Malcolm Tucker runs a small nightclub. He recently put up a billboard advertising his business on the main road leading into town. The billboard is garish to say the least. It is bright orange and uses vulgar language and suggestive photos to advertise the entertainment offered at his club — drinking, adult dancing, and video gaming.

A large group of citizens appeared at the town council meeting last night to vigorously express their outrage about the sign. They all said the sign is tasteless, offensive, tawdry, and just plain ugly. Some said it is inappropriate for viewing by their children. Still others noted that the sign harmed the community’s image and would impair future economic development efforts. All urged the board to immediately amend the sign ordinance to prohibit this type of offensive sign.

Can the town do that?

What if Tucker, incensed at the town council’s consideration of new regulations that would affect advertising for his nightclub, puts a sign up in his front yard saying:

“F*** the Mayor and Council

A Bunch of Job Killing #$@! %s”

(with all the profanities spelled out in large letters).

Can the town prohibit that type of profane language on noncommercial yard signs?

Commercial speech like the advertising sign for Tucker’s nightclub has some protection as free speech under the First Amendment. Political speech like that on his noncommercial yard sign has an even higher degree of First Amendment protection. So, great care must be taken in crafting the scope of a constitutionally acceptable regulation of offensive words and images on signs. The number of court cases cited below is indicative of the legal sensitivity needed in crafting these regulations.

First Amendment Principles

At the outset, it is important to understand two basic background aspects of First Amendment law that affect sign regulations – content neutrality and special rules for regulation of commercial speech.

Content neutrality

An initial First Amendment principle that must be considered is whether the sign regulation is “content neutral” since this determines the level of judicial scrutiny applied.

If the regulation is not content neutral, strict judicial scrutiny is applied and a compelling governmental interest is necessary to justify the sign restriction, such as being necessary to protect public safety. If the regulation is content neutral, it is given an intermediate level of judicial scrutiny and need only address a substantial government interest. Reasonable “time, place, and manner” restrictions (such as where the sign can be located, size limits, and the like) are permissible for content neutral sign regulations.

The Court addressed content neutrality of sign regulations in Reed v. Town of Gilbert, 576 U.S. 155 (2015). The Court invalidated a regulation that had different size and duration limits for different categories of noncommercial signs. Political signs, ideological signs, and temporary directions signs were treated differently. The court found this to be a content-based distinction that did not pass a strict-scrutiny review and therefore invalidated the regulation. Adam Lovelady reviews that case in this post.

The courts have, however, traditionally allowed some distinctions while still considering the regulation to be content neutral for First Amendment purposes. Since obscenity does not have First Amendment protection, obscene speech can be regulated differently than non-obscene speech. Most sign regulations distinguish between commercial and noncommercial signs and between on-premises and off-premises outdoor advertisements. Commercial signs are often regulated more strictly than noncommercial ones and off-premises commercial signs more restrictively than on-premises signs. The Court approved the on-premises/off-premises differential treatment as still being content neutral for First Amendment review in City of Austin v. Reagan National Advertising of Austin, LLC, 596 U.S. ___ (2022). For more on that case, see this post by Adam Lovelady.

Commercial speech protection

Commercial speech is that which is related solely to the economic interest of the speaker and audience. It is deemed “commercial” if it is an advertisement, it refers to a specific product or service, and the speaker has an economic motivation for the speech. Greater Baltimore Ctr. For Pregnancy Concerns, Inc. v. Mayor & City Council of Baltimore, 723 F.3d 264, 285 (4th Cir. 2013).

While commercial speech does not have the same degree of constitutional protection as noncommercial and political speech, the First Amendment imposes limits that must be considered. The general First Amendment standard for regulation of commercial speech is set forth in Central Hudson Gas & Electric Corp. v. Public Service Commission of New York, 447 U.S. 557 (1987). Central Hudson established the following four-part test for assessing restrictions on commercial speech:

1. To be protected, the speech must concern lawful activity and not be misleading.
2. The asserted governmental interest in the restriction must be substantial.
3. The regulation must directly advance the governmental interest.
4. The regulation must be no more extensive than necessary.

Application of Central Hudson Tests to Regulation of Offensive Language on Commercial Signs

Tucker’s commercial sign is not advertising an illegal product nor is it misleading. It is just very offensive. So, it is the last three of these four Central Hudson tests that are of concern for the town in this instance.

Substantial interest

In Metromedia, Inc. v. City of San Diego, 453 U.S. 490 (1981), the Court held that there are substantial state interests in traffic safety and aesthetics and that sign regulations are a legitimate means of serving those objectives. While traffic safety may well be a compelling state interest, courts have held that aesthetics alone is itself a substantial interest sufficient to justify sign regulations. National Advertising Co. v. City of Raleigh, 947 F.2d 1158, 1168 (4th Cir. 1991).

