Tag: First Amendment Freedom of Speech

Commissioned artwork constituted ‘government speech’ that City was under no obligation to display

Gary Taylor

Jared McGriff, et al, v. City of Miami Beach, FL

Federal 11th Circuit Court of Appeals, October 27, 2023

Jared McGriff and three other artists were commissioned by the City of Miami Beach, Florida to create a series of art installations for an event called “ReFrame: Miami Beach,” in hopes of “sparking crucial conversations about inclusion, blackness and relationships….” The works were to be displayed on Memorial Day Weekend 2019. The City and the artists’ production companies entered into professional services agreements that provided, in relevant part:

  • “All installations shall be subject to review and approval by the City Manager’s designee”;
  • “All services provided by the [production companies] shall be performed…to the reasonable satisfaction of the City Manager”;
  • “Any work product arising out of [these agreements], as well as all information specifications, processes, data and findings, are intended to be the property of the City and shall not otherwise be made public and/or disseminated by [the production companies] without the prior written consent of the City Manager”;
  • “The City will provide [the production companies] with the appropriate location to perform the services….”

In preparation for ReFrame, the City distributed a press release on City letterhead and flyers that marketed the event. The press release and flyers included the City’s e-mail addresses, characterized ReFrame as the City’s inaugural festival, and advertised the art installations.

Among other artworks exhibited was a painting of a Haitian-American man named Raymond Herisse. A written narration accompanied the painting, explaining how Miami Beach police officers shot and killed Herisse during the 2011 Memorial Day Weekend. After viewing the painting, the City Manager told the artists to remove the Herisse memorial from the exhibition. He later explained to the Mayor and City Commission that the painting was “potentially divisive and definitely insulting to our police as depicted and narrated.” In response, plaintiffs brought this action against the City, alleging that it violated their First Amendment free speech rights by having the Herisse painting removed from the installation. The City filed a motion for summary judgment, arguing that plaintiffs’ claim did not implicate the First Amendment under the government speech doctrine. The district court agreed, and the artists appealed.

The 11th Circuit Court of Appeals began its review of the government speech doctrine by recognizing that “the government’s own speech…is exempt from First Amendment scrutiny. Thus, when the government speaks, it is free to choose what to say and what not to say….When the government appropriates public funds to promote a particular policy of its own it is entitles to say what it wishes.” In deciding whether expression is government speech or private speech, courts consider several factors: (1) whether the government maintains control over the speech; (2) whether the type of speech has traditionally communicated government messages; and (3) whether the public would reasonably believe that the government has endorsed the speech.

Government Control over Speech. In this case, the professional services agreements made it clear that the City controlled the installation and the painting by subjecting nearly every part of the artist’s work, its display, and its location to City Manager approval. Moreover, the agreements vested ownership of the artwork produced for ReFrame in the city. “Having bought the artwork, the city’s decision to display it, or not display it, was classic government speech.”

Type of Speech that Traditionally Communicated Government Messages. The artists contended that artistic expression has historically been used for private speech more often than government speech; however, the court noted that “this does not negate the government’s own long historical use of artistic expression to convey messages. The history factor does not require the government to show that it historically commissioned more artwork than private individuals and institutions.” Providing examples such as the use of Facebook to disseminate messages and artistic posters used during the Second World War to promote the war effort, the court did not agree with the artists’ reasoning.

Impression of Government Endorsement of Speech. The court concluded that the public would reasonably believe that the City endorsed the art produced for ReFrame because the City: (1) publicized ReFrame, including the art installation in particular, in City press releases and flyers; (2) organized and advertised an opening night cocktail reception and media preview; and (3) had its Mayor interview with a co-curator of the installation on NPR.

The 11th Circuit concluded that “just as ‘governments are not obliged under the First and Fourteenth Amendments to permit the presence of a rebellious army’s battle flag in the pro-veterans parades that they fund and organize,’ they are not obliged to display any particular artwork in the art exhibitions that they fund, organize, and promote.”

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Donuts: Art or signage? You decide.

