Reed v. Town of Gilbert

Reed v. Town of Gilbert, 576 U.S. 155 (2015), is a case in which the United States Supreme Court clarified when municipalities may impose content-based restrictions on signage. The case also clarified the level of constitutional scrutiny that should be applied to content-based restrictions on speech. In 2005, Gilbert, Arizona adopted a municipal sign ordinance that regulated the manner in which signs could be displayed in public areas. The ordinance imposed stricter limitations on signs advertising religious services than signs that displayed "political" or "ideological" messages. When the town's Sign Code compliance manager cited a local church for violating the ordinance, the church filed a lawsuit in which they argued the town's sign regulations violated its First Amendment right to the freedom of speech.

Writing for a majority of the Court, Justice Clarence Thomas held that the town's sign ordinance imposed content-based restrictions that did not survive strict scrutiny because the ordinance was not narrowly tailored to further a compelling government interest.Reed v. Town of Gilbert, No. 13-502, 576 U.S. ___, slip op. at 15, 17 (2015). Justice Thomas also clarified that strict scrutiny should always be applied when a law is content-based on its face.Reed, slip op. at 8. Justice Stephen Breyer and Justice Elena Kagan both wrote opinions concurring in the judgment, in which they argued that content-based regulations should not always automatically trigger strict scrutiny.Reed, slip op. at 1 (Breyer, J., concurring in judgment); Reed, slip op. at 3 (Kagan, J., concurring in judgment). Although some commentators praised the court's decision as a victory for "individual liberty",See, e.g., David A. Cortman, Supreme Court Decision Ensures Fair Playing Field In Marketplace of Ideas, JURIST (August 4, 2015). other commentators criticized the Court's methodology.See, e.g., Hadley Arkes, Victory in Spite of Ourselves, (June 20, 2015). Some analysts have also suggested that the case left open several important questions within First Amendment jurisprudence that may be re-litigated in future years.See, e.g., Steve Butler, The Importance of Bringing Your Sign Code Up-to-Date, (October 29, 2015); Eugene Volokh, Supreme Court reaffirms broad prohibition on content-based speech restrictions, in today’s Reed v. Town of Gilbert decision, (June 18, 2015).

Background

Content-based restrictions on speech The First Amendment to the United States Constitution, through selective incorporation from the Fourteenth Amendment to the United States Constitution, prohibits states from enacting laws that abridge the freedom of speech.U.S. Const. amend. I; see also Gitlow v New York 368 U.S. 652 (1925) (incorporating First Amendment protections for freedom of expression to the states through the Due Process Clause of the Fourteenth Amendment to the United States Constitution). Municipal governments may not "restrict expression because of its message, its ideas, its subject matter, or its content".Police Dept. of Chicago v. Mosley, 408 U.S. 92, 95 (1972). Laws that regulate speech based on the expressive content of the speech are presumptively unconstitutional; such restrictions are only permissible when they are narrowly tailored to serve a compelling state interest.R.A.V. v. St. Paul, 505 U.S. 377, 395 (1992); Simon & Schuster, Inc. v. Members of N.Y. State Crime Victims Bd., 502 U.S. 105, 115, 118 (1991). For the purposes of the First Amendment, government regulation of speech is considered "content-based" when it targets speech because of ideas or messages that are expressed.Carey v. Brown, 447 U. S. 455, 462 (1980); Mosley, 408 U.S. at 95. Furthermore, some laws may still be considered "content-based" even though they appear to be facially content-neutral.Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989) (internal quotations and citations omitted). Laws are considered "content-based" if they cannot be "justified without reference to the content of the regulated speech" or if they were adopted "because of disagreement with the message [the speech] conveys".Ward v. Rock Against Racism, 491 U.S. at 791.

Gilbert, Arizona municipal sign ordinance In 2005, the town of Gilbert, Arizona adopted a municipal sign ordinance that regulated the manner in which signs could be displayed in public areas.Reed, slip op. at 1 (citing Gilbert, Ariz., Land Development Code, ch. 1, §4.402 (2005)). Although the ordinance banned the display of most outdoor signs without a permit, twenty three categories of signs were exempt from the permit requirement.Reed, slip op. at 1–2. Three of those categories were relevant to this case.Reed, slip op. at 2. First, "ideological signs", which contained "a message or ideas for noncommercial purposes", could be up to twenty square feet in size and could be placed in any "zoning district" for any length of time.Reed, slip op. at 2 (citing Gilbert, Ariz., Land Development Code, ch. 1, §4.402(J)) (internal quotations omitted). Second, "political signs", which included content "designed to influence the outcome of an election called by a public body", could be no larger than thirty two square feet on nonresidential property and sixteen square feet on residential property.Reed, slip op. at 2 (citing Gilbert, Ariz., Land Development Code, ch. 1, §4.402(I)) (internal quotations omitted). Additionally, political signs could only be displayed "up to 60 days before a primary election and up to 15 days following a general election".Reed, slip op. at 2 (citing Gilbert, Ariz., Land Development Code, ch. 1, §4.402(I)). Third, “temporary directional signs relating to a qualifying event", which directed "pedestrians, motorists, and other passersby" to events hosted by non-profit organizations, could be no larger than six square feet.Reed, slip op. at 3 (citing Gilbert, Ariz., Land Development Code, ch. 1, §4.402(P)) (internal quotations omitted). Additionally, temporary directional signs relating to a qualifying event could be displayed no earlier than twelve hours before the start of a qualifying event and no later than one hour after the end of the event; these signs could only be displayed in private property or public rights-of-way, but no more than four signs could be placed on a single property at the same time.Reed, slip op. at 3 (citing Gilbert, Ariz., Land Development Code, ch. 1, §4.402(P)).

