SW Legal studies in Business

City Ordinance Requiring Approval of Commercial Signs in Advance Is Unconstitutional
Description

Colorado appeals court held that a city ordinance that required businesses to obtain permission of the city manager, and a permit, before posting signs violated the First Amendment. While a city may have some regulations regarding signs, such rules must be clear and have a specific purpose, not serve as a restriction on protected speech.

Topic Constitutional Law
Key Words

Sign Ordinance; Review Procedure; Murals

C A S E   S U M M A R Y
Facts

Mahaney owns Headed West, a shop selling pipes and other smoking accessories. He hired artists to paint a mural on the building’s exterior walls. The murals showed musicians such as Jimi Hendrix, Jerry Garcia, and others. The city of Englewood cited Mahaney for three sign code violations—failing to obtain a permit; failing to obtain city manager approval; and exceeding the maximum sign area allowed. Mahaney brought an action for declaratory and injunctive relief alleging that the city ordinances violate the First Amendment of the U.S. Constitution as well as free speech protection in the Colorado constitution. The district court granted summary judgment in favor of the city. Mahaney appealed.

Decision

Reversed and remanded. Signs are speech protected by the First Amendment. An ordinance is a prior restraint when it subjects protected speech to government regulation before the speech can occur. The city ordinance required that the city manager review the murals before they could be painted. That is an impermissible prior restraint. The ordinance appears to give the city manager unlimited discretion as to what may or may not be approved, with no time limit set for the review process. The city may impose some restrictions on signs, such as how large they may be, but the rules must be clear and the regulatory process also must be clear.

Citation

Mahaney v. City of Englewood, ---P.3d--- (2009 WL 3128538, Ct. App., Colo., 2009)

Back to Constitutional Law Listings

©1997-2009 South-Western Legal Studies in Business, A Division of Cengage Learning. All Rights Reserved.