Gary Taylor

A bakery owner in Conway, New Hampshire had local art students cover the wall above his front door with a painting of the sun shining over a mountain range made of sprinkle-covered chocolate and strawberry donuts, a blueberry muffin, a cinnamon roll and other pastries. The town zoning board decided that the pastry painting was not so much art as advertising, and so violated the local code because it was about four times larger than the signage provisions allowed. Rather than modify or remove the painting, the bakery owner sued in federal district court, saying the town is violating his freedom of speech rights. You can read the complaint here.

Art or sign? You decide!

“They said it would be art elsewhere,” the bakery owner told The Associated Press in an interview. “It’s just not art here.”

The Conway code considers a sign to be “any device, fixture, placard, structure or attachment thereto that uses color, form, graphic, illumination, symbol, or writing to advertise, announce the purpose of, or identify the purpose of any person or entity, or to communicate information of any kind to the public, whether commercial or noncommercial.”

What do you think?

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Seventh Circuit follows SCOTUS lead, upholds validity of distinction between on- and off-premises signs

Gary Taylor

by Gary Taylor

Adams Outdoor Advertising v. City of Madison, Wisconsin
Seventh Circuit Court of Appeals, January 4, 2023

Adams Outdoor Advertising (AOA) owns billboards throughout the Midwest, including 90 in Madison, Wisconsin. Like a majority of cities Madison adopted a sign ordinance to promote traffic safety and aesthetics. It comprehensively regulates “advertising signs,” which is defined under the ordinance as any sign advertising or directing attention to a business, service, or product offered offsite; in other words, a sign that advertises something unrelated to the premises on which the sign sits. The construction of new advertising signs has been banned under the Madison ordinance since 1989. Existing advertising signs were allowed to remain but cannot be modified or reconstructed without a permit and are subject to size, height, setback, and other restrictions. In 2009, Madison amended its sign ordinance to prohibit digital displays. In 2017, the definition of “advertising sign” was amended to remove references to noncommercial speech. Several of these amendments spurred lawsuits against Madison by AOA which are not relevant to the present case. As the ordinance now stands, the term “advertising sign” is limited to off-premises signs bearing commercial messages.

AOA initiated the present litigation based on the U.S. Supreme Court’s 2015 decision in Reed v. Town of Gilbert. Although the distinction between on-premises and off-premises signs was not at issue in Reed, AOA argued that, under Reed, any ordinance treating off-premises signs less favorably than other signs is a content-based restriction on speech and thus is unconstitutional unless it passes the high bar of strict scrutiny. The district court disagreed and applied intermediate scrutiny. Relying on the Fifth Circuit case of Reagan National Advertising v. City of Austin AOA appealed the district court ruling. When the U.S. Supreme Court agreed to take up the Austin case the Seventh Circuit delayed ruling on the AOA v. Madison case pending the outcome of Austin. As readers of this blog know, the U.S. Supreme Court used the Austin decision to clarify that nothing in Reed altered its earlier precedents applying intermediate scrutiny to billboard ordinances and upholding on-/off-premises sign distinctions as ordinary content-neutral “time, place, or manner” speech restrictions.

For time, place, and manner restrictions to be valid they need only be narrowly tailored to serve a significant governmental interest.” It has been established through countless cases that traffic safety and visual aesthetics are significant governmental interests. AOA nonetheless argued that the Madison ordinance failed intermediate scrutiny because the city failed to provide empirical evidence linking billboards to aesthetic or safety-related harms. Citing earlier precedent, the Seventh Circuit stated that “billboards, by their very nature…can be perceived as an esthetic harm” and the city “need not try to prove that its aesthetic judgments are right.” Likewise, the connection between billboards and traffic safety is too obvious to require empirical proof. “It does not take a double-blind empirical study, or a linear regression analysis, to know that the presence of overhead signs and banners is bound to cause some drivers to slow down in order to read the sign before passing it.”

The Seventh Circuit affirmed the district court’s dismissal of AOA’s claim.

