Caseflicks

Supreme Court of the United States • 2015

Reed v. Town of Gilbert

576 U.S. 155 | 135 S. Ct. 2218 | 192 L. Ed. 2d 236 | 2015 U.S. LEXIS 4061 | 25 Fla. L. Weekly Fed. S 383 | 83 U.S.L.W. 4444

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Takeaway

In short, Reed holds that a sign law is subject to strict scrutiny when its rules turn on what a sign says, even if the government acted without censorial intent; Gilbert's disparate treatment of event-direction signs failed that demanding test.

Background

Gilbert, Arizona's sign code generally required permits for outdoor signs but exempted 23 categories. It imposed materially different rules on three exempt categories: ideological signs could be up to 20 square feet and remain displayed indefinitely; political signs could be larger than directional signs but could be displayed only around elections; and temporary directional signs for nonprofit events could be only 6 square feet, limited to four per property, and displayed only 12 hours before and 1 hour after an event.

Good News Community Church, led by Pastor Clyde Reed, lacked a permanent building and met at changing locations. It used 15 to 20 temporary signs to tell the public the time and location of Sunday services, usually posting them on Saturday and removing them Sunday afternoon. Town officials cited the Church for exceeding the time limits and for omitting an event date, confiscated one sign, and refused to grant leniency.

Reed and the Church sued under the First and Fourteenth Amendments. The District Court denied preliminary relief and later granted summary judgment to Gilbert. The Ninth Circuit affirmed, reasoning that the code was content neutral because the Town's reasons for regulating temporary signs were unrelated to the signs' messages and the distinctions rested on objective, event-related factors. The Supreme Court reversed.

Issues

Issue #1

Whether Gilbert's differing restrictions on ideological, political, and temporary directional signs were content-based regulations of speech.

Holding

Yes. The sign code was facially content based because the applicable restrictions depended on the message a sign conveyed.

Reasoning

A speech regulation is content based when it applies to speech because of the topic discussed or the idea or message expressed. Courts must first examine the law's text: a facial distinction based on a message triggers strict scrutiny, whether the distinction is obvious, such as a subject-matter line, or more subtle, such as a line based on a message's purpose or function.

Gilbert's categories required officials to read a sign and determine what it communicated. A sign directing people to a qualifying nonprofit event was a temporary directional sign; a sign intended to influence an election was political; and a noncommercial sign conveying ideas outside the listed categories was ideological. The code then assigned each message category different limits on size, number, location, and duration.

The Ninth Circuit incorrectly focused on Gilbert's assertedly benign motives and content-neutral interests in traffic safety and aesthetics. A law that is content based on its face remains subject to strict scrutiny even if the government did not act from hostility to a message and can articulate a content-neutral purpose. Improper censorial intent may establish content discrimination, but it is not necessary to establish it.

The Court also rejected the Town's argument that viewpoint neutrality made the code content neutral. Viewpoint discrimination is an especially egregious form of content discrimination, but the First Amendment also forbids differential treatment based on subject matter. Favoring ideological messages over political messages, and political messages over event-direction messages, is content discrimination even though the code treated all viewpoints within each category alike.

Nor could the Town characterize the distinctions as speaker based or event based. The same restrictions applied regardless of who posted a sign, and in any event a speaker-based classification does not automatically become content neutral. Likewise, the presence of an event such as an election does not erase the content inquiry required to decide whether a sign concerns that event.

Issue #2

Whether Gilbert's content-based restrictions on temporary directional signs survived strict scrutiny.

Holding

No. Even assuming aesthetics and traffic safety are compelling interests, the code was not narrowly tailored because it was seriously underinclusive.

Reasoning

Strict scrutiny required Gilbert to prove that its distinction between temporary directional signs and other signs furthered a compelling governmental interest and was narrowly tailored to accomplish that interest. The Town relied on aesthetics and traffic safety.

