SEPARATE BECAUSE UNEQUAL: THE NINTH CIRCUIT’S MANGLING OF THE FIRST AMENDMENT IN REED V. GILBERT

By James Cleith Phillips*
Published October 8, 2014

Introduction

An appellate court decision is like a marriage. Sometimes it is childless. Sometimes it produces healthy progeny. And sometimes it is doomed to spawn generations of deformed doctrine. The U.S. Court of Appeals for the Ninth Circuit’s holding last year in Reed v. Gilbert II[1] falls in this last class of matrimony, and is in need of a hasty and merciful divorce.

Reed II allows city governments to “achieve” constitutionality by carving up a sign code into increasingly narrow categories. Reed II also allows government officials to play favorites, anointing some non-commercial messages as higher in value than others in the pantheon of First Amendment protection. Thus, the Ninth Circuits holding in Reed II resembles a reincarnation of the debasing doctrine in Plessy v. Ferguson[2]: various non-commercial speech may be treated separately because they are not equal. The U.S. Supreme Court’s granting of a writ of certiorari in the summer of 2014 creates an opportunity to eradicate this potentially destructive doctrinal deformity.

I. The Town, The Church, and Some Signs

Gilbert, Arizona[3] regulates the size, location, quantity, and duration of the display of signs posted in public. The city requires the issuance of a permit before a sign may be posted, but exempts from this requirement certain types of signs, including political signs,[4] ideological signs,[5] and directional signs regarding a temporary qualifying event.[6] The city ordinance requires these temporary directional signs to “be no greater than 6 feet in height and 6 square feet in area.”[7] The ordinance also provides that such signs “shall only be displayed up to 12 hours before, during, and 1 hour after the qualifying event ends.”[8]

Political and ideological signs are subject to different requirements. Political signs may be up to 16 square feet in residential areas and up to 32 square feet on property zoned for nonresidential use, undeveloped Town property, and Town rights-of-way.[9] Also, political signs may be posted up to 60 days prior to a primary election and must be taken down no later than 15 days following a general election.[10] Ideological signs have no display duration restrictions, are permitted in all zoning districts, and “shall be no greater than 20 square feet in area and 6 feet in height.”[11] Furthermore, while only four temporary event directional signs may be posted on a property, the number of political or ideological signs is not capped.[12]

In Reed II, the Good News Community Church (“Good News”), lacking a building, met in an elementary school for Sunday worship services.[13] Based on its interpretation of Biblical scripture, Good News felt under divine commandment to invite the community to attend services with them.[14] The church placed numerous signs around the elementary school early on Saturday mornings advertising the worship service, and removed the signs following Sunday services.[15] A city code compliance officer notified Good News via e-mail that it had violated the city’s ordinance regarding temporary directional signs for qualifying events.[16] A few months later, a code compliance officer issued an advisory notice informing the church that they had again violated several aspects of the city ordinance.[17] Specifically, the signs were posted outside of the allowable pre- and post-event time window, were placed in a public right of way, and did not have an event date on the sign.[18] In response to the e-mail and advisory notice, Good News reduced the number of signs as well as the amount of time prior to the service that the signs were displayed. The church then mounted a facial and as-applied challenge to the city ordinance in Arizona federal court.[19]

In the ensuing litigation, Good News argued that the sign restrictions violated the Free Speech and Free Exercise Clauses of the First Amendment, the Equal Protection Clause of the Fourteenth Amendment, and the Arizona Religious Freedom Restoration Act.[20] The district court denied the church’s motion for a preliminary injunction, finding that the city ordinance (1) was content-neutral, (2) was narrowly tailored to protect the significant government interests of aesthetics and traffic control, (3) allowed for alternative channels of communication, (4) did not impermissibly favor commercial over noncommercial speech, and (5) did not violate equal protection because any disparate effects unintentionally flowed from the content-neutral ordinance.[21]

On appeal, the Ninth Circuit unanimously affirmed the district court’s denial of the preliminary injunction. The court found the section of the ordinance addressing temporary event signs, § 4.402P, to be constitutional because it did not distinguish between types of qualifying events or sign content[22] and because it did not “impermissibly favor commercial speech over noncommercial speech.”[23] The court also denied Good News’s facial challenge, stating it was indistinguishable from its as-applied challenge.[24] However, the Ninth Circuit remanded the case to the district court to consider the church’s First and Fourteenth Amendment claims that the ordinance as a whole was not content neutral because it impermissibly distinguished between different types of noncommercial speech by allowing political and ideological signs to be larger, more numerous, and displayed longer than temporary event signs.[25]

