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Clyde Reed v. Town of Gilbert, Arizona
Citations: 707 F.3d 1057; 2013 WL 474515; 2013 U.S. App. LEXIS 2715Docket: 11-15588
Court: Court of Appeals for the Ninth Circuit; February 8, 2013; Federal Appellate Court
Original Court Document: View Document
The United States Court of Appeals for the Ninth Circuit affirmed the district court's summary judgment in favor of the Town of Gilbert, Arizona, regarding its sign ordinance, which regulates the size, duration, and location of temporary directional signs. The plaintiffs, Good News Community Church and Pastor Clyde Reed, claimed the ordinance was unconstitutional for favoring certain types of noncommercial speech. The panel accepted the prior ruling in Reed v. Town of Gilbert, determining that the ordinance was constitutional as it did not constitute content-based discrimination, and the restrictions served significant governmental interests. The court found no violation of the plaintiffs' rights to free exercise of religion or equal protection, nor did it consider the ordinance vague or overbroad. Additionally, the court ruled that amendments to the ordinance made during the appeal did not moot the case, allowing Good News the option to file a new action regarding these changes. Judge Watford dissented, agreeing that the amendments did not moot the appeal but contending that the ordinance violated the First and Fourteenth Amendments by making unconstitutional content-based distinctions among different categories of noncommercial speech. The court, relying on the precedent set in Reed, determined that the Sign Code is constitutional as it does not engage in content-based discrimination regarding noncommercial temporary signs and aligns with significant governmental interests. Amendments made to the Sign Code during the appeal do not render the case moot, allowing Good News to initiate a new lawsuit if it seeks to contest these changes. Good News, a small church with 25 to 30 adult members, conducts outreach by displaying signs for its services. Since 2002, the church has faced challenges with the Town of Gilbert regarding its sign placements, leading to a federal lawsuit in March 2008 claiming violations of the First Amendment and Equal Protection Clause. Gilbert's Sign Code regulates outdoor sign displays to ensure visual communication is compatible with the town's character and to enhance safety and aesthetics. A permit is required for sign erection unless exempted, with specific categories outlined. Good News’ signs fall under "Temporary Directional Signs," which have particular restrictions, including size, duration of display, and placement limitations. In contrast, "Political Signs" have fewer restrictions, allowing for greater size and placement flexibility, including in public rights-of-way. An 'Ideological Sign' is defined as a noncommercial sign that conveys messages or ideas, excluding various specific types such as construction and directional signs. These signs can be up to 20 square feet, have no time or number restrictions, and can be placed in public rights-of-way. In the initial district court proceedings, Gilbert agreed to a preliminary injunction. However, after amending the Sign Code, Good News believed its constitutional rights were still being violated and filed a second motion for an injunction. The district court denied this motion in September 2008, ruling that the Sign Code's regulation was content-neutral, met the intermediate scrutiny standard, and did not violate equal protection due to unintended uneven effects. Good News appealed to the Ninth Circuit, which upheld the district court’s decision in November 2009. The appeals court determined that Good News' challenge was an as-applied challenge rather than a facial one, focusing specifically on how the ordinance affected Good News. The court clarified that the requirement for enforcement officials to read a sign does not render an ordinance content-based. Instead, it emphasized that the ordinance regulates physical characteristics like size and location, and does not restrict the content of speech. The court noted that the definition of a Qualifying Event sign relates to the identity of the speaker and the nature of the event, which does not necessitate a reading of the sign's message for enforcement. In Reed, the term 'Qualifying Event Sign' refers to Temporary Directional Signs exempted by Section 4.402(P) of the Sign Code. The court argued against interpreting the 'officer must read it' test as a measure of content, suggesting that it could absurdly classify all signs as content-based except for blank ones. Officers need only perform a cursory examination of these signs to identify the speaker and event timing, which does not equate to a thorough analysis of the sign's expressive content. The court concluded that Section 4.402(P) is a content-neutral regulation, as it does not treat specific content differently and only requires officers to observe neutral elements. The Sign Code is characterized as a content-neutral time, place, and manner regulation that