Does a town’s sign ordinance that assigns different size and posting requirements based on the type of noncommercial speech displayed violate the First Amendment?
The Supreme Court granted certiorari to address a circuit split regarding the constitutionality of sign ordinances that treat signs differently depending on the type of noncommercial speech displayed. The Town of Gilbert’s Sign Code stipulated size requirements and posting times that differed depending on if the signs were classified as political, ideological, or “temporary directional signs” for religious or non-profit events. The latter category’s size and timing requirements were more restrictive than those for political or ideological signs. Good News Community Church and its pastor, Clyde Reed, argue that Gilbert’s sign code violates the First Amendment. Conversely, Gilbert contends that the Sign Code does not violate the Constitution since it does not favor certain viewpoints or ideas over others and serves an important government interest in regulating safety and aesthetics. The Court’s ruling could have important consequences for free speech as well as for local governments’ ability to manage community safety and aesthetics.
Questions as Framed for the Court by the Parties
Does Gilbert’s mere assertion of a lack of discriminatory motive render its facially content-based sign code content-neutral and justify the code’s differential treatment of Petitioners’ religious signs?
Respondent Town of Gilbert’s (“Gilbert”) sign ordinance (“Sign Code”) requires that individuals obtain a permit to post signs within the city limits. See Reed v. Town of Gilbert, 707 F.3d 1057, 1061 (9th Cir. 2013). There are, however, several exceptions to this general permit requirement. Id. For example, signs that are classified as Political, Ideological, or “Temporary Directional Signs Relating to Qualifying Event”—with qualifying event including non-profit or religious events—are exempted, provided that the signs meet certain size and posting time requirements. Id.; id. at 1078 n.1 (Watford, dissenting). The Sign Code defines Political Signs as temporary signs posted in support of political candidates or of issues on ballots. Id. at 1061. Ideological Signs are defined as signs that “communicat[e] a message or idea for a noncommercial purposes” that are not otherwise covered by several of the other categories, including temporary directional signs. Id. Both types of signs are allowed to be larger in size and posted for a longer duration than Temporary Directional Signs. See id.
Petitioner Good News Church (“Good News”) is a small church, with fewer than fifty members, which has held services in various rented spaces in Gilbert and surrounding towns. Reed, 707 F.3d at 1060. Good News’ members believe that “the Bible commands them to go and make disciples of all nations . . . by reaching out to the community.” Id. To fulfill this mission, Good News posts signs to advertise the time and location of its services in order to invite community members. Id. Because Good News’ signs are classified as Temporary Directional Signs, they must be less than six square feet, can only be put up twelve hours in advance of an event, and must be removed one hour after an event. Id. at 1061. Over the years, Good News has clashed with Gilbert for displaying signs longer than the period permitted by the Sign Code, including on at least one occasion which resulted in Good News receiving an advisory notice from Gilbert warning Good News of the violation. See id. at 1060.
In 2008, Good News and its pastor, Petitioner Clyde Reed, filed suit against Gilbert in the U.S. District Court of the District of Arizona, seeking an injunction based on the claim that the Sign Code violated the First and Fourteenth Amendments. Reed, 707 F.3d at 1060. “[T]he district court denied Good News’ motion for an injunction,” stating that the Sign Code was content-neutral and passed intermediate scrutiny. Id. at 1062. On appeal, the Ninth Circuit affirmed, holding that Good News’ claim dealt with how the Sign Code was applied; that the sign code was not facially content-based; and that the sign code was narrowly tailored and furthered government interests. Id. at 1062-64. The Ninth Circuit remanded for the district court to address the narrow question of whether favoring certain kinds of noncommercial speech over other kinds of noncommercial speech raised First Amendment and Equal Protection concerns. Id. at 1064. The district court granted Gilbert’s motion for summary judgment, holding that the Sign Code was a content-neutral regulation, narrowly tailored to serve significant government interests, and did not violate equal protection by discriminating among different kinds of noncommercial speech. Id. at 1064-65.
On Good News’ appeal, the Ninth Circuit affirmed. Reed, 707 F.3d at 1077. Good News then sought certiorari, which the Supreme Court granted to address the circuit split on whether sign codes that treat signs differently based on the type of noncommercial speech is unconstitutional. Petition for Writ of Certiorari at (i). More specifically, the question presented to the Supreme Court, as framed by Good News, is whether “Gilbert’s mere assertion of a lack of discriminatory motive render its facially content-based sign content neutral and justify the [Sign Code’s] differential treatment of [Good News’] religious signs.” Brief for Petitioner, Good News at i.
