__ U.S. __ (2015), 13-502, Reed v. Town of Gilbert

Docket Nº13-502
Citation__ U.S. __, 135 S.Ct. 2218, 192 L.Ed.2d 236, 83 U.S.L.W. 4444
Opinion JudgeTHOMAS, JUSTICE.
Party NameCLYDE REED, ET AL., PETITIONERS v. TOWN OF GILBERT, ARIZONA, ET AL
AttorneyDavid A. Cortman argued the cause for petitioners. Eric J. Feigin argued the cause for the United States, as amicus curiae, by special leave of court. Philip W. Savrin argued the cause for respondents.
Judge PanelTHOMAS, J., delivered the opinion of the Court, in which ROBERTS, C. J., and SCALIA, KENNEDY, ALITO, and SOTOMAYOR, JJ., joined. ALITO, J., filed a concurring opinion, in which KENNEDY and SOTOMAYOR, JJ., joined. BREYER, J., filed an opinion concurring in the judgment. KAGAN, J., filed an opinion...
Case DateJune 18, 2015
CourtUnited States Supreme Court

Page __

__ U.S. __ (2015)

135 S.Ct. 2218, 192 L.Ed.2d 236, 83 U.S.L.W. 4444, 25 Fla.L.Weekly Fed. S 383

CLYDE REED, ET AL., PETITIONERS

v.

TOWN OF GILBERT, ARIZONA, ET AL

No. 13-502

United States Supreme Court

June 18, 2015

[135 S.Ct. 2220] Argued January 12, 2015.

Editorial Note:

This opinion is uncorrected and subject to revision before publication in the printed official reporter.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

Judgment reversed and case remanded. 9-0 Decision; 3 concurrences.

SYLLABUS

[135 S.Ct. 2221] [192 L.Ed.2d 240] Gilbert, Arizona (Town), has a comprehensive code (Sign Code or Code) that prohibits the display of outdoor signs without a permit, but exempts 23 categories of signs, including three relevant here. " Ideological Signs," defined as signs " communicating a message or ideas" that do not fit in any other Sign Code category, may be up to 20 square feet and have no placement or time restrictions. " Political Signs," defined as signs " designed to influence the outcome of an election," may be up to 32 square feet and may only be displayed during an election season. " Temporary Directional Signs," defined as signs directing the public to a church or other " qualifying event," have even greater restrictions: No more than four of the signs, limited to six square feet, may be on a single property at any time, and signs may be displayed no more than 12 hours before the " qualifying event" and 1 hour after.

Petitioners, Good News Community Church (Church) and its pastor, Clyde Reed, whose Sunday church services are held at various temporary locations in and near the Town, posted signs early each Saturday bearing the Church name and the time and location of the next service and did not remove the signs until around [135 S.Ct. 2222] midday Sunday. The Church was cited for exceeding the time limits for displaying temporary directional signs and for failing to include an event date on the signs. Unable to reach an accommodation with the Town, petitioners filed suit, claiming that the Code abridged their freedom of speech. The District Court denied their motion for a preliminary injunction, and the Ninth Circuit affirmed, ultimately concluding that the Code's sign categories were content neutral, and that the Code satisfied the intermediate scrutiny accorded to content-neutral regulations of speech.

Held : The Sign Code's provisions are content-based regulations of speech that do not survive strict scrutiny. Pp. 6-17.

(a) Because content-based laws target speech based on its communicative content, they are presumptively unconstitutional and may be justified only if the government proves that they are narrowly tailored to serve compelling state interests. E.g., R. A. V. v. St. Paul, 505 U.S. 377, 395, 112 S.Ct. 2538, 120 L.Ed.2d 305. Speech regulation is content based if a law applies to particular speech because of the topic discussed or the idea or message expressed. E.g., Sorrell v. IMS Health, Inc., 564 U.S. __, ___-___, 131 S.Ct. 2653, 2663-2664, 180 L.Ed.2d 544, 555-556. And courts are required to consider whether a regulation of speech " on its face" draws distinctions based on the message a speaker conveys. Id., at __, 131 S.Ct. 2653, 180 L.Ed.2d 544. Whether laws define regulated speech by particular subject matter or by its function or purpose, they are subject to strict scrutiny. The same is true for laws that, though facially content neutral, cannot be " 'justified without reference to the content of the regulated speech,'" or were adopted by the government " because of disagreement with the message" conveyed. Ward v. Rock Against Racism, 491 U.S. 781, 791, 109 S.Ct. 2746, 105 L.Ed.2d 661. Pp. 6-7.

(b) The Sign Code is content based on its face. It defines the categories of temporary, political, and ideological signs on the basis of their messages [192 L.Ed.2d 241] and then subjects each category to different restrictions. The restrictions applied thus depend entirely on the sign's communicative content. Because the Code, on its face, is a content-based regulation of speech, there is no need to consider the government's justifications or purposes for enacting the Code to determine whether it is subject to strict scrutiny. Pp. 7.

