May municipalities regulate the size of election campaign signs and the duration that they can be displayed?

Yes, but only if the regulation is content-neutral. The First Amendment prohibits laws abridging the freedom of speech and is applicable to the states through the Fourteenth Amendment. Reed v. Town of Gilbert, 576 U.S. 155, 163 (2015). Political speech, including campaign signs, is a form of speech protected by the First Amendment. When evaluating a regulation of protected speech, a court must determine the proper level of judicial scrutiny to apply, depending on whether the regulation is aimed at the content of that speech. Thayer v. City of Worcester, 144 F. Supp. 3d 218, 232 (D. Mass. 2015). When a regulation of protected speech is content based, the courts apply the highest level of scrutiny, strict scrutiny, and the regulation may only be justified by the government proving the regulation is narrowly tailored to serve a compelling governmental interest. Id. at 233. In other words, the regulation must be the least restrictive means of achieving the compelling governmental interest. Regulations subject to a strict scrutiny analysis rarely survive.

In 2015, the United States Supreme Court decided Reed v. Town of Gilbert, 576 U.S. 155 (2015), holding that a municipal sign code subjecting signs to different regulations based on the sign’s message was a content-based restriction of speech that did not survive a strict scrutiny analysis. Reed clarified that a law is content-based on its face if it addresses a specific topic or subject matter, even if it does not discriminate among viewpoints within that topic or subject matter. Reed at 169. Reed further clarified that a facially content neutral law is nonetheless content based if it requires a person to look to the sign’s content to determine whether the regulation applies. See id. at 170. Accordingly, a municipal sign code that explicitly regulates a sign based on its communication of political speech, or that requires one to look to the sign’s content to determine whether the regulation applies, is a content-based regulation of speech that will almost certainly fail a strict scrutiny analysis and be deemed unconstitutional.

The decision in Reed does not limit a municipality’s ability to regulate signage, so long as the regulation is content neutral – e.g., regulations concerning a sign’s form and nature, not the content of its message. These regulations – called reasonable time, place, or manner restrictions – include regulations of sign size, number, materials, lighting, portability, etc. Content-neutral sign regulations that restrict the time, place, and manner of the sign are subject to intermediate scrutiny rather than strict scrutiny. They “must be narrowly tailored to serve some substantial governmental interest and must leave open adequate alternative channels of communication.” Thayer at 232-33. Municipalities should note that Wis. Stat. § 12.04 contains certain provisions regarding municipal ability to regulate political messages. However, considering Reed, the enforceability of this statute is questionable. For additional information on sign regulation and content-based ordinances after Reed, see Licensing and Regulation 397 and 399.

(rev. 2/21)