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Flag policy catches City of Boston flapping in the breeze

Gary Taylor

by Gary Taylor

Shurtleff v. City of Boston
United States Supreme Court, May 2, 2022

For years, Boston has allowed groups to hold ceremonies on the plaza in front of city hall, during which participants may hoist a flag of their choosing on a flagpole in place of the city’s own flag and fly it for the duration of the event, typically a couple of hours. Between 2005 and 2017 groups raised at least 50 different flags for 284 such ceremonies, including flags from other countries, flags honoring EMS workers, the Pride Flag and others.

Shurtleff, director of a Christian group, wanted to hold a ceremony to celebrate the civic and social contributions of the Christian community, and raise the “Christian flag”: a red cross on a blue field against a white background. Until Shurtleff’s application, the city had never denied a request to fly a flag. No written policies existed outlining what groups could or could not participate, or dictating the contents of the flag, and city employees did not ask to see the flag before the event. The application itself only asked for contact information and a brief description of the event.

City officials found no record of ever allowing a religious flag to be raised in the past. Because of concerns that flying the ”Christian flag” would violate the Establishment Clause of the First Amendment, officials told Shurtleff that his group could hold the event, but could not raise the flag. Shurtleff challenged the denial of the flag-raising in federal district court, contending that it violated is right to free expression under the First Amendment. The district court sided with Boston, and the First Circuit Court of Appeals agreed.

The United States Supreme Court did not. It observed that, generally speaking, flags’ contents, presence, and location have long conveyed governmental messages. The boundary between government speech and private expression can blur when, as here, the government invites the people to participate in a program. In these situations a Court must conduct a “holistic inquiry” into whether the government intends to speak for itself or, rather, to regulate private expression. Among the factors to consider in this inquiry are the history of the expression at issue; the public’s likely perception as to who (the government or a private person) is speaking; and the extent to which the government has actively shaped or controlled the expression. As noted above, other than day, time and location, Boston exerted little control over the expression. The lack of meaningful involvement in the selection of flags or their messages means the flag-raising event is not “government speech,” and flying the flag for a short period of time does not constitute government promotion of a particular religion; therefore, the Establishment Clause of the First Amendment was not implicated. However, Boston’s refusal to let petitioner fly his flag did violate the Free Speech Clause of the First Amendment as it was ”impermissible viewpoint discrimination” that “abridged [Shurtleff’s] freedom of speech.”

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US. Supreme Court upholds distinction between on- and off-premises signs

Gary Taylor

by Gary Taylor

City of Austin, TX v. Reagan National Advertising of Austin
United States Supreme Court, April 21, 2022

The city of Austin, Texas regulates off-premises signs differently than on-premises signs. At the time this dispute arose Austin’s sign code prohibited construction of new off-premises signs. Existing off-premises signs were grandfathered, but could not be altered in ways that increase their non-conformity. Reagan National Advertising (RNA) sought permits to digitize some of its billboards and was denied. RNA sued, claiming the differential treatment of off-premises signs from on-premises signs (on-premises signs were allowed to be digitized) violated the First Amendment. The District Court held that Austin’s code provisions were content neutral under Reed v. Town of Gilbert and therefore did not violate the First Amendment. The Fifth Circuit Court of Appeals found the distinction to be content-based because the sign’s message must be read to determine the distinction between on- and off-premises signs, and therefore did violate the First Amendment. Austin appealed to the U.S. Supreme Court.

The Supreme Court ruled that the on- versus off-premises distinction was facially content neutral and therefore did not violate the First Amendment. Reed held that a regulation of speech is content based if it “targets speech based on its communicative content”; that is, if it applies to particular speech because of the topic discussed or the idea or message expressed. The Fifth Circuit’s interpretation of Reed – that a sign regulation cannot be content neutral if you have to read the sign to understand how to regulate it – is “too extreme” an interpretation. Unlike Reed, Austin’s sign code does not single out any topic or idea expressed for differential treatment; the message matters only insofar as it informs the sign’s location. In this respect, the on- vs. off-premises distinction is more like ordinary time, place or manner restrictions, which do not require the application of the strict scrutiny standard. Furthermore, the Supreme Court has previously validated distinctions between on- and off-premises signs as being content neutral. Reed did not overrule those cases.