is narrowly tailored to serve Gilbert’s significant interests in aesthetics and public safety. It must meet the criteria of serving a significant governmental interest while allowing ample alternative communication channels. The district court found no abuse of discretion in concluding that the Sign Code does not overly restrict speech to achieve the town's objectives. Restrictions on display size, duration, and location are justified to prevent safety hazards and aesthetic blight, and the timing limitations (twelve hours before and one hour after an event) are deemed appropriate. Furthermore, the court emphasized that the Sign Code does not favor commercial over noncommercial speech, and while Good News may not prefer the alternative communication methods allowed by the Sign Code, those methods are not excessively burdensome. Finally, the court remanded the case to address First Amendment and Equal Protection claims regarding potential favoritism among noncommercial speech types. On remand, the district court is tasked with determining if Gilbert improperly assessed the strength of, or made distinctions between, various noncommercial communicative interests. The court will consider cross-motions for summary judgment, having made three preliminary determinations. First, the court concluded that the Sign Code is a content-neutral regulation aimed at identifying the speaker and the event without content discrimination. Second, it reaffirmed that the Sign Code is narrowly tailored to serve significant government interests. Third, the court found that noncommercial speech receives more favorable treatment than commercial speech. In addressing the remanded issue, the court compared the different treatments of Political Signs and Qualifying Event Signs to regulations in the case of G.K. Ltd. It reasoned that both types relate to events of public interest, with Political Signs being consistently core speech tied to elections, while Qualifying Event Signs may vary in frequency. The distinction between these signs does not rely on content but rather on the identity of the speaker and the occurrence of an event. Moreover, Ideological Signs are not linked to specific events, hence they are not subject to the same time restrictions as Political and Qualifying Event Signs. Although Gilbert claims to limit the number of signs in the right-of-way without discrimination among Ideological Signs, the court found that the Sign Code treats all messages equally, except for those related to events. Consequently, the court rejected Good News’ argument that the Sign Code was overly vague and broad, affirming that differentiation occurs based solely on event relevance, not message content. The district court referenced United States v. Williams, stating that the vagueness doctrine originates from the Due Process Clause of the Fifth Amendment, establishing that a statute is void if it fails to provide fair notice of prohibitions or permits arbitrary enforcement. The court found the Sign Code’s deterrent effect minimal, asserting it offers clear guidance for determining permissible conduct without encouraging discriminatory enforcement. E. Gilbert’s appeal stems from the district court's summary judgment favoring Gilbert. In October 2011, while the appeal was ongoing, Gilbert amended its Sign Code to permit Temporary Directional Signs in public rights-of-way and restricted exemptions to events within Gilbert. Gilbert moved to dismiss the appeal, claiming Good News lacked standing as its services were outside the town. This situation mirrors Northeastern Florida Chapter of Associated General Contractors of America v. City of Jacksonville, where the Supreme Court ruled a case was not moot despite the city replacing a challenged ordinance with a similar one that still disadvantaged the plaintiffs. Justice Thomas emphasized that the mere repeal of a statute does not eliminate a court's ability to assess its legality. He argued that past actions of the city indicated a likelihood of repeating wrongful conduct. Justice O’Connor, in dissent, noted that the Court has discretion to decide on cases involving repealed or amended statutes if there’s a significant chance of reinstatement. Good News’ case presents a unique situation due to the recent amendment of the Sign Code that permits directional signs in the public right-of-way. This amendment renders Good News' initial objections moot; however, the new limitation that restricts Temporary Directional Signs to events solely within Gilbert prevents Good News from displaying any directional signs. Dismissing the case for mootness would allow Gilbert to continue to restrict Good News' speech without judicial oversight, leading to the denial of the motion to dismiss. The court's previous ruling in Reed influences the current analysis, establishing that 4.402(P) is not a content-based regulation and that the Sign Code imposes reasonable time, place, and manner restrictions. The primary issue now is whether the Sign Code discriminates against different forms of noncommercial speech. The law of the case doctrine indicates that