Why Reed v. Town of Gilbert isn't really a "religious rights" case

|The Volokh Conspiracy |

A Reuters story labels Reed v. Town of Gilbert—which is being argued Monday—as a "religious rights" case, and unsurprisingly this has gotten picked up. But I think this isn't quite right.

The case involves a Free Speech Clause challenge—not a Free Exercise Clause or a Religious Freedom Restoration Act challenge—to a sign ordinance. The ordinance sets up different rules for

  1. signs "support[ing] candidates" or relating to "any other matter on the ballot,"
  2. "sign[s] communicating a message or ideas," and
  3. signs related to noncommercial "event[s]."

The ordinance doesn't mention religious signs as a separate category—indeed, you can image religious signs fitting within any of the three categories. True, the challenger is indeed the pastor of a church, who wants to be able to put up signs directing people to church services (which the ordinance classifies within the relatively disfavored category of "event" signs). But the same issue could arise with regard to atheist events, nonreligious school events, NAACP-organized rallies, NRA-organized rallies, or anything else. (The rallies would be considered event signs rather than ideological signs, because ideological signs are defined as excluding any "temporary directional sign[s] relating to a qualifying event.")

The challenger's argument is that the ordinance is impermissibly "content-based," and therefore unconstitutional unless it is necessary to serve a "compelling" government interest. The city's argument is that the ordinance is "content-neutral," and therefore constitutional so long as it adequately serves a merely important government interest (such as aesthetics) and leaves open ample alternative channels for communication. I think the challenger has the better argument. But in any event, the argument is about free speech rights for all speakers who put on events, and not about religious rights as such.

Here is an excerpt from Judge Paul Watford, who dissented from the Ninth Circuit opinion that is now being reviewed by the Supreme Court; I think it's quite correct, and, again, it doesn't rely on religious rights as opposed to free speech rights more broadly:

The Fourteenth Amendment's Equal Protection Clause and the First Amendment's Free Speech Clause prohibit the government from favoring certain categories of noncommercial speech over others based solely on the content of the message being conveyed. See Carey v. Brown, 447 U.S. 455, 459-61 (1980); Police Dep't of Chicago v. Mosley, 408 U.S. 92, 96 (1972). When regulating speech in a public forum, the government may draw distinctions among different categories of non-commercial speech only if those distinctions are justified by some non-communicative aspect of the speech involved. For example, a State may not exempt labor picketing from a general ban on picketing in front of homes (enacted to protect residential privacy), unless it can show that labor picketing is inherently less disruptive of residential privacy than picketing on other subjects. The reason is simple: Within the realm of noncommercial speech, the government may not decide that speech on certain subjects is more (or less) valuable—and therefore more (or less) deserving of First Amendment protection—than speech on other subjects.

The Supreme Court relied on this general principle to strike down a municipal sign ordinance in Metromedia, Inc. v. City of San Diego, 453 U.S. 490 (1981). A plurality of the Court invalidated San Diego's ordinance banning most noncommercial billboards on the ground that the ordinance impermissibly granted exemptions for billboards bearing noncommercial speech on favored subjects, such as political campaign messages. The plurality held that, although cities "may distinguish between the relative value of different categories of commercial speech [i.e., commercial advertising -EV]," they do not have the same freedom in the realm of non-commercial speech "to evaluate the strength of, or distinguish between, various communicative interests." San Diego could not identify any non-communicative aspect of the speech at issue to justify the distinctions it had drawn. It failed to show, for example, that the non-commercial billboards it banned had any greater effect on the city's asserted interests in promoting traffic safety and aesthetics than the non-commercial billboards it permitted….

Gilbert's sign ordinance violates the First and Fourteenth Amendments by drawing content-based distinctions among different categories of non-commercial speech. The most glaring illustration is the ordinance's favorable treatment of "political" and "ideological" signs relative to the treatment accorded the non-commercial signs plaintiffs seek to display. Under the ordinance, plaintiffs' temporary directional signs may not exceed six square feet in size and may not be displayed more than 12 hours before or one hour after the relevant event-here, Sunday morning church services. (Given the 9:00 a.m. start time of Good News's church services, this durational restriction limits the display of plaintiffs' signs to periods when it is virtually always dark.) In contrast, "political" signs—defined as "[a] temporary sign which supports candidates for office or urges action on any other matter on the ballot of primary, general and special elections relating to any national, state or local election"—may be up to 32 square feet in size and may be displayed any time prior to an election and removed within 10 days after the election. "Ideological" signs—defined as "a sign communicating a message or ideas for non-commercial purposes" that is not a construction, directional, political, or garage sale sign—may be up to 20 square feet in size and are not subject to any durational limits at all.

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. These are not content-neutral "speaker" and "event" based distinctions …. Determining whether a particular sign will be regulated as a "political" sign as opposed to an "ideological" sign or a "temporary directional sign relating to a qualifying event" turns entirely on the content of the message displayed on the sign.

The content-based distinctions Gilbert has drawn are impermissible unless it can identify some non-communicative aspect of the signs at issue to justify this differential treatment. See Metromedia, 453 U.S. at 513; Carey, 447 U.S. at 465; Mosley, 408 U.S. at 100. Gilbert has merely offered, as support for the sign ordinance as a whole, its interest in enhancing traffic safety and aesthetics. Traffic safety and aesthetics are certainly important interests. 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. See Metromedia, 453 U.S. at 514; Carey, 447 U.S. at 466; Mosley, 408 U.S. at 96….

or the reasons given above, I would hold that the regulatory distinctions Gilbert has drawn among different categories of non-commercial speech are unconstitutional ….

Note that the UCLA First Amendment Amicus Brief Clinic students and I filed a brief in this case, on behalf of several law professors, urging the Court to agree to hear it. We did not file a brief at the merits stage, once the Court had indeed agreed to hear it.