Free speech for church signs, not license plates

Good News Community Church in Gilbert, Ariz., had no building of its own but met in different locations from week to week. Until today, the town of Gilbert restricted the itinerant church from posting signs showing where its Sunday morning services would be held.

The town’s zoning ordinance said such a “directional” sign to a religious meeting could only be posted 12 hours before the event, and up until one hour after. That meant the church couldn’t post signs showing directions to its Sunday morning service until after the sun went down the night before. The town regulations also required church directional signs to be no bigger than six square feet, while other political and ideological signs could be much bigger.

Today the U.S. Supreme Court ruled 9-0 against the town, saying Gilbert’s sign regulations violated free speech because the government was targeting certain types of speech, a “content-based” law. The court definitively reversed the 9th U.S. Circuit Court of Appeals ruling against the church.

“None of the 9th Circuit’s theories for its contrary holding is persuasive,” the justices wrote in their opinion.

The town had cited the church for violating the zoning ordinance several times. The pastor, Clyde Reed, tried to work out a compromise with city officials, but to no avail. Reed then filed a lawsuit against the town ordinance on constitutional grounds. The lower federal courts ruled against the church, saying the town ordinances were not targeting certain content, but preserving aesthetics and safety. The Supreme Court rejected that reasoning.

“[T]he church’s signs inviting people to attend its worship services are treated differently from signs conveying other types of ideas,” wrote Justice Clarence Thomas for the unanimous court. “On its face, the sign code is a content-based regulation of speech. We thus have no need to consider the government’s justifications or purposes for enacting the code to determine whether it is subject to strict scrutiny.”

In order for a government regulation to survive strict scrutiny, it must demonstrate it furthers a “compelling government interest” and is “narrowly tailored.” The court ruled the Gilbert ordinance was neither. Because the town allowed unlimited large political and ideological signs, it couldn’t argue the small church signs were particularly distracting to drivers or ruining the town’s aesthetics.

The town can still regulate signs for safety and aesthetics, the court said, but it must not base its regulations on the signs’ content. Content-based sign regulations are a problem “regardless of the government’s benign motive,” Thomas wrote.

"Innocent motives do not eliminate the danger of censorship presented by a facially content-based statute, as future government officials may one day wield such statutes to suppress disfavored speech,” he said.

Alliance Defending Freedom (ADF) represented the church at the Supreme Court and celebrated the ruling, along with the Becket Fund for Religious Liberty, which filed an amicus brief on the side of the church.

“Speech discrimination is wrong regardless of whether the government intended to violate the First Amendment or not, and it doesn’t matter if the government thinks its discrimination was well-intended,” said ADF senior counsel David Cortman, who argued the case before the court.

In another speech case Thursday, Thomas ruled in the opposite direction. He joined the court’s liberals, Justices Stephen Breyer, Ruth Bader Ginsburg, Sonia Sotomayor, and Elena Kagan in a ruling against the Sons of Confederate Veterans. The group wanted a specialty license plate in Texas that had a Confederate flag on it. Texas declined the plate. The divided court ruled that license plates count as government speech, so the government can decide what it wants to say on those plates. The majority ruled that Texas was within its rights to refuse the Confederate plate.

The ruling could have implications for other disfavored groups wanting space on specialty license plates. Pro-life groups, as well as the Becket Fund, had filed briefs arguing a specialty license plate is in itself private speech and that the government shouldn’t be able to choose favored speakers.

Justice Samuel Alito agreed in a sharp dissent joined by Chief Justice John Roberts, and Justices Anthony Kennedy and Antonin Scalia. He called specialty license plates “millions of little mobile billboards” that Texas sells to individuals “provided only that the message does not express a viewpoint that the state finds unacceptable.”

“The court’s decision passes off private speech as government speech and, in doing so, establishes a precedent that threatens private speech that government finds displeasing,” Alito wrote for the four dissenters.