prior decisions by the court are binding unless specific exceptions apply, none of which are present in this case. The evolving standards for regulating noncommercial speech have been shaped over the past 30 years, indicating that while cities can assess commercial speech differently, they cannot apply greater restrictions on noncommercial speech. Previous cases have affirmed that ordinances imposing stricter regulations on noncommercial billboards than commercial ones would be deemed invalid. The current review of the district court's summary judgment in favor of Gilbert will be conducted de novo. A content-based restriction on speech is unconstitutional unless it serves a compelling interest and is narrowly tailored. While the city cannot be entirely powerless over noncommercial billboards, any ordinance regulating noncommercial speech must not impose greater restrictions than those on commercial speech or be based on content. The key issue with Gilbert’s Sign Code is whether it improperly regulates noncommercial temporary signs based on their content. The definition of 'content neutral' has evolved, indicating that if an officer must examine a sign's content to determine exemptions, the ordinance is content-based. Moreover, laws distinguishing favored from disfavored speech based on ideas are considered content-based, whereas content-neutral restrictions are justified without referencing the content. Recent rulings, including G.K. Ltd., suggest that exemptions not requiring law enforcement to read sign messages do not implicate content-based standards. The government can impose reasonable time, place, and manner restrictions on protected speech, provided they are justified without regard to content and narrowly tailored to serve significant governmental interests while allowing ample alternative communication channels. In Reed, it was determined that the Sign Code does not discriminate based on content, focusing instead on the speaker or event. The current appeal raises two main questions under the G.K. Ltd. standard: whether the differing restrictions on types of noncommercial speech are justified without regard to content and whether they are narrowly tailored. Good News argues that varying restrictions for different types of noncommercial speech are inherently content-based, a position that was previously rejected in Reed, which upheld distinctions based on the speaker or event as permissible when there is no discrimination among similar entities. 4.402(P) is determined to be a content-neutral regulation as it does not differentiate between types of content but focuses on objective, content-neutral factors such as the speaker and the timing of events. The distinctions made between Temporary Directional Signs, Ideological Signs, and Political Signs are based on these objective criteria, which do not consider the substance of the signs. The Political Signs exemption is designed to facilitate communication regarding elections, specifically prohibiting cities from removing political signs from public rights-of-way during a 60-day period before a primary election (Ariz. Rev. St. 16-1019). The Ideological Sign exemption supports the First Amendment right to express opinions, while the Temporary Directional Sign exemption allows event sponsors to place signs shortly before their events. Each exemption is grounded in objective criteria without regard to the content of the signs, ensuring that Gilbert’s regulations do not violate constitutional standards regarding noncommercial speech. This interpretation aligns with the precedent set in G.K. Ltd., where restrictions on pole signs were also found to be content-neutral, as they applied uniformly and did not favor certain viewpoints. The court noted that the absence of evidence showing bias or intent to suppress specific ideas further supports the conclusion of content neutrality. A grandfather provision allowing an officer to read a sign solely to check for changes in text or logo, thereby triggering city regulations, is deemed not content-based. The ruling references Hill v. Colorado, affirming that assessing the content of a statement to apply a legal rule is acceptable. Good News has not demonstrated that the Sign Code enforces a content-based limitation. Previous cases cited by Good News do not contradict this interpretation; they emphasize that noncommercial speech regulations must be content-neutral. The regulation of speech must not be influenced by the content of the message. The Supreme Court's decision in Hill supports this view, indicating that the statute in question did not restrict viewpoints or subject matter but imposed a minor spatial restriction on a broad range of communications. Furthermore, content neutrality is determined by whether the government regulates speech due to disagreement with its message. The Court identified that the statute merely regulated the locations for speech rather than the speech itself, reinforcing its content-neutral status. The excerpt addresses the constitutionality of a Colorado statute regulating speech-related conduct near health care