The U.S. Supreme Court in a 9-0 decision found that the sign code of Gilbert, Arizona violated the 1st Amendment because its regulation depended “entirely on the communicative content of the sign” and that it did not survive a 1st Amendment strict scrutiny analysis because it singled out specific subject matters for differential treatment.
The matter stems from a 9th Circuit Court of Appeals case filed by the Good News Community Church (Church) after it received two citations from Gilbert’s sign code manager – one for exceeding the sign durational limitation and another for failing to display the event date on its signs. The Church filed suit in the U.S. District Court for the District of Arizona claiming that the sign code ordinance abridged its freedom of speech, in violation of the First and Fourteenth Amendment.
Gilbert’s sign code identified various categories of signs and subjected each category to different regulations. Included among the categories was one that classified “temporary direction signs relating to a qualifying event” as temporary signs intended to direct pedestrians, motorists, and other passerby to assemblies or gatherings promoted by religious, charitable, community service, educational, or other similar non-profit organizations. Gilbert also imposed size, number, location, and durational restrictions on this category of signs
The 9th Circuit Court of Appeals considered: (1) whether the sign code was content-based on its face, (2) whether the purpose and justification for the law were content-based, and (3) the appropriate level of scrutiny to apply to the code, concluding that Gilbert’s sign code categories were content neutral and that the code satisfied the intermediate scrutiny accorded to content-neutral speech regulations.
However, Justice Clarence Thomas, writing for the unanimous Supreme Court, was not swayed by Gilbert’s justification for the regulatory scheme. Justice Thomas found the lower court failed to analyze whether the code was neutral on its face prior to its analysis of Gilbert’s motives in adopting the code. Further the Court rejected the characterization that Gilbert’s code was speaker-based, instead finding the code was content based on its face because the restrictions that apply to a particular sign in fact depended “entirely on the communicative content of the sign.”
As a result the Court held that the code did not survive strict scrutiny and that it specifically singled out different subject matters for differential treatment. Any aesthetic appeal or safety interest reasoning for the code distinctions were insufficient to overcome the strict scrutiny analysis required for regulation of free speech.
Click here to read: Reed et al. v. Town of Gilbert, Arizona et al., No. 13-507 (U.S. 2015).
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