In Reed v. Town of Gilbert, Arizona, ( — F.3d —-, C.A.9 (Ariz.), November 20, 2009), the United States Court of Appeals considered a challenge to a city’s sign ordinance that regulated the times and places at which temporary, directional signs could be displayed. The Court ruled that the ordinance was not unconstitutional because it was content-neutral and affirmed the district court’s denial of an injunction against enforcement of the ordinance. However, the Court also found that the District Court failed to consider whether the ordinance discriminated among forms of noncommercial speech and remanded the case for further proceedings.
Facts
The Town of Gilbert, Arizona ("Town"), enacted an ordinance regulating the display of outdoor signs. The ordinance generally requires permits for displaying signs but provides for various exemptions from that requirement. Among the exemptions are "temporary directional signs relating to a qualifying event," which is further defined as a temporary sign intended to direct people to events such as assemblies, gatherings, or meetings sponsored by religious, charitable, community service or other non-profit organizations. However, the ordinance limits the hours and locations at which such non-permitted signs may be displayed.
The Good News Community Church ("Church") placed temporary directional signs around Town to provide the times and locations of its services, and to provide directions to those locations, which varied from week to week. From 2005 to 2007, a Town compliance officer repeatedly notified Church that it was illegally placing its directional signs in public rights-of-way, and at times outside of the hours allowed, and warned the church that it would be cited if it continued to violate the terms of the ordinance.
The Church (and pastor Clyde Reed) filed suit in federal district court seeking a preliminary injunction against enforcement of the ordinance alleging violation of its rights to Free Speech under the First Amendment and Equal Protection under the Fifth Amendment. The Court denied the injunction finding that the ordinance was a lawful, content-neutral regulation. The Church appealed.
Decision
A plaintiff seeking a preliminary injunction must establish that he is likely to succeed on the merits and that he is likely to suffer irreparable harm in the absence of preliminary relief, the court said, citing Winter v. Natural Resources Defense Council, Inc., 129 S.Ct. 365 (2008). The focus here, therefore, is whether the district court erred in its judgment that the Church’s challenge to the ordinance was unlikely to succeed on the merits because the ordinance does not violate its constitutional rights.
That question hinged on whether the regulation was based on the content of the church’s speech. Nothing in the regulation suggests any intention of the Town to suppress any content or point of view. The ordinance specifically regulates the size of temporary directional signs, the number of signs permitted, the amount of time they may be displayed, locations, the materials of which the signs were composed, and it requires they be anchored or weighted to avoid displacement. It further identifies the events for which they may be permitted and the groups that may utilize them. Since none of those regulations require an enforcement officer to evaluate the content of the sign’s message for differential treatment, the court found the ordinance is content-neutral.
The court also found the Town’s interest in promoting aesthetics, traffic and pedestrian safety are significant government interests, and the ordinance does not appear to be tailored in a manner substantially broader than necessary to achieve those government interests. The ordinance also left the church with ample channels to communicate its message.
The appellate court ruled the district court did not err when it found the church unlikely to succeed in demonstrating that its constitutional rights were violated by the ordinance, and in denying the injunction. However, the court added, the district court did not address the church’s claim that the ordinance impermissibly favored other forms of noncommercial speech – such as ideological or political signs – over temporary directional event signs.
The district court’s ruling was therefore affirmed in part and remanded in part. Its denial of the injunction was affirmed, but the question of whether First and Fifth Amendment protections were violated by the favoring of some noncommercial speech over other noncommercial speech was remanded for further consideration.
Questions
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Mona G. Ebrahimi | 916.321.4500