facilities, specifically prohibiting individuals from approaching within eight feet of another person for certain communicative purposes without consent. The Supreme Court emphasizes that government regulation of expressive activity can be considered "content neutral" if it does not reference the content of the speech. It distinguishes the statute from previous cases, asserting that it does not restrict viewpoints or subject matter. Concerns regarding content-based legislation being used for thought control are dismissed, as the statute does not selectively regulate speech categories related to the problem it aims to address. The regulation of Temporary Directional Signs in Gilbert is also described as content-neutral, as it applies uniformly regardless of the message conveyed, without indicating disapproval of any specific content. The court concludes that regulating speech does not inherently violate constitutional principles, provided it does not target specific viewpoints. The Supreme Court in Hill addressed the regulation's impact on protected speech, focusing on whether it constitutes a "reasonable restriction on the time, place, or manner" of such speech. The statute's comprehensiveness indicates a lack of discriminatory intent by the government, aligning with Justice Jackson's principle that laws affecting minorities should apply uniformly. The limitations on Temporary Directional Signs are applied equally to all organizations, irrespective of their financial status. The court found that Good News failed to demonstrate that the Sign Code's differential treatment of noncommercial speech was unconstitutional. The Temporary Directional Sign exemption is deemed content-neutral and not in competition with other exemptions, meaning it does not restrict others' rights to display various signs. The court emphasized that the constitutionality of this exemption remains intact despite differing exemptions for Political and Ideological Signs. The dissent's concerns about distinctions among types of noncommercial speech are not applicable here, as previous cases cited involved related speech categories, unlike the present situation. The court referenced past rulings, such as in Police Department of Chicago v. Mosley and Carey, where distinctions between types of speech were deemed unconstitutional, underscoring that the current case does not present similar conflicts. Gilbert’s Temporary Directional Signs exemption does not interfere with or limit individuals' rights to utilize other exemptions for political, ideological, or various temporary signs. The Supreme Court has clarified, particularly in cases like Hill, that regulations can differentiate between types of noncommercial speech without being unconstitutional. For instance, a statute prohibiting certain forms of noncommercial speech was upheld, emphasizing that cities cannot impose stricter regulations on non-commercial billboards compared to commercial ones, nor can they regulate based on content. The Supreme Court also indicated that regulations aimed at purposes unrelated to content of expression are considered neutral, even with incidental effects on some speakers. Consequently, the Sign Code’s differential treatment of Political, Ideological, and Temporary Directional Signs does not constitute a violation of constitutional principles. Although the organization Good News raises concerns about restrictions on the size, location, and duration of its signs, it does not claim that these limitations hinder the primary goal of directing individuals to its services. Courts generally support municipal discretion regarding sign size and shape restrictions, provided they are not excessively broad. Regulations must be reasonable and tailored to serve significant governmental interests, such as traffic safety and aesthetics. The Temporary Directional Signs exemption is deemed narrowly tailored to address these interests, aligning with the Supreme Court's stance that content-neutral regulations are less likely to infringe on free expression while still allowing for ample alternative communication channels. Under intermediate scrutiny, the government can implement regulations that promote substantial governmental interests, provided these regulations do not unnecessarily burden more speech than required. The ordinance in question meets the requirement of not granting overly broad discretion to officials, as it allows individuals to erect temporary signs without prior approval, with enforcement only if size or duration violates established time, place, and manner restrictions. The government has legitimate interests in maintaining aesthetic community standards and ensuring traffic safety. Good News argues that the interests are not compelling enough for a content-based sign code, but the court finds the Sign Code does not impose content-based restrictions. The code differentiates between Temporary Directional Signs and Political and Ideological Signs, with the former being subject to stricter limitations. The court notes that there is no constitutional right to exemptions for Temporary Directional