(c) None of the Ninth Circuit's theories for its contrary holding is persuasive. Its conclusion that the Town's regulation was not based on a disagreement with the message conveyed skips the crucial first step in the content-neutrality analysis: determining whether the law is content neutral on its face. A law that is content based on its face is subject to strict scrutiny regardless of the government's benign motive, content-neutral justification, or lack of " animus toward the ideas contained" in the regulated speech. Cincinnati v. Discovery Network, Inc., 507 U.S. 410, 429, 113 S.Ct. 1505, 123 L.Ed.2d 99. Thus, an innocuous justification cannot transform a facially content-based law into one that is content neutral. A court must evaluate each question--whether a law is content based on its face and whether the purpose and justification for the law are content based--before concluding that a law is content neutral. Ward does not require otherwise, for its framework applies only to a content-neutral statute.

The Ninth Circuit's conclusion that the Sign Code does not single out any idea or viewpoint for discrimination conflates two distinct but related limitations that the First Amendment places on government [135 S.Ct. 2223] regulation of speech. Government discrimination among viewpoints is a " more blatant" and " egregious form of content discrimination," Rosenberger v. Rector and Visitors of Univ. of Va., 515 U.S. 819, 829, 115 S.Ct. 2510, 132 L.Ed.2d 700, but " [t]he First Amendment's hostility to content-based regulation [also] extends . . . to prohibition of public discussion of an entire topic," Consolidated Edison Co. of N.Y. v. Public Service Comm'n, 447 U.S. 530, 537, 100 S.Ct. 2326, 65 L.Ed.2d 319. The Sign Code, a paradigmatic example of content-based discrimination, singles out specific subject matter for differential treatment, even if it does not target viewpoints within that subject matter.

The Ninth Circuit also erred in concluding that the Sign Code was not content based because it made only speaker-based and event-based distinctions. The Code's categories are not speaker-based--the restrictions for political, ideological, and temporary event signs apply equally no matter who sponsors them. And even if the sign categories were speaker based, that would not automatically render the law content neutral. Rather, " laws favoring some speakers over others demand strict scrutiny when the legislature's speaker preference reflects a content preference." Turner Broadcasting System, Inc. v. FCC, 512 U.S. 622, 658, 114 S.Ct. 2445, 129 L.Ed.2d 497. This same analysis applies to event-based distinctions. Pp. 8-14.

(d) The Sign Code's content-based restrictions do not survive strict scrutiny because the Town has not demonstrated that the Code's differentiation between temporary directional signs and other types of signs furthers a compelling governmental interest and is narrowly tailored to that end. [192 L.Ed.2d 242] See Arizona Free Enterprise Club's Freedom Club PAC v. Bennett, 564 U.S. __, __, 131 S.Ct. 2806, 180 L.Ed.2d 664. Assuming that the Town has a compelling interest in preserving its aesthetic appeal and traffic safety, the Code's distinctions are highly underinclusive. The Town cannot claim that placing strict limits on temporary directional signs is necessary to beautify the Town when other types of signs create the same problem. See Discovery Network, supra, at 425. Nor has it shown that temporary directional signs pose a greater threat to public safety than ideological or political signs. Pp. 14-15.

(e) This decision will not prevent governments from enacting effective sign laws. The Town has ample content-neutral options available to resolve problems with safety and aesthetics, including regulating size, building materials, lighting, moving parts, and portability. And the Town may be able to forbid postings on public property, so long as it does so in an evenhanded, content-neutral manner. See Members of City Council of Los Angeles v. Taxpayers for Vincent, 466 U.S. 789, 817, 104 S.Ct. 2118, 80 L.Ed.2d 772. An ordinance narrowly tailored to the challenges of protecting the safety of pedestrians, drivers, and passengers-- e.g., warning signs marking hazards on private property or signs directing traffic--might also survive strict scrutiny. Pp. 16-17.

707 F.3d 1057, reversed and remanded.

David A. Cortman argued the cause for petitioners.

Eric J. Feigin argued the cause for the United States, as amicus curiae, by special leave of court.

Philip W. Savrin argued the cause for respondents.

THOMAS, J., delivered the opinion of the Court, in which ROBERTS, C. J., and SCALIA, KENNEDY, ALITO, and SOTOMAYOR, JJ., joined. ALITO, J., filed a concurring opinion, in which KENNEDY and SOTOMAYOR, JJ., joined. BREYER, J., filed an opinion concurring in the judgment. KAGAN, J., filed an opinion concurring in the judgment, in which GINSBURG and BREYER, JJ., joined

OPINION

[135 S.Ct. 2224] THOMAS, JUSTICE.

The town of Gilbert, Arizona (or Town), has adopted a comprehensive code governing the manner in which people may display outdoor signs. Gilbert, Ariz., Land Development Code (Sign Code or Code), ch. 1, § 4.402 (2005). 1 The Sign Code identifies various categories of signs based on the type of information they convey, then subjects each category to different restrictions. One of the categories is " Temporary Directional Signs Relating to a Qualifying Event," loosely defined as signs directing the public to a meeting of a nonprofit group. § 4.402(P). The Code imposes more stringent restrictions on these signs than it does on signs...

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