The U.S. Supreme Court granted Good News Community Church’s (Church) petition for a writ of certiorari to review the decision of the U.S. Court of Appeals for the Ninth Circuit in Reed v. Town of Gilbert, No. 11-15555 (9th Cir. 2013).  The case involves a sign ordinance in the Town of Gilbert that the Church alleges violates its right to free speech.

Members of the Church believe that “the Bible commands them to go and make disciples of all nations, and that they should carry out this command by reaching out to the community to meet together on a regular basis.  To do so, they display signs announcing their services as an invitation for those in the community to attend.”  The Town of Gilbert, allows only 4 such signs to be placed by the church – which it classifies as Temporary Directional Signs – for up to 12 hours per day.  The Church placed 17 signs around its place of worship to announce the time and location of its services, but in 2005 was informed by the Town that it was in violation of the sign ordinance.

As reported by Alliance Defending Freedom, the town imposes other less restrictive conditions on other types of signs:

Under . . . Gilbert’s ordinance, political signs can be up to 32 square feet, displayed for many months, and unlimited in number.  An ideological sign can be up to 20 square feet, displayed indefinitely, and unlimited in number.  The church’s signs can only be six square feet, may be displayed for no more than [12] hours, and are limited to four per property.

Relying on the U.S. Supreme Court’s decision in Hill v. Colorado, 530 U.S. 703 (2000), the Ninth Circuit concluded that the sign restrictions, including the distinctions among them, were content-neutral for purposes of free speech:

[T]he distinction between Temporary Directional Signs, Ideological Signs, and Political Signs are content-neutral.  That is to say, each classification and its restrictions are based on objective factors relevant to Gilbert’s creation of the specific exemption from the permit requirement and do not otherwise consider the substance of the sign. . . .  It makes no difference which candidate is supported, who sponsors the event, or what ideological perspective is asserted.  Accordingly, as the speaker and event determinations are generally “content-neutral,” Gilbert’s different exemptions for different types of noncommercial speech are not prohibited by the Constitution.

In Hill, the Supreme Court upheld the constitutionality of a Colorado statute regulating speech-related conduct within 100 feet of an entrance to a healthcare facility.

The Ninth Circuit also found that the sign ordinance was narrowly-tailored to serve the government’s legitimate interests to preserve aesthetics and safety:  “[T]he restrictions on Temporary Directional Signs are reasonable.  There are no limits on the number of events that a person or entity may hold, and no limit on the number of signs that may be erected (other than no more than four on any single piece of property).  Also, the 12-hour limitation seems reasonable as a person is unlikely to seek directions to an event more than 12 hours before the event.”

The Court briefly considered and rejected the Church’s claim that the sign ordinance violated its free exercise of religion because the ordinance “is a generally applicable law, and it does not substantially interfere with any of Good News’ tenets. . . .  Furthermore, while Good News’ members may be obligated to spread their message and advertise their events, there is no suggestion that they do so in any particular way.”  It also rejected the Church’s claims that the sign ordinance violated the Church’s right to equal protection and was unconstitutionally vague.

Judge Watford dissented from the majority opinion, arguing that the town’s sign ordinance violates the First and Fourteenth Amendments “by drawing content-based distinctions among different categories of non-commercial speech.  The most glaring illustration is the ordinance’s favorable treatment of ‘political’ and ‘ideological’ signs relative to the treatment accorded the non-commercial signs plaintiffs seek to display.”  Judge Watford finds support for his dissent in the Hill decision – the same case relied on by the majority – noting that the majority opinion misapplied that case.

Notably, the U.S. Supreme Court recently considered the Hill case in McCullen v. Coaxley, No. 12-1168 (2014), which found that a Massachusetts statute modeled after the Colorado statute in Hill violated the First Amendment because, while content-neutral, it was not narrowly tailored to achieve the government’s interests (read our prior post about the case).

The question presented for the Supreme Court is: “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?”  Professor Daniel R. Mandelker of Washington University School of Law, and author of Free Speech Law for On Premises Signs,* offered the following about the Supreme Court’s decision to review the case: “I hope the Court uses this case to revisit the issue of content neutrality, and finds that facial distinctions in an ordinance are not decisive when there are legitimate reasons for them other than the suppression of speech, which is the view taken by the Ninth Circuit.”

*[Note:  As stated in the referenced article, Professor Mandelker’s publications include “Street Graphics and the Law (2004), published by the American Planning Association as Planning Advisory Report No. 527, a text and model code on regulations for on premise signs that has been widely followed, and Sign Regulation and Free Speech: Spooking the Doppelganger in Trends in Land Use Law from A to Z (American Bar Association, 2001). His articles include Decision Making in Sign Codes: The Prior Restraint Barrier, Zoning and Planning Law Report, Sept. 2008.”]

