Whenever federal, state or local government creates a law restricting freedom of speech, that unit of government must be able to show that the law serves a legitimate purpose.
And if the law restricts specific content, there is an additional burden on the government under the “strict scrutiny” standard.
Radford’s Greek Sign Ordinances are obviously content specific. Under the City of Radford Municipal Code Sec. 120.1-64. – Additional requirements for Greek organizations/signs, and Sec. 120.1-239. – Additional requirements for Radford University recognized student clubs and organization signs, any “Greek” (fraternity or sorority) signs or flags are banned except during a few special times each year.
No other signs (whether commercial or religious) and no other flags fall under similar content based regulations in Radford.
And no other city in Virginia or the US restricts fraternity or sorority signs in this way.
To protect First Amendment rights, the courts use a strict scrutiny test in which a government must demonstrate that a law or regulation is:
- necessary to achieve a “compelling state interest“.
- “narrowly tailored” to achieve this compelling interest; and
- the “least restrictive means” to achieve this interest
There are several federal court cases to consult when considering the constitutionality of the Radford Greek Ordinances.
In Reed v Town of Gilbert, 576 U.S. 155 (2015), the Supreme Court said that content based restrictions did not survive strict scrutiny because the ordinance was not narrowly tailored to further a compelling government interest. The court also said that strict scrutiny should always be applied when a law is content-based.
Two more Supreme Court decisions banning content-based regulation are City of Ladue v Gilleo (1994) and Metromedia v. San Diego (1981).
Even if the restriction is not based on content, an intermediate scrutiny test must be applied to government restrictions on First Amendment rights. The foundational case for the intermediate scrutiny test is Central Hudson v PSC of New York, 447 U.S. 557 (1980), in which a four part test was applied to the company’s advertising campaign. The test asks:
- Is the expression protected by the First Amendment? For speech to be protected, it must concern lawful activity and not be misleading.
- Is there a substantial governmental interest? (As opposed to “compelling” in strict scrutiny)
- Does the regulation directly advance the interest that the governmental asserts?
- Is the regulation no more extensive than is necessary to serve that interest?
One difficulty with the Radford City Greek Ordinances is that no government interest has ever been asserted. Requests to city council members, the mayors and the city attorney’s offices for this information over the years have not led to any serious responses.
The only response to repeated inquiries was on Oct 2, 2012, when Radford Mayor Bruce Brown wrote:
“This is not a free speech or constitution issue in our view. The houses where some wish to permanently affix Greek letters or other signage are not located in a business district where this is allowed and thus would be in violation of city code relative to display. What has been done and is the current practice, since the University as I understand it does not recognize off campus Greek organizations, is a friendly agreement to allow temporary signage during rush week and other events.”
With all due respect to the former mayor, when the government “allows” free speech on a temporary basis — however “friendly” it may be — it is also disallowing the rather more permanent right to freedom of speech.
The rights of citizens are not simply handed down by government whim, nor are they immune from question or criticism. The Declaration of Independence says: We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights …
For more information about the First Amendment and city signs, see:
- “Yard Signs” at the Free Speech Center at MTSU
- “Sign Codes” at the Institute for Justice
- “Your yard, your rights: Lawn signs and the First Amendment” – FIRE
- Recent cases affirming Reed v Town of Gilbert
- City of Ladue v Gilleo 512 U.S. 43 (1994) “While governments may regulate the physical characteristics of signs, they may not allow some signs and ban others based upon their content. Nor may governments ban all signs and foreclose an important form of communication.” (FIRE)
- Metromedia v. San Diego, 453 U.S. 490 (1981). “The city’s general ban on signs carrying noncommercial advertising is invalid under the First and Fourteenth Amendments.”
Revolutions in Communication
Mass Media & Environmental Conflict