Non Commercial Sign Regulation

The First Amendment Law is relatively complex and Supreme Courts don’t use one universal analytical test or one standard of scrutiny in case that digital sign regulation violates freedom of speech. If a sign regulation is based on content, courts will apply very demanding analysis, also known as strict scrutiny. On the other hand, if the sign regulation is content-neutral, courts will use intermediate scrutiny. For cases with strict scrutiny of sign regulation courts often use O’Brien test United States v. O’Brien, 391, U.S. 367 (1968). Cases under intermediate scrutiny are tested under Central Hudson test (Central Hudson Gas & Electric Corp. v. Public Service Commission, 447 U.S. 557 (1980). Court are mainly concerned about content-neutrality

of the sign regulation. (Weinstein, 2012). In many cases in the past courts repeatedly upheld that sign regulation shouldn’t ban speech even if the content of the speech can be criminalized and its content is non-constitutional. In the case of R.A.V. v.

City of St. Paul 505 U.S. 377 (1992), the court invalidated an ordinance that regulated “hate speech” in form of alarm, anger or resentment in connection to religion, gender, race, color or creed. As it was mentioned previously courts have favored stricter control on commercial speech than on non-commercial speech. The definition of residential or non-commercial speech on signs and the distinction between commercial sign and non-commercial sign has been often a problematic issue, especially because the definitions of non-commercial sign differ in local ordinances. Commercial speech was defined by the Supreme Court as speech in which the speaker is with higher probability engaged in commerce. In this speech, the intended audience is potential or actual consumers and the content of the conveyed message is commercial in its character (Weinstein, 2012). In Nike, Inc. v. Kasky, 539 U.S. 654 (2003), the court explained that ‘‘categorizing a particular statement as commercial or non-commercial speech requires consideration of three elements: the speaker, the intended audience, and the content of the message“. Non-commercial speech is often defined as any informational, religious, ideological, philosophical, political speech that has no commercial

intention. Non-commercial speech also receives the highest degree of First amendment protection. The government may still regulate certain aspects of that non-commercial speech provided it meets certain requirements. In evaluating non-commercial speech, the courts distinguish between content-based restrictions and content-neutral restrictions. Regulation of political speech and other fully protected speech must survive strict constitutional scrutiny. On the other hand the commercial speech has usually been subjected to a less rigorous test.
Despite the critical importance of distinction between commercial and non-commercial speech in constitutional issues, municipalities are not required to provide definitions of these types of speech. In National Advertising Co. v. City & County of Denver, 912 F.2d 405 (10th Cir. 1990), the Fourth Circuit Court of Appeals rejected an argument that a City of Denver sign ordinance was unconstitutionally vague because it lacked exact and precise definition of codification of these terms.
Municipalities which want to ban off-premise digital signs entirely face a dilemma.

Their regulation is in the risk that a court will hold the ordinance unconstitutional if it prohibits all off-premise signs, including signs with non-commercial speech. A municipality can avoid this problem by defining an off-premise sign as a sign that advertise products or services that are not sold or offered on the premises on which the sign is located. That regulation is consequently in the risk that a court will hold the definition unconstitutional because it is content-based. A municipality can solve the content neutrality problem for off-promise signs by prohibiting signs with both commercial and noncommercial messages, but it might then face other free speech problems. The regulation based on commercial speech and non-commercial speech is therefore complicated, because it is entirely based on the

content.