Signs, billboards, and placards are such a familiar part of the landscape that we often don’t notice them. However, even the humblest “on-premise” sign is protected by the highest law of the land, the U.S. Constitution’s free speech clause.
Daniel R. Mandelker, JD, the Howard A. Stamper Professor of Law at Washington University in St. Louis, has set out to help local governments and municipalities appreciate that fact with his new book, Free Speech Law for On Premises Signs
Published online at ussc.org and landuselaw.wustl.edu, the book will be released in hard copy later this year by the U.S. Sign Council. The work draws on Mandelker’s decades of experience consulting for municipalities and cities on sign placement and messaging.
“Signs are an expressive form of free speech protected by the free speech clause of the Federal Constitution,” Mandelker writes. “Courts decide how local governments can regulate signs, including on-premise signs, in order to ensure that principles of freedom of expression are observed. If free speech requirements are not met, courts will hold an on-premise sign law unconstitutional.”
Dubbed “a must-have resource for all land use and municipal lawyers and practitioners,” Mandelker’s book describes the complexities of sign ordinances. The Supreme Court of the United States has ruled on very few cases involving signs specifically, but the court’s free-speech rulings on other issues are commonly applied to signs. And while lower courts might rule on aesthetic and other elements of signs, those considerations are always trumped by free speech.
“The free-speech issues are paramount,” Mandelker says. “People are often sued over them, and because of the nature of the lawsuits, they can be very costly.”
After a brief introduction to the book and why it was written, Mandelker establishes the basic principles of free speech law. He helps readers distinguish between commercial and noncommercial speech and also explains the importance of “content neutrality” in sign regulation.
Mandelker then discusses a seminal commercial speech case, Central Hudson Gas & Elec. Corp. v. Public Service Commission (1980).
Central Hudson established “a four-part test for the judicial review of laws affecting commercial speech,” Mandelker writes, such as sign ordinances. He also examines how Central Hudson’s tests have been interpreted and applied in subsequent Supreme Court cases before turning to prior restraint doctrine and special rules for on-premise sign ordinances.
Finally, the book addresses other kinds of signs — such as digital time and temperature signs and portable signs — before getting into specifics of size, height and other details of effective sign ordinances.
“I wrote Free Speech Law for On Premises Signs to provide clear guidance to help municipalities and other local governments draft ordinances that will protect freedom of expression on one hand, and community standards on the other,” he says. “It can be a difficult balancing act, but it can be achieved.”
Among his many publications, Mandelker is well-known for an earlier report that relates to his new book. The report, “Street Graphics and the Law,” establishes a new method of regulating on-premise signs, and is available from the American Planning Association.