Signs, and thus Good News cannot claim harm from the ordinance’s provisions. Exemptions in the Sign Code balance Gilbert's interests with the constitutional rights associated with different types of signs. The recent amendment has harmonized the locations for temporary signs, and duration limits are justified by the nature of the speech involved. Political signs have longer duration allowances due to their association with elections, while ideological signs have no time limits. Temporary Directional Signs are inherently time-limited, and the exemptions do not compete for space, allowing each to be considered independently. Finally, restrictions on Temporary Directional Signs do not impede their intended purpose of guiding individuals to temporary events. Good News fails to claim that the public cannot view its signs or that the size limits on these signs are insufficient for providing directions. Courts typically defer to a city's decisions regarding sign size and duration. The restrictions on Temporary Directional Signs in Gilbert are deemed reasonable, as there are no restrictions on the number of events or the total number of signs, except a maximum of four signs per property. The 12-hour limitation on sign display is also considered reasonable since individuals are unlikely to seek directions more than 12 hours prior to an event. The arguments by Good News that restrictions on noncommercial speech must be uniform or vary only based on the type of speech are refuted by previous rulings. The cases cited, G.K. Ltd. and Reed, affirm that regulations addressing aesthetics and safety can be justified even if they restrict certain types of signs. Gilbert is not mandated to create exemptions for Temporary Directional Signs, and the restrictions are rationally related to their purpose, promoting aesthetic and safety interests. Despite the possibility of reducing the number of temporary signs due to exemptions for political and ideological signs, these categories involve distinct legal rights that must be respected. Regulations do not need to entirely eliminate communication methods to satisfy the tailoring requirement; rather, a reasonable fit between the regulations and governmental interests suffices. The Sign Code may limit the number of temporary signs without infringing on free speech, providing sufficient alternative communication methods for Good News. Assuming eligibility for exemptions, Good News can still display numerous temporary signs before events without conflicting with their religious principles. Good News faces challenges in asserting claims regarding the violation of its members' rights to free exercise of religion. To succeed, it must demonstrate that government actions significantly burden religious beliefs, as outlined in Arizona law and supported by case law. However, the restrictions imposed by the Sign Code on Temporary Directional Signs are deemed generally applicable and do not substantially interfere with Good News’ religious tenets. The Supreme Court has established that individuals are required to comply with neutral laws, regardless of their religious implications. While Good News is obligated to promote its message, it is not mandated to do so in a specific manner. The district court's conclusion that the Sign Code is neither vague nor overbroad is upheld. Claims of vagueness stem from an alleged lack of clarity regarding sign definitions, but Gilbert officials have not encountered signs that meet multiple exemption criteria. Enforcement procedures respect speaker rights, allowing signs to qualify for broader exemptions based on their content. Furthermore, Good News’ equal protection claim, which argues against differential treatment of noncommercial speech, is rejected. The Sign Code provides the same temporary directional sign exemptions to all noncommercial entities without religious distinctions. Thus, Good News must establish a specific class of noncommercial entities to substantiate its equal protection argument, which has not been accomplished. Good News has not identified specific entities relevant to its appeal. Any challenges to the amended Sign Code by Good News must be initially litigated in the district court. The amendment does not moot the appeal, but its merits need not be decided here. Unlike the Northeastern Florida case, where barriers decreased, the amendment appears to increase obstacles for Good News in erecting temporary directional signs. Good News has not demonstrated that other restrictions of the Sign Code infringe upon its constitutional rights under Reed v. Town of Gilbert. The new restriction exempts Temporary Directional Signs from permit requirements only for events occurring within the Town of Gilbert, differing from previous challenges related to time, place, and manner restrictions. It remains unclear what constitutional arguments Good News may present or how Gilbert will defend against them. Therefore, any challenge regarding the new restriction should be raised first in the district court, which will also determine if Good News can amend its existing complaint or file a