Eighth Circuit Strikes Down Content-Based Sign Restriction

(Eugene Volokh)

The case is today's Neighborhood Enterprises, Inc. v. City of St. Louis, litigated by the Institute for Justice. IJ's client wanted to put up this sign:

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The city said no, because the sign was banned under its Comprehensive Sign Control Regulations — but if the sign had been a flag, symbol, or crest of a nation, state, city, or fraternal, religious and civic organization," or for that matter a "work[] of art which in no way identif[ies] a product," then it would have been exempted from the ordinance. (For a discussion of the problems of the "work[] of art" exception, see this post.)

The district court concluded that the ordinance was "content-neutral," despite the content-based exceptions; but the Eighth Circuit just reversed, concluding that the ordinance indeed restricted speech based on its content: "[T]he zoning code's definition of 'sign' is impermissibly content-based because 'the message conveyed determines whether the
speech is subject to the restriction.'" (The ordinance may be viewpoint-neutral, but that's not enough for constitutionality; even viewpoint-neutral but content-based ordinances are generally subject to "strict scrutiny," and generally fail such scrutiny.) Sounds right to me.