The town of Gilbert, Arizona, likes its church signs to be small. Beginning in 2007, the town leaders of Gilbert enacted a strict sign ordinance that applies against local churches, but does not apply to any others who post signs, including political, ideological, and commercial messages. Thus, Gilbert officials enacted a sign ordinance that discriminates based on the content of the signs. According to the code, religious assembly signs are required to be smaller in size, fewer in number, and displayed for much less time than similar non-religious signs. Specifically, political signs in Gilbert can be up to 32 square feet, placed in public rights-of-way, and displayed for many weeks. An ideological sign can be up to 20 square feet, placed in public rights-of-way, and displayed indefinitely. However, a church’s signs can only be 6 square feet, cannot be placed in public rights-of-way, and may not be displayed more than 12 hours before, or one hour after a worship service or other church event. Further, the ordinance allows ideological and political signs, neither of which are defined by the code, to be posted without a permit. However, a permit is required to post religious assembly signs. As one example, Gilbert’s Sign Compliance Department (yes, there really is such a thing) cited one local church, the Good News Community Church, for exceeding the time limitation both before and after their worship service. Good News had been placing signs near the church early on Saturday to let members of the community know the time and location of their church services. The church would then remove the signs following services. Following the citation against the church, a lawsuit was filed by the Alliance Defending Freedom (“ADF”) attorneys on behalf of the church and its pastor. Afterwards, Gilbert agreed to halt enforcement of the discriminatory sign ordinance. Further, Gilbert officials decided to amend the sign code so that it wouldn’t unfairly target churches. However, although Gilbert amended its code, the revisions retained the same discriminatory treatment. So, off to court again. This time, the federal judge decided to allow enforcement of the sign ordinance while the lawsuit moved forward. Following an appeal to the 9th Circuit Court of Appeals (the most liberal and the one most often reversed by the Supreme Court), it decided that the federal district court should have considered whether Gilbert’s sign ordinance unconstitutionally discriminates against religious signs among all non-commercial signs. (A duh! moment.) Thus, the appellate court sent the case back to the federal district judge. In its opinion, the 9th Circuit wrote that “Gilbert has adopted a sign ordinance that makes one’s head spin to figure out the bounds of its restrictions and exemptions.” Indeed. Upon remanding the case back to the district court, the judge then ruled he was right the first time and, while chided by the appellate court, decided not to change his decision. So, again, the church went back again to the appellate court. This time, a three-judge panel ruled 2-1 against Good News Church. In a dissent accompanying the 9th Circuit panel’s decision, Judge Paul Watford commented on the discrepancies:
Gilbert has merely offered, as support for the sign ordinance as a whole, its interest in enhancing traffic safety and aesthetics…. But to sustain the distinctions it has drawn, Gilbert must explain why (for example) a 20-square-foot sign displayed indefinitely at a particular location poses an acceptable threat to traffic safety and aesthetics if it bears an ideological message, but would pose an unacceptable threat if the sign’s message instead invited people to attend Sunday church services. Gilbert has not offered any such explanation, and I doubt it could come up with one if it tried. What we are left with, then, is Gilbert’s apparent determination that “ideological” and “political” speech is categorically more valuable, and therefore entitled to greater protection from regulation, than speech promoting events sponsored by non-profit organizations. That is precisely the value judgment that the First and Fourteenth Amendments forbid Gilbert to make.
So, as part of the on-going church sign saga, ADF attorneys have now asked the Supreme Court to reverse the appellate court’s decision allowing Gilbert to impose stricter regulations on temporary church signs than other temporary, non-commercial signs.
ADF Senior Counsel David Cortman has observed:
No law should burden the speech of churches with restrictions that don’t apply equally to similar speakers. The town of Gilbert cannot apply stricter rules to church signs when it doesn’t apply them to ideological, political, and other non-commercial signs.
ADF Senior Legal Counsel in this case, Jeremy Tedesco, added:
Discrimination based on the content of speech violates the First Amendment. If town officials were truly concerned about traffic safety as they claim, they would apply the rules evenly to all similar temporary signs. The Town of Gilbert’s Sign Code severely restricts church invitation signs, purportedly in the name of safety and aesthetics. Yet the Code broadly permits the proliferation of political, ideological, and several other types of temporary signs that impact Gilbert’s interests in exactly the same way.
Any first-year law student would know to decide this case in favor of the church. Free speech rights are, or at least were, fundamental, and the content-neutrality principle has been a hallmark of our nation’s First Amendment jurisprudence. That principle applies to the regulation of signs, and all other modes of expression. I am unsure why Gilbert town leaders have such a “bee in the bonnet” about the churches in its town, but if I were a taxpayer in Gilbert, I would be outraged at the many hundreds of thousands of dollars wasted by the Gilbert town leaders. Perhaps the pastor, whether he loses or not at the Supreme Court, should erect a big 32-feet political sign from the steeple that says, “Throw The Bums Out!” Moreover, The Civil Rights Attorney’s Fee Awards Act of 1976 (42 U.S.C.A. § 1988[b]) allows for the award of reasonable attorneys’ fees to a prevailing party in cases brought under various federal civil rights laws for constitutional violations. It would be sweet to see the town of Gilbert pay up to the ADF, though I do feel sorry for the Gilbert taxpayers. But then again, elections do have consequences.