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Free Speech

Sign Restriction That Excludes Holiday Signs Is Unconstitutionally Content-Based

A “30-by-50-foot flag saying, ‘TRUMP 2020 Keep America Great’” was therefore wrongly forbidden by the City of Buffalo (Minnesota).


From today's opinion by the Minnesota Court of Appeals in Johnsonville, LLC v. City of Buffalo, written by Judge Sarah Wheelock and joined by Presiding Judge Jeffrey Bryan and Judge Lucinda Jesson:

In early 2021, Johnsonville displayed a 30-by-50-foot flag saying, "TRUMP 2020 Keep America Great," from atop a mobile construction crane on its agricultural zone in Buffalo. The city attorney issued three notices of administrative penalties to Johnsonville in April 2021 for violations of multiple provisions of chapter 13 of the Buffalo City Code (the sign ordinance or ordinance) because of the flag's size and manner of display. The notices imposed penalties for flying the flag from an extended crane on the property and for exceeding size restrictions deemed applicable to the flag….

[A.] [Johnsonville also] argues that because the sign ordinance permits larger holiday signs, the ordinance is not content neutral, and accordingly the sign ordinance's size restrictions must be subjected to strict scrutiny review, which the ordinance's content-based restrictions cannot withstand. {The holiday-signs provision allows the display of signs that "contain or depict a message pertaining to a religious, national, state or local holiday and no other matter" without an explicit limitation on size.} …

The Supreme Court held that municipal sign regulations are content based if they base any restrictions or allowances on the communicative content of the sign, regardless of the speaker or the type of content. Reed v. Town of Gilbert (2015); see also City of Austin v. Reagan Nat'l Advert. of Austin, LLC (2022) (reaffirming and clarifying principles of Reed)…. Based on our plain reading of the sign ordinance, the non-commercial-signs provision does not restrict the size of holiday signs. Therefore, if Johnsonville had raised a flag containing "a message pertaining to a religious, national, state or local holiday," the flag could have been larger than the size limits applied to non-commercial signs. Consequently, in evaluating whether Johnsonville's flag violated the ordinance, the city had to consider the content of the flag—whether the flag contained a message pertaining to a holiday. If it did, it would be exempt from the general non-commercial-sign size restrictions. Because the flag's content had to be reviewed to determine whether it violated the size restrictions, the Supreme Court's decision in Reed dictates that the ordinance provision is content based as applied to Johnsonville's flag….

Having concluded that the ordinance provision contains a content-based restriction, we turn next to an analysis of whether the restriction can survive strict scrutiny…. Here, the city argues that the sign ordinance meets the city's "interests in preserving and promoting aesthetics, ensuring that signs do not create safety hazards, and allows for reasonable opportunities for residents to communicate." … [But, as in Reed,] the city has … failed to show that exempting holiday signs from size restrictions applied to other non-commercial signs preserves and promotes aesthetics and ensures that signs do not create safety hazards. The city has not presented any reasons why a holiday sign, by the nature of its content, promotes aesthetics and ensures safety at any size, while a non-commercial sign that does not contain holiday-related messages may not exceed eight square feet in an agricultural zone….

[B.] Johnsonville [also correctly] argues that the city erred by finding that its flag violated the [separate] provision of the sign ordinance that prohibits advertising or business signs attached to equipment. That provision, to which we will refer as the equipment-prohibition provision, prohibits "[a]dvertising or business signs on or attached to equipment such as semi-truck trailers where signing is a principal use of the equipment on either a temporary or permanent basis." The city asserts that another sign-ordinance provision—the substitution clause—subjected Johnsonville's flag to the equipment-prohibition provision…. The sign ordinance's substitution clause provides that "[s]igns containing non-commercial speech are permitted anywhere that advertising or business signs are permitted, subject to the same regulations applicable to such signs."

{Substitution clauses are typically added to sign ordinances to ensure compliance with the constitutional requirement that there are not greater restrictions placed on non-commercial speech than on commercial speech.} Consistent with [this] generally understood purpose …, the plain language of the substitution clause permits non-commercial speech in any circumstances commercial speech is permitted. But the sign ordinance does not permit advertising or business (i.e., commercial) signs to be attached to equipment, so the substitution clause does not apply. The plain language does not extend prohibitions on commercial speech to non-commercial speech. Moreover, interpreting the clause in that manner would wholly nullify all distinctions between commercial and non-commercial speech in the sign ordinance….