What follows are brief summaries of these U.S. Constitutional protections and entitlements under the First, Fifth and Fourteenth Amendments.

First Amendment

Under the First Amendment, courts are most concerned when sign regulations seek to restrict or regulate the actual content of signs. Such content-based codes are subject to the strictest judicial scrutiny, and will be upheld only if a court finds that the regulation is justified by a compelling governmental interest, and is narrowly tailored to achieve that interest.

Where a code is content-neutral, focusing only on the time, place or manner in which a sign is displayed, courts will apply a less strict standard of review, which requires government to show:

1. a substantial government interest which justifies the regulation,
2. the regulation directly advances that interest, and
3. the regulation leaves ample alternative avenues of communication for those subject to it.

In other words, a sign regulation must normally be content neutral, and not unduly abridge the commercial messenger's right to speak in the absence of a substantial state interest that cannot be advanced by other means.

Fifth Amendment

Under the Fifth Amendment, "just compensation" is due whenever property is taken by government for a valid public purpose. It is well settled that signs possess a property interest. The type of interest possessed, however, depends upon the type of sign at issue. For example, outdoor advertising (or off-premise signage) has been protected from non-compensable removal for many years by federal legislation. On the other hand, compensation for regulatory downsizing, removal, or ban of a previously legal sign, or for condemnation of a site and its accompanying signage, is relatively new to on-premise signage.

Regarding a regulatory "takings", however, case decisions supporting the constitutionality of zoning laws do not give municipalities carte blanch powers to substantially destroy all economically viable use of property through exercise of their police powers via land use regulations, including sign ordinances. In cases where the trier of fact determines either that the aggrieved party has been denied all economically viable use of his property or that the government's action does not substantially advance a legitimate public purpose, the government will be held liable for compensation. Therefore, while local governments may undertake zoning or regulatory actions that diminish property values without being required to compensate for the diminution, when the government takes "too much", compensation must be paid. How much is "too much", triggering the compensation requirement, is a question of degree, based on a weighing of the various factors and interests.

As on-premise business signage becomes more important to business success, sign codes which severely limit its ability to communicate to potential customers may reduce the value of both the business and the business site to such an extent that compensation will be due the owner. Additionally, in condemnation cases involving a government's exercise of its eminent domain power, if an on-premise business sign is involved, it is increasingly likely that the sign will be considered separately for purposes of assigning a value and paying compensation accordingly.

Fourteenth Amendment

The Fourteenth Amendment guarantees "due process and equal treatment" in the regulatory process. In the signage regulatory process, the Fourteenth Amendment commonly enters the picture at the permitting phase, including appeal of a permit denial.

Minimally, the permit standards must be clear, concise, and capable of objective interpretation and administration. Further, both the initial determination on a sign construction or placement application and a hearing on appeal of a denied permit must occur in a timely manner. A failure to provide any of these minimum procedural requirements can give rise to a claim that the process violates the "due process" clause.

In addition, due process irregularities may also violate the First Amendment. Because a sign is essential to communicating one's presence and effectively competing in the marketplace, in some circumstances a failure to meet minimum due process requirements can raise a "prior restraint" issue. A prior restraint occurs when the right to communicate is subject to the prior discretionary approval of a government official that may be exercised to censor speech.

To the degree that decisions about sign regulation are not based solely on objective quantitative criteria, the prior restraint issue is always potentially present in the sign permitting process. This potential makes it incumbent that the sign ordinance directs the permitting official to act pursuant to clearly defined standards that (1) strictly limit the official's discretion, and (2) guarantee resolution of application issues within a short period of time.

Another provision of the Fourteenth Amendment requires that similarly situated individuals receive equal treatment and protection of the law. As applied to sign codes and the permitting process, this means that the permitting authority must grant or deny a permit in accordance with the code without regard to the type of business involved, so long as the business activity is not illegal and is being conducted in the correct zone, and the proposed sign does not display any misleading information or inflammatory, morally offensive or sexually explicit language or graphics. Thus, if the business activity is legal and the proposed sign both truthful and not likely to outrage communities' sensibilities, whether a liquor store or a health food store, the code must be equally applied to the storeowners.

In addition to the above, review the answer provided to the Legal Rights question: "How do the First and Fourteenth Amendments affect regulations of my business sign?"

Summaries of legal cases illustrating court findings pertaining to signage and protection are provided in the "Legal Resources" section.

For more information on the legal rights enjoyed by owners of business signs, visit The Signage Foundation.