When the speech is indiscriminately available to minors, as is the case with most exterior signs, there is also a governmental interest in protecting children from sexually explicit and vulgar advertisements that can justify additional restrictions. This has been held to be a substantial governmental justification for restricting commercial speech. Bad Frog Brewery, Inc. v. New York State Liquor Authority, 134 F.3d 87, 98 (2d Cir. 1998). Restrictions on outdoor advertising signs have been upheld on this rationale. In Anheuser-Busch, Inc. v. Schmoke II, 101 F.3d 325 (4th Cir. 1996), the court upheld a Baltimore ordinance prohibiting alcohol advertising near schools as a reasonable restriction that satisfied the four-part test of Central Hudson.

Protection of minors may even rise to being a “compelling” governmental interest. Sable Communications of California v. Federal Communications Comm’n, 492 U.S. 115, 126 (1989). This would be important if the sign regulation is deemed not to be content neutral.

Directly advance interest and be narrowly tailored

The town must also address whether the limits it might include in a sign regulation would directly advance the government’s legitimate interests and be no more extensive than necessary. These third and fourth prongs of the Central Hudson test are the most challenging legal issue for the town in crafting a regulation of offensive commercial signs.

An example of a regulation that failed to meet this test is provided by Sandhills Ass’n of Realtors v. Village of Pinehurst (No. 1:98CV00303, 1999 WL 1129624, M.D.N.C. Nov. 8, 1999). The village adopted regulations on temporary commercial signs that had differing size and content rules depending on the type of sign. The rules limited the size of real estate signs, limited the colors that could be used, limited the duration the sign could be displayed, and limited the content that could be included on the sign. The court held this to be a content-based restriction that failed both as a content neutral reasonable time, place, and manner restriction and as commercial speech regulation under Central Hudson. The court noted that while aesthetic concerns are a substantial governmental interest, they are not a compelling interest, and the regulation was not narrowly tailored. The court pointed out that aesthetic concerns could potentially justify uniform regulations but singling out particular commercial messages for more restrictive regulation is a content-based regulation that casts doubt on that alleged governmental interest supporting the regulation.

Another example of the lack careful tailoring of a prohibition on offensive content is provided by Flying Dog Brewery v. North Carolina Alcoholic Beverage Control Commission, ___ F. Supp. 3d ___ (E.D. N.C. 2022). The plaintiff appealed the denial of their right to include a nude cartoon figure standing by a campfire on a beer bottle label. The rule justifying the denial prohibited depiction of advertising images deemed by the ABC Commission to be “undignified, immodest, or in bad taste.” The court held this rule was too broad to withstand constitutional scrutiny. The standard in the rule prohibited far more speech than that necessary to protect minors. The court noted, however, that it may have been permissible if the rule were drawn more narrowly to prohibit vulgar words or images of a sexual, violent, or illegal nature.

Other Potential Bases for Regulating Offensive Content on Commercial Signs

Secondary Impacts

One additional approach some local governments have taken is to argue that the content of a commercial sign regulation can be considered when needed to prevent adverse secondary impacts as is the case with regulations restricting the location of adult entertainment establishments.

There have been mixed results with judicial application of the secondary impacts rationale to sign regulations.

Several courts have used it to uphold sign regulations. In Excalibur Group, Inc. v. City of Minneapolis, 116 F.3d 1216 (8th Cir. 1997), the court upheld limitations on the signs that could be displayed by an adult establishment. The ordinance prohibited signs displaying pictures of products or entertainment offered in the establishment. In Basiardanes v. City of Galveston, 682 F.2d 1203 (5th Cir. 1982), the court held the city could prohibit display of provocative, lurid, or sexually explicit posters by an adult theater. The courts allowed these sign restrictions as a narrowly tailored means of reducing adverse secondary impacts of adult businesses.

On the other hand, the court in Passions Video, Inc. v. Nixon, 458 F.3d 837 (8th Cir. 2006) invalidated a Missouri statute that prohibited all off-premises billboards for adult businesses if the billboard was within a mile of a state highway. The law also strictly limited what could be said on allowed on-premises advertising signs. The court held both regulations failed to meet the “narrowly tailored” rule from Central Hudson and was unconstitutional even if directed towards adverse secondary impacts of adult businesses. Similarly, the court in Pleasureland Museum, Inc. v. Beutter, 288 F.3d 988 (7th Cir. 2002), noted the prevention of adverse secondary impacts justified much of the city’s regulation of adult businesses, but the court invalidated a restriction that limited adult business signs to including only the name of the business.