The issue before the Supreme Court is whether Gilbert’s Sign Code, which assigns different size and posting requirements based on the signs’ classification of noncommercial speech, is constitutional. See Brief for Petitioner at i; Reed, 707 F.3d at 1061. Good News maintains that the Sign Code violates Good News’ First Amendment rights because the Sign Code is a content-based regulation that does not pass strict scrutiny. See Brief for Petitioner at 47. Conversely, Gilbert argues that the Sign Code is constitutional because it does not favor one viewpoint or idea over another and serves an important government interest of regulating safety and aesthetics. Brief for Respondent, Gilbert at 22, 53-54. The Court’s resolution of this case could have important consequences for First Amendment rights, including an individual’s right to post signs, as well as local governments’ ability to manage community safety and aesthetics. See id.; Brief for Petitioner at 5-6.
FIRST AMENDMENT RIGHTS
Good News contends that a holding in favor of Gilbert would infringe on Good News’ First Amendment rights and prevent the church from communicating its message to the public. See Brief for Petitioner at 5-6. Similarly, the Christian Legal Society, along with a coalition of Christian churches, argues that holding in favor of Gilbert would infringe on the right to freedom of assembly, and would prevent Good News and other small churches, with limited resources, from publicizing religious services. Brief of Amicus Curiae Christian Legal Society et al., in Support of Petitioner at 28, 33. Additionally, the Becket Fund for Religious Liberty (“Becket Fund”) fears that requiring proof of an illicit intent will unfairly burden minority religious groups as government officials will be able to conceal their discriminatory intents. See Brief of Amicus Curiae Becket Fund for Religious Liberty, in Support of Petitioner at 12-13.
Conversely, the National League of Cities (“NLC”) maintains that no First Amendment rights are implicated because the Sign Code allows Good News to publicize their ideological beliefs through larger signs that are posted for a longer period “as long as the obtain the express or implied permission of the property owner.” See Brief of the National League of Cities (“NLC”) et al., in Support of Respondent at 28. According to the NLC, because stricter regulations only apply to temporary directional signs and do not apply to ideological signs, Good News and other religious groups are not limited in their ability to spread a religious message. Id. at 24. Moreover, because stricter limitations on temporary directional signs are not intended to burden and do not have the effect of burdening Good News’ viewpoint, NLC argues, the Sign Code does not raise constitutional concerns. Id. at 31. Finally, Gilbert asserts that Good News will not lose its freedom of expression since it has other outlets, such as its websites or using handbills, to express its messages without posting signs. See Brief for Respondent at 25.
SAFETY AND AESTHETIC CONCERNS
The NLC maintains that a holding for Good News would hinder local governments in their ability to effectively regulate community safety and aesthetics. See Brief of NLC at 13. Because public spaces cluttered with signs can distract drivers and diminish the aesthetic quality of the community, in turn lowering property values, NLC argues that local governments must be allowed to regulate sign postings. Id. at 6-7. The NLC fears that an absolutist approach will overturn sign regulations nationwide. Brief of NLC at 30. As NLC points out, this could prevent local governments from banning, for example, signs that copy traffic signs, which could create safety hazards. See id. at 10-11.
On the other hand, the United States suggests that the NLC and Gilbert’s concerns about a holding against the Gilbert are overstated, because a more carefully crafted sign ordinance would not conflict with the First Amendment. See Brief of Amicus Curiae United States, in Support of Petitioner at 28. For instance, the United States points to the Highway Beautification Act as an example of a constitutional sign regulation. See id. 28, 31. Similarly, Good News maintains that towns are not powerless in their ability to advance substantial government interests, such as safety and aesthetic concerns, because they are still free to regulate signs in a content-neutral manner, such as creating regulations that treat all temporary signs the same. See Brief for Petitioner at 53.
The Court will decide whether facially content-based restrictions on speech are constitutional if they are made without discriminatory motive. See Brief for Petitioner at i. The Court will also have the opportunity to decide what level of scrutiny applies to restrictions that distinguish between different types of noncommercial speech. See id. at 47; Brief for Respondent at 10. Good News argues that facially content-based restrictions are not constitutional merely because they were made without a discriminatory motive. See Brief for Petitioner at 34. Furthermore, Good News contends that the Court should strike down the Sign Code because it imposes facially content-based restrictions and fails strict scrutiny. See id. at 47. Gilbert, on the other hand, contends that strict scrutiny does not apply because the Sign Code does not favor certain viewpoints over others. See Brief for Respondent at 27–29. Therefore, Gilbert maintains, the Court should uphold the sign because that is the only question before the Court; however, if the Court should engage in constitutional questions, the Sign Code should be upheld under intermediate scrutiny. See id. at 42, 45.
