The U.S. Supreme Court recently heard oral arguments in Reed v. Town of Gilbert, which involves whether an Arizona town’s sign ordinance violates the First Amendment. While the Court seemed inclined to give municipalities some leeway in regulating signs, it is unclear where the justices will draw the line.
As previously discussed on the Scarinci Hollenbeck Government & Law Blog, the Alliance Defending Freedom (ADF) alleges that the town of Gilbert, Arizona sign ordinance violates the First Amendment by imposing stricter regulations on its church signs. As it characterizes the ordinance, “political signs can be up to 32 square feet, displayed for several 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 14 hours, and are limited to four per property.”
In addressing the constitutionality of the sign ordinance, the Ninth Circuit Court of Appeals concluded that it was content-neutral. It held that the “restrictions are based on objective factors… and do not otherwise consider the substance of the sign. . . .” On appeal, the Supreme Court agreed to consider: “Whether the Town of Gilbert’s mere assertion that its sign code lacks a discriminatory motive renders its facially content-based sign code content-neutral and justifies the code’s differential treatment of petitioners’ religious signs.”
During oral arguments, ADF’s attorney argued that the ordinance “discriminates on its face by treating certain signs differently based solely on what they say.” As an example, he noted that “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.”
In response, Justice Anthony M. Kennedy raised concerns about treating all temporary, private signs the same way. “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,” he remarked.
Eric J. Feigin, an assistant to the U.S. Solicitor General, represented the United States’ position as amicus curiae. He argued that the sign ordinance is unconstitutional and 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.”
Finally, the town of Gilbert’s lawyer defended the law, arguing that it did not make content-based distinctions. As Philip Savrin explained, “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.”
Savrin also argued against the application of the strict scrutiny standard, maintaining that it would actually result in less free speech. “And in order to pass strict scrutiny,” he maintained, “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.”
The Court will issue its decision by June. We will be tracking the status of the case and will provide updates accordingly.
For more information about this case or the legal issues involved, we encourage you to contact a member of Scarinci Hollenbeck’s Government Law Group. You can also fund more information about the U.S. Supreme Court on the Constitutional Law Reporter (http://scarinciattorney.com).