June 18, 2015

Supreme Court Decides Reed v. Town of Gilbert

On June 18, 2015, the United States Supreme Court decided Reed v. Town of Gilbert, No. 13-502, holding that a municipal code subjecting signs to different regulations depending on whether the sign displayed an ideological message, a political message, or directed people to a church service, was a content-based restriction that did not survive strict scrutiny.

The town of Gilbert, Arizona, adopted a code governing the display of outdoor signs. The Code prohibits the display of outdoor signs anywhere in the town without a permit, but exempts 23 categories of signs from the permit requirement. Three of those exemptions were relevant to the case before the Court: (1) Ideological Signs, which include certain signs “communicating a message or ideas for noncommercial purposes”; (2) Political Signs, which include any “temporary sign designed to influence the outcome of an election called by a public body”; and (3) “Temporary Directional Signs Relating to a Qualifying Event,” which include any sign “intended to direct pedestrians, motorists, and other passersby to a ‘qualifying event.’” A qualifying event is an “assembly, gathering, activity, or meeting sponsored, arranged, or promoted by a religious, charitable, community service, educational, or other similar non-profit organization.” 

Each category of signs is subject to different regulations. For example, Political Signs may be up to 20 square feet in area and be placed in all zoning districts, while Temporary Directional Signs Relating to a Qualifying Event must be no larger than six square feet, may be placed on private property or a public right of way, and may be displayed no more than 12 hours before the qualifying event, and no more than one hour afterward.

Good News Community Church and its pastor Clyde Reed host Sunday church services at various locations around Town, and began placing signs advertising the location of those services. The Town’s Sign Code compliance manager issued citations to the Church for failure to comply with the time limits for displaying temporary directional signs and for failure to include the date of the event on the signs. 

The Church sought a preliminary injunction, arguing that the Sign Code violated its rights under the First and Fourteenth Amendment. The district court denied the requested injunction, and the Ninth Circuit Court of Appeals affirmed. That court found that the Sign Code was not a content-based regulation on speech because an officer would need to conduct only a cursory examination of the sign to classify it under the Sign Code. On remand, the district court granted the Town’s motion for summary judgment. The Ninth Circuit again affirmed, concluding that the Sign Code was content neutral because “the distinctions between Temporary Directional Signs, Ideological Signs, and Political Signs . . . 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” and passed constitutional muster under the lower level of scrutiny applicable to content-neutral regulations.

The Supreme Court reversed, holding that the Sign Code was a content-based regulation that did not survive strict scrutiny. The Court found that the Sign Code was “content based on its face” because “[t]he restrictions in the Sign Code that apply to any given sign . . . depend entirely on the communicative content of the sign,” such that “the Church’s signs inviting people to attend its worship services are treated differently from signs conveying other types of ideas.”

Applying the appropriate strict scrutiny standard, the Court found that, even assuming that preserving the Town’s aesthetic appeal and traffic safety could be compelling government interests, the Sign Code was not narrowly tailored, as it was “hopelessly underinclusive.” The Court explained “[t]he Town cannot claim that placing strict limits on temporary directional signs is necessary to beautify the Town [and eliminate threats to traffic safety] while at the same time allowing unlimited numbers of other types of signs that create the same problem.”

Justice Thomas delivered the opinion of the Court, in which Chief Justice Roberts and Justices Scalia, Kennedy, Alito, and Sotomayor joined. Justice Breyer filed an opinion concurring in the judgment. Justice Kagan filed an opinion concurring in the judgment, in which Justices Ginsburg and Breyer joined.

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