Good News Community Church

The named plaintiff, Clyde Reed, is the pastor of Good News Community Church.Reed v. Town of Gilbert, 832 F. Supp. 2d 1070, 1073 (D. Ariz. 2011), withdrawn from bound volume, aff'd sub nom. Reed v. Town of Gilbert, Ariz., 707 F.3d 1057 (9th Cir. 2013) rev'd and remanded, 135 S. Ct. 2218, 192 L. Ed. 2d 236 (2015) The church is a "small, cash-strapped entity that own[ed] no building" and held services in elementary schools and other buildings in Gilbert, Arizona.Reed, slip op. at 3. On the original docket, the name was Good News Presbyterian Church because according to Reed, the church's name has actually "vacillated" between that and Good News Community Church.Reed v. Town of Gilbert, 832 F. Supp. 2d 1070, 1073 fn.1 (D. Ariz. 2011), withdrawn from bound volume, aff'd sub nom. Reed v. Town of Gilbert, Ariz., 707 F.3d 1057 (9th Cir. 2013) rev'd and remanded, 135 S. Ct. 2218, 192 L. Ed. 2d 236 (2015) Because the briefs had used "Community", the District Court used it as well. To advertise their services, the church placed fifteen-to-twenty temporary signs in various locations around Gilbert.Reed, slip op. at 3–4. The signs would typically include the church's name as well as the location and time of services.Reed, slip op. at 4. Members of the church "would post the signs early in the day on Saturday and then remove them around midday on Sunday". However, the town's Sign Code compliance manager cited the church on two occasions, for exceeding time limits when displaying signs and for failing to include the date of the event on a sign, respectively.

Initial lawsuit The church filed suit in the United States District Court for the District of Arizona in March 2008, where they claimed the town "abridged their freedom of speech in violation of the First and Fourteenth Amendments".Reed, slip op. at 4; Reed v. Town of Gilbert, Ariz., 587 F.3d 966, 972 (9th Cir. 2009) The district court first denied the church's request for a preliminary injunction, and the church then appealed to the United States Court of Appeals for the Ninth Circuit.Reed, slip op. at 4–5. The Ninth Circuit, analyzing the likelihood of success on the merits requirement for a preliminary injunction, affirmed the decision of the district court, holding that the town's restrictions for temporary directional signs "did not regulate speech on the basis of content"Reed, slip op. at 4 (citing Reed v. Town of Gilbert, 587 F.3d 966, 979 (9th Cir. 2009)). Although the Ninth Circuit conceded that enforcement officers would need to read a sign to determine which portions of the sign ordinance applied to the sign, the Ninth Circuit concluded that this "cursory examination" was not equivalent to "synthesizing the expressive content of the sign".Reed, slip op. at 5 (citing Reed v. Town of Gilbert, 587 F.3d at 978) (internal quotations omitted). The Ninth Circuit then remanded the case back to the district court to determine "in the first instance whether the Sign Code’s distinctions among temporary directional signs, political signs, and ideological signs nevertheless constituted a content-based regulation of speech."Reed, slip op. at 5.

Remand and appeal to the Supreme Court of the United States At a subsequent status conference after the appellate court decision, the parties decided to resolve all the issues on summary judgment, rather than via new preliminary injunction motions.Reed v. Town of Gilbert, 832 F. Supp. 2d 1070, 1073-74 (D. Ariz. 2011), withdrawn from bound volume, aff'd sub nom. Reed v. Town of Gilbert, Ariz., 707 F.3d 1057 (9th Cir. 2013) rev'd and remanded, 135 S. Ct. 2218, 192 L. Ed. 2d 236 (2015) The United States District Court for the District of Arizona granted the Town's motion for summary judgment. The church then appealed that ruling to the United States Court of Appeals for the Ninth Circuit, but the Ninth Circuit affirmed the judgment of the district court, holding the town's ordinance was content neutral. Citing Hill v. Colorado, the Ninth Circuit ruled that "Gilbert did not adopt its regulation of speech because it disagreed with the message conveyed” and that the town's “interests in regulat[ing] temporary signs are unrelated to the content of the sign".Reed, slip op. at 5 (citing Reed v. Town of Gilbert, 707 F.3d 1057, 1071–72 (9th Cir. 2013)) (internal quotations omitted). Additionally, the Ninth Circuit concluded that the distinctions between ideological signs, political signs, and temporary directional signs were "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”.Reed, slip op. at 5 (citing Reed v. Town of Gilbert, 707 F.3d at 1069). Based on its determination that the ordinance was content-neutral, the Ninth Circuit "applied a lower level of scrutiny to the Sign Code" and held it did not violate the First Amendment.Reed, slip op. at 5 (citing Reed v. Town of Gilbert, 707 F.3d at 1073–76). The church then appealed to the Supreme Court of the United States, which granted certiorari on July 1, 2014.Reed v. Town of Gilbert, 134 S. Ct. 2900 (2014) (granting petition for certiorari).

Opinion of the Court