WHEN IS A LAW CONTENT-BASED OR CONTENT-NEUTRAL?
Good News argues that a law is “content-based” if the law “facially classifies speech based on content.” See Brief for Petitioner at 22. Good News contends that the content-neutrality test is objective; therefore, Good News argues Gilbert cannot “save” its Sign Code by “asserting a content-neutral motive.” See id. at 22. Moreover, Good News argues that if a law facially discriminates based on content, the Court has not required a showing of content-based motive. See id. at 24. For example, Good News asserts that the Court in Discovery Network struck down a city’s regulation prohibiting news racks that displayed commercial publications, but not newspapers. See id. at 34. Good News contends that the Court “flatly refused to consider the city’s alleged motive in deciding” that the regulation was content-based. See id. at 34–35. Thus, according to Good News, proof of an illicit motive is only sufficient, not necessary, to prove that a sign is content based. Id. at 24.
Gilbert, on the other hand, argues that “content” must be understood and applied in a flexible manner that reflects the ideals of the First Amendment. Brief for Respondent at 22. According to Gilbert, while the First Amendment protects citizens against government action that infringes on their freedom of speech, “the ‘freedom to speak’ is not an absolute right.” See Brief for Respondent at 10-12. Rather, Gilbert submits, First Amendment expression can be regulated by the government so long as there is a proper balance between free speech and government interests—for instance to prevent someone from “[y]elling ‘Fire!’ in a crowded movie theater.” See id. at 12. Gilbert notes that this balancing can be especially challenging in the sign regulation context since signs constitute speech. Id. In light of these principles, Gilbert contends that a regulation is content-based when it regulates speech based on the government’s disagreement with the speech’s message. See id. at 17. Thus, Gilbert argues, Good News’ definition of content-based regulation is too rigid because sign regulations are necessarily differentiated by their content. See id. at 19. Instead, Gilbert maintains that the government should still be able to regulate signs, consistent with the First Amendment, if the “regulation does not censor or favor particular viewpoints or ideas.” See id. at 22. Regarding discriminatory motive, Gilbert argues that the question presented to the Court improperly assumes that the Ninth Circuit upheld the Sign Code regulation because Gilbert did not have a discriminatory motive. See id. at 6. Rather, Gilbert contends that the only question before the Court is whether strict scrutiny applies to the Sign Code. See id. at 6-7.
DOES STRICT SCRUTINY APPLY?
Good News contends that Gilbert’s Sign Code is facially content-based, and is thus subject to strict scrutiny because it places different restrictions on signs according to their content. See Brief for Petitioner at 25-27, 29. For example, Good News contends that if a sign read, “Vote for McCain,” then it would fall into the Sign Code’s Political Sign category and could be thirty-two square feet. Id. at 28. However, Good News submits, if a sign read, “Learn Why Voting Matters, Visit Good News Community Church,” it would fall into the Qualifying Event category and could be no larger than size square feet. Id. Good News contends that “[t]his is a clear-cut content-based discrimination.” See id. at 27. Moreover, Good News asserts that a Gilbert official admitted that signs must be categorized based on their “message” to apply the Sign Code regulations. See id. at 39. Good News maintains this testimony underscores the content-based nature of the Sign Code regulations. See id. at 40. Additionally, Good News argues that the classifications in the Sign Code are neither speaker-based nor event-based; however even if they were, they would be nonetheless constitutionally suspect. Id. at 29-32. Finally, because it is not required, Good News asserts that an illicit motive need not be shown. Id. at 38. Therefore, according to Good News, because it is facially content-based, the Sign Code must satisfy strict scrutiny to be constitutional. See id. at 29.
Conversely, Gilbert argues that the Sign Code should not receive strict scrutiny. See Brief for Respondent at 22. First, Gilbert argues that the Sign Code’s “Temporary Directional Sign” provision regulates directions, intended to direct traffic to an event, not invitations to the public, and, as such, Good News is still free to make invitations to the public on directional signs. Id. at 24, 26. Second, Gilbert contends that only regulations that favor certain viewpoints receive strict scrutiny and that the Sign Code’s provisions do not favor any ideas. See id. at 27. Furthermore, Gilbert asserts that the Sign Code is distinguishable from other regulations that have received strict scrutiny. Id. at 31. Unlike regulations subject to strict scrutiny in other cases, Gilbert asserts that the “Temporary Directional Sign” provision does not target the message of a sign, but rather applies to all non-profits. See id. 31, 32-34. Moreover, Gilbert maintains that the Court has never held that a regulation is content-based and thereby subject to strict scrutiny merely because one has to examine the content of the speech in question to determine whether the regulation applies. See id. at 34-35. Finally, Gilberts contends that distinctions between Ideological Signs and Political Signs should not subject the Sign Code to strict scrutiny. Id. at 36. In conclusion, Gilbert argues, because the Sign Code applies equally to “all non-profit organizations” and does not “favor any particular speech,” intermediate scrutiny, not strict scrutiny, should apply to the Sign Code. See id. at 30, 39-41.
