Does it Violate the First Amendment to Limit Directional Signs More than Political Signs? Looks Likely After Supreme Court Oral Argument in Reed v. Town of Gilbert, AZ.
The town of Gilbert Arizona was made famous, to me at least, when Rachel Maddow reported on the school district’s decision to remove pages of high school biology textbooks that discussed contraception. Now it’s famous for another reason. Clyde Reed, pastor of Good News Community Church, rented space at an elementary school in Gilbert, Arizona in order to post about 17 signs announcing the time and location of church services. Reed received a notice from Gilbert that the signs violated the Sign Code, which restrict the size, number, duration, and location of certain types of signs, including temporary directional ones like Reed’s. Neither political signs nor “ideological” ones are similarly limited. Reed sued on First Amendment grounds, but lost in the District Court. The 9th Circuit affirmed on the grounds that the restrictions were not based on the content of the signs and left open other channels of communication.
The Supreme Court heard oral argument in Reed v. Town of Gilbert on January 12, 2015. Justices Breyer and Alito led the questioning and both seemed more sympathetic to the Petitioners, as did most of their peers. Justice Kagan is thought to have a special interest in the case, since she wrote one of the leading scholarly articles on content-neutrality and government intent. Although she was not especially vocal at oral argument, her questions did suggest that she is grappling with the meaning of content neutrality and seemed willing to accept some degree of content discrimination in order to preserve a special place for political speech.
Ultimately, the problem for Gilbert is that even its lawyer, Philip W. Savrin, had to concede that the effect of the town’s code could be “silly,” given the distinction between directional and ideological/political signs. The town’s special, more permissive carve-out for ideological speech – probably designed to limit the impact of the restrictions on directional signs — was a red flag for both Justices Kagan and Scalia. Kagan wanted the Town to admit that these distinctions were content based, though perhaps they could survive strict scrutiny. Scalia was offended by a code that let government officials decide what is ideological, what is political, and which should be privileged.
Arguing for Reed was David A. Cortman, a lawyer for the religious liberty group Alliance Defending Freedom. He argued that only content-neutral regulations are permissible. Justice Kagan pushed him on the fact that the court has always valued political speech more highly. And Justice Kennedy made the point that if there are no content categories at all, then an affluent person can post “Happy birthday, Uncle Fred” as many places as money will buy, and for as long. He was worried about a “wooden distinction” that forces the Court to uphold the proliferation of signs for any purpose. This concern seems a little strange for a Justice who has ruled with the majority in campaign finance cases holding that “speech is money,” but perhaps he sees a difference when urban beauty and safety is at stake.
Cortman agreed with Kennedy’s hypothetical, except for commercial speech. There was no push back from the bench on the commercial speech exception, interestingly, notwithstanding the perilous position of that distinction in recent cases. Justice Breyer asked about parts of the country that don’t want any signs at all. They may have an exception for a sign like “Geronimo is buried here.” If they allow that sign, but not others, he asked whether that is an impermissible content-based distinction? He noted that the “entire U.S. code is full of content distinctions.” For example, criminal solicitation is a more severe offense when you are soliciting for some things, and less severe when you are soliciting for other things. This fundamental question about when we care about content-based distinctions in speech went unanswered.