Reed v. Town of Gilbert

The Court will decide whether facially content-based restrictions on speech are constitutional if they are made without discriminatory motive. The Court will also have the opportunity to decide what level of scrutiny applies to restrictions that distinguish between different types of noncommercial speech. Good News argues that facially content-based restrictions are not constitutional merely because they were made without a discriminatory motive. Furthermore, Good News contends that the Court should strike down the Sign Code because it imposes facially content-based restrictions and fails strict scrutiny. Gilbert, on the other hand, contends that strict scrutiny does not apply because the Sign Code does not favor certain viewpoints over others. Therefore, Gilbert maintains, the Court should uphold the sign because that is the only question before the Court; however, if the Court should engage in constitutional questions, the Sign Code should be upheld under intermediate scrutiny.

WHEN IS A LAW CONTENT-BASED OR CONTENT-NEUTRAL?

Good News argues that a law is “content-based” if the law “facially classifies speech based on content.” Good News contends that the content-neutrality test is objective; therefore, Good News argues Gilbert cannot “save” its Sign Code by “asserting a content-neutral motive.” Moreover, Good News argues that if a law facially discriminates based on content, the Court has not required a showing of content-based motive. For example, Good News asserts that the Court in Discovery Network struck down a city’s regulation prohibiting news racks that displayed commercial publications, but not newspapers. Good News contends that the Court “flatly refused to consider the city’s alleged motive in deciding” that the regulation was content-based. Thus, according to Good News, proof of an illicit motive is only sufficient, not necessary, to prove that a sign is content based.

Gilbert, on the other hand, argues that “content” must be understood and applied in a flexible manner that reflects the ideals of the First Amendment. According to Gilbert, while the First Amendment protects citizens against government action that infringes on their freedom of speech, “the ‘freedom to speak’ is not an absolute right.” Rather, Gilbert submits, First Amendment expression can be regulated by the government so long as there is a proper balance between free speech and government interests—for instance to prevent someone from “[y]elling ‘Fire!’ in a crowded movie theater.” Gilbert notes that this balancing can be especially challenging in the sign regulation context since signs constitute speech. In light of these principles, Gilbert contends that a regulation is content-based when it regulates speech based on the government’s disagreement with the speech’s message. Thus, Gilbert argues, Good News’ definition of content-based regulation is too rigid because sign regulations are necessarily differentiated by their content. Instead, Gilbert maintains that the government should still be able to regulate signs, consistent with the First Amendment, if the “regulation does not censor or favor particular viewpoints or ideas.” Regarding discriminatory motive, Gilbert argues that the question presented to the Court improperly assumes that the Ninth Circuit upheld the Sign Code regulation because Gilbert did not have a discriminatory motive. Rather, Gilbert contends that the only question before the Court is whether strict scrutiny applies to the Sign Code.

DOES STRICT SCRUTINY APPLY?

Good News contends that Gilbert’s Sign Code is facially content-based, and is thus subject to strict scrutiny because it places different restrictions on signs according to their content. For example, Good News contends that if a sign read, “Vote for McCain,” then it would fall into the Sign Code’s Political Sign category and could be thirty-two square feet. However, Good News submits, if a sign read, “Learn Why Voting Matters, Visit Good News Community Church,” it would fall into the Qualifying Event category and could be no larger than size square feet. Good News contends that “[t]his is a clear-cut content-based discrimination.” Moreover, Good News asserts that a Gilbert official admitted that signs must be categorized based on their “message” to apply the Sign Code regulations. Good News maintains this testimony underscores the content-based nature of the Sign Code regulations. Additionally, Good News argues that the classifications in the Sign Code are neither speaker-based nor event-based; however even if they were, they would be nonetheless constitutionally suspect. Finally, because it is not required, Good News asserts that an illicit motive need not be shown. Therefore, according to Good News, because it is facially content-based, the Sign Code must satisfy strict scrutiny to be constitutional.

Conversely, Gilbert argues that the Sign Code should not receive strict scrutiny. First, Gilbert argues that the Sign Code’s “Temporary Directional Sign” provision regulates directions, intended to direct traffic to an event, not invitations to the public, and, as such, Good News is still free to make invitations to the public on directional signs. Second, Gilbert contends that only regulations that favor certain viewpoints receive strict scrutiny and that the Sign Code’s provisions do not favor any ideas. Furthermore, Gilbert asserts that the Sign Code is distinguishable from other regulations that have received strict scrutiny. Unlike regulations subject to strict scrutiny in other cases, Gilbert asserts that the “Temporary Directional Sign” provision does not target the message of a sign, but rather applies to all non-profits. Moreover,Gilbert maintains that the Court has never held that a regulation is content-based and thereby subject to strict scrutiny merely because one has to examine the content of the speech in question to determine whether the regulation applies. Finally, Gilberts contends that distinctions between Ideological Signs and Political Signs should not subject the Sign Code to strict scrutiny. In conclusion, Gilbert argues, because the Sign Code applies equally to “all non-profit organizations” and does not “favor[] any particular speech,” intermediate scrutiny, not strict scrutiny, should apply to the Sign Code.

DOES THE SIGN CODE SATISFY STRICT SCRUTINY OR INTERMEDIATE SCRUTINY?

Applying strict scrutiny, Good News maintains that the Sign Code should be struck down because it is not “justified by a compelling government interest” nor “narrowly drawn to serve that interest.” Good News contends that Gilbert’s “interests in regulating signs are safety and aesthetics.” However, Good News maintains that courts have rejected that these interests are compelling. Notably, Good News asserts, the Court has rejected laws that claim to serve compelling interests yet simultaneously damage those interests. Good News argues that the Sign Code is underinclusive because it grants Political Signs “highly favorable treatment” even though that category “pos[es] the greatest threat to a municipality’s interests in safety and aesthetics,” thereby damaging the interests the government claims to protect. For the same reason, Good News argues that the Sign Code is not narrowly tailored, because it does not even further Gilbert’s stated interests. Additionally, Good News argues that the Sign Code would also fail intermediate scrutiny because it is not content neutral and, even if it were, is not narrowly tailored because it favors certain speech.

In contrast, Gilbert asserts that strict scrutiny does not apply to Gilbert’s sign code because Gilbert views the content of Good News’s signs as directional, rather than invitational, and the Sign Code does not censor signs based on their content. Consequently, Gilbert explains that the Sign Code is thus only subject to intermediate scrutiny. Moreover, Gilbert contends that the issue of the “articulation or application” of intermediate scrutiny is not properly before the Court. As such, Gilbert argues that if the should not address this question. Nevertheless, Gilbert contends that the Sign Code should be upheld even if the Court should apply intermediate scrutiny. Gilbert contends that it has an important interest in the “quality of life [in Gilbert], safety of [its] citizens, and property values.” Gilbert further argues that the Sign Code is narrowly tailored to furthering those interests because it “directly addresses” the “visual blight, safety [issues] and deterioration of real estate values” created by signs. Gilbert analogizes the Sign Code to the facts of Turner. In that case, the Court, applying intermediate scrutiny, upheld a federal regulation that required cable networks to carry broadcasts, because the regulation did not preference certain content. Similarly, Gilbert argues that the Sign Code applies equally to all non-profit organizations and does not preference certain speech.