August 3, 2022 | Dianne Criswell

by Gordon Vaughan and Dianne Criswell

On a foundational level, the First Amendment directs Federal, state, and local governments on the types of laws or regulations of speech that they may adopt. In general, the First Amendment prohibits the enactment of laws that abridge the freedom of speech, meaning that the government has no power to restrict expression because of its message, its ideas, its subject matter, or its content.

Special districts are political subdivisions of the state, and are subject to the prohibition on government restriction of free speech in the First Amendment.

The First Amendment does not absolutely prohibit any government regulation of speech, but as explained below, requires that such laws or rules be adopted in careful consideration of the fundamental right of free speech.

How Courts Construe Govt. Regulation of Speech

Courts apply different standards for challenges that a governmental law, regulation, or policy violates the First Amendment by prohibiting free speech. Laws that impact political and ideological speech or content are reviewed under the strict scrutiny test. Government regulation of speech is content-based if the law restricts or prohibits a particular type of speech because of the topic discussed or the idea expressed. For purposes of the First Amendment, content-based restrictions are presumptively unconstitutional. Using the strict scrutiny standard of review a court will usually strike down the law. “Strict scrutiny leaves few survivors.” City of Los Angeles v. Alameda Books, Inc., 535 U.S. 425 (2002). Under strict scrutiny, the government must show both of the following to maintain that its regulation comports with the constitutional requirements: (1) that there is a compelling, or very strong, governmental interest; and (2) that the law is either very narrowly tailored or is the least speech restrictive means available to the government.

For laws that aren’t content-based, courts apply the less stringent standards of review of intermediate scrutiny or rational basis. Content-neutral restrictions, for example, may be a permissible means to regulate the time, place, or manner of speaking when they apply regardless of the content of the speech. If the regulation is content-neutral, even if the speech regulated is ideological, the challenged law must further an important government interest and do so by means that are substantially related to that interest; this is referred to as intermediate scrutiny. The most deferential level of review is referred to as the rational basis, and generally applies when government is regulating speech that isn’t ideological or political. Under the rational basis, the regulation must have a legitimate governmental interest, and there must be a rational connection between purpose and goals of the regulation.

Courts treat commercial speech differently than noncommercial speech. Commercial speech is not afforded the same level of protection. Courts have construed advertising via commercial signage as commercial speech, because such speech does no more than propose a commercial transaction, and courts apply a form of intermediate scrutiny for government restrictions on commercial speech.

2015: Reed v. Gilbert

The U.S. Supreme Court decision Reed v. Town of Gilbert, Ariz., 576 U.S. 155 (2015) changed the way that many governments had previously understood their authority to regulate speech.

The Town of Gilbert, Arizona, had a sign code which generally prohibited the display of outdoor signs anywhere within the Town without a permit, but it then exempted many categories of signs from that requirement, including ideological signs, political signs, and temporary directional signs. The Town regulated each of these types of signs differently, with ideological signs having the fewest restrictions and temporary directional signs having the most restrictions.

A church and its pastor, Clyde Reed, wanted to advertise the time and location of their services by using temporary directional signs throughout the Town. The Town cited the Church for exceeding the time limitations in its sign code ordinances (the “Code”) and for failing to include the date of the event on the signs under its Code. Therefore, the Church filed suit seeking to enjoin enforcement of the Code as an abridgment of its First Amendment right to free speech. The Church contended that the Code’s restrictions on directional signs for church services were content-based, because the signs placed by the Church expressed a content-based idea or message were treated differently than political signs under the Code. The Town responded that all directional signs were treated the same under its Code, regardless of the idea or message expressed; therefore, the Town argued that the Code was content neutral.

The U.S. Supreme Court concluded that while the Town’s Code didn’t demonstrate a discriminatory motive for stricter regulation of directional signs, the Code was a content-based restriction on its face. Applying the strict scrutiny standard for content-based restrictions, the Court said the Town failed to prove it had a compelling governmental interest by adopting a Code that differentiated temporary directional signs from other types.

In the post-Reed v. Gilbert world, many local governments are taking a fresh look at any regulations on speech to ensure that they reflect the broad new standard that government regulation of speech is content-based, and subject to the strict scrutiny standard, if it applies differently – regardless of whether the regulation intends to favor one type of expression over another.

Regulation of Speech by an HOA

Special districts, including those providing code enforcement for a common interest community (“HOA”), should be aware that, while HOAs are not subdivisions of the state, they have various statutory powers and restrictions, including statutory free speech protections in the context of HOA codes or rules.

Prior to 2021, Colorado statutes limited an HOA’s application of architectural and landscaping regulations, requiring that the HOA codes or rules allow displays of the American flag, service flags, and political signs – with some specific statutory criteria. HB21-1310 amended this statute and expanded statutory free speech protections by specifying that HOAs may not prohibit or regulate the display of flags or signs based on noncommercial subject matter, message, or content. However, HOAs may establish content-neutral regulations (number, size, placement) of flags and signs.

Reviewing Special District Codes

If your District has adopted regulations for signs, flags, or other speech, take the time to review and update these regulations in the context of Reed v. Gilbert – as well as HB21-1310, if your District is providing HOA code enforcement under contract.

In the concurring opinion of Reed v. Gilbert, Id. at 174-175, Justices Alito, Kennedy, and Sotomayor provide helpful examples of types of sign regulations that are not content based (and subject to intermediate scrutiny), such as rules:

• Regulating the size of signs (which may distinguish among signs based on any content-neutral criteria);
• Regulating the locations in which signs may be placed (which may distinguish between free-standing signs and those attached to buildings);
• Distinguishing between lighted and unlighted signs;
• Distinguishing between signs with fixed messages and electronic signs with messages that change;
• Distinguishing between the placement of signs on private and public property;
• Distinguishing between the placement of signs on commercial and residential property;
• Distinguishing between on-premises and off-premises signs;
• Restricting the total number of signs allowed per mile of roadway; and
• Imposing time restrictions on signs advertising a one-time event.

To help avoid challenges when regulating signs or other forms of speech, special districts should ask the following general questions:

• Does our rule or policy regulate the content of the speech or message, permitting some viewpoints and not others?
• Does this rule or policy favor commercial speech over noncommercial speech?
• What is the governmental interest being served? (Safety? Aesthetics?) Is that interest substantial?
• Is the rule or policy narrowly tailored to achieve the substantial governmental interest? Are the time, place, or manner restrictions broad, or are they the least restrictive means of achieving the substantial governmental interest?
• Are there any exceptions from the rule? Are exceptions necessary? If not, exceptions may raise questions about whether the rule or policy is content-based on its face.
• Is there a provision known as a “severance clause” in our rule or policy that would allow a court to invalidate unconstitutional provisions, without invalidating the whole Code?

Permissible governmental regulation of free speech takes consideration and time.

In providing this overview, the CSD Pool hopes to help members as they work to draft or review rules or policies that might impact protected speech under the First Amendment.

Gordon L. Vaughan is a partner in the firm of Vaughan & DeMuro, and serves as defense counsel on the CSD Pool attorney panel.

Dianne Criswell is General Counsel for the Colorado Special Districts Property Pool, Special Districts Association of Colorado, and the Colorado Firefighter Heart & Cancer Benefit Trust.