Zoning Laws and Freedom of Speech

Zoning laws, which regulate how real property may be developed and used, can affect freedom of speech for three types of land uses: signs and billboards, adult entertainment businesses, and religious uses, including worship or study in homes. Zoning regulation of the freedom of expression associated with religious uses is, however, normally discussed in the context of religious freedom, rather than freedom of expression.

Courts closely scrutinize zoning laws that seek to ban or impose restrictions on uses associated with expressive activities because such activities are protected under the First Amendment. First Amendment law is complex and the Supreme Court has not developed a single standard of scrutiny or analytical test for determining when a zoning law that regulates speech violates the Constitution. Rather, depending on the nature of the regulation under review, the Court will judge zoning regulation of speech using one of several different tests that apply standards ranging from intermediate to strict scrutiny.

Several factors play a major role in determining the standard of scrutiny that a court will apply to a given zoning regulation. Zoning laws that differentiate on the basis of the content of expression, or that seek to ban a type of expression entirely, or that impose the requirement that one obtain discretionary governmental approval prior to engaging in speech will be subject to the strictest judicial scrutiny. This treatment is illustrated by the bans on real estate signs and on lawn signs struck down in Linmark Associates, Inc. v. Township of Willingboro (1977) and City of Ladue v. Gilleo (1994), respectively. In contrast, regulations that, regardless of content, merely control the ‘‘time, place, or manner’’ in which expression occurs, or which regulate Commercial Speech, or which merely require that one meet objective nondiscretionary standards for a permit prior to engaging in ‘‘speech,’’ will be subject to some form of intermediate scrutiny. This treatment is illustrated by decisions upholding locational restrictions on adult entertainment businesses and commercial billboards in City of Renton v. Playtime Theatres (1986) and Metromedia, Inc. v. City of San Diego (1981), respectively.

While the strict scrutiny standard applied to content- based zoning regulations or to a content-neutral regulation that totally bans a distinct mode of expression is fairly straightforward, that is not the case when the Court applies intermediate, rather than strict, scrutiny. In these cases, the Court has applied slightly different versions of intermediate scrutiny depending on the focus of the zoning regulation. Thus, zoning regulations of Commercial Speech, such as business signs and commercial advertising billboards, as seen in Metromedia, and content-neutral ‘‘time, place or manner’’ zoning regulations of the location of adult entertainments businesses, as seen in City of Renton, are analyzed under slightly differing versions of intermediate scrutiny first announced in the Central Hudson Gas & Elec. Corp. v. Public Service Commission of New York (1980) and United States v. O’Brien (1968) cases, respectively. Both tests focus, however, on whether the challenged zoning regulation has the effect of imposing only a minimal restriction on speech in an effort to advance a legitimate state interest that is unrelated to the suppression of lawful speech.

ALAN C. WEINSTEIN

References and Further Reading

• Blaesser, Brian W., Alan C. Weinstein, and Daniel R. Mandelker. Federal Land Use Law and Litigation. St. Paul, MN: Thomson/West, 2005.
• Mandelker, Daniel R., and Rebecca L. Rubin, eds. Protecting Free Speech and Expression: The First Amendment and Land Use Law. Chicago: ABA Publishing, 2001.

Cases and Statutes Cited

• Central Hudson Gas & Elec. Corp. v. Public Service Commission of New York, 447 U.S. 557 (1980)
• City of Ladue v. Gilleo, 512 U.S. 43 (1994)
• City of Renton v. Playtime Theatres, 475 U.S. 41 (1986)
• Linmark Associates, Inc. v. Township of Willingboro, 431 U.S. 85 (1977)
• Metromedia, Inc. v. City of San Diego, 453 U.S. 490 (1981)
• United States v. O’Brien, 391 U.S. 367 (1968)