for Public Sector
November/December 2019 Issue
Also in this issue:
"You're Picking on Me!" When is Selective Prosecution Unconstitutional?
Eagle Point Solar Case Dismissed by Circuit Court
In a recent decision, Leibundguth Storage & Van Service, Inc. v. Village of Downers Grove, 939 F.3d 859 (7th Cir. 2019), the Seventh Circuit Court of Appeals held the Village of Downers Grove’s comprehensive ordinances restricting the size and location of signs did not violate the First Amendment. In doing so, the Court emphasized that the First Amendment does not restrict municipalities from enacting aesthetic limits on signs as long as those limits are not arbitrary, do not discriminate based on content or viewpoint of speech, reflect a significant government interest, and leave open sufficient channels for communication.
Leibundguth Storage & Van Service (Leibundguth) challenged the Village’s sign ordinance, claiming that the ordinance was a form of content discrimination in violation of the First Amendment. The ordinance in question prohibited all signs from being painted “directly on wall,” and set limits for signs based on how close the building was to the street. Further, the ordinance provided that a business could only have one sign unless the business faced both a street and a railroad. In that case, the business could have a second sign on the railroad side. Finally, the ordinance did not require property owners to apply for permits for several types of signs, including holiday decorations, temporary signs for personal events, noncommercial flags, political and noncommercial signs not exceeding 12 square feet, and memorial signs.
Leibundguth’s issues with the ordinance arose because it had one sign that was painted directly on a wall and another sign that was too large. However, the company focused on the exclusions for the basis of its constitutional challenge, arguing that those exclusions showed that the ordinance unconstitutionally discriminated against commercial signs based on their content.
The Seventh Circuit held that the ordinance did not violate the First Amendment by discriminating based on content because the size and no-paint rules applied equally to all signs within the Village. The Court reasoned that the exclusions contained content discrimination because they exempted certain signs from requiring a permit; however, the language of the ordinance still required all signs to comply with the size and no-paint requirements regardless of their content. The Court noted that there was no evidence that the Village allowed any sign to violate the size or no-paint requirements. Therefore, the Court concluded Leibundguth was not injured by the content discrimination because all signs had to comply with the size and no-paint requirements.
Further, the Court clarified that the size, location, and no-paint requirements were a form of aesthetic zoning establishing time, place, and manner restrictions. The Court explained that aesthetic time, place, and manner restrictions were compatible with the First Amendment as long as the restrictions were not arbitrary, did not discriminate based on content or viewpoint, reflected a significant government interest, and left other channels for communication. The Court concluded that the Village met its burden by presenting evidence that painted signs deteriorated faster than other signs and were harder to revise or remove. Because of those factors, painted signs could become unsightly. Additionally, the Court concluded that the size requirement was also justified as many saw smaller signs as more aesthetically pleasing than larger signs. Finally, the Court concluded, and the parties agreed, that the sign ordinance left open several modes of communication as Leibundguth could still advertise using signage within the confines of the ordinance and could also advertise in print or on the internet. This case serves as a reminder that municipalities may enact aesthetic time, place, and manner restrictions on signs as long as those restrictions apply equally to all signs, regardless of content.
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