SIGNS, SIGNS EVERYWHERE A SIGN: WHAT THE TOWN OF GILBERT CASE MEANS FOR SCHOOLS. Kristin M. Mackin SIMS MURRAY LTD.

Transcription

1 SIGNS, SIGNS EVERYWHERE A SIGN: WHAT THE TOWN OF GILBERT CASE MEANS FOR SCHOOLS Kristin M. Mackin SIMS MURRAY LTD.

2 First Amendment Governments shall make no law [1] respecting an establishment of religion, or prohibiting the free exercise thereof; [2] or abridging the freedom of speech, or of the press; [3] or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

3 First Amendment (continued) Generally, government regulation of speech must be content-neutral Greater regulation of categories of speech, such as commercial, obscenity, defamation, nonpublic or limited public forum Courts have not been consistent in tests for content neutrality

4 First Amendment (continued) If a regulation of speech is not content-neutral when required, it must survive strict scrutiny Be necessary to further a compelling government interest; and Be narrowly tailored to achieve it The government usually loses a strict scrutiny challenge: Strict scrutiny, like a Civil War stomach wound, is generally fatal.

5 First Amendment (continued) If regulation is content-neutral, the court will apply some form of intermediate scrutiny Narrowly tailored to serve a significant content-neutral government interest that would be achieved less-effectively without the regulation, and Leave open ample alternative channels for communication of the information. Intermediate scrutiny is seldom fatal to the government

6 Reed v. Town of Gilbert: FACTS Plaintiffs: Good News Community Church & Pastor Clyde Reed Sunday services held at various temporary locations Church posted its name, time and location of services on temporary directional signs Signs were posted early Sunday morning and taken down midday Cited for exceeding the time limits of temporary directional signs and not posting date of the service

7 Reed v. Town of Gilbert: FACTS Defendant: Town of Gilbert Town of Gilbert s Sign Code prohibited display of outdoor signs without a permit but had numerous exceptions, including for political signs, ideological signs and temporary directional signs Excepted signs had various size and time limitations based on the type of sign Temporary directional signs were most heavily restricted

8 Reed v. Town of Gilbert: FACTS

9 Reed v. Town of Gilbert: FACTS

10 Reed v. Town of Gilbert: THE DECISION Unanimous decision Disagreement amongst Justices, however, on how the decision should have been reached Resulted in four opinions: Majority Opinion (J. Thomas joined by C.J. Roberts, and JJ. Scalia, Kennedy, and Alito) Concurring Opinion (J. Alito joined by JJ. Kennedy and Sotomayor) Opinion concurring in Judgment (J. Breyer) Opinion concurring in Judgment (J. Kagan joined by JJ. Ginsburg and Breyer)

11 Reed v. Town of Gilbert: MAJORITY OPINION (J. Thomas) Content-based laws those that target speech based on its communicative content are presumptively unconstitutional and may be justified only if the government proves that they are narrowly tailored to serve compelling state interests.

12 Reed v. Town of Gilbert: MAJORITY OPINION (J. Thomas) Government regulation of speech is content based if a law applies to particular speech because of the topic discussed or the idea or message expressed.

13 Reed v. Town of Gilbert: MAJORITY OPINION (J. Thomas) A regulation that targets a sign because it conveys an idea about a specific event is no less content based than a regulation that targets a sign because it conveys some other idea. Here, the Code singles out signs bearing a particular message: the time and location of a specific event. This type of ordinance may seem like a perfectly rational way to regulate signs, but a clear and firm rule governing content neutrality is an essential means of protecting the freedom of speech, even if laws that might seem entirely reasonable will sometimes be struck down because of their content-based nature.

14 Reed v. Town of Gilbert: MAJORITY OPINION (J. Thomas) Because the Town s Sign Code imposes content-based restrictions on speech, those provisions can stand only if they survive strict scrutiny, which requires the Government to prove that the restriction furthers a compelling interest and is narrowly tailored to achieve that interest. The Town s Sign Code was not narrowly tailored to achieve the proffered compelling governmental interests of preserving aesthetic appeal and traffic safety.

15 Reed v. Town of Gilbert: CONCURRENCE (J. Alito) J. Alito wrote separately to add a few words of further explanation Rules that would not be content-based: distinguishing between placement of signs on private and public property or commercials and residential property distinguishing between on premise and off premise signs restricting number of signs per mile time restrictions on signs advertising a one-time event

16 Reed v. Town of Gilbert: CONCURRENCE (J. Kagan) The consequence unless courts water down strict scrutiny to something unrecognizable is that our communities will find themselves in an unenviable bind: They will have to either repeal the exemptions that allow for helpful signs on streets and sidewalks, or else lift their sign restrictions altogether and resign themselves to the resulting clutter.

17 Reed v. Town of Gilbert: CONCURRENCE (J. Kagan) As the years go by, courts will discover that thousands of towns have such ordinances, many of them entirely reasonable. And as the challenges to them mount, courts will have to invalidate one after the other. (This Court may soon find itself a veritable Supreme Board of Sign Review.) And courts will strike down those democratically enacted local laws even though no one certainly not the majority has ever explained why the vindication of First Amendment values requires that result.

18 Reed v. Town of Gilbert: IMPACT Courts are widely applying the content-neutrality analysis in Reed: Statute prohibiting certain robocalls: Cahaly v. Larosa, No , 2015 WL (4th Cir. Aug. 6, 2015) Statue prohibiting panhandling: Norton v. City of Springfield, Ill., No , 2015 WL (7th Cir. Aug. 7, 2015) Statue banning images of marked ballots: Rideout v. Gardner, No. 14- CV-489-PB, 2015 WL (D.N.H. Aug. 11, 2015)

19 Reed v. Town of Gilbert: IMPACT ON SCHOOLS? Political signs and A.R.S Temporary signs for car washes/fundraisers Advertising/promotional materials School board meetings Signs on campus Student speech

20 QUESTIONS?

21 THANK YOU Kristin M. Mackin SIMS MURRAY LTD.