Local Limitations on Church Signs Will Fall, But Justices' Route to Destruction Unclear

The gold standard of excellence for more than 80 years, Bloomberg BNA’s The United States Law Week® is the most authoritative way to keep up with important cases and other legal developments...

By Kimberly Robinson

Jan. 12 — Local restrictions on a small church's directional signs seemed likely to topple after oral arguments at the U.S. Supreme Court Jan. 12, but the path to destruction remained unclear.

In their briefs, the parties tangled over what test should be applied to analyze the constitutionality of an Arizona town's sign ordinance that limits the size and duration of signs directing the community to specific events: intermediate or strict scrutiny.

But as the arguments progressed, some justices suggested that the law would fail either test.

“What is this about, this argument?” Justice Stephen G. Breyer wanted to know.

The town agrees that the church can put up a big sign inviting people to its services. Can they put up a big sign saying, “ ‘Come to the next service next Tuesday, 4th and H Streets, three blocks right and two blocks left'?” Breyer wanted to know. “Or are you saying they can't say, ‘three blocks right and two blocks left'? That's what this argument is about?”

When the town's attorney confirmed that that was the gist of the dispute, Breyer seemed exasperated. “Well, my goodness. I mean — I mean, on that, it does sound as if the town is being a little unreasonable, doesn't it?”

‘Wooden Distinction.'

Arguing for the church, David A. Cortman of Alliance Defending Freedom, Lawrenceville, Ga., likely agreed with Breyer that the town was being unreasonable under any test. But he nevertheless argued that the court should apply the harsher strict scrutiny test because the Town of Gilbert's ordinance “discriminates on its face.”

The town treats “certain signs differently based solely on what they say,” Cortman said.

“For example, political signs may be 32 square feet, may be unlimited in number, and may be placed in the right-of-way of the entire town for five months before the election,” Cortman explained. In contrast, the church's signs can only be one-fifth of that size, and can only be up for 14 hours.

But Justice Elena Kagan noted that “all the time this Court says that political speech is the most valued kind of speech. It's at the heart of the First Amendment. It gets special First Amendment protection.”

So “isn't the locality here basically adopting the same kind of category-based understanding of political speech” and its special role, she asked Cortman.

Chief Justice John G. Roberts Jr. agreed, interjecting “Don't you think that political speech is more valuable than directions to the soccer game?”

“Maybe in some people's eyes,” Cortman conceded. But the problem is: “should the government be deciding what speech is more valuable than others, because that is exactly what it did in this case. It has said that, in fact, your speech is not valuable and we can completely ban it.”

The concern with the argument that the government must treat all temporary signs the same, though, is that “if an affluent person wants to celebrate a birthday, he can put ‘Happy birthday, Uncle Fred' as many places as a political sign,” and for as long, Justice Anthony M. Kennedy said. So under the church's view, “Happy birthday, Uncle Fred,” “Save your soul” and a sign pointing out an historical marker “can all be up for the same length of time, same size.”

That forces this court to make “a very wooden distinction that could result in a proliferation of signs for birthday parties or for every conceivable event that could be up for five months,” Kennedy said.

Poetic Sense?

Early in the argument, other justices also appeared to support the town's ordinance.

In particular, Justice Sonia Sotomayor said there was “some force” to the town's argument that it was regulating signs not based on their content, but on their function.

But Justice Antonin Scalia didn't seem to buy that argument.

Is “there a difference between the function of the sign and the content of the sign?” Scalia wanted to know.

When the town's attorney Philip W. Savrin of Freeman Mathis & Gary LLP, Atlanta, responded that there was a distinction, Scalia said he couldn't “grasp that.”

“Doesn't its function depend upon its content?” Scalia asked.

“In a literal sense, yes,” Savrin said, to which Scalia responded, “Oh, I see. What sense are we talking here? Poetic?”

Ranking Speech

As the argument progressed, the law faced harsher criticisms, especially over its more favorable treatment of so-called ideological signs.