Justice Thomas authored a dissent joined by Justices Gorsuch and Barrett. He asserted that the Fifth Circuit correctly interpreted Reed. The Austin code discriminates against certain signs based on the message they convey. This is not changed because the restriction depends on a content neutral factor: the sign’s location. A code enforcement official must not only know where the sign is located, but also what it says.

Suppose a sign [in a storefront window] says “Go To Confession.” After examining the sign’s message, an official would need to inquire whether a priest ever hears confessions at that location. If one does, the sign conveys a permissible “on-premises” message. If not, the sign conveys an impermissible off-premises message.

Justice Thomas contends that the majority “misinterprets Reed’s clear rule for content-based restrictions and replaces it with an incoherent and malleable standard.”

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Empirical evidence may not be necessary for time, place, and manner regulations on signage

ejchr

by Eric Christianson

Luce v. Town of Campbell
(Seventh Circuit Court of Appeals. September 22, 2017)

Interstate 90 runs through the town of Campbell, Wisconsin where it is crossed by two streets and a pedestrian overpass.

Gregory Luce and Nicholas Newman, two members of the local Tea Party, chose to use the pedestrian overpass to promote their views. With their group, they held American flags along with banners and signs messages such as “HONK TO IMPEACH OBAMA.” This led the Town’s legislature to enact an ordinance forbidding all signs, flags, and banners (other than traffic-control information) on any of the three overpasses, or within 100 feet of the end of these structures.

Complicating this case is the fact that the local police chief, Tim Kelemen, and the Tea Party protesters escalated the conflict. The members of the Tea Party group posted videos and messages online. One video showed police removing a protestor for unfurling an American flag.

The police chief responded by posting the name and email address of one of the protestors on same-sex dating and pornography websites. Kelemen also posted comments on the local newspaper’s website accusing that protestor of failing to pay his property taxes and other debts and asserting that his car was about to be repossessed. When this behavior was revealed, Kelemen resigned his post as police chief and was prosecuted for “unlawful use of a computerized communication system.”

In this case the plaintiffs considered the actions of the police chief to have been retaliation by the city for their speech. However the court found that Kelemen’s vigilante actions were private in nature:

The court concluded that Kelemen was not engaged in state action when “messing with” Luce and that the First Amendment therefore did not apply (for it deals only with governmental conduct). Acting as a vigilante is not part of a police officer’s job. Kelemen did some of the dirty work while on duty and used an office computer for some posts. But he did not use official information or privileged access to information. All of the facts he gathered and disclosed about Luce, such as his physical and email addresses, were available to the general public. Anyone else could have done exactly what Kelemen did.

While Kelemen’s actions were not “state action” the court does say that his actions undermine his credibility as a witness stating the dangers presented by signage on the overpass. While one photograph of a car, which had stopped to take a picture, was shared at trial, without Kelemen’s testimony there was no other evidence to prove this law advances a “significant governmental interest.”

However, the court asserts that case law shows that reasonable, content-neutral, time, place, and manner restrictions on speech have not required empirical evidence to pass constitutional muster. As long as the legislatures assertions are reasonable, “the Court “hesitate[s] to disagree with the accumulated, common-sense judgments of local lawmakers.” Novel signs do attract more attention than fixed billboards. The City Council does not need a specific double-blind study to support that fact in this case.

A regulation of the sort the Town has adopted rests on a belief that overhead signs and banners will cause at least some drivers to slow down in order to read what the banners say, and perhaps to react to them (say, by blowing the car’s horn in response to “HONK TO IMPEACH OBAMA”). Stopping to take a picture is just an extreme version of slowing down. Reading an overhead banner requires some of each driver’s attention, and diverting attention—whether to banners or to cell phones and texting—increases the risk of accidents. This effect is well established for cell phones and texting and is the basis for legislation by many jurisdictions, uncontested in court as far as we are aware, though talking and texting are speech.

