Municipal Sign Ordinance Violates the First Amendment in Reed v. Town of Gilbert
On June 18, 2015, the U.S. Supreme Court held that an Arizona town’s sign ordinance violates the First Amendment. The Court’s unanimous decision in Reed v. Town of Gilbert established that regulations that are facially content-based must be subject to strict scrutiny regardless of their motivations.
The Facts of Reed v. Town of Gilbert
Gilbert, Arizona (Town), has a comprehensive Sign Code that prohibits the display of outdoor signs without a permit, but exempts certain categories of signs. “Ideological Signs,” defined as signs “communicating a message or idea” that do not fit in any other Sign Code category, may be up to 20 square feet and have no placement or time restrictions. “Political Signs,” defined as signs “designed to influence the outcome of an election,” may be up to 32 square feet and may only be displayed during an election season. “Temporary Directional Signs,” defined as signs directing the public to a church or other “qualifying event,” have even greater restrictions: No more than four of the signs, limited to six square feet, may be on a single property at any time, and signs may be displayed no more than 12 hours before the “qualifying event” and 1 hour after.
Good News Community Church (Church) and its pastor, Clyde Reed, held church services at various temporary locations around the Town. The Church posted signs early each Saturday bearing the Church name and the time and location of the next service and did not remove the signs until around midday Sunday. The Church was cited for exceeding the time limits for displaying temporary directional signs and for failing to include an event date on the signs. After failing to reach a settlement with the town, the Church filed suit against the town, alleging that the town imposes stricter regulations on church signs in violation of the First Amendment.
The Legal Background
Under long-standing First Amendment precedent, content-based restrictions on speech are closely scrutinized and upheld only if they are “narrowly tailored” to a “compelling government interest.” The key issue in Reed v. Town of Gilbert was how courts should determine whether a regulation is content-based or content-neutral.
The Ninth Circuit Court of Appeals held that the Gilbert ordinance was content-neutral, concluding that the “restrictions are based on objective factors… and do not otherwise consider the substance of the sign…” The Supreme Court granted certiorari to address the following question: “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.”
The Court’s Decision
The Supreme Court overturned the Ninth Circuit’s decision. It held that the Sign Code’s provisions are content-based regulations of speech that do not survive strict scrutiny.
In his majority opinion, Justice Clarence Thomas highlighted that speech regulation is content based, and subject to strict scrutiny, if a law applies to a particular speech because of the topic discussed or the idea or message expressed. The same applies to laws that, though facially content neutral, cannot be “justified without reference to the content of the regulated speech,” or were adopted by the government “because of disagreement with the message” conveyed.
With respect to Gilbert’s sign ordinance, the Court found it to be content based on its face. “It defines the categories of temporary, political, and ideological signs on the basis of their messages and then subjects each category to different restrictions. The restrictions applied thus depend entirely on the sign’s communicative content,” Justice Thomas explained.
The Court further noted that the restrictions in the Sign Code that apply to any given sign depend entirely on the communicative content of the sign. Justice Thomas provided the following example:
If a sign informs its reader of the time and place a book club will discuss John Locke’s Two Treaties of Government, that sign will be treated differently from a sign expressing the view that one should vote for one of Locke’s followers in an upcoming election, and both signs will be treated differently from a sign expressing an ideological view rooted in Locke’s theory of government. More to the point, the Church’s signs inviting people to attend its worship services are treated differently from signs conveying other types of ideas.
Lastly, the Court clarified that law that is content-based on its face is subject to strict scrutiny regardless of the government’s benign motive, content-neutral justification, or lack of “animus toward the ideas contained” in the regulated speech.
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Preamble to the Bill of Rights
Congress of the United States begun and held at the City of New-York, on Wednesday the fourth of March, one thousand seven hundred and eighty nine.
THE Conventions of a number of the States, having at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added: And as extending the ground of public confidence in the Government, will best ensure the beneficent ends of its institution.