Last summer, we reported that 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. The Supreme Court heard argument in Reed on Monday, January 12, 2015 and a transcript from the hearing is available here.
Although the justices did not consider a Religious Land Use and Institutionalized Persons Act claim, or a specific “religious speech” issue, the Court’s decision will likely have a large impact on how local governments approach sign regulation. Professor Daniel R. Mandelker[i] of Washington University School of Law, observes,
The case is critical to sign regulation as it applies to land use law, as it deals with the standard of judicial review and should provide direction on how local governments can include exceptions in sign ordinances.
The Church alleged that the ordinance makes impermissible content-based distinctions between “Temporary Directional Signs, Ideological Signs, and Political Signs.” The Church, which does not have a permanent place of worship, would regularly place signs within the Town indicating the location of its next service. The Town deemed the signs as “Temporary Directional Signs” which, according to the ordinance, could be erected for less than 24 hours and must be limited in size. The Church complained that ideological and political signs were granted more favorable treatment.
The Ninth Circuit concluded that the sign ordinance, including the distinction between sign types, was content-neutral for purposes of free speech. The court held that the “restrictions are based on objective factors… and do not otherwise consider the substance of the sign. . . .”
At Monday’s hearing, the Church’s attorney David Cortman argued that the Town’s ordinance “discriminates on its face by treating certain signs differently based solely on what they say.” Cortman immediately compared the regulation of the Church’s signs to political signs. “For example,” argued Cortman, “political signs may be 32 square feet, may be unlimited in number, and may be placed in the right-of-way of the entire town for five months before the election; but the church’s signs can only be one-fifth of that size, only placed in the dark of night, the night before the church service.”
The Church argued that all temporary, private signs must be treated in the same manner. Justice Kennedy examined the potential result of the Church’s view: “I guess you see the concern, if an affluent person wants to celebrate a birthday, he can put ‘Happy birthday, Uncle Fred’ as many places as a political sign, and for as long. . . . ‘Happy birthday, Uncle Fred can have as many signs and for as long as the political campaign.” “I think—I think that is right,” Cortman responded.
Next, Eric Feigin provided the United States’ position as amicus curiae. The United States supports neither party, but agrees with the Church that Gilbert’s sign ordinance is unconstitutional. The United States’ argument focused on the level of judicial review appropriate in the sign-regulation context. Feigin argued that “a context-specific intermediate scrutiny approach should apply in evaluating speech-permissive exceptions to a sign ordinance where those exceptions are based on the same longstanding traditional rationales that justify the sign ordinance as a whole.” In other words, application of strict scrutiny to municipal ordinances that increase opportunities for speech (allowing signs that do not interfere with public health or safety) would have an adverse impact on free speech. Strict judicial review without some degree of deference may, for example, cause municipalities to place a blanket (content-neutral) restriction on more signage than it would have otherwise.
Brian J. Connolly, Attorney with Otten Johnson Robinson Neff & Ragonetti, P.C. in Denver, CO.,[ii] observed that the Court might be interested in revisiting the applicable standard of review: “the fact that the justices’ questioning did not reference a lot of the historical cases on content neutrality (Mosley, Ward, Hill, etc.) might suggest that the justices are willing to take a fresh look at the content neutrality doctrine as opposed to trying to wade through past inconsistencies.”
Attorney for Gilbert, Philip Savrin, argued that application of the strict scrutiny standard to ordinances like Gilbert’s will result in municipalities adopting “one size fits all” regulation that will effectively limit speech. “And in order to pass strict scrutiny,” Savrin argued, “the legislatures in these towns and cities across this country would be inclined to ban all signs except those that the First Amendment absolutely allows.” Explaining the differing treatment of directional signs, Savrin maintained “that directional signs are functionally different from an ideological sign or even from a political sign, that the directional signs do not need to be larger and also that there are more of them…. this town has decided the tradeoff is that they need to be smaller because they need to guide travelers along a route.”
Despite several pointed questions from Justices Scalia and Kagan (and a hearty “My goodness!” from Justice Breyer), Savrin maintained throughout the argument that Gilbert’s ordinance did not make distinctions based on a sign’s content. It is permissible, Savrin argued, that a municipality regulate based on a sign’s function. Another Court observer noted that the Bench gave a few hints that it was willing to grant municipalities some leniency in outdoor sign regulation, but also concluded that as the argument developed, Gilbert’s attorney was “constantly badgered by questions from the bench, and the Justices’ sympathy for the little church became more apparent.”
[i] Professor Mandelker’s relevant publications include Street Graphics and the Law(2004) (American Planning Association, PAS 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 on sign regulation include Decision Making in Sign Codes: The Prior Restraint Barrier, Zoning and Planning Law Report, Sept. 2008.
[ii] Mr. Connolly’s article, Environmental Aesthetics and Free Speech: Toward a Consistent Content Neutrality Standard for Outdoor Sign Regulation, 2 Mich.J.Envtl. & Admin. L. 185 (2012) was cited in Reed v. Gilbert briefing papers, including the certiorari petition. He is also a co-author of The Michigan Sign Guidebook: The Local Planning and Regulation of Signs (Scenic Michigan 2011), which discusses the legal aspects—particularly the First Amendment issues—relating to outdoor sign and advertising regulation, and The Protecting Free Speech and Expression Book, currently in process.