It does not take a double-blind empirical study, or a linear regression analysis, to know that the presence of overhead signs and banners is bound to cause some drivers to slow down in order to read the sign before passing it. When one car slows suddenly, another may hit it unless the drivers of the following cars are alert—and, alas, not all drivers are alert all the time

The court did remand a portion of the law which bans all signage within 100 feet of the overpasses including those which would not be visible to drivers on the interstate.

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City demonstrates negative secondary effects of adult entertainment establishment sufficient to overcome preliminary injunction

hdankbar

by Hannah Dankbar

BBL, Inc. and Butler v. City of Angola
Federal 7th Circuit Court of Appeals, December 7, 2015

Alva and Sandra Butler own BBL, Inc. which bought a restaurant in Angola, Indiana with plans to convert it to an adult-entertainment venue. Immediately after the purchase the City of Angola amended its zoning ordinance to prohibit this use of the property. BBL, Inc. sued the City claiming a First Amendment violation and requesting a preliminary injunction be issued to prevent enforcement of the ordinance.

As part of the new ordinance Angola requires sexually oriented businesses to locate “at least 750 feet from every residence.” There is no debate that BBL does not meet this requirement.

In regards to the First Amendment claims BBL claimed; (1) the new licensing and zoning amendments violated its right to expressive conduct; and (2) the permit requirement was an impermissible prior restraint on speech.

Angola requested judgment on the applicable legal test (from City of Renton v. Playtime Theatres, Inc.) in two separate motions. The steps in this analysis require Angola to show: (1) the challenged  requirements are aimed at reducing the negative secondary effects of adult-entertainment establishments; (2) the requirements are narrowly tailored to serve to that purpose: and (3) the zoning scheme leaves open reasonable alternative sites for this form of expression.

At the preliminary injunction stage BBL reserved the right to later challenge the factual basis on which Angola adopted its ordinance (whether the city’s evidence of negative secondary effects was sufficient) but presented no such evidence at that time. Tactically this was a mistake because, the city provided an extensive (but boilerplate) catalog of secondary effects research.  By not challenging the city’s evidence at that time BBL “radically reduced its chances of obtaining a preliminary injunction.”  In fact BBL’s preliminary injunction was not granted by the trial court, and the 7th Circuit concurred.

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Weeds are not protected speech or expression

hdankbar

by Hannah Dankbar

Discount Inn, Inc. v. City of Chicago
Federal 7th Circuit Court of Appeals, September 28, 2015

(Note that the Court included photos of native Illinois plants in its written opinion; a very unusual practice)

Chicago’s Department of Administrative Hearings decided that Discount Inn, Inc. violated the weed and fence ordinances.  The weed ordinance reads:

Any person who owns or controls property within the city must cut or other‐ wise control all weeds on such property so that the average height of such weeds does not exceed ten inches. Any person who violates this subsection shall be subject to a fine of not less than $600 nor more than $1,200. Each day that such violation continues shall be considered a separate offense to which a separate fine shall apply.

The fence ordinance reads:

It shall be the duty of the owner of any open lot located within the City of Chicago to cause the lot to be surrounded with a noncombustible screen fence …. Provided, however, that this section shall not apply to … sideyards. The owner shall maintain any such fence in a safe condition without tears, breaks, rust, splinters or dangerous protuberances and in a manner that does not endanger or threaten to endanger vehicular traffic by obstructing the view of drivers. Any fence which is not maintained in accordance with these provisions is hereby declared to be a public nuisance and shall be removed … . It shall be the duty of the owner of any lot whose fence has been so removed to replace such fence with a noncombustible screen fence meeting the requirements of this section and of this Code.” Municipal Code of Chicago § 7‐28‐750(a). Violators “shall be fined not less than $300 nor more than $600 for each offense,” and “each day such violation continues shall constitute a separate and distinct offense to which a separate fine shall apply.