DOES THE SIGN CODE SATISFY STRICT SCRUTINY OR INTERMEDIATE SCRUTINY?
Applying strict scrutiny, Good News maintains that the Sign Code should be struck down because it is not “justified by a compelling government interest” nor “narrowly drawn to serve that interest.” See Brief for Petitioner at 47 (quoting Brown v. Entertainment Merchants Association, 131 S.Ct. 2729, 2738 (2011)). Good News contends that Gilbert’s “interests in regulating signs are safety and aesthetics.” See id. at 48. However, Good News maintains that courts have rejected that these interests are compelling. See id. Notably, Good News asserts, the Court has rejected laws that claim to serve compelling interests yet simultaneously damage those interests. See id. Good News argues that the Sign Code is underinclusive because it grants Political Signs “highly favorable treatment” even though that category “pos[es] the greatest threat to a municipality’s interests in safety and aesthetics,” thereby damaging the interests the government claims to protect. See id. at 50. For the same reason, Good News argues that the Sign Code is not narrowly tailored, because it does not even further Gilbert’s stated interests. See id. at 53. Additionally, Good News argues that the Sign Code would also fail intermediate scrutiny because it is not content neutral and, even if it were, is not narrowly tailored because it favors certain speech. See Reply Brief for Petitioner, Good News at 20–21.
In contrast, Gilbert asserts that strict scrutiny does not apply to Gilbert’s sign code because Gilbert views the content of Good News’s signs as directional, rather than invitational, and the Sign Code does not censor signs based on their content. See Brief for Respondent at 22, 27. Consequently, Gilbert explains that the Sign Code is thus only subject to intermediate scrutiny. See id. at 27. Moreover, Gilbert contends that the issue of the “articulation or application” of intermediate scrutiny is not properly before the Court. See id. at 41-42. As such, Gilbert argues that if the should not address this question. See id. at 42. Nevertheless, Gilbert contends that the Sign Code should be upheld even if the Court should apply intermediate scrutiny. See id. at 45–46. Gilbert contends that it has an important interest in the “quality of life [in Gilbert], safety of [its] citizens, and property values.” See id. at 47. Gilbert further argues that the Sign Code is narrowly tailored to furthering those interests because it “directly addresses” the “visual blight, safety [issues] and deterioration of real estate values” created by signs. See id. at 49. Gilbert analogizes the Sign Code to the facts of Turner. See id. at 27-28 (referencing Turner Broad System, Inc. v. FCC 512 U.S. 622 (1994)). In that case, the Court, applying intermediate scrutiny, upheld a federal regulation that required cable networks to carry broadcasts, because the regulation did not preference certain content. See id. Similarly, Gilbert argues that the Sign Code applies equally to all non-profit organizations and does not preference certain speech. See id. at 27, 30.
The Court will decide whether facially content-based regulations are constitutional if they were made without discriminatory motive. Good News argues that motive is irrelevant, and that the Gilbert Sign Code should be struck down under strict scrutiny. Conversely, Gilbert argues that strict scrutiny does not apply to the Sign Code and that the Sign Code survives the appropriate standard, intermediate scrutiny, even though that issue is not before the Court. The outcome of the Court’s decision will affect the scope of free speech under the First Amendment and local governments’ ability to regulate safety and aesthetics of their communities.
- Kelsey Harkness: How a Silly Dispute Over Signs Made It All the Way to the Supreme Court, The Daily Signal (Dec. 24, 2014).
- Parker Leavitt: U.S. Supreme Court Will Hear Arizona Church-Sign Case, USA Today (July 4, 2014).
- Eric Mungenast: U.S. Supreme Court to Hear Case About Gilbert Sign Ordinance, East Valley Tribune (July 4, 2014).
- Jonathan Reid: U.S. Supreme Court to Hear Gilbert Church Sign Case in Jan., AZCentral (Dec. 19, 2014).