Article – Reed v. Town of Gilbert: Signs of (Dis)Content?

A case straight out of Gilbert, Arizona will be heard by the United States Supreme Court later in this session (probably early 2015).  The case will look at what is content-based speech for First Amendment purposes.

The Town of Gilbert created an ordinance that restricts the size, duration and location of temporary directional signs.  The ordinance prohibited the erection of signs without a permit, but for three exceptions: temporary directional signs relating to a qualifying event, political signs, and ideological signs.  Good News Church (that is the name of the church), rented space to meet in a local elementary school.  For a while, the Church put out about seventeen signs around the area announcing the time and location of its services.  The Town of Gilbert claimed the signs violated the sign ordinance’s time restrictions.

The issue is whether Town of Gilbert’s mere assertion that its sign code lacks a discriminatory motive renders its facially content-based sign code content-neutral and justifies the code’s differential treatment of petitioners’ religious signs.

This should be a really interesting case to follow.  I will write another article updating this topic after oral arguments.

To read the filings in the case visit SCOTUSblog.

For those who find this subject interesting, there is already some scholarly literature out on this case.  Here is a recent article previewing the upcoming United States Supreme Court case.

This essay provides a preview of the Reed v. Town of Gilbert, Arizona, a case currently (OT 2014) pending in the Supreme Court. The case concerns the regulation of signs by a town government, and requires the Supreme Court to resolve a three-way circuit split on the question of how to determine whether a law is content-based or content-neutral for First Amendment purposes. The basic question raised is whether courts should focus on the face of a statute, or on the legislative motivation behind a statute, in making that determination. I demonstrate that under extant Supreme Court doctrine, the focus should clearly be on the face of the statute, and that under this approach the Town of Gilbert’s sign regulation is (contrary to the Ninth Circuit) clearly content-based.

That the Ninth Circuit erred here is, however, not the end of the matter. More interesting is why it erred. I argue that the Ninth Circuit’s resistance to finding Gilbert’s ordinance content-based was based on subterranean discontent with the most basic principle of modern free speech doctrine – that all content-based regulations are almost always invalid. At heart, what the Gilbert ordinance does is favor signs with political or ideological messages over other signs. Current doctrine says that this is problematic. I question whether that makes any sense. Given the broad consensus that the primary purpose of the First Amendment is to advance democratic self-government, why shouldn’t legislators, and courts, favor speech that directly advances those purposes over other speech, especially when allocating a scarce resource such as a public right of way? Given the brevity of this essay, I only raise but do not seek to answer this question, but argue that it is worthy of further attention by the Court (and of course by scholars).

— Ashutosh Avinash Bhagwat, Reed v. Town of Gilbert: Signs of (Dis)Content?, SSRN.


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