An Illinois village’s limitations on the size and location of signs does not violate the First Amendment, a federal appeals court has ruled. The court determined that the ordinance did not violate the First Amendment whether viewed under the U.S. Supreme Court’s content discrimination decision in Reed v. Town of Gilbert (2015) or the traditional test used to evaluate restrictions on commercial speech in Central Hudson Gas & Elec. Corp. v. Public Service Commission (1980).
Downers Grove, Illinois, imposes various restrictions on signs. For example, the village’s code prohibits signs painted directly on walls. The code also imposes a size limitation – 1.5 square feet per linear foot of frontage – on signs. Another provision limits each business to one side unless the business faces both a street and a railroad, in which case it gets an extra sign on the railroad side.
The code provides exemptions for holiday decorations, temporary signs for personal events such as birthdays, noncommercial flags, and several other exemptions.
Company challenges prohibition of painted signs on walls as free speech violation
Leidbundguth Storage & Van Service challenged the village’s sign ordinance in federal court. It contended that the town’s sign ordinance violated the First Amendment because it amounted to unconstitutional content discrimination under Reed. Leidbundguth had a 400 square foot sign painted directly on a wall. This sign clearly violated the village’s ordinance.
However, a federal district court ruled in favor of the town. On appeal, a three-judge panel of the 7th U.S. Circuit Court of Appeals affirmed and also ruled in favor of the town in its September 24, 2019 opinion in Leidbundguth Storage & Van Serv., Inc. v. Vill. of Downers Grove.
7th Circuit panel finds ordinance did not discriminate based on content
Writing for the panel, Judge Frank Easterbrook reasoned that the court did not need to decide whether Reed or Central Hudson apply to this case. “Leidbundguth’s problems come from the ordinance’s size and surface limits, not from any content discrimination,” he wrote.
Instead, the panel viewed the village’s ordinance as a permissible form of zoning: “A limit on the size and presentation of signs is a standard time, place, and manner rule, a form of aesthetic zoning.”
Easterbrook reasoned that “[u]nless the government has engaged in content or viewpoint discrimination, that aesthetic judgment support legislation.” He also pointed out that Leidbundguth had other ways to advertise, including in print and over the Internet.
David L. Hudson Jr. is a First Amendment Fellow at the Freedom Forum Institute, and a law professor at Belmont University who publishes widely on First Amendment topics. He is the author of a 12-lecture audio course on the First Amendment titled “Freedom of Speech: Understanding the First Amendment” (Now You Know Media, 2018). He also is the author of many First Amendment books, including “The First Amendment: Freedom of Speech” (Thomson Reuters, 2012) and “Freedom of Speech: Documents Decoded” (ABC-CLIO, 2017).