Since Tucker’s nightclub is an “adult business ” offering sexually explicit entertainment protected by the First Amendment, this rationale may modestly aid the town’s sign regulation defense. However, even if the prevention of adverse secondary impacts were deemed to make the sign regulation “content neutral,” the town would still need to meet the Central Hudson tests discussed above and narrowly tailor its regulation.

Subject matter of advertisement

The fact that Tucker’s sign deals with alcohol and gambling may provide modest additional support for a town sign regulation.

A blanket prohibition of advertising of Tucker’s adult business products is impermissible. In 44 Liquormart, Inc. v. Rhode Island, 517 U.S. 484 (1996), the Court held that the authority to regulate alcohol does not reduce the protections afforded by the First Amendment. Limitations on advertisements of legal gaming were similarly invalidated by the Court in Greater New Orleans Broadcasting Ass’n, Inc. v. United States, 527 U.S. 173 (1999).

Some limits short of a total prohibition of advertisements about adult products may be permissible. For example, the court in WV Assoc. of Club Owners and Fraternal Services, Inc. v. Musgrave, 553 F.3d 292 (4th Cir. 2009), upheld some exterior advertising restrictions for legalized video lottery machines. But such a restriction must be carefully tailored and the rationale for the limit well supported.

Such a restriction must be carefully tailored and the rationale for the limit well supported. This need for careful tailoring is illustrated by the judicial review of limits on tobacco advertisements. Application of the Central Hudson requirements that restrictions on commercial speech be no more extensive than necessary led the Court to invalidate Massachusetts restrictions on tobacco advertisements within 1,000 feet of schools and playgrounds in Lorillard Tobacco Co. v. Reilly, 533 U.S. 525 (2001). The Court found that while preventing underage tobacco use was a substantial government interest and restrictions on targeted advertisements were substantially related to that interest, the regulation was not sufficiently tailored. The Court found that the state had failed to carefully calculate the costs and benefits associated with the burden on free speech.  On the other hand, the court upheld an ordinance prohibiting alcohol advertisements near schools on this basis in Anheuser-Busch, Inc. v. Schmoke II, 101 F. 3d. 325 (4th Cir. 1996).

Prohibiting Offensive Content on Noncommercial Signs

What about the use of profanity on Tucker’s yard sign? Can language that may be readily found on social media and late-night television be prohibited when put on a sign or flag in the front yard of a residential neighborhood?

Since these yard signs are not commercial speech, the Central Hudson tests discussed above do not apply. But as a noncommercial sign, even greater legal care is needed if the town wants to regulate the language used.

Profanity as protected speech

The Court has long recognized the importance of protecting “uninhibited, robust, and wide-open” debate on public issues. New York Times Co. v. Sullivan, 376 U.S. 254, 270 (1964) (invalidating libel award based on published advertisement regarding civil rights). Political speech, particularly a personal yard sign, has a high degree of constitutional protection. City of Ladue v. Gilleo, 512 U.S. 43 (1994) (invalidating restriction applied to Gulf War protest sign in window of a residence).

As a rule, language on a sign cannot be prohibited just because it will offend some viewers. Boos v. Barry, 485 U.S. 312, 321 (1988) (invalidating restriction on content of picket signs near embassies). The Court has held that unless “fighting words” are involved, profane language has First Amendment protection. Chaplinsky v. New Hampshire, 315 U.S. 568 (1942).

The concern with First Amendment protection for the use of profanity is particularly pronounced for political speech. Two prominent cases make that point. Cohen v. California, 403 U.S. 15 (1971), invalidated a disorderly conduct conviction based on wearing a jacket in  a courthouse bearing a vulgar term (F** the Draft). Hess v. State of Indiana, 414 U.S. 105 (1973), invalidated a conviction based on use of the same term in a speech at an anti-war rally. The Court more recently has held “outrageous” language on picket signs displayed near the funeral of a soldier killed in the Iraq War was speech on a matter of public concern entitled to special protection under the First Amendment. Snyder v. Phelps, 562 U.S. 443 (2011). The courts have routinely held that protected speech includes shouting profane insults at police and use of offensive language on protest signs at rallies and on picket lines. These cases have led many to conclude that it is impermissible to ban profanity on political signs.

Limits on use of profanity

While profanity is protected speech, some limits on its use have been upheld. Speech that is protected in one context may not be protected in a different context.

