Reed v. Town of Gilbert
Case No. SC 14-1092, Fla Supreme Court
Appeal of 707 F.3d 1057 (9th Cir. 2013)
The Court will soon issue an opinion that could put great tension on city and county sign codes across the nation. The Court will decide whether local governments may regulate temporary directional signs differently than other temporary signs. The Court could rule, practically speaking, that all temporary signs must have the same time, place, and manner requirements.
Good News Community Church (“Good News”) displayed around seventeen signs in the area surrounding its place of worship in Gilbert, Arizona announcing the time and location of its services. In 2005, Good News received a notice from Gilbert that its signs were violating the town’s sign ordinance because they were being displayed outside the statutorily-limited time period, and reduced its number of signs. After friction with Gilbert ensued, Good News and its pastor, Clyde Reed, sued Gilbert in March 2008.
Gilbert’s Sign Code (regulations on the display of outdoor signs) is broken up into three categories: temporary directional signs, political signs, and ideological signs. Gilbert requires in general that people or groups who want to put up an outdoor sign get a permit to do so, although the permit requirement does not exist for those who can qualify for one of nineteen separate exemptions. Gilbert will allow a curbside sign, put up only temporarily, that is directional in nature, if it is keyed to an event within the community. But within the exempted categories, there are differing requirements on size, duration of display, permission from private property owners, and option to place them in public rights of way, such as a median strip. Signs that fall into the political category can be larger, may go up at any time but must come down ten days after the election, and can be placed in a right of way. A sign that the town treats as ideological in origin, with a message other than a commercial one, may be larger and is not limited in the time it can remain up.
The church claimed Gilbert’s Sign Code violates the First Amendment because temporary directional signs receive the less favorable treatment (in terms of size, location, duration, etc.) than political signs and ideological signs. The Ninth Circuit ruled that Gilbert’s Sign Code does not violate the First Amendment because the distinctions between the three sign categories are “content-neutral;” all signs in each category are treated the same regardless of their content even if the three categories of signs are treated differently. “That is to say, each exemption allowing for the erection of temporary signs and its restrictions are based on objective factors relevant to the creation of the specific exemption and do not otherwise consider the substance of a sign.”
Sign codes with multiple categories of temporary signs, usually classified by function, with their own time, place, and manner requirements, are common. When local governments regulate signs by purpose, rather than by content, strict scrutiny should not apply.
On June 18, 2015, the Supreme Court reversed and remanded the Ninth Circuit's decision holding that the sign code's provisions are content-based regulations of speech that do not survive strict scrutiny.