Argument preview: Pointing the way on signs
At 10 a.m. Monday, the Supreme Court returns to the question of local governments’ power to control outdoor signs as a way to avoid clutter and hazards to safety. Arguing for a small church in Arizona and its pastor challenging a sign law in the case of Reed v. Town of Gilbert will be David A. Cortman of Lawrenceville, Georgia, an attorney with the legal advocacy group Alliance Defending Freedom. He will have twenty-five minutes of time. Eric J. Feigin, an assistant to the U.S. Solicitor General, will argue next, for the federal government, with ten minutes of time, appearing in support of neither side in the case. The town of Gilbert will be represented by Philip W. Savrin of the Atlanta law firm of Freeman Mathis & Gary, with twenty-five minutes of time.
Outdoor signs are hard to miss, and that, of course, is what keeps them popping up all across America. For all of the simplicity of the messages that they usually convey, to quickly catch the eye of the passing public, they stand in the midst of a complex structure of constitutional law. Government cannot ban them just because of what they say, but it can decide when and where they will be allowed and something about what they can look like. Defining those limits, though, is at the core of the constitutional problem.
The Supreme Court’s next look at the constitutional structure will focus on one kind of sign: a curbside placard that points the public to an event, short in duration. Can the rules be different for signs that go up during election season and signs that convey a social or cultural message than for signs that a local church puts up to draw people to a temporary worship site? And, if the rules are different, what test should be used to judge the rules’ constitutionality?
The Good News Community Church, a congregation that usually numbers about thirty adults and ten children, has been in a running First Amendment battle with the fast-growing Arizona community of Gilbert, in the central part of the state near Chandler and Tempe. The legal contest has persisted through several variations of local sign ordinances that Gilbert’s government has adopted with the aim of protecting the aesthetics of the city and reducing chances that signs will be a hazard to street traffic.
Gilbert requires in general that people or groups who want to put up an outdoor sign get a permit to do so, although the permit requirement does not exist for those who can qualify for one of nineteen separate exemptions. Gilbert will allow a curbside sign, put up only temporarily, that is directional in nature, if it is keyed to an event within the community. But within the exempted categories, there are differing requirements on size, duration of display, permission from private property owners, and option to place them in public rights of way, such as a median strip.
Signs that fall into the political category can be larger, may go up at any time but must come down ten days after the election, and can be placed in a right of way. A sign that the town treats as ideological in origin, with a message other than a commercial one, may be larger and is not limited in the time it can remain up.
The Good News Church, led by Pastor Clyde Reed, does not have a permanent building, so it meets for its weekly services in rented spaces, such as public school buildings. Because the site may shift around, it needs to post directional signs that point to the meeting site and provide some contact information. The church claims that city officials have threatened it a number of times with sign code violations, causing it to curtail its message via curbside placards. That, the church argues, curbs its “religious speech” in violation of the First Amendment.
The church has been pursuing a lawsuit against the town for more than seven years. The case has changed from time to time after the town amended its sign ordinance, tightening the restrictions on temporary signs pointing to event sites. The U.S. Court of Appeals for the Ninth Circuit has twice rejected the church’s First Amendment challenges, treating the restrictions on directional signs as a permitted regulation of the “time, place and manner” of displays. The town does not enforce the ordinance, the Ninth Circuit found, in a way that discriminates against the messages on the signs. It regulates only to promote neutral civic concerns about road safety and aesthetics, according to that court.
The church and its pastor took the case to the Supreme Court, raising a single question: “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 [the church’s] religious signs?” The town urged the Supreme Court to bypass the case, arguing that the church was challenging provisions that no longer existed and had “distorted” the Ninth Circuit’s rulings to create a perceived split in the appeals courts.
The Justices granted review of the case at the close of last Term, on July 1.
Briefs on the merits
The church’s merits brief, like its petition for review, opened with photographs to illustrate its argument that Gilbert treats signs differently, based on the kind of message they convey. “This case,” the brief began, “proves the truth of the old adage, ‘a picture is worth a thousand words.'” It offers a picture of a crowded grassy area filled with political campaign signs, and a picture of a single, noticeably smaller sign, standing alone near a curb, put up by the church.
