Court Rules First Amendment Protects Some Speech More Than Other Speech

Stuck in Customs / Foter.com / CC BY-NC-SAStuck in Customs / Foter.com / CC BY-NC-SA

Running for office? You can post a 32-square-foot sign on public rights-of-way. Holding a religious service? You too can post a sign, and in the same place, but it better not be bigger than six square feet.

A federal appeals court ruled last week that Gilbert, Arizona's separate rules for “political,” “ideological,” and other signs do not amount to content-based distinctions. First Amendment jurisprudence forbids such distinctions (unless the sign contains commercial content).

From Courthouse News:

     In a seven-page dissent, Judge Watford said … "Gilbert's sign ordinance plainly favors certain categories of non-commercial speech (political and ideological signs) over others (signs promoting events sponsored by non-profit organizations) based solely on the content of the message being conveyed." (Parentheses in original.)
     Watford said Gilbert's interests in traffic safety and aesthetics do not justify the difference.
     "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," the dissent states.
     "Gilbert has not offered any such explanation, and I doubt it could come up with one if it tried," Watford added.

In 2008, a church that met in a school sued the Phoenix suburb because the town’s sign code, in addition to imposing size restrictions, limits the hours it can post signs to 12 hours before and one hour after services. Since worship starts at 9 a.m., Good News Community Church’s signs were pretty much always in the dark.

Gilbert's sign code allows campaigns to post “political” signs of up to 32 square feet. Such signs don’t have to be removed for 10 days after an election. “Ideological” signs that communicate “a message or ideas for non-commercial purposes” may be up to 20 square feet and can stay up indefinitely.

Click here and here for more Reason coverage of insufficient reverence for the First Amendment in local sign codes.

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of Reason.com or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

  • LTC(ret) John||

    That one will be on the way to the SCOTUS - now, if they can only convince Roberts that the sign restrictions could be construed as a tax...

  • Auric Demonocles||

    What's the penalty for putting up the too big or too early signs? Is it a fine? Because then, bam, tax. Is it jail? Because then: time is money, bam, tax.

  • Brian from Texas||

    I worked in the sign business for over 10 years in Dallas and the surrounding suburbs. Each one has its various amounts of red tape when it comes to getting permits for large commercial signs.

  • squarooticus||

    It's like judges, laywers, and politicians don't speak the same language as the rest of us. Is the first amendment clear to everyone else here? It sure is to me.

  • ||

    No, its not 'like' they do. I think the language they speak should have a name and have official status as a language.

  • ||

    "Legalese"?

  • BarryD||

    Horseshit?

  • Doctor Whom||

    Newspeak.

  • R C Dean||

    Billable.

  • ||

    "Because (the sign code) is a content-neutral regulation .... it does not impermissibly favor commercial speech over noncommercial speech, ..."
    "..... the sign code is unconstitutional in favoring some noncommercial speech over other noncommercial speech."
    McKeown added: "although ideological signs, political signs and qualifying event signs are all exempted from the sign code's permit requirement, and treated favorably under the code in that respect, each category faces different restrictions and requirements. "

    The judges who affirmed say this regulation favors some speech over other speech yet is a content neutral regulation. Got it.

  • RBS||

    Not only that, some signs pose more of risk to public safety! I wish judges would stop using "public safety" as an excuse to ignore the Constitution.

  • The Derider||

    Should shouting "fire" in a crowded theater also be protected speech?

  • Invisible Finger||

    Yes.

  • Invisible Finger||

    Also, define "crowded".

  • Invisible Finger||

    Also, explain why only theaters matter.

  • ||

    I smell a troll with oppositional-defiant disorder.

    Someone says up and you say down. They say ' ok down then' you scream NO! UP!

    You really are a tiresome dickhead.

  • R C Dean||

    Should shouting "fire" in a crowded theater also be protected speech?

    Certainly. I mean, the theater could actually be on fire, you know.

    Even if its not, if no one is harmed, why prosecute?

    If someone is harmed, prosecute for the harm done.

  • ||

    FIRE!