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Photo of Evan Seeman Evan Seeman

Evan J. Seeman is a lawyer in Robinson+Cole’s Hartford office and focuses his practice on land use, real estate, environmental, and regulatory matters, representing local governments, developers and advocacy groups. He has spoken and written about RLUIPA, and was a lead author of…

Evan J. Seeman is a lawyer in Robinson+Cole’s Hartford office and focuses his practice on land use, real estate, environmental, and regulatory matters, representing local governments, developers and advocacy groups. He has spoken and written about RLUIPA, and was a lead author of an amicus curiae brief at the petition stage before the United States Supreme Court in a RLUIPA case entitled City of San Leandro v. International Church of the Foursquare Gospel.

Evan serves as the Secretary/Treasurer of the APA’s Planning & Law Division. He also serves as the Chair of the Planning & Zoning Section of the Connecticut Bar Association’s Young Lawyers Section, and is the former Co-Chair of its Municipal Law Section. He has been named to the Connecticut Super Lawyers® list as a Rising Star in the area of Land Use Law for 2013 and 2014. He received his B.A. in political science and Russian studies (with honors) from Trinity College in Hartford, Connecticut, where he was selected as the President’s Fellow in the Department of Modern Languages and Literature. Evan received his Juris Doctor at the University of Connecticut School of Law, where he served on the Connecticut Law Review. While in law school, he interned with the Connecticut Office of the Attorney General in the environmental department, and served as a judicial intern for the judges of the Mashantucket Pequot Tribal Court. Following law school, Evan clerked for the Honorable F. Herbert Gruendel of the Connecticut Appellate Court.

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Photo of Dwight Merriam Dwight Merriam

Dwight H. Merriam founded Robinson+Cole’s Land Use Group in 1978. He represents land owners, developers, governments and individuals in land use matters, with a focus on defending governments in RLUIPA cases. Dwight is a Fellow and Past President of the American Institute of…

Dwight H. Merriam founded Robinson+Cole’s Land Use Group in 1978. He represents land owners, developers, governments and individuals in land use matters, with a focus on defending governments in RLUIPA cases. Dwight is a Fellow and Past President of the American Institute of Certified Planners, a former Director of the American Planning Association (APA), a former chair of APA’s Planning and Law Division, Immediate Past Chair of the American Bar Association’s Section of State and Local Government Law, Chair of the Institute of Local Government Studies at the Center for American and International Law, a Fellow of the Royal Institution of Chartered Surveyors, a Fellow of the American Bar Foundation, a member of the Rocky Mountain Land Use Institute National Advisory Board, a Fellow of the Connecticut Bar Foundation, a Counselor of Real Estate, a member of the Anglo-American Real Property Institute, and a Fellow of the American College of Real Estate Lawyers.

He teaches land use law at the University of Connecticut School of Law and at Vermont Law School and has published over 200 articles and eight books, including Inclusionary Zoning Moves Downtown, The Takings Issue, The Complete Guide to Zoning, and Eminent Domain Use and Abuse: Kelo in Context. He is the senior co-author of the leading casebook on land use law, Planning and Control of Land Development (Eighth Edition). Dwight has written and spoken widely on how to avoid RLUIPA claims and how to successfully defend against them in court. He is currently writing a book on the subject, RLUIPA DEFENSE, for the American Bar Association.

Dwight has been named to the Connecticut Super Lawyers® list in the area of Land Use Law since 2006, is one of the Top 50 Connecticut Super Lawyers in Connecticut, and is one of the Top 100 New England Super Lawyers (Super Lawyers is a registered trademark of Key Professional Media, Inc.). He received his B.A. (cum laude) from the University of Massachusetts, his Masters of Regional Planning from the University of North Carolina, where he was the graduation speaker in 2011, and his J.D. from Yale. He is a featured speaker at many land use seminars, and presents monthly audio land use seminars for the International Municipal Lawyers Association. Dwight has been cited in the national press from The New York Times to People magazine and has appeared on NBC’s The Today Show, MSNBC and public television.

Dwight also had a career in the Navy, serving for three tours in Vietnam aboard ship, then returning to be the Senior Advisor of the Naval ROTC Unit at the University of North Carolina in Chapel Hill where he taught Defense Administration and Military Management as an Assistant Professor in the undergraduate and graduate curriculum in Defense Administration and Military Management. He left active duty after seven years to attend law school, but continued on for 24 more years as a reserve Surface Warfare Officer with two major commands, including that of the reserve commanding officer of the Naval Undersea Warfare Center. He retired as a Captain in 2009 after 31 years of service.

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