Supreme Court To Hear Sign-Ordinance Case

by Best Best & Krieger LLP
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IMLA Appellate Practice Blog - July 1, 2014

This morning, the Supreme Court granted cert in Reed v. Town of Gilbert, a case in which the Ninth Circuit upheld the Town of Gilbert’s sign ordinance against a First-Amendment challenge.SupremeCourt2 The case could directly impact local governments nationwide, particularly those that have adopted sign ordinances with exemptions.

The Court could use this case to clarify when a local ordinance is “content-based” or “content-neutral,” a key inquiry under the First-Amendment analysis. A number of law professors filed an amicus brief authored by Professor Eugene Volokh arguing that the Ninth Circuit erred by treating the Town’s ordinance as content-neutral. In their view, the ordinance is content-based because it expressly distinguishes the following classes of signs:

  1. “temporary sign[s] which support[] candidates for office or urge[s] action on any other matter on the ballot,” which can be up to 32 square feet in size,
  2. “sign[s] communicating a message or ideas for noncommercial purposes” that are not related to a “qualifying event,” which can be up to 20 square feet in size, and
  3. noncommercial signs that do relate to a “qualifying event,” which can only be up to 6 square feet in size.

In the professors’ view, the Ninth Circuit improperly asked whether the ordinance regulates based on viewpoint, which is a different inquiry:

The panel majority’s reasoning apparently rested on the conclusions that the Town was not motivated by a desire “to suppress certain ideas,” by “disagreement with the message [the speech] conveys,” or by any other “illicit motive,” and that the law was viewpoint-neutral. Yet this Court has repeatedly made clear that laws distinguishing speech based on content—specifically including laws distinguishing campaign-related speech from other speech—are content-based even if they are viewpoint-neutral and not prompted by any motive to suppress particular ideas.

If the Court were to adopt the professors’ approach, it could make many sign ordinances subject to strict scrutiny — a very difficult standard to satisfy. Just last year, the Fourth Circuit refused to take that approach in Brown v. Town of Cary:

[W]e reject any absolutist reading of content neutrality, and instead orient our inquiry toward why — not whether — the Town has distinguished content in its regulation. Viewed in that light, we are satisfied that the Sign Ordinance is content neutral. Applying the intermediate scrutiny required for content neutral restrictions on speech, we hold that the Sign Ordinance does not violate the First Amendment.

(Photo courtesy of Flickr by Mark Fischer, creative-commons license, no changes made).

[Update: I clarified after posting that Professor Volokh authored the amicus brief.]

* This blog post was originally published in IMLA Appellate Practice Blog, July 1, 2014. Republished with permission.

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