    - Frank Zappa

  • Whiterun Guard||

    So if I am running for office and holding a campaign event that is a religious revival, can I put up a 38 square foot sign?

    Also I'm very sure that the incumbent in an election would NEVER say that his opponents signs are promoting non-profit events sponsoring his opponent, and thus should be smaller. Could never go wrong, and even if it did, I'm sure we'd have completely objective and unbiased civil servants in there to adjudicate.

  • Night Elf Mohawk||

    "[E]ach category faces different restrictions and requirements" but the restrictions are content-neutral.

    The church probably should have found some free abortion counseling service to complain about the sign restrictions.

  • Eduard van Haalen||

    Wait, what?

  • BarryD||

    Religious expression can be restricted, but "women's reproductive health" is a right, I think is what he's saying.

  • sarcasmic||

    Running for office? You can post a 32-square-foot sign on public rights-of-way. Holding a religious service? You too can post a sign, and in the same place, but it better not be bigger than six square feet.

    Worship the state? You can have a big sign.
    Believe in a power greater than the state? Here's a stamp.

  • John||

    Forget the 1st Amendment, that doesn't even pass the rational relationship test. As the dissent points out, a sign that says "vote for Congressman Dipshit", poses the exact same traffic and esthetic problems that a sign that says "Jesus Saves" or "Go Suns". There is no rational justification for the distinction.

  • Adam330||

    Sure there is. Councilman Dipshit wrote the law. Jesus did not.

  • ||

    Soon enough that'll be Congressman Dipshit to you! Show some respect.

  • ||

    If these judges had actually seen the sign I'm sure it would have opened up their eyes. But sadly, life is demanding without understanding.

  • ||

    You poor, naive man, you.

  • ||

    I don't recognize that lyric.

  • John||

    In 2008, a church that met in a school sued the Phoenix suburb because the town’s sign code, in addition to imposing size restrictions, limits the hours it can post signs to 12 hours before and one hour after services. Since worship starts at 9 a.m., Good News Community Church’s signs were pretty much always in the dark.

    How is that not a violation of free exercise. Oh, you can have your little church, but you can't tell anyone when your services are unless we approve.

  • sarcasmic||

    Since churches don't pay taxes, I'm guessing approval will happen somewhere around never.

  • Zeb||

    Which religion is posting signs on public rights of way a part of?

    Speech is speech and no government official should be defining or categorizing what it is. If political signs are OK, then any sign should be OK. Otherwise, some petty tyrant gets to decide which signs are political, which are religious, etc. Religion doesn't get special protection. Everyone gets sufficient speech protection to guarantee free religious exercise.

  • Raston Bot||

    "...the restrictions are tailored to serve significant governmental interests," according to the decision written by Judge Consuelo Callahan and joined by U.S. District Judge James Singleton

    it's a fucking sign ordinance. i would argue that's not a governmental interest, let alone a significant one.

    also, fuck off, slavers.

  • ||

    I think the 1st A was written for the purpose of preventing speech restrictions that favor government interests .

    Where do these fuckers come from?

  • Eduard van Haalen||

    Without reading the opinions, I understand that to some judges, this law would look OK because it doesn't single out particular *viewpoints,* but instead singles out *subject matter.* Within the subject matter of politics, you can endorse or oppose whichever candidate you want. Within the subject matter of religion, you can promote whichever church you want. So what if discussing politics is privileged as against religion? What does that have to do with anything? So they think.

  • califernian||

    Two things are obvious to me:

    1 The other judges on the panel are your typical "liberals" and thus, voted to screw over religion.

    2. IF the restrictions had *favored* the church signs and harmed the ideological signs, the decision would have been the opposite.

GET REASON MAGAZINE

Get Reason's print or digital edition before it’s posted online

  • Progressive Puritans: From e-cigs to sex classifieds, the once transgressive left wants to criminalize fun.
  • Port Authoritarians: Chris Christie’s Bridgegate scandal
  • The Menace of Secret Government: Obama’s proposed intelligence reforms don’t safeguard civil liberties

SUBSCRIBE

advertisement