new one. The court found that distinctions made by the Sign Code based on speaker or event types are permissible if there’s no discrimination among similar speakers or events. The treatment of different noncommercial speech types is deemed content-neutral, as exemptions and restrictions rely on objective factors rather than the substance of the signs. The exemptions are narrowly tailored to serve significant governmental interests while allowing ample alternative communication channels. The Sign Code does not violate Good News's rights to free exercise of religion or equal protection and is not overly vague or broad. The district court’s summary judgment in favor of the Town of Gilbert is affirmed. Dissenting, Judge Watford agrees that the amendments to the ordinance do not moot the appeal but contests the majority’s conclusion regarding the constitutionality of the ordinance, particularly focusing on a specific provision that restricts temporary directional signs related to qualifying events, such as those for Good News Community Church's services. Temporary directional signs related to a qualifying event are defined as signs that guide pedestrians and motorists to assemblies or gatherings. The legal framework under which these signs are evaluated, specifically provision 4.402(P), has been deemed content-neutral, as it does not favor any specific content and requires enforcement officers to only consider the sign's neutral aspects, such as the speaker and the existence of an event. However, the court did not rule on whether this provision is content-based in relation to other parts of Gilbert's sign ordinance, particularly concerning claims that it discriminates among noncommercial speech types by favoring "political" and "ideological" signs. The court remanded the case for further examination of the plaintiffs' First Amendment and Equal Protection claims, focusing on the constitutionality of the Sign Code's preferential treatment of certain noncommercial speech. The First and Fourteenth Amendments prohibit the government from favoring specific categories of noncommercial speech based solely on message content. When managing speech in public forums, the government may only distinguish between noncommercial speech types if justified by non-communicative aspects. For instance, a state may not exempt labor picketing from general picketing bans without demonstrating that it is less disruptive. The principle that the government cannot assign different values to noncommercial speech types is supported by precedents, including the Supreme Court's decision in Metromedia, Inc. v. City of San Diego, where a municipal ordinance was invalidated for granting exemptions to certain noncommercial messages, thus infringing on equal treatment under the First Amendment. Non-commercial speech does not enjoy the same freedom to differentiate between various communicative interests as commercial speech. San Diego failed to identify any non-communicative aspects of the banned non-commercial billboards to justify its distinctions, lacking evidence that these billboards had a greater impact on traffic safety and aesthetics than those permitted. The court referenced previous cases, emphasizing that the statute in Hill v. Colorado was content-neutral, as it regulated only the mode of communication without regard to the message’s subject. In contrast, the ordinance in question differentiates based on message content, violating the First and Fourteenth Amendments by favoring certain types of non-commercial speech, specifically "political" and "ideological" signs over others like directional signs. Political signs can be much larger and displayed with fewer restrictions compared to the limited duration and size allowed for directional signs. Furthermore, prior to recent amendments, the ordinance outright prohibited directional signs in public rights-of-way, further illustrating its content-based discrimination. Temporary directional signs related to a qualifying event can only be displayed in Gilbert if the event occurs within the town. Distinctions based on the type of sign (political, ideological, or temporary directional) are determined solely by the message's content. Previous rulings indicate that content-based distinctions are impermissible unless justified by a non-communicative aspect. Gilbert claims its sign ordinance is supported by interests in traffic safety and aesthetics; however, it fails to provide a rationale for treating ideological and political messages differently from those promoting non-profit events. This indicates a value judgment that prioritizes certain speech types over others, which contradicts First and Fourteenth Amendment protections. The court previously ruled that a specific section of the ordinance was a valid content-neutral regulation but did not resolve whether the entire ordinance differentiates between types of noncommercial speech. Therefore, the dissenting opinion argues that Gilbert's distinctions among non-commercial speech categories are unconstitutional and calls for further examination of the ordinance's severability.