Deconstructing Reed v. Town of Gilbert

On June 18, the Supreme Court of the U.S. (SCOTUS) handed down a unanimous decision regarding the case of Reed v. Town of Gilbert. ST, as well as, presumably, the rest of the sign industry, believe the decision will aid signage content neutrality. Here’s some background about the case, as well as opinions about the significance for the sign business.

Background
In 2005, Clyde Reed, the pastor of Good News Community Church, then located in Gilbert, AZ, placed stake-mounted signs in public areas in town to promote its services. However, the city responded with repeated notices that demanded the signs’ removal. When Reed asked the reasoning behind the demand, city officials referred him to the city’s sign codes.
There, Reed found a stark difference between what Gilbert permitted for the commercial speech allowed for religious organizations versus what’s allowed for other types of organizations. Gilbert’s city ordinance allowed religiously oriented signage to encompass only 6 sq. ft. In sharp contrast, the city permitted political signs to span 32 sq. ft., and ideological signage could measure up to a comparatively colossal 80 sq. ft. Moreover, the church signs could only be in place for 14 hours – 12 hours before the service, during and one hour after.
Reed was justifiably upset with the disparity between his commercials-speech rights and others, so he contacted the Alliance Defending Freedom (ADF), a Scottsdale, AZ-based legal organization that advocates for religious freedom. They agreed to take on his case; ADF cited the Gilbert sign ordinance as a prime example of content discrimination.
Reed and ADF began their laborious legal journey by filing suit in March 2008 in a Phoenix District Court. The judge issued an injunction that required Gilbert to amend its code. City officials responded with the equivalent of a middle finger to Reed: instead of expanding his church’s commercial-speech rights, Gilbert instead conscripted other types of nonprofit organizations to the same strict regulations.
Jeremy Todesco, an ADF attorney, aptly characterized it as “throwing other organizations on the back of the free-speech bus.”
Reed and ADF amended their complaint to explicitly enhance their commercial-speech rights in Gilbert’s code; the subsequent pursuit of an injunction was denied. They filed an appeal with the 9th Circuit Court of Appeals in San Francisco, which returned the matter to the district court. Again, the lower court issued a ruling in the city’s favor; thus, the matter reverted back to the appellate court.
By a 2-1 decision, the 9th Circuit Court ruled in favor of the city. The majority pair of 9th Circuit judges presiding over the case, Consuelo M. Callahan and James K. Singleton, upheld this original ruling. According to the case summary, “The panel concluded the sign ordinance was constitutional because the different treatment of types of noncommercial temporary signs was not content-based as that term was defined in Reed, and the restrictions were tailored to serve significant governmental interests.” Going into specifics, the decision summary further states that Callahan and Singleton “found that the ordinance ‘regulates physical characteristics’, such as size, number and construction of the signs,’ their locations and the timing of displays, none of which ‘implicate the content of the speech.’” And, later: “The restrictions on time, place and manner imposed by Gilbert on the display of Qualifying Events Signs would indeed appear to ‘actually advance’ the aesthetic and safety interests by limiting the size, duration and proliferation of signs.” They also defended the liberal, political-sign regulations because the elections for which these candidates were running are of “widespread interest.”
The dissenting judge that presided over the appellate hearing, Paul Watford, offered strong words in opposition: “What we [have] is Gilbert’s apparent determination that ideological and political speech is categorically more valuable, and entitled to greater protection from regulation, than speech promoting events sponsored by non-profit organizations [The] First and Fourteenth Amendments forbid [this].”
Perhaps these sage words compelled SCOTUS to decide to hear the case. Last July, the high court filed a writ of certiorari to have the 9th Circuit deliver the case information for SCOTUS consideration. In January, SCOTUS heard Reed v. Town of Gilbert’s oral arguments.