On remand, the district court found the ordinance’s varying restrictions on the different types of signs to be permissible.[26] The district court explained that to distinguish between signs a government officer “need only skim the sign to determine the speaker (e.g., is a non-profit speaking?) and the event at issue (e.g., does this relate to an election or a Qualifying Event?),” and thus not reach the content of the sign’s message.[27] The district court found that the defendants were entitled to summary judgment on all issues.[28] On appeal a second time, a new panel affirmed the district court’s grant of summary judgment.[29] The Reed II majority held that the ordinance used permissible distinctions that did not rely on the content of the signs.[30] Unfortunately, the majority misunderstood the purpose of the original panel’s remand and, instead of analyzing the sign ordinance across sections of the code, merely analyzed each section of the code in isolation.[31] That error would prove fatal. Furthermore, the majority also surmised, in the face of clear contrary Free Speech doctrine, that ideological and political signs deserved greater constitutional protection than signs advertising public events and meetings.[32]

II. The Ninth Circuit’s Mangling

The Reed II majority committed five mistakes in their decision: (1) they misunderstood the purpose of the original remand, leading to the wrong analysis; (2) they misapplied the Ninth Circuit’s own content-neutrality test; (3) they misapplied U.S. Supreme Court precedent; (4) they determined some speech is of more value than other speech, and can be favored; and (5) they failed to note that there was no logical connection between the city’s regulatory purposes and the ordinance’s differential treatment of signs.

A. Reed II misunderstands the purpose of Reed I’s remand, resulting in the wrong analysis

The Reed II majority opinion shows confusion over the purpose of the remand in Reed I. Reed I focused on the constitutionality of just one section of the sign code (temporary event signs), utilizing viewpoint neutrality analysis to examine that section in isolation, and then remanded for an analysis looking across sections of the sign code. Thus, although the court found that the section of the code on temprorary event signs was constitutional in isolation, it left open the question of whether different treatment of different categories of signs as a whole was constitutional. Unfortunately, Reed II used the same method of analysis—viewpoint neutrality—and examined the other sections of the sign code in isolation, finding each of them to be constitutional.[33] It is impossible, however, to determine whether the differential treatment of noncommercial speech across sections of the sign code is constitutional when one only examines the treatment of noncommercial speech within a section of the sign code. In other words, viewpoint neutrality is necessary but not sufficient to have content neutrality, and even if within each distinct section of the code there is viewpoint neutrality, it does not make the interaction of the various sections content-neutral overall.[34] Thus, because the Reed II majority asked the wrong question, it came up with the wrong answer.

B. Reed II misapplies the circuit’s content-neutrality test from G.K. Ltd.

Reed II relies heavily on a comparison between the Ninth Circuit’s decision in G.K. Ltd. Travel v. City of Lake Oswego[35] and the facts in the present case to support its conclusion that Gilbert’s sign ordinance is not content-based. G.K. Ltd. dealt with a city sign ordinance that exempted certain entities, such as hospitals, from the general permit requirement for posted signs.[36] The ordinance also regulated the posting of signs on residential property, permitting one sign per property, regardless of content, that could be posted up to 90 days before an election and that had to be removed within five days following the election.[37] The ordinance also allowed for a second sign per property, which could be posted on any topic as long as it was not posted more than eight days each month.[38] The U.S. District Court for the District of Oregon held the ordinance to be content-neutral and granted summary judgment for the city regarding the challenge to that specific portion of the law.[39] The Ninth Circuit affirmed the district court’s decision, holding that the exemption to the permit requirement for certain entities was content-neutral because it did not require an enforcement officer to assess the content of a sign in order to determine whether the sign had been posted by a permissible entity.[40] The Ninth Circuit also held that the exemption for temporary signs was not content-based because a government officer needed to determine only when the described event would occur, regardless of the content of the sign.[40]

Relying on G.K. Ltd., Reed II held that the Gilbert sign ordinance merely looked to see if there is a triggering event rather than relying on content-based restrictions.[42] However, this finding is incongruous with the facts of G.K. Ltd. as the ordinance in that case did not turn on what the signs actually said. Therefore, a government officer did not have to read a sign to determine the applicable regulations; he only needed to determine whether the sign complied with the timing restrictions. In contrast, Gilbert’s ordinance requires an enforcement officer to assess the content of a sign to determine, for example, whether it is a political sign or a temporary directional sign.

