As the oral arguments progressed last Monday at the U.S. Supreme Court in Reed v. Town of Gilbert, Ariz., the justices focused on the questions which, once answered, will clarify the First Amendment issues that this case presents.
The case involves a temporary sign ordinance in Gilbert that treats signs differently depending on what they talk about. Political signs get the best treatment — they can be as large as 32 square feet, unlimited in number in the right-of-way, and can stay in place up to five months before an election. In contrast, directional signs, like those of Pastor Clyde Reed’s church, can only be a smallish six square feet (two by three, for example) and can only be up 12 hours before the event to which the sign pertains.
This means, for Pastor Reed’s 10 a.m. church service, the signs cannot go up until 10 p.m. the night before. Obviously, darkness does not enhance the ability of people to see the signs inviting them to the church service.
The justices first asked questions that on their face seem reasonable, but ultimately don’t answer the First Amendment issues here. Isn’t political speech more valuable than other kinds of speech? Isn’t a sign urging us to vote “Smith For Mayor” more valuable than a sign with directions to a soccer game or a yard sale, or a sign saying, “Happy Birthday, Fred”? David Cortman, the Alliance Defending Freedom attorney who argued before the court on behalf of Pastor Reed and the church, contended consistently that if such signs create safety hazards or aesthetic problems, they do so no matter what they say.
This is not a wooden, superficial way of looking at sign ordinances. All signs affect the government’s interest in safety and aesthetics the same way, whether they talk about politics or the garage sale around the corner. And the government should not be able to abandon its concerns when it thinks some speech, like political speech, is more valuable than other types of speech.
Justice Antonin Scalia used a fitting analogy to explain why the government’s interest applied consistently across the board is the starting point for these sign cases, as opposed to starting with a subjective evaluation of whether political signs are more important than signs giving directions to a soccer game:
Suppose a city ordinance limited the use of loud sound trucks to a certain decibel level and to a certain time of day, but then allowed politicians to turn up the volume on their sound trucks and to broadcast at all hours of the day. That ordinance would limit a street evangelist to preaching in a whisper for a few hours because political speech is supposedly so much more valuable. But loud sound trucks disturb the peace no matter what content they blare. The analogy brings clarity: The First Amendment does not allow lawmakers to make such value judgments with their city ordinances.
That’s what the town of Gilbert is doing here. As Justice Elena Kagan said during the oral arguments, the town is essentially saying, “Yes, we generally dislike clutter created by signs, but we are willing to make exceptions when we think the speech on the signs has special First Amendment significance.”
The town cannot be taken seriously when it claims an important governmental interest in promoting safety and aesthetics with its sign ordinance and then abandons those interests with expansive exceptions for political signs. What if the next city council chooses to protect different speech priorities under sign ordinances?
The Supreme Court is likely to hand down a decision in this case before the end of June. When it does, we trust the opinion will say, just as Justice Scalia said during oral arguments, “Treat all signs the same.”
Jordan Lorence is senior counsel with Alliance Defending Freedom, which represents Pastor Clyde Reed and Good News Community Church in Reed v. Town of Gilbert. Thinking of submitting an op-ed to the Washington Examiner? Be sure to read our guidelines on submissions for editorials, available at this link.
