Guest Blog: Randal Morrison, Sign Case at U.S. Supreme Court

Is there a violation of a pastor’s free speech right when a town’s sign rules allow political signs–those advocating a particular vote–to be on display longer and to be larger than physically similar signs inviting the public to a church meeting? Is it constitutional for a city to allow political signs in the public right of way, but forbid “directional signs for qualifying special events” in the same place?

On Monday January 12 the U.S. Supreme Court heard oral arguments in Reed v. Gilbert AZ. Some popular media have portrayed the case as involving religious discrimination. However, the religion angle misses the main issue of the case, which is the precise meaning of “content neutrality.” That important term is in serious of need of clarification.

Since sign display is a form of free speech, rules that limit signs raise serious constitutional issues under the First Amendment. Although the free speech right is not infinite or absolute–there is no right to shut down a busy freeway with a protest banner strung across the road–free speech is a core value of the American legal system, and limits on speech by sign must be justified.

Examples: A law banning “real estate for sale” signs on private residences could not be justified by a city’s desire to stop “white flight” from neighborhoods undergoing racial integration (Linmark Realty v. Willingboro, 1977). A law forbidding display of a war protest sign on a front yard was an unconstitutional restriction on the right to express political views where one lives (Ladue v. Gilleo, 1994). Privacy rights justified a city law banning “focused picketing” on the public sidewalk in front of the home of a doctor who performed abortions. (Frisby v. Schultz, 1988). Laws placing reasonable limits on the total display area of all yard signs have been approved, as protecting the peaceful, quiet nature of residential areas, provided the limits apply regardless of the message on the sign. Or, as typically phrased by courts, sign limits are much easier to justify when they are “content neutral.” Generally that means the rule does not turn on the message content.

A local law increasing the total display area of all signs during the pre-election period is valid if the increased area is available for all messages. G.K. Ltd. Travel v. Lake Oswego OR, 436 F.3d 1064 (9th Cir. 2006). In contrast, a rule forbidding all picketing except that concerning labor disputes was unconstitutional precisely because it favored speech on one particular topic. Police Dept. of Chicago v. Mosley (1972) [“The central problem with Chicago’s ordinance is that it describes permissible picketing in terms of its subject matter. Peaceful picketing on the subject of a school’s labor-management dispute is permitted, but all other peaceful picketing is prohibited. The operative distinction is the message on a picket sign. But, above all else, the First Amendment means that government has no power to restrict expression because of its message, its ideas, its subject matter, or its content.”]

Although “content neutrality” seems like a simple concept, applying it in particular cases has produced a confusing array of definitions from courts. These include the Ninth Circuit decision in Desert Outdoor v. Moreno Valley (1996)–if the enforcement officer has to read the sign to determine if and how a sign rule applies, then the rule is “content based,” and presumably unconstitutional. This approach was undermined by the Supreme Court decision in Hill v. Colorado (2000), in which US Supreme said that it had “never held, or suggested, that it is improper to look at the content of an oral or written statement in order to determine whether a rule of law applies to a course of conduct.”

In its second review of the Reed case, 707 F.3d 1057 (2013) the Ninth Circuit explained that the concept of content neutrality has evolved, and that today a “more nuanced” standard applies. Thus:

The distinctions between Temporary Directional Signs, Ideological Signs, and Political Signs are content-neutral. That is to say, each classification and its restrictions 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. The Political Signs exemption responds to the need for communication about elections. The Ideological Sign exemption recognizes that an individual’s right to express his or her opinion is at the core of the First Amendment. The Temporary Directional Sign exemption allows the sponsor of an event to put up temporary directional signs immediately before the event. Each exemption is based on objective criteria and none draws distinctions based on the particular content of the sign.

One of the judges on the Reed panel (Watford) dissented, noting that the decision was inconsistent with Supreme Court precedent, specifically the Mosley case quoted above. Oral arguments in Reed were held at U.S. Supreme this past Monday, January 12. Transcript here. The audio recording should be available on the Court’s website late in the day on Friday January 15, 2015.

Pastor Reed’s counsel (David Cortman of the Alliance Defending Freedom) said the church wants the same sign display rights as political and ideological speech, specifically display rights in the public right of way, and that the town should not “treat signs differently based on their content.” He also disagreed that the church signs were purely directional in nature because “the directional part of it is in addition to the ideological speech, the invitation to come in and worship.” When pressed by Justice Kennedy, Cortman conceded that under his view, temporary signs stating “Happy birthday, Uncle Fred” and “Save your soul” and “Birthplace of James Madison” could all be on display for the same length of time, and with the same size limits.

Philip Savrin of the Freeman Mathis & Gary firm defended Gilbert, arguing that the church’s position would require “one size fits all” rules, which could lead to cities banning all signs “except those that the First Amendment absolutely allows.” He emphasized that rules about *what* can be communicated are not the same as rules about *how* messages may be communicated. Further, if directional signs “have expressive content on them, then they are no longer a directional sign . . . [and] a different provision applies for that.”

Justice Scalia commented: “Well, viewpoint discrimination is quite different from content discrimination. And you are trying to reduce our rules against discriminating on the basis of content to a rule against viewpoint discrimination.” Savrin: “What we’re advocating is that if . . . an ordinance addresses the function of the sign as opposed to the particular ideas or even the subject matter, then it would not be content based.”

The Supreme Court’s decision is not expected until May or June. While municipal attorneys hope for clarification of “content neutrality,” some fear that the new decision might further confuse the issue.

Disclosure: I contributed to the amicus brief for the National League of Cities and other public entity associations in Reed.

Picture Credit: Author: 3lian.com, at http://all-free-download.com/free-vector/vector-misc/billboard_signs_vector_293390.html