A church challenged the constitutionality of a town’s sign ordinance that regulates the size, duration, and location of temporary directional signs that the church places in the area surrounding its place of worship to announce the time and location of its services. The ordinance has different requirements for temporary directional signs relating to qualifying events, political signs, and ideological signs. The United States Court of Appeals for the Ninth Circuit held that sign ordinance is constitutional because it does not improperly discriminate between different types of noncommercial speech. (Reed v. Town of Gilbert, Arizona (— F.3d —-, C.A.9 (Ariz.), February 8, 2013).
Facts
Good News Community Church (“Good News”) is a small church with less than 50 members. The members “believe the Bible commands them to go and make disciples of all nations, and that they should carry out this command by reaching out to the community to meet together on a regular basis.” Good News members “display signs announcing their services as an invitation for those in the community to attend.” Good News previously met in an elementary school in the Town of Gilbert, Arizona (“Gilbert”). Good News currently rents space at an elementary school in a city that borders Gilbert.
Good News placed approximately 17 signs in the area that surrounds it place of worship in Gilbert. The signs announced the time and location of Good News’ services. Gilbert sent Good News an advisory notice in 2005 that Good News “was violating the town’s sign ordinance because ‘the signs were displayed outside the statutorily-limited time period.’” Although Good News reduced the number of signs its members placed in the area and the amount of time the signs were in place, “friction with Gilbert persisted.”
Gilbert’s sign ordinance provides that no person may erect a sign unless first obtaining a permit, unless the sign is exempted by Gilbert’s town code. The code lists nineteen different types of signs that may be erected without a permit. Relevant to Good News’ constitutional claims are the provisions of Gilbert’s code (“Sign Code”) relating to “Temporary Directional Signs Relating to Qualifying Event,” “Political Signs,” and “Ideological Signs.”
The signs erected by Good News were “Temporary Directional Signs.” The code “provides that ‘Temporary Directional Signs Relating to a Qualifying Event . . . shall be no greater than 6 feet in height and 6 square feet in area,’ ‘shall only be displayed up to 12 hours before, during and 1 hour after the qualifying event ends,’ ‘may be located off-site and shall be placed at grade level,’ and ‘shall be placed only with the permission of the owner of the property on which they are placed.’” Also, ‘“[n]o more that 4 signs shall be displayed on a single property at any one time,’” and “‘Temporary Directional Signs may not be placed ‘in a public right-of-way’ or on ‘fences, boulders, planters, other signs, vehicles, utility facilities, or any structure.’”
There are different requirements for the placement of “Political Signs” and “Ideological Signs.” A “Political Sign” is defined by the Sign Code as a “‘temporary sign which supports candidates for office or urges action on any other matter on the ballot of primary, general and special elections.” Political Signs “(a) may be up to 32 square feet in size, (b) may be erected any time prior to an election but must be taken down within 10 days of the election, (c) are not limited in number, and (d) may be placed in the public right-of-way.” An “Ideological Sign” is defined by the Sign Code as a “‘sign communicating a message or ideas for noncommercial purposes that is not a construction sign, directional sign, temporary directional sign, temporary directional sign relating to a qualified event, political sign, garage sale sign, or sign owned or required by a governmental agency.’” Ideological Signs “(a) may be up to 20 square feet in size, (b) are not limited in time, (c) are not limited in number, and (d) may be placed in the public right-of-way.”
Good News filed a lawsuit in federal court “alleging that Gilbert’s Sign Code violated the Free Speech Clause of the First Amendment and the Equal Protection Clause of the Fourteenth Amendment.” The trial court denied Good News’ motion for an injunction. The court of appeals affirmed the denial of the injunction but remanded the case to consider Gilbert’s “First Amendment and Equal Protection claims that the Sign Code is unconstitutional in favoring some noncommercial speech over other noncommercial speech.” On remand, the trial court found the sign ordinance was not unconstitutional and entered summary judgment in favor of Gilbert.
Decision
The court of appeals had determined in the previous appeal that the Sign Code is not a content-based regulation, it is narrowly tailored to further the significant interests of Gilbert, and it does not favor commercial speech over noncommercial speech. The only issue on remand and in this appeal is “whether the Sign Code improperly discriminates between different forms of noncommercial speech.” The court of appeals found that it does not and affirmed the decision of the trial court.
A “‘government may impose reasonable restrictions on the time, place, or manner of engaging in protected speech provided that they are adequately justified without reference to the content of the regulated speech.’” Also, a restriction “must be ‘narrowly tailored to serve a significant governmental interest and . . . leave open ample alternative channels for communication of the information.’”
The court found the Sign Code’s restrictions on types of noncommercial speech are not based on the content of the speech. The distinctions the Sign Code makes between Temporary Directional Signs, Political Signs, and Ideological Signs are content-neutral and “are 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.” For example, the exemption for Political Signs “responds to the need for communication about elections,” the exemption for Ideological Signs “recognizes that an individual’s right to express his or her opinion is at the core of the First Amendment,” and the exemption for Temporary Directional Signs “allows the sponsor of an event to put up temporary directional signs immediately before the event.” These exemptions are based on objective criteria that do not draw distinctions based on a sign’s content. The court concluded that “as the speaker and event determinations are generally ‘content neutral,’ Gilbert’s different exemptions for different types of noncommercial speech are not prohibited by the Constitution.”
The Sign Code does not place any restrictions based on the viewpoint of an entity or person who wants to erect a Temporary Directional Sign. Gilbert did not attempt to regulate speech because it disagreed with the message being conveyed. Instead, Gilbert “exempted from the permit requirement all directional signs regardless of their content.” The court concluded that the constitutionality of the Sign Code’s regulation of Temporary Directional Signs “is not affected by the fact that the exemptions for Political Signs or Ideological Signs are different.”
The court concluded that the Sign Code’s exemption for Temporary Directional Signs is narrowly tailored to serve Gilbert’s significant interest in safety and aesthetics. Although Ideological Signs and Political Signs may infringe on Gilbert’s interests to a greater extent than Temporary Directional Signs, the court found that this arrangement is permissible for the following reasons: (1) “unlike political, ideological and religious speech which are clearly entitled to First Amendment protection, there does not appear to be a constitutional right to an exemption for Temporary Directional Signs;” (2) “each exemption reflects a balance between Gilbert’s interests and the constitutional interests of the type of sign covered;” (3) “the exemptions are not in competition;” (4) “there is no showing that the restrictions on Temporary Directional Signs interfere with their purpose,” which is to direct “interested individuals to temporary events;” and (5) “courts generally defer to a city’s determination of size and duration.”
While the appeal was pending, Gilbert amended the Sign Code to allow Temporary Directional Signs to be placed in a public right-of-way, but “limited the Temporary Directional Sign exemption to events held within the Town of Gilbert.” The court of appeals declined to address Good News’ challenge to these amendments and concluded the issue first must be addressed by the district court. The court of appeal held that the unamended provisions of the Sign Code are constitutional and affirmed the judgment in favor of Gilbert.
Questions
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Jeffrey L. Massey | 916.321.4500