SCOTUS transcript excerpts
The following was gleaned from the official SCOTUS transcript of Reed v. Town of Gilbert:
David A Cortman, a Lawrenceville, GA-based attorney who argued for the Petitioners – Reed and ADF – made the following opening statement: “The town’s code discriminates on its face by treating certain signs differently based solely on what they say. For example, political signs may be 32 sq. ft., may be unlimited in number, and may be placed in the right-of-way of the entire town for five months before an election. But, the church’s signs can only be one-fifth the size, and may only be placed in the dark of night the night before the church service.” And, later, “We’re seeking placement that any other temporary signs get, which is the category we’re talking about.”
Chief Justice John Roberts affirmed the case didn’t hinge on religious content: “Your argument would be the same if this is a temporary sign about where the soccer game is going to be?” Cortman affirmed that any type of directional speech should be afforded the same protection. However, when Roberts asked whether political speech was more valuable than soccer-game directions, Cortman responded, “Maybe [for some], but the problem we have is, should the government be deciding what speech is more valuable than others, because that is exactly what it did in this case.”
Justice Anthony Kennedy posed an interesting question: “So … under your view, [temporary signs with the messages] ‘Happy Birthday, Uncle Fred’, ‘Save your soul’ and ‘Birthplace of James Madison’ can all be up for the same length of time, same size?” To this, Cortman responded, “I think it can, because otherwise we have a problem with content-based discrimination.”
Justice Sonia Sotomayor asked: “How do you create your temporary category without reading the sign? And, so there is some force, the counterargument that what is being regulated here is not, the content, but the function of the sign. How do you get around that argument? You’ve already created a category that requires you to read the sign.” Cortman responded: “The way the temporary sign is defined here is merely a sign that’s often intended and constructed not to be permanent. A permanent sign is just duration.”
Cortman noted the distinction between the unequally treated events of an election and a church service: “The town has already agreed that an election is an event … yet that single-event sign can be up for five months, and yet we have event where that [sign promoting the] single event can only be up overnight.”
He also underscored Gilbert’s hollow argument that it wanted to remove Reed’s sign in the name of reducing clutter: “It’s hard to take the interests seriously of reducing clutter when it allows political signs to clutter the entire town in an unlimited number for the entire year. What we have here is carte-blanche authority for political signs to clutter the landscape, unlimited in number for the entire year, and yet the concern is for maybe a few more signs that may be placed.”
Phillip Savrin, who argued Gilbert’s case, was thoroughly grilled. Justice Elena Kagan took issue with the highly preferential treatment given ideological signage: “So, you are not even purporting to have a content-neutral justification for this?’ You are essentially saying, yes, we generally dislike clutter, but we’re willing to make exceptions for clutter for speech that we think has special First Amendment significance.” Savrin argued that ideological signage was opened to all viewpoints, to which Justice Scalia retorted, “…You are trying to reduce our rules against discriminations on the basis of content to a rule against viewpoint discrimination.”
He continued, “There is as much a First Amendment right to give somebody directions as there is to speak about – being green or whatever else.”
Justice Alito brought some levity in questioning Gilbert’s case: “So, they could put up a ‘quote, unquote’ ideological sign that says, ‘Come to our service on Sunday morning’, but no arrow, and then they put up another sign that says, ‘This is the arrow.’ Or maybe they put up on the first sign, ‘Come to our service on Sunday morning; we can’t tell you where it will be because the town won’t let us, but if you come – if you drive by here tomorrow morning at a certain time, you will see an arrow.’”
The court transcript then says “[Laughter].” Never a good sign when arguing a case.Justice Stephen Breyer summed it up nicely: “Can they put a big sign, ideological, saying, ‘Come to the next service next Tuesday, at 4th and H Street, three blocks right and two blocks left’? Or, are you saying they can’t say, ‘Three blocks right and two blocks left’? That’s what this argument is about?” Savrin affirmed, “That’s what it comes down to.” Then, Breyer said, “Well, my goodness. It does sound as if the town is being unreasonable, doesn’t it?”
I think Savrin and Gilbert felt the lid slam shut on their case at that moment.

