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From Antitrust Law Daily, June 18, 2015

Town of Gilbert’s outdoor sign ordinance violates freedom of speech

By Greg Hammond, J.D.

The U.S. Supreme Court has ruled unanimously that the Town of Gilbert, Arizona’s comprehensive code, regulating outdoor signs, contains content-based regulations of speech that fail to survive strict scrutiny under the First Amendment. The order of the U.S. Court of Appeals in San Francisco, which affirmed a lower court decision that the Code’s sign categories were content-neutral, was therefore reversed and remanded (Reed v. Town of Gilbert, Arizona, June 18, 2015, Thomas, C.).

The Court identified three relevant categories of exempt signs under the town’s code, including: (1) “Ideological Signs,” consisting of any “sign communicating a message or ideas for noncommercial purposes that is not a Construction Sign, Directional Sign, Temporary Directional Sign Relating to a Qualifying Event, Political Sign, Garage Sale Sign, or a sign owned or required by a governmental agency”; (2) “Political Signs,” including any “temporary sign designed to influence the outcome of an election called by a public body”; and (3) “Temporary Directional Signs Relating to a Qualifying Event,” including any “Temporary Sign intended to direct pedestrians, motorists, and other passersby to a ‘qualifying event.’” The code treats ideological signs most favorably of the three categories discussed, with political signs treated less favorably and temporary directional signs even less favorably.

Petitioners Good News Community Church and its pastor, Clyde Reed, placed 15 to 20 temporary signs around Gilbert, in order to inform the public about its services. The church is a “small, cash-strapped entity that owns no building,” the opinion stated, so services are held at elementary schools or other locations in or near the town. Gilbert’s Sign Code compliance manager cited the church twice for violating the code. The first citation was for exceeding the time limits for displaying the signs and the second citation was for both exceeding the time limits and for failure to include the date of the event on the signs.

The church subsequently filed suit in Arizona, arguing that the code abridged its freedom of speech in violation of the First and Fourteenth Amendments. The district court denied the petitioners’ motion for a preliminary injunction and the Ninth Circuit affirmed, holding that the code’s provision regulating temporary directional signs did not regulate speech on the basis of content. The district court later granted summary judgment in favor of Gilbert, and the Ninth Circuit, once again, affirmed, finding that the code’s sign categories were content neutral.

Sign code is content based. The Court first determined that Gilbert’s sign code is content-based on its face. Specifically, the code defines “Temporary Directional Signs” on the basis of whether a sign conveys the message of directing the public to church or some other “qualifying event”; “Political Signs” on the basis of whether a sign’s message is “designed to influence the outcome of an election”; and “Ideological Signs” on the basis of whether a sign “communicat[es] a message or ideas” that do not fit within the Code’s other categories. The three categories are then subject to different restrictions. “The restrictions in the Sign Code that apply to any given sign thus depend entirely on the communicative content of the sign,” the Court found. There was consequently no need to consider the government’s justifications or purposes for enacting the code to determine whether it is subject to strict scrutiny.

The Ninth Circuit’s theories, explaining why Gilbert’s sign code should be deemed content neutral were not persuasive. Although the Ninth Circuit determined that the code was content neutral because Gilbert did not adopt its regulation of speech based on disagreement with the message conveyed, and its justifications for regulating temporary directional signs were unrelated to the content of the sign, the Court found that this analysis skips the crucial first step in the content-neutrality analysis: determining whether the law is content neutral on its face.

Further, the Ninth Circuit reasoned that the code was content neutral because it does not mention any idea or viewpoint, let alone single one out for differential treatment. It reasoned that, for the purpose of the code provisions, it makes no difference which candidate is supported, who sponsors the event, or what ideological perspective is asserted. However, this analysis conflated two distinct but related limitations that the First Amendment places on government regulation of speech, the Court found. Further, government discrimination among viewpoints is a “more blatant” and “egregious form of content discrimination,” and it is well established that the First Amendment’s hostility to content-based regulations extends not only to restrictions on particular viewpoints, but also to prohibition of public discussion of an entire topic, the Court stated. Gilbert’s code likewise singles out specific subject matter for differential treatment, even if it does not target viewpoints within that subject matter.

Finally, the Ninth Circuit characterized the sign code’s distinctions as turning on the “content-neutral elements of who is speaking through the sign and whether and when an event is occurring.” This analysis, however, is mistaken on both factual and legal grounds, according to the Court. First, the Court noted that the code’s distinctions are not speaker based. Rather the restrictions for political, ideological, and temporary event signs apply equally no matter who sponsors them. The code’s distinctions also do not hinge on “whether and when an event is occurring,” the Court found, because—for example—it does not permit citizens to post signs on any topic whatsoever within a set period leading up to an election.

“Here, the Code singles out signs bearing a particular message: the time and location of a specific event,” the Court stated. “This type of ordinance may seem like a perfectly rational way to regulate signs, but a clear and firm rule governing content neutrality is an essential means of protecting the freedom of speech, even if laws that might seem ‘entirely reasonable’ will sometimes be ‘struck down because of their content-based nature.’”

Strict scrutiny. Gilbert offered two governmental interests to support the distinctions the code draws: preserving the town’s aesthetic appeal and traffic safety. Even assuming that those are compelling governmental interests, “the Code’s distinctions fail as hopelessly underinclusive,” the Court concluded. Specifically, Gilbert could not claim that placing strict limits on temporary directional signs is necessary to beautify the town while simultaneously allowing unlimited numbers of other types of signs that create the same problem. In addition, Gilbert offered no reason to believe that directional signs pose a greater threat to safety than ideological or political signs. “If anything, a sharply worded ideological sign seems more likely to distract a driver than a sign directing the public to a nearby church meeting,” the Court said.

Three concurring opinions were entered by Justice Alito, with whom Justice Kennedy and Justice Sotomayor join; Justice Breyer; and Justice Kagan, with whom Justice Ginsburg and Justice Breyer join.

The case number is 13-502.

Attorneys: David A. Cortman (Alliance Defending Freedom) for Clyde Reed. Philip W. Savrin (Freeman, Mathis & Gary LLP) for Town of Gilbert, Arizona.

Companies: Town of Gilbert, Arizona

MainStory: TopStory Advertising

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