Discount Inn made two claims: (1) the ordinances violate the prohibition against “excessive fines” in the Eight Amendment; and (2) the weed ordinance is vague and forbids expressive activity protected by the First Amendment.

In regards to the first claim, the Supreme Court has not decided whether this clause applies to state action. This court assumes that it does apply, but found that the fines are not excessive. The fines for both ordinances enforce a legitimate government interest. Fencing vacant lots are important for identifying abandoned lots. The City has an interest in controlling weeds because uncontrolled weeds lead to problems such as obscuring debris, providing habitat to rodents and mosquitos, and contributing to breathing problems.

Regarding the second claim, Discount Inn argued that native plants are mistaken for weeds and their use is unnecessarily limited because of the ordinance. There is no clear definition of a weed in the city code. Discount Inn does not argue that they have native or other decorative plants, but simply rather that the ten-inch rule violates the free-speech clause of the First Amendment. It is true that the First Amendment protects some non-spoken work, such as paintings; however, the Court concluded that these weeds have no expressive value. The owner did nothing to cultivate or design the weeds.

Discount Inn also argues that the ordinances are unconstitutional because they do not specify a statute of limitations. There is no rule that there must be a statute of limitations. Prescribing a statute of limitations for a weed ordinance would require an insane use of city resources.

The decision was upheld.

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7th Circuit interprets Reed v. Gilbert to strike down local panhandling ordinance

Gary Taylor

by Gary Taylor

Don Norton, et al v. City of Springfield
Federal 7th Circuit Court of Appeals, August 7, 2015

Springfield, Illinois adopted an ordinance that prohibits panhandling in its downtown historic district, which encompasses less that two percent of the City’s area but containing its principal shopping, entertainment, and governmental areas, including the Statehouse and many state government buildings.  The ordinance defines panhandling as an oral request for an immediate donation of money.  Signs requesting money are allowed, as are oral pleas to send money later. The City views signs and requests for deferred donations as less impositional than oral requests for money immediately, which some people may find threatening.

The Plaintiffs contended that barring oral requests for money now but not regulating requests for money later is a form of content discrimination.  The 7th Circuit initially sided with the City in 2014.  It observed that “the [Supreme] Court has classified two kinds of regulations as content-based: One is regulation that restricts speech because of the ideas it conveys, the other is regulation that restricts speech because the government disapproves of its message.”  The 7th Circuit concluded that the ordinance did not meet either test for content-based speech.  It observed that the ordinance did not interfere with the marketplace for ideas, that it did not practice viewpoint discrimination, and that the distinctions that plaintiffs called “content discrimination” appeared to be an effort to make the ordinance less restrictive.

Plaintiffs requested reconsideration. The 7th Circuit agreed to reconsider, and deferred its decision until the Supreme Court’s decision in Reed v. Gilbert.  In light of the Supreme Court’s interpretation of content-based regulation, the 7th Circuit reversed its previous decision.  “The majority opinion [in Reed] effectively abolishes any distinction between content regulation and subject-matter regulation.  Any law distinguishing one kind of speech from another by reference to its meaning now requires a compelling justification….[T]he parties have agreed that the ordinance stands or falls on the answer to the question whether it is a form of content discrimination.  Reed requires a positive answer.”

Justice Manion authored a concurring opinion to underscore the significance of Reed, and its interplay with the Supreme Court’s opinion in Ward v. Rock Against Racism.  “Under [interpretations of Ward], if an ordinance was not viewpoint-based, then it was content-neutral.  For example, a local government’s decision to eliminate religious speech or abortion-related speech was considered content-neutral because it was not viewpoint-based – as, for instance a regulation prohibiting ‘Christian speech’ or ‘pro-life speech’ was and remains….Reed saw what Ward missed – that topical censorship is still censorship….Few regulations will survive this rigorous standard”

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US Supreme Court finds local sign ordinance an impermissible content-based restriction on speech

Gary Taylor

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.
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