Sign Regulation after Reed: Suggestions for Coping with Legal Uncertainty

65 Pages Posted: 15 Sep 2015 Last revised: 15 Oct 2016

Alan C. Weinstein

Cleveland-Marshall College of Law, Cleveland State University

Brian J. Connolly

Otten, Johnson, Robinson, Neff & Ragonetti

Date Written: September 14, 2015

Abstract

This article discusses Reed v. Town of Gilbert, in which the Court resolved a Circuit split over what constitutes content based sign regulations. We note that Justice Thomas's majority opinion applies a mechanical "need to read" approach to this question, and then explore the doctrinal and practical concerns raised by this approach. Doctrinally, we explore the tensions between Thomas's "need to read" approach and the Court's current approach of treating some regulation of speech as content-neutral despite the fact that a message must be read to determine its regulatory treatment. A prime example being the Court's "secondary effects" doctrine. Practically, we note that Thomas's opinion leaves several questions unanswered and and the uncertainty is further compounded by the inconsistencies between Thomas and Justice Alito's concurrence. In light of these uncertainties, we advise local governments to consider how much legal risk they are willing to take in seeking to retain workable sign regulations.

Keywords: first amendment, sign regulations, content based, content neutral

JEL Classification: K10

Suggested Citation

Weinstein, Alan C. and Connolly, Brian J., Sign Regulation after Reed: Suggestions for Coping with Legal Uncertainty (September 14, 2015). 47 Urban Law l569 (2015); Cleveland-Marshall Legal Studies Paper No. 15-285. Available at SSRN: https://ssrn.com/abstract=2660404

Alan C. Weinstein (Contact Author)

Cleveland-Marshall College of Law, Cleveland State University ( email )

2121 Euclid Avenue, LB 138
Cleveland, OH 44115-2214
United States

Brian J. Connolly

Otten, Johnson, Robinson, Neff & Ragonetti ( email )

950 17th St
#1600
Denever, CO 80202
United States

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