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Reed v. Town of Gilbert: Guarded Optimism

Early indications favor SCOTUS endorsement of content-neutral sign ordinances

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As many ST readers have heard, the Supreme Court of the U.S. (SCOTUS) heard oral arguments pertaining to the case Reed v. Town of Gilbert on January 12. To briefly summarize the case, in 2007, Clyde Reed, the pastor of Gilbert, AZ’s Good News Community Church, put up temporary signs to invite the community to the church’s services. Because the church lacks a permanent home, signs were especially important to direct would-be attendees to their destination. However, the town ordered Reed to remove the signs, pursuant to its sign codes.
Gilbert’s sign ordinance allowed religious-assembly signs, classified as temporary directional signs, to be installed only 12 hours before through one hour after the advertised service. Moreover, they’re only permitted to be 6 sq. ft. in size. In contrast, ideological and political signs could be 20 and 32 sq. ft., respectively. Ideological signs may be installed for an unlimited amount of time, and political signs from four months before through two weeks after an election. Despite Gilbert’s apparent flouting of content neutrality with its ordinance, U.S. District Court and the 9th Circuit Court sided with the city. For more details about the case, click here.
The Alliance Defending Freedom, an organization that provides legal support for religious-liberty cases, has advocated for Mr. Reed. Although a decision won’t be rendered until sometime in the spring, early indications appear favorable for Reed – and, by extension, a Supreme Court mandate that sign ordinances must provide equally treatment for all commercial and institutional messages.
A January 12 ABCnews.com article recounted Justice Sam Alito’s sarcastic remark about the Gilbert ordinance: He suggested the church erect a sign that says, “We can’t tell you where it is because the town won’t let us. But, if you drive by here tomorrow morning at a certain time, you’ll see an arrow.” Justice Stephen Breyer summarized, “Well, my goodness, I mean, it does sound like the town is being a little unreasonable, doesn’t it?”
On JDSupra.com, a website that provides broad-based legal analysis, Professor Daniel Mandelker, co-author of Street Graphics and the Law (a book viewed as unfavorable to the sign industry by most in the field), said, “The case is critical to sign regulation, as it applies to land-use law, as it deals with the standard of judicial review and should provide direction on how local governments can include exceptions in sign ordinances.” In the same article, Brian J. Connolly, an attorney with Denver-based Otten, Johnson, Robinson, Neff & Ragonetti summarized, “The fact that the justices’ questioning did not reference a lot of historical cases on content neutrality might suggest that the justices are willing to take a fresh look at the content-neutrality doctrine as opposed to trying to wade through past inconsistencies.” And, finally, the article cited a court observer, who noted that “Gilbert’s attorney was constantly badgered by questions from the bench, and the justices’ sympathy for the little church became more apparent.”
And, a Washington Post article provided an apt summary: rather than perceiving it as a religious-freedom case, which could lead SCOTUS to shy away from a decisive ruling, it cited Reed as “[a] case [that] involves a Free Speech Clause challenge — not a Free Exercise Clause or a Religious Freedom Restoration Act challenge — to a sign ordinance.”
Upholding a municipality’s right to administer its sign code almost by fiat would create an adverse impact for the sign industry. We’ll apparently have to wait several more months for SCOTUS to render a decision, but let’s hope that early indications that the high court endorses common-sense ordinances will carry through to a wise decision.
 

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