While all of the ordinance’s provisions are designed, the church conceded, to respond to the same “safety and aesthetic concerns,” it argued that they do so for different temporary signs in a way that is clearly discriminatory: “Gilbert grants highly favorable treatment to temporary political signs, despite the fact that they post the greatest threat to its interests because of their far greater number….To prevail in this case, Gilbert must explain why a 32 square foot sign displayed in the right-of-way virtually all year long is not a threat to safety and aesthetics if it bears a political message, but it is such a threat if it invites people to Good News’ church services. Gilbert has never provided a satisfactory explanation to this question because none exists.”
The church’s legal arguments revolve around two points: the Court should apply “strict scrutiny” — the Constitution’s most rigorous test — to laws that treat signs differently based on their message or content; and the Court should use an objective test of when a regulation is keyed to content rather than focusing on whether government had a neutral motive or purpose rather than an intention to discriminate. The focus on illicit motive, it said, is exactly what has caused a split in the federal appeals courts on how to judge the validity of a sign ordinance.
“This case,” the brief asserted, “presents an important opportunity for the Court to clarify this critical area of First Amendment jurisprudence by reaffirming that content neutrality is foremost an objective, not subjective, test.” All that a court needs to do to determine whether a sign ordinance is discriminatory, the filing argued, is to read its plain text to see if it mandates more favorable treatment to some content compared to other content.
The town, in its merits brief, urged the Court to keep its focus on how the local ordinance regulates what it calls directional signs, pointing directions to a temporary event. If the church wanted to put something more on its curbside signs, such as information of a religious nature, it would be eligible for putting up an “ideological sign” and gain greater freedom to maintain such a display, the town contended.
On the constitutional issue, the town’s brief said that the Ninth Circuit had explicitly disavowed the use of a subjective, motive-based test in judging the Gilbert ordinance. The court of appeals, it added, found no evidence whatsoever of an intention to suppress any ideas through its sign code.
The proper constitutional standard for use in this instance, the town filing contended, is intermediate, rather than strict, scrutiny. The more demanding test, the brief said, should be reserved for regulations “that favor certain viewpoints or ideas over others.” Middle-level scrutiny, it went on, allows a court sufficient analytical flexibility to balance the interests of the government and of those who display signs. If the Court used that level of analysis, the town said, it should upheld the Ninth Circuit’s decision and the Gilbert ordinance as it applies to temporary directional signs of the kind that the church has said it wants freedom to display.
The federal government has entered the case as a neutral “friend of the Court,” seeking to explicitly support neither the church’s challenge nor the town’s legal position, but the federal brief winds up giving something to each side. It urged the Court to apply the intermediate level of scrutiny (the town’s view), but it ruled that the Gilbert ordinance cannot satisfy that test and is thus invalid (the church’s view). The government sought to justify its role in the case by noting that a federal law, the Highway Beautification Act of 1965, encourages states to limit signs along major highways to protect safety and natural beauty.
Although the Gilbert ordinance differs from that Act “in significant respects,” the Justice Department contended that the analysis the Court used in judging that local law could have an impact on the federal law and other federal regulatory moves.
While the federal brief argued that the Gilbert ordinance would not pass muster under either suggested test, it suggested that, if the Court felt a need to decide which test was the proper one, it should be intermediate scrutiny when a sign-regulating law is passed to support safety and aesthetics. Those interests have long justified limits on proliferation of signs, and can support even some regulation of sign content that promotes or does not detract from those governmental interests, the brief added.
The Gilbert ordinance must fall, the federal filing contended, because “a temporary directional sign does not inherently create any more visual clutter than an ideological or political sign, and no safety or aesthetic rationale adequately supports allowing unlimited ideological or political signs of up to 32 square feet in size, while allowing only a limited number of temporary directional signs of only six square feet apiece.”
Gilbert can require the church to take down a directional sign once the event associated with it has been held, the government suggested, but the Gilbert ordinance goes beyond that and imposes “stringent time limitations” that restrict “considerably more speech” that its civic interests would justify.
There is a considerable gap between the other amici involved in the case, the eleven briefs filed in support of the church, and the single brief on Gilbert’s side. Among the church’s supporters are nine states, arguing against judicial oversight of legislative motives in passing laws regulating signs or other forms of expression. Other amici on that side are mainly conservative or libertarian advocacy groups or church organizations. On Gilbert’s side, a number of organizations representing local governments and conservation groups have signed onto the single brief.
The Court’s argument on Monday will be followed by weeks of private deliberations; there is no specific timetable for a final decision.