Under the town's ordinance, ideological signs can be much larger than the church's directional signs, and have no limit on how long they can be up.

What is the justification for “these very generous rules for ideological signs?” Kagan asked Savrin.

To “protect the First Amendment right of anyone to speak on any topic at any time,” Savrin responded.

“So you are not even purporting to have a content-neutral justification for this,” Kagan said. “You are essentially saying, yes, we generally dislike clutter, but we're willing to make exceptions for clutter for speech that we think has special First Amendment significance.”

Later, Kagan indicated that if the town didn't have a content-neutral justification for the law's distinctions, it would “lose regardless of what the standard of review is.”

Scalia also pointed out that “there is as much a First Amendment right to give somebody directions as there is to speak about — about being green or whatever else.”

So “we're supposed to sit here and say, oh, political speech is the most valuable and you can allow that, but ideological speech comes in a close second, and then what? Then directional speech?” Scalia asked. “I don't want to do that. I don't think you should want any governmental official, even — even a judge, to do stuff like that.”

‘Little Dingy Thing.'

By the end of the arguments, it seemed clear that the justices thought the ordinance's distinctions were far from justifiable.

Getting into the nitty-gritty of the signs at issue here, Justice Samuel A. Alito Jr. asked, “Supposed the Petitioners want to put up a sign that says, we're having a church service at 10:00 o'clock on Sunday morning. Under your code, when can they put that up and when do they have to take it down?”

Savrin responded that they could put it up 12 hours before, and had to take it down one hour after the service ended.

“So they can put it up after dark on Saturday?” Alito said skeptically.

The church could avoid those time limitations by simply inviting the community to its services without including directions, Savrin responded.

To laughter, Alito sarcastically said, “So they could put up a, quote/unquote, ideological sign that says, ‘Come to our service on Sunday morning,' but no arrow, and then they put up another sign that says, this is the arrow? Or maybe they put up on the first sign, ‘Come to our service on Sunday morning; we can't tell you now where it will be because the town won't let us, but if you come — if you drive by here tomorrow morning at a certain time, you will see an arrow.' ”

At that point, Breyer indicated that there really was no good reason, under any test, for “this little dingy thing”—namely, the town's strained distinction between ideological and directional signs.

Savrin pressed on, however, and argued that applying strict scrutiny to local town ordinances would have the perverse effect of actually limiting more speech.

Towns will have to enact what he called one-size-fits-all ordinances, and would probably be inclined to just “ban all signs except those that the First Amendment absolutely allows,” Savrin said.

One By One

Although ultimately coming down on the church's side, the federal government initially agreed with the town that applying strict scrutiny to sign ordinances would have unintended consequences.

The “main problem with strict scrutiny in this context is it sends a signal to legislatures that they are on safer ground if they enact a broad and undifferentiated restriction on signs than if they try to tailor it only to those types of signs that actually cause the problem that they are trying to prevent,” Eric J. Feigin of the Justice Department said on behalf of the United States as amicus curiae.

He elaborated that ordinances aimed at improving safety and aesthetics should be presumptively constitutional because they don't implicate the “deep judicial skepticism” that laws aimed at suppressing a particular viewpoint do.

Only when there is an indication that there is viewpoint discrimination, should the courts apply strict scrutiny, Feigin argued.

So “you want us to sort—sort these ordinances out one by one and examine each of these exceptions and say, you know, this is okay and this isn't okay?” Scalia asked.

“I don't know that the Federal Judiciary is numerous enough to do that, and it's a much more simple rule that the other side presents: Treat all signs the same. If clutter is the problem, they [are] all clutter,” Scalia said. You “shouldn't allow or disallow on the basis of the message.”

To contact the reporter on this story: Kimberly Robinson in Washington at krobinson@bna.com

To contact the editor responsible for this story: Jessie Kokrda Kamens at jkamens@bna.com

Full text at http://pub.bna.com/lw/reedgilbert112.pdf.