U.S. Supreme Court to Hear Arguments Questioning Constitutionality of Municipal Sign Ordinance

The Supreme Court of the United States will hear arguments on January 12, 2015 in Reed v. Town of Gilbert, a case raising the question of whether an Arizona municipality’s sign ordinance creates an unconstitutional distinction among different kinds of speech. The Supreme Court’s consideration of the case follows a 9th Circuit ruling upholding a decision by Arizona’s federal district court granting summary judgment to the Town.

The Town of Gilbert ordinance under scrutiny restricts the size, duration, and location of signs that fall within the ordinance’s definition of “temporary directional signs relating to a qualifying event.” The signs must be 6 feet or less in height, 6 feet or less in area, displayed for no longer than 12 hours prior to and 1 hour following an event, located at a level grade, located with the permission of the property owner, not located in a public right-of-way or on fences and other structures, and displayed with a maximum of three other signs on the same property. The signs at issue belong to Good News Community Church and typically announce the time and location of the Church’s services as well as provide contact information for the Church.

The Church seeks a ruling striking down The Town’s sign ordinance, arguing that it is both unconstitutional on its face as impermissible content-based restriction of speech and unconstitutional in its application and unfavorable treatment of the church’s advertisement of its services. In the Church’s words, “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.”

The Town defends the ordinance’s constitutionality, arguing that its separate rules for temporary directional signs, ideological, and political signs provide content-neutral regulation of the time, place, and manner of speech and serve aesthetic and safety purposes. The Town argues that the non-directional elements of the information that the Church wishes to convey could be placed on ideological signs, and thus subject to lesser durational limits and different limits than temporary directional signs, and that the Church has utilized other permissible types of signs, such as A-Frame signs, to advertise its services.

The Supreme Court’s resolution of the case has the potential to influence how municipalities around the country regulate signs. One of the central issues the Court has the opportunity to address is what the standard is for determining whether an ordinance is content-based or content-neutral. The parties disagree about what standard lower courts are currently employing, what standard the 9th Circuit employed, and what standard the Supreme Court should adopt.

Ultimately the Church urges the Supreme Court to adopt an “objective” test for content-neutrality based on the ordinance text and not considering the Town’s motive. The Church argues that the application of the test results in the conclusion that the Town’s ordinance “divides temporary signs into content-based categories and then regulates various aspects of those signs based on the category into which Gilbert officials place them.” The Church further argues that the need for enforcement officials to “examine what a temporary sign says before they can determine what provision of the Code to apply” demonstrates that it is content-based.

The Town calls for a less “formulaic” test based on whether the ordinance is “neutral as to the viewpoints or ideas addressed, both on its face and in its application.” The Town asserts that its ordinance is content-neutral because it does not restrict the communication of the Church’s viewpoints and ideas on signs in the Town and because it applies equally to all non-profits without regard to the sponsor or subject matter of the temporary event. The Town argues that “because the provision does not limit any noncommercial speaker from erecting Temporary Directional Signs, there is no concern about Gilbert either endorsing or suppressing ‘ideas or viewpoints,’ which lies at the heart of First Amendment considerations.”

The full parties’ briefs, and the transcript of the parties’ arguments when it becomes available, can be found on the SCOTUS blog: http://www.scotusblog.com/case-files/cases/reed-v-town-of-gilbert-arizona/. For more information, please contact Diane Sherman.