Commercial speech and free speech restrictions in sign ordinances

This is a common MBE and essay Constitutional Law question, but is typically a difficult area in Constitutional law, and land use law.

Your analysis must be as follows:

1) Is the content of the sign commercial in nature?

If so, the state has the ability to restrict the content of the message according to the intermediate scrutiny-level, four-part Central Hudson test:

a) the statements must be lawful and not misleading
b) there must be an important government interest served by restricting the content
c) the restrictions in the ordinance must directly advance the important governmental interest
d) the restriction must be no more extensive than necessary (narrowly tailored) to advance the interest

If the content is not commercial in nature, it is protectible free speech under the First Amendment. Things become more interesting when there is a mix of commercial and free speech in the content of your sign.

2) Does the content of the sign include protected free speech?

The state can restrict the content of non-commercial speech only if it meetsthe "strict scrutiny" test (the state rarely meets this burden).

However, the state can limit "how" or "where" you present the information, as long as the restrictions are neutral as to the content. These are also referred to as Time/Place/Manner restrictions.

The leading US Supreme Court case that applied free speech principles to sign ordinances is Metromedia, Inc. v. City of San Diego, 453 U.S. 490 (1981). 

Rules of Thumb
If a sign includes free speech, a sign ordinance will likely be held as constitutional if it includes only time/place/manner restrictions upon the sign that have a neutral effect on the content of the sign.

If a sign includes only commercial speech, the state can not only impose time/place/manner restrictions upon the sign, but can restrict the content as well, per the Central Hudson test.

Examples
- when a sign regulation prohibits signs that are visible from a highway
- when a local ordinance improves traffic safety by limiting the height or size of a sign

Other considerations
Especially on the MBE, also look to see if the ordinance is "unconstitutional on its face," or facially unconstitutional. This is usually either due to the ordinance being 1) too subjective or 2) the ordinance placing too much discretion within the authority of a zoning official or board of officials, such as a housing or redevelopment board.