Concurring opinions
All SCOTUS justices agreed with the disposition of the Reed case specifically – all believed the Gilbert code enforced content-based discrimination, and was unconstitutional. However, separately issued, concurring opinions offered different nuances for addressing the issue going forward.
In the primary opinion, Justice Clarence Thomas cited the original case that established speech content neutrality, 1972’s City of Chicago v. Mosley. It summarized, “The Town’s Sign Code is content-based on its face. It … subjects each of these categories [Temporary Directional, Ideological, Political] to different restrictions. The restrictions on the sign code that apply to any given sign thus depend entirely on the communicative content of the sign. If a sign informs its reader of the time and place a book club will discuss [a book], that sign will be treated differently from a sign expressing the view that one should vote for [a candidate].”
Justice Alito’s concurring opinion, which Justices Kennedy and Sotomayor joined, stated, “The regulations at issue in this case are replete with content-based distinction … they must satisfy strict scrutiny. This does not mean, however, that municipalities are powerless to enact and enforce reasonable sign regulations.” The opinion listed several – Alito conceded it wasn’t comprehensive – regulations that shouldn’t require strict scrutiny. They included:
• On-premise versus off-premise signs;
• Private- versus public-property placement;
• Restricting the number of signs allowed per mile
of roadway;
• And, distinguishing between static and changeable, electronic signage.

Justices Breyer and Kagan expressed concern that uniform strict scrutiny could be overreaching: “Content discrimination, while helping courts to identify unconstitutional suppression of expression, cannot and should not always trigger strict scrutiny.
I readily concede that content discrimination, as a conceptual tool, can sometimes reveal weaknesses in the government’s rationale for a rule that limits speech. The better approach is to generally treat content discrimination as a strong reason weighing against the constitutionality of a rule where a traditional public forum, or where viewpoint discrimination is threatened, but, elsewhere, treat it as a rule of thumb, finding it a helpful, but not a determinative, legal tool … to determine the strength of a justification.”

Weinstein’s opinion
Alan Weinstein, a professor and land-use law consultant who has served at Cleveland State Univ.’s Cleveland-Marshall College of Law and Levin College of Urban Affairs, is well versed in dealing with “the intersection of land-use regulation and the First Amendment”, where sign regulation is often at issue. Overall, he believes city planners and sign-code administrators now view signage somewhat more favorably, particularly following the Great Recession, which emphasized the necessity for businesses to exploit all available promotional avenues.
He summarized the Reed case’s importance by referring to it as “the most important case regarding signage since [1981’s] Metromedia v. San Diego,” when a 6-3 majority overturned San Diego’s ban on off-premise, advertising displays.
“The rules that Justice Thomas announced in Reed could not be more straightforward,” Weinstein wrote in an analysis for The Signage Foundation Inc. “A sign regulation that ‘on its face’ considers the message on a sign to determine how it will be regulated is content-based. Justice Thomas specified the regulation is presumed to be unconstitutional, and will be invalidated unless the government can prove … a compelling interest. Few, if any, regulations survive strict scrutiny.”
Further, Weinstein asserted, “Justice Thomas’ opinion calls into question almost every sign code in this country: few, if any, codes have no content-based provisions under the rules announced in Reed. Almost all codes contain content-based exemptions from permit requirements … political signs, garage-sale signs, holiday displays, etc. Almost all codes also categorize temporary signs by content and regulate them differently. Many codes also have content-based provisions for permanent signs.”
However, he conceded that local governments must strike a delicate balance going forward: “If the city issues a temporary moratorium on all sign permits, courts would look at this as an unconstitutional prior restraint on speech. A 30-day or shorter moratorium would be more likely to be upheld. But, drafting new ordinances so hastily could yield a poor, ineffective code.”’
He continued, “It’s unclear what this will mean for permanent business signs. Following Reed, any regulations that single out a particular type of sign is likely to be invalid. Also, sign-related regulations for specific zones, such as historic, commercial or entertainment districts, could be endangered because local governments fear any type of differential treatment will violate Reed.”
“There have been rare occasions, such as [North Olmsted Chamber of Commerce v. City of] North Olmsted [OH, where an Ohio judge struck down a city’s entire sign code] where content-based provisions tangibly hurt businesses (see ST, April 2000, page 304).
But, that doesn’t happen often. I’ve felt all along that content neutrality isn’t necessarily a good thing. It reduces flexibility, and makes crafting a code that works for everyone more difficult. Code officials will feel compelled to treat everyone the same. Will everyone get more or less [signage]?”
Weinstein added that a new petitioner had applied for SCOTUS to agree to hear a new, sign-related, content-neutrality case, but said it was unlikely they would take on a case similar to Reed.
 

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