Last week, the U.S. Supreme Court issued a significant free speech decision that struck down a local ordinance that regulated signs differently based on the signs’ content. In Reed v. Town of Gilbert, the Court unanimously ruled that an Arizona town violated the First Amendment by limiting the size and placement of signs that announced church services.
The Town of Gilbert had an ordinance that imposed different restrictions on signs depending on their content. For example, the ordinance required “temporary directional signs” directing the public to certain religious or charitable meetings to be significantly smaller than political signs. The sign ordinance was challenged by Good News Community Church and its pastor. Good News held its services at various temporary locations around Gilbert and placed temporary signs around town to indicate the time and location of its next services. Over the years, Gilbert officials had repeatedly cited the Church for failing to comply with the sign ordinance.
All 9 Justices concluded that the distinctions drawn by Gilbert’s ordinance were unconstitutional. However, the Justices divided on the rationale for this holding, with 3 separate concurring opinions being filed. Writing for the majority, Justice Clarence Thomas held that all facially content-based laws, which draw distinctions based on the message a speaker conveys, are “presumptively unconstitutional.” According to Justice Thomas, “[g]overnment regulation of speech is content based if a law applies to particular speech because of the topic discussed or the idea or message expressed.” Such content-based restrictions require strict scrutiny analysis regardless of their motivations, which is an extremely difficult standard to satisfy. In this case, Gilbert’s ordinance was clearly content-based because it made distinctions based on the communicative content of the sign. The ordinance also failed strict scrutiny because the Town failed to explain how its asserted interests, preventing visual clutter and promoting traffic safety, were served by limiting temporary directional signs but permitting unlimited amounts of larger, ideological signs.
In her concurring opinion, Justice Elena Kagan (joined by Justices Ginsburg and Breyer) wrote that the majority’s approach was far too sweeping and placed seemingly reasonable sign ordinances in jeopardy. However, Justice Kagan easily rejected Gilbert’s attempt to defend its sign ordinance, stating the town’s defense “does not pass strict scrutiny, or intermediate scrutiny, or even the laugh test.”
This decision is a major win for free speech and individual rights advocates. The Court has laid out a bright line rule barring regulations that limit speech based on its content. The decision will hopefully serve as a cautionary tale for other municipalities and discourage hem from making similar unjustified distinctions between types of speech. A full copy of the opinion is available here. If you believe your free speech or other constitutional rights are being threatened, you can contact a Dalton & Tomich attorney to discuss your matter.