Perhaps the most relevant exception for sign regulation purposes are statutes and cases that allow restrictions of speech to prevent exposure to children of harmful material. Federal statutes prohibit broadcast of obscene, indecent, or profane language. 18 U.S.C. §1464. In FCC v. Pacifica Foundation, 438 U.S. 726 (1978), decided after the Cohen and Hess cases, the Court upheld the rule prohibiting broadcast of “indecent” language aired in the afternoon when it would be accessible to children (broadcast of a George Carlin monologue featuring frequent use of the prohibited terms). The court noted that language that might be protected in one context, such as political speech, could be prohibited when made in a context readily accessible by children.  FCC rules prohibit broadcast of obscene material (as it has no First Amendment protection) and prohibit broadcast of indecent and profane language between 6:00 am and 10 pm. 47 C.F.R. 73.3999(b). In many respects an exterior sign readily visible to children is analogous to such a public broadcast and is visible to children at those hours, especially if placed in a residential area.

Further, while invalidating an ordinance that prohibited showing any nudity at a drive-in theater that might be visible from a public area, the Court noted selective restrictions on speech could be upheld where “the degree of captivity makes it impractical for the unwilling viewer . . . to avoid exposure.” Ernoznik v. City of Jacksonville, 422 U.S. 205, 209 (1975).

Based on that “captive viewer” rationale, the Court in Frisby v. Schultz, 487 U.S. 474 (1988), upheld a content neutral prohibition of picketing individual residences as a narrowly tailored restriction on speech to prevent intrusion on residential privacy while allowing ample alternative channels available for communication. A yard sign visible to neighbors in their home presents much of the same “captive viewer” concerns.

Profanity on noncommercial signs

Given these cases, a town ban on profanity on exterior noncommercial signs would face several First Amendment questions.

First, is it content neutral? If the regulation applies across the board to profanity on all exterior signs, it may be. But that is not certain. As the Austin case noted above shows, the contours of “content neutrality” for signs is still evolving. Prohibition of obscenity is “content neutral,” but that may or may not extend to prohibition of particularly offensive profanity.

Second, if it is not deemed to be content neutral, does it serve a compelling governmental interest? While protecting the psychological well-being of minors is a substantial governmental interest that would justify a content neutral regulation, it is unclear if it is a compelling interest that would justify a content-based sign regulation.

Third, the regulation would have to be narrowly drawn to specify the profanity that could not be displayed so as not to be overly broad or too vague. The court in Flying Dog Brewery suggested that it might be possible to prohibit public display visible to minors of vulgar words or images, but those must be sufficiently defined to clearly allow a person to know what is and is not permitted. The ordinance could list specific words that are prohibited (either set out in the ordinance itself or listed in a document on file with the clerk or zoning administrator, much like a regularly updated fee schedule or materials incorporated by reference under G.S. 160D-105(b)). Perhaps it could reference terms that FCC regulations do not allow to be used on public broadcasts during times children are likely to be exposed. It could prohibit obscene images. But it must be specific enough to allow a person to know if the language or images they wish to display are prohibited and the definition must not be so broad that it could include protected speech.

With those caveats, a narrowly tailored restriction on particularly offensive profanity visible to children may well be permissible. The same may be true for a similar prohibition limited to residential neighborhoods. The neighbors (and their children) could be deemed a captive audience forced into being unwilling viewers of an offensive yard sign. Only future litigation will confirm if that is the case.

Conclusions

So, where does this leave the town?

The scope and exact form of any limit on the content of signs, even a limit on offensive language, requires careful consideration and detailed legal support. Under the First Amendment, there are some things the town can do, some things it cannot do, and some that are still uncertain.

Some limits on signs are clearly permissible. The town can limit where signs are located. The town can limit the size and height of signs. It can limit sign features such as changeable copy or flashing lights. It can prohibit display of obscene sexually explicit images. The regulation can impose limits on advertisement of adult products to minors if the limits are narrowly tailored and carefully supported by an analysis of the way the restriction will advance a substantial governmental interest.

Other limits on signs are not permissible. The town cannot prohibit the content of the sign on the ground that it is objectionable, tasteless, or offends some viewers. The town cannot have rules that are more restrictive for noncommercial signs than for commercial signs.

There are other things the town may be able to do, but the law is not as certain. Cases allow use of profanity in some contexts and allow limits of it in other contexts. It remains to be seen which line of cases would control in the context of these signs.

Limits on the use of profanity for both commercial and noncommercial signs may be permissible. Use of profanity can likely be prohibited on commercial signs that are visible to minors. That may well also be the case for noncommercial signs visible to minors, particularly those in residential neighborhoods. But that has yet to be confirmed by the courts and caution is warranted given the strong First Amendment protection afforded political signs.

If particularly offensive profanity is prohibited, it is important that the regulation be carefully limited to banning use of clearly defined profanity while still allowing vigorous expression of a person’s views.