by Gary Taylor
Reed v. Town of Gilbert
United States Supreme Court, June 18, 2015
Gilbert, Arizona adopted a comprehensive sign code governing outdoor signs. It identifies various categories of signs based on the type of information they convey, then subjects each category to different restrictions. The Sign Code generally prohibits the display of outdoor signs without a permit, but exempts 23 categories of signs from the permitting requirement. Three of those 23 categories were relevant to the litigation before the Supreme Court:
- Political signs – defined as signs designed to influence the outcome of an election, may be up to 32 square feet and only displayed during an election season.
- Ideological signs – defined as signs communicating a message or idea that do not fit in any other sign code category, may be up to 20 square feet and have no time restrictions.
- Temporary directional signs – defined as signs directing the public to a church or other qualifying event, are limited to 6 square feet, no more than 4 may be on a single property at the same time, and may be displayed no more than 12 hours before, and 1 hour after the event.
Good News Community Church (Church) is a small congregation that meets in various temporary locations in Gilbert on Sunday mornings. The Church posted signs early each Saturday morning bearing the Church name and the time and location of the next service. The signs were not removed until around midday Sunday. Gilbert cited the Church for violation of the Sign Code, for failing to abide by the time restrictions for temporary directional signs and for failing to include an event date on the signs. The Church appealed the citation and lost, brought suit in federal district court and lost, and lost on appeal to the U.S. 9th Circuit Court of Appeals. The 9th Circuit ultimately concluded that the Sign Code’s sign categories were content neutral, and that the Code satisfied the intermediate scrutiny accorded to content-neutral regulations of speech. The Church appealed to the U.S. Supreme Court.
Unlike the lower courts, the U.S. Supreme Court found the Sign Code to be a content-based regulation of speech. It defines the categories of temporary, political and ideological signs on the basis of their messages and then subjects each category to different restrictions. The restrictions thus depend entirely on the sign’s communicative content. The 9th Circuit’s conclusion that the regulation was not based on a disagreement with the message conveyed “skips the crucial first step in the content-neutrality analysis: determining whether the law is neutral on its face. A law that is content-based on its face is subject to strict scrutiny regardless of the government’s benign motives, content-neutral justification, or ‘lack of animus toward the ideas contained’ in the regulated speech….In other words, an innocuous justification cannot transform a facially content-based law into one that is content neutral.”
The 9th Circuit also erred in concluding that the Sign Code was content neutral because it does not mention any idea or viewpoint, let alone single one out for differential treatment. The Supreme Court noted that while government discrimination among viewpoints, or based on the opinion or perspective of the speaker is a more blatant and egregious form of content discrimination, it is also discriminatory when government prohibits public discussion of an entire topic. Gilbert’s Sign Code gives ideological messages more favorable treatment than messages concerning a political candidate, which in turn are give more favorable treatment than messages “concerning announcing an assembly of like-minded individuals.” “That is a paradigmatic example of content-based discrimination.”
The 9th Circuit’s conclusion that the Sign Code made only speaker-based and event-based distinctions was also in error. The restrictions for political, ideological, and temporary event signs apply equally no matter who sponsors them. “If a local business, for example, sought to put up signs advertising the Church’s meetings, those signs would be subject to the same limitations as such signs placed by the Church.” Besides, speech restrictions based on the identity of the speaker are all too often simply a means to control content.
Having determined that the Sign Code was content-based and thus subject to strict scrutiny, the Supreme Court went on to conclude that the Sign Code did not pass Constitutional muster. Gilbert did not demonstrate that the Code’s differentiation between the various types of signs being discussed furthered a compelling governmental interest. Gilbert cannot claim that placing strict limits on temporary directional signs is necessary to beautify the town when other types of signs create the same problem. Nor has it shown that temporary directional signs pose a greater threat to public safety than ideological or political signs.
The Supreme Court further observed:
Our decision today will not prevent governments from enacting effective sign laws. The Town asserts that an “absolutist” content-neutrality rule would render “virtually all distinctions in sign laws . . . subject to strict scrutiny, but that is not the case. Not “all distinctions” are subject to strict scrutiny, only content-based ones are. Laws that are content neutral are instead subject to lesser scrutiny. The Town has ample content-neutral options available to resolve problems with safety and aesthetics. For example, its current Code regulates many aspects of signs that have nothing to do with a sign’s message: size, building materials, lighting, moving parts, and portability. And on public property, the Town may go a long way toward entirely forbidding the posting of signs, so long as it does so in an evenhanded, content-neutral manner. Indeed, some lower courts have long held that similar content-based sign laws receive strict scrutiny, but there is no evidence that towns in those jurisdictions have suffered catastrophic effects. We acknowledge that a city might reasonably view the general regulation of signs as necessary because signs “take up space and may obstruct views, distract motorists, displace alternative uses for land, and pose other problems that legitimately call for regulation.” At the same time, the presence of certain signs may be essential, both for vehicles and pedestrians, to guide traffic or to identify hazards and ensure safety. A sign ordinance narrowly tailored to the challenges of protecting the safety of pedestrians, drivers, and passengers—such as warning signs marking hazards on private property, signs directing traffic, or street numbers associated with private houses—well might survive strict scrutiny. The signs at issue in this case, including political and ideological signs and signs for events, are far removed from those purposes.