Understanding How the First and Fourteenth Amendments affect the regulation of a business sign
Purchasing a sign for your business is probably one of the best investments you will make. But, before you go out andpurchase a sign it is very important that you understand your rights as a sign owner. In this article I will discuss the Firstand Fourteenth Amendment as it pertains to having a business sign.
The First Amendment gives you the right of freedom of speech and assembly, freedom of the press and freedom of religiousexpression.
The Fourteenth Amendment (we will discuss it below) makes it so the sign code in your local area must comply with theFirst Amendment’s guarantee of freedom of expression. Therefore, whatever you say on your sign is protected by the constitution.
A big issue with sign code is whether or not it regulates a sign based on its content. Though it is not necessarily unconstitutionalfor a sign to be regulated by its content, the courts evaluate “content-based” regulations based on something that is known as“strict scrutiny”. According to Wikipedia.com and I quote “Strict scrutiny is the most stringent standard of judicial review usedby United States courts reviewing federal law. Along with the lower standards of rational basis review and intermediate scrutiny,strict scrutiny is part of a hierarchy of standards courts employ to weigh an asserted government interest against a constitutionalright or policy that conflicts with the manner in which the interest is being pursued. Strict scrutiny is applied based on the constitutionalconflict at issue, regardless of whether a law or action of the U.S. federal government, a state government, or a local municipality is at issue.”
So here is what it boils down to. Any law that tries to regulate business signs in reference to the message that is displayed on that signmay be considered an unlawful intrusion on your constitutional rights.
The Fourteenth Amendment:
As stated above, The Fourteenth Amendment makes it so the sign code in your local area must comply with the First Amendment’sguarantee of freedom of expression. Therefore, whatever you say on your sign is protected by the constitution.
The following statement comes directly from www.sba.gov in reference to the Fourteenth Amendment
“In order to pass constitutional muster, the permitting, licensing, conditional use or variance request procedure must, at minimum,be structured to assure easy understanding of objectively based requirements. In addition, reasonable application fees, speedydecision on the application by the permitting authority, and recourse to automatic and swift appeal of any denial must be provided.A failure to provide any one of these minimum procedural requirements can give rise to a claim that the process violates the dueprocess clause of the Fourteenth Amendment.”
Your sign is a way for you to communicate your business presence. Failure to provide you with minimum due process will resultin a “prior restraint” issue. According to Wikipedia.com prior restraint is defined as “a legal term referring to a government'sactions that prevent materials from being published. Censorship that requires a person to seek governmental permission in theform of a license or imprimatur before publishing anything constitutes prior restraint every time permission is denied. More recently,prior restraint has often taken the form of an injunction or other governmental order prohibiting the publication of a specific documentor subject. Sometimes, the government becomes aware of a forthcoming publication on a particular subject and seeks to prevent it.In other cases, the government attempts to halt ongoing publication and prevent its resumption. These injunctions are also usuallyconsidered to be cases of prior restraint, because future publications are stopped before they start.”
Any regulatory decisions that affect signs must be based solely on objective, quantitative criteria. Failure to do so may render thecode unenforceable.