The aesthetic rationale failed because temporary directional signs were no greater an eyesore than political or ideological signs. Yet the code tightly restricted small, short-lived directional signs while permitting larger political signs and an unlimited number of larger ideological signs. The Town could not call its restrictions on directional signs necessary for beautification while leaving equivalent visual clutter largely unregulated.

The traffic-safety rationale failed for the same reason. Gilbert offered no evidence or explanation showing that directional signs created a greater traffic hazard than ideological or political signs. Indeed, an ideological sign might be more distracting to drivers than a sign giving directions to a nearby meeting. This underinclusiveness showed that the code did not narrowly serve the asserted interests.

The Court emphasized that the ruling did not prevent municipalities from regulating signs through content-neutral rules governing matters such as size, materials, lighting, moving parts, portability, location, or signs on public property. But Gilbert's message-defined categories, which bore no narrow relation to ordinary safety concerns, could not survive strict scrutiny.

Concurrences

Justice Alito

Reasoning

Justice Alito joined the Court's opinion and stressed why content-based rules receive strict scrutiny: subject-matter restrictions can create dangers similar to viewpoint discrimination by favoring those who prefer the status quo, impairing democratic self-government, and distorting the search for truth.

He also emphasized the decision's practical limits. Municipalities may generally use content-neutral rules regulating sign size, location, lighting, whether messages are fixed or electronic, whether signs are placed on public or private property, whether they are on commercial or residential property, whether they are on- or off-premises, and the total number of signs along a roadway.

In addition, he explained that rules imposing time limits on signs advertising one-time events can be content neutral when they do not discriminate by topic or subject. Governments also may erect their own signs, including safety and directional signs, under the government-speech doctrine.

Justice Breyer

Reasoning

Justice Breyer concurred only in the judgment and joined Justice Kagan's opinion. He disagreed with treating content discrimination as an automatic trigger for strict scrutiny in every setting, arguing that the category should often function as a useful rule of thumb rather than a mechanical command.

In his view, strict scrutiny is especially appropriate when content discrimination reveals viewpoint suppression or unfair administration of a traditional public forum. But many ordinary regulatory programs necessarily distinguish speech by content, including disclosure, labeling, medical-confidentiality, tax-reporting, and safety-warning requirements; applying a near-fatal form of strict scrutiny to all of them would invite excessive judicial management of normal government activity.

Justice Breyer would instead assess whether the harm to First Amendment interests is disproportionate to the government's objectives. That inquiry considers the seriousness of the speech burden, the importance of the government interest, the regulation's effectiveness, and less restrictive alternatives. Although he thought strict scrutiny inappropriate here because there was no traditional public forum problem or general effort at viewpoint censorship, Gilbert's unsupported and ill-fitting distinctions still violated the First Amendment.

Justice Kagan

Reasoning

Justice Kagan, joined by Justices Ginsburg and Breyer, concurred only in the judgment. She agreed that Gilbert's distinctions were indefensible, but she objected to the majority's broad rule that every facial subject-matter distinction in a sign ordinance automatically receives strict scrutiny.

She reasoned that strict scrutiny of content-based regulations serves two linked goals: preserving an open marketplace of ideas and preventing government hostility or favoritism toward messages. Many ordinary sign-code exemptions, such as those for address, safety, historic-marker, or directional signs, do not realistically threaten either interest. Applying strict scrutiny to them would place many sensible local rules in jeopardy.

The Court's precedents, she argued, have sometimes applied less exacting review where a facial content distinction posed no realistic danger of idea or viewpoint suppression. The Court could have followed that approach here because Gilbert's code failed not just strict scrutiny but intermediate scrutiny and even minimal rational review: the Town could offer no sensible reason to limit directional signs to four and six square feet while allowing larger and more numerous signs in other categories.

Justice Kagan warned that the majority's rule would force communities either to remove useful exemptions for safety, address, and historic signs or to abandon sign restrictions altogether. She also noted tension between the majority's holding and Justice Alito's suggestion that time limits for signs advertising one-time events could be content neutral, because the majority itself treated event-direction signs as content based.