed to directly advance Fort Worth’s stated interests because, by distinguishing its applications on the basis of content and allowing city council to pick and choose the signs it would permit, it was underinclusive. Thus, it held the provisions unconstitutional.
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