Senator John Kavanagh
Arizona State Senate
What legal impact does the recent United States Supreme Court ruling in Good News Presbyterian Church v. Town of Gilbert have on Arizona Statutes regulating political campaign signs? In particular, does the Supreme Court ruling require an amendment to Section 16-1019, Arizona Revised Statutes, in order to comply with the Court’s mandate?
The Supreme Court’s decision does not directly impact any Arizona statutes regulating political campaign signs. It does not require an amendment to Section 16-1019 because nothing in that statute restricts speech.
In 1962, the Arizona Legislature adopted House Bill 198, which provided misdemeanor penalties for anyone to “remove, alter, deface, or cover any political sign.” Laws 1962, Chapter 124 (HB 198) [codified as A.R.S. § 16-1312(A) (1962)]. At the time, the provision did not apply to “signs placed on private property with or without permission of the owner thereof, or signs placed in violation of state law, or county, city or town ordinance or regulation.” Id. [§ 16-1312(B)].
Since 1962, the statute has been amended a number of times. Its original function—imposing misdemeanor criminal penalties for tampering with political signs—has remained unchanged. In 2011, the Legislature significantly amended the law by:
1. Clarifying that local governments generally lack the authority to tamper with political signs that support or oppose a candidate or ballot measure and exist in a public right-of-way as long as the sign:
a. does not present a public hazard, obstruct vision, or interfere with the Americans with Disabilities Act;
b. meets maximum size limitations; and
c. contains contact information for the candidate or campaign committee.
2. Allowing a local government to relocate signs deemed to be placed in a manner constituting an emergency, subject to certain requirements.
3. Limiting the liability of a public employee who does not remove or relocate a sign pursuant to the “emergency” provision.
4. As to the provisions in number 1, exempting “commercial tourism, commercial resort and hotel sign free zones as those zones are designated by municipalities” and setting restrictions for such zones.
5. Allowing local governments to prohibit the installation of signs on government structures.
6. Limiting the prohibitions described in number 1 above from 60 days before a primary to 15 days after a general election, in most cases.
7. Clarifying that the section “does not apply to state highways or routes, or overpasses over those state highways or routes.”
A.R.S. § 16-1019. Acting under the authority of point four, municipalities have adopted ordinances creating tourism zones. See, e.g., Fountain Hills Resolution No. 2012-31 (adopted November 15, 2012); Paradise Valley Resolution No. 1241 (adopted October 13, 2011). These ordinances allow municipalities to remove political signs from the designated zones.
In June 2015, the United States Supreme Court decided Reed v. Town of Gilbert, Arizona, 135 S. Ct. 2218 (2015), clarifying the constitutional standard applicable to laws that restrict or limit speech based on its content. Specifically, the Court more clearly defined which laws are considered content-based and thus subject to strict scrutiny. A law subject to strict scrutiny is unconstitutional unless the government defending it can demonstrate that the law serves a compelling government interest and does so in the least restrictive manner possible.
The Reed decision explicitly confirmed that any content-based government restriction of speech will be subject to the most rigorous level of review. Id. at 2227. Such restrictions will therefore most likely be found unconstitutional. See Williams-Yulee v. Florida Bar, 135 S. Ct. 1656, (2015) (noting that only in “rare cases” will “a speech restriction withstand strict scrutiny”). While the Court has long required content-based restrictions to meet this very high bar, determining when a regulation is or is not content-neutral remained open until Reed resolved the question by classifying any differential treatment based on “topic” as content-based:
Government regulation of speech is content based if a law applies to particular speech because of the topic discussed or the idea or message expressed. This commonsense meaning of the phrase “content based” requires a court to consider whether a regulation of speech “on its face” draws distinctions based on the message a speaker conveys. Some facial distinctions based on a message are obvious, defining regulated speech by particular subject matter, and others are more subtle, defining regulated speech by its function or purpose. Both are distinctions drawn based on the message a speaker conveys, and, therefore, are subject to strict scrutiny.
135 S. Ct. at 2227 (internal citations omitted). Under this standard, courts must apply strict scrutiny to special restrictions for political signs. Reed did not, however, restrict the permissibility of traditional time, place, and manner restrictions.
There are only three state laws regulating political signs in Arizona. Two of them, A.R.S. §§ 33-1261 and 33-1808, limit the ability of homeowners associations to restrict placement of political signs. A.R.S. §§ 33-1261(E), 1808(H), (I). The third statute, A.R.S. § 16-1019, imposes criminal penalties for interfering with political materials, including signs, and incorporates the exceptions described above, which allow a local government to adopt regulations relating to political signs.
Because this statute explicitly references political signs, one might suppose that it runs afoul of the First Amendment based on Reed because it references a particular category of speech identified by its content. To the contrary, Reed does not invalidate Section 16-1019. Reed clarified the analytical framework applicable to sign regulations that restrict speech and thus present “the danger of censorship” at the heart of First Amendment concerns. Reed, 135 S. Ct. at 2229. But nothing in Section 16-1019 restricts speech or compels the regulation of signs. Instead, it establishes the limits—under Arizona law—of what local governments may do as they limit or regulate signs. For example, subsection (F) recognizes that municipalities may designate certain sign-free zones within which the municipality may remove political signs. While such local laws might fall within the scope of Reed’s definition of content-based regulation, Section 16-1019 itself does not constitute content-based regulation.
A municipality desiring to enact rules specifically targeting political signs in violation of Reed cannot rely on Section 16-1019(F) to inoculate such rules against a First Amendment challenge. The state law must now be read in light of Reed, and should thus be read as permitting municipalities to engage in sign regulation through the designation of tourism zones only to the extent that they do so in a content-neutral manner. In other words, such zones may not solely target political signs, but must employ generally-applicable time, place, and manner restrictions. That reconciliation with Reed does not affect the validity of Section 16-1019.
Arizona state statutes referencing political signs do not restrict speech, so Reed does not have implications for our state statutes. Because Section 16-1019 does not itself restrict speech, it does not implicate the First Amendment and Reed does not, therefore, invalidate this state law. There is no need to amend Section 16-1019 because of the Reed decision.