Supreme Court Hears Free Speech Challenge to Town Sign Law

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Jeffrey Johnson is a legal writer with a focus on personal injury. He has worked on personal injury and sovereign immunity litigation in addition to experience in family, estate, and criminal law. He earned a J.D. from the University of Baltimore and has worked in legal offices and non-profits in Maryland, Texas, and North Carolina. He has also earned an MFA in screenwriting from Chapman Univer...

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UPDATED: Jan 12, 2015

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The Supreme Court heard oral arguments in Reed v Town of Gilbert this week, a First Amendment free speech case filed by a Christian church against an Arizona town ordinance that limits what type of signs can be posted in city limits.  The church found itself in violation of the Gilbert sign restriction by posting directions to its services, and responded by filing a First Amendment claim arguing that the ordinance impermissibly limits speech based on content.

Arizona Town Limits Signs

The Gilbert town ordinance in question places limits on different types of signs that may be displayed within the city limits.  It specifically sets forth:

  1. Signs “supporting candidates” or relating to “any matter on the ballot” are limited in size to 32 square feet in size and may be displayed any time prior to an election and removed 10 days after the election is over.
  2. Signs “communicating a message or ideas,” also known as ideological signs, can be 20 square feet in size and do not have any durational restrictions
  3. Signs related to noncommercial events, which includes any type of sign advertising time and place of functions such as church gatherings or yard sales, can only be 6 square feet in size and only displayed 12 hours before and 1 hour after an event.

Clyde Reed, lead plaintiff and pastor of the Good News Community Church, ran afoul of the law by posting a sign indicating the time and location of worship services.  According to the Good News Community Church, which does not have an established place of worship due to low attendance and lack of funds, the Gilbert town ordinance effectively prevented the congregation from receiving sufficient notice of worship services because the 12-hour duration limit prohibited notification signs from being posted until after dark the night before church service. 

Church Files Free Speech Lawsuit against Sign Restriction

The Good News Community Church filed a constitutional challenge to the Gilbert ordinance claiming that it illegally violated free speech based on content.  Freedom of speech is a strongly protected right, and governments are not permitted to restrict speech due to its content unless the restriction serves a compelling government interest – a standard that is very difficult to satisfy.  If Good News Community Church is correct then it is likely the town’s sign restriction is unconstitutional because the state reasons for the ordinance – namely, aesthetics – do not satisfy a compelling interest to restrict speech.

The town of Gilbert responded by arguing that the sign restriction is content neutral because it restricts all non-commercial signs regardless of what type of message is conveyed.  Content neutral restrictions pass constitutional mustard if they serve an important government interest, which is a far easier standard to satisfy and can be met by arguing, as Gilbert does, that the restriction is designed to reduce clutter and promote good aesthetics in the city limits.  During the early stages of trial, a lower federal court granted the town of Gilbert’s motion to dismiss the case by agreeing that the ordinance was content neutral and therefore constitutional.  The ruling was echoed by the 9th Circuit Court of Appeals which found that, despite the fact that the restriction negatively affected some groups over others, the regulation was not adopted due to disagreement with specific types of speech and was “unrelated to the content of the sign.”

Supreme Court Skeptical of Sign Restriction

In a strong dissent against the 9th Circuit majority, Judge Paul Watford of the 9th Circuit argued, “Gilbert’s sign ordinance plainly favors certain categories of non-commercial speech (political and ideological signs) over others (signs promoting events sponsored by non-profit organizations) based solely on the content of the message being conveyed. These are not content-neutral “speaker” and “event” based distinctions …. Determining whether a particular sign will be regulated as a “political” sign as opposed to an “ideological” sign or a “temporary directional sign relating to a qualifying event” turns entirely on the content of the message displayed on the sign.”  Further, Judge Watford argued that Gilbert could not offer any acceptable explanation for restricting based on content, and therefore the ordinance could not overcome the steep protections afforded the freedom of speech.

Throughout oral argument, several of the Supreme Court Justices seemed to pick up on points made by Judge Watford’s dissent and hammered the town of Gilbert’s attorney on the content-based distinctions between “political” and “ideological” signs which were less restricted than “non-commercial” signs. Philip Savrin, representing the town of Gilbert, maintained throughout his argument that because any political, ideological, or non-commercial signs are subject to similar treatment, regardless of the specific contents, the ordinance was sufficiently content-neutral.  Justices Breyer, Kagan, and Scalia all took issue with this point of view, giving strong indication that the Gilbert ordinance is at risk of being found unconstitutional under Supreme Court review.  The decision in Reed v Town of Gilbert is expected before the summer.

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