Why fraternity sign bans are wrong

Whenever a federal, state or local unit of government creates a law restricting freedom of speech, it 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  government to meet requirements of strict scrutiny.  For instance, a law permitting Republican signs but not Democratic Party signs would obviously violate the First Amendment.

Radford’s Greek Sign Ordinances are 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 (such as those promoting the university) fall under similar regulations in Radford.     

Since these ordinances restrict a fundamental right — Freedom of Speech — their  constitutionality is best examined through the use of a “strict scrutiny” test.     Under a strict scrutiny test, a unit of government must demonstrate in  court that the law or regulation is:  

1. necessary to achieve a “compelling state interest“.
2. “narrowly tailored” to achieve this compelling interest; and
3. the “least restrictive means” to achieve the purpose.      

There are several federal court cases to consult when considering the constitutionality of the Radford Greek Ordinances.   

Reed v Town of Gilbert, 576 U.S. 155 (2015), is a case in which the Court said that extra restrictions on religious signs were unconstitutional.   

 Signs for Jesus v. Town of Pembroke,  230 F. Supp. 3d 49 (DNH 2017), is a case in which a federal appeals court said that a restriction on the placement of all electric signs in Pembroke, NH, was not an unconstitutional denial of first amendment rights.     

Under Reed, for example, content-specific regulations are unconstitutional. However, in the Pembroke case,  restrictions of electric signs to a town’s business district are not necessarily an infringement of Constitutional rights, since the town was attempting to regulate signage for aesthetic reasons.   

Another similar case involving advertising and a content-neutral intermediate scrutiny test is Central Hudson v PSC of New York,  447 U.S. 557 (1980), in which a four part test can be applied to advertising. 

1.  Is the expression protected by the First Amendment? For speech to come within that provision, it must concern lawful activity and not be misleading.
2. Is the asserted governmental interest substantial? 
3. Does the regulation directly advance the governmental interest asserted?
4. 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 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.”  

But when the government “allows” free speech on a temporary basis — however “friendly” — it is also disallowing unrestricted freedom of speech.