Furthermore, the Gilbert sign code discriminates among messages about the same event. For example, a sign that says “Vote for Hillary Clinton in the Democratic Primary,” a political sign, may be posted longer and be larger than a temporary directional sign that says “Vote Here Today in the Democratic Primary from 7 AM to 7 PM”. And a sign that says “Hillary Clinton is a War Criminal Running for President,” an ideological sign, could be posted indefinitely and could be larger than a directional sign, but must be smaller than a political sign. The Gilbert ordinance regulates each of the messages drastically differently, even though all three signs refer to the same Democratic primary election. Thus, the Reed II majority’s reliance on G.K. Ltd. is mistaken, as a government officer in Gilbert must examine the specific content of a sign rather than simply apply objective, external knowledge regarding the date of an event in determining the applicable regulation.

Additionally, it is unclear on remand why the district court and the Reed II majority relied on G.K. Ltd.’s analysis of speaker-based exemptions: the speaker-based distinctions of G.K. Ltd. have no relevance to the facts at issue here. For example, Good News could post three signs.[43] The first invites people to join the church for Sunday services and provides the time, date, and directions. The second sign urges people to vote for Pastor Reed for President in November. The third simply states: “Do your part to save the planet: recycle!” The speaker—the church—is the same for each sign, but the applicable restrictions would vary for all three. Hence, a government officer cannot simply look to the speaker behind the message in the Gilbert ordinance; the officer must stop and analyze the content of the sign to determine which restrictions apply.[44]

C. Reed II misapplies U.S. Supreme Court precedent.

The holding in Reed II also relied heavily on Hill v. Colorado[45], where the Court upheld a restriction on speech around abortion clinics.[46] The Reed II court noted that “[i]n Hill . . . the Supreme Court indicated that not all types of noncommercial speech need to be treated the same.”[47] Again, the relevant facts in Hill sufficiently distinguish it from Reed II. The statute in Hill prevented speakers within one hundred feet of a “health care facility” from approaching within eight feet of another person to protest, educate or counsel. The Hill Court held that the statute “places no restrictions on—and clearly does not prohibit—either a particular viewpoint or any subject matter that may be discussed by a speaker.”[48] As Judge Watford’s Reed II dissent correctly points out, Hill allowed the regulation of “a particular mode of communication . . . without regard to the subject of the speaker’s message.”[49] In the present case, the Gilbert ordinance deals with the same mode of communication (signs) as Hill, but requires different messages to comply with different regulations.

If the statute at issue in Hill were applied to the facts of Reed II, the town of Gilbert would essentially be saying that if you want to share an ideological message with someone, you may approach as close as you would like and speak in a loud tone; if you want to share a political message you may approach to within six feet and shout; and if you want to share the time, location and directions to an event you must stand 775 feet away and whisper.[51] Such differential treatment is not supported by Hill.

D. There is no hierarchy of values in noncommercial speech.

Even if an ordinance is content-neutral, it must be narrowly tailored to serve a significant government interest and leave open alternative channels of communication.[51] Reed II defends the Gilbert ordinance as narrowly tailored to serve significant governmental interests, despite the fact that ideological and political signs are subject to more favorable restrictions than mere temporary directional signs. The court argued that political, ideological and religious speech are deserving of greater constitutional protection.[52] Reed II thus implies that there is a categorical difference between speech that expresses thoughts (i.e., a message) and speech that merely expresses information (i.e., facts), and that content-based regulation of the former is prohibited, but not the latter because pure information is not substantive content.

Such a view, deceptively commonsensical on its surface, is problematic for two reasons. First, it is not clear that mere information should be relegated to second-class status as compared to the expression of thought. The U.S. Supreme Court has held that “the creation and dissemination of information are speech within the meaning of the First Amendment. . . . Facts, after all, are the beginning point for much of the speech that is most essential to advance human knowledge and to conduct human affairs.”[53] The Court has also noted that “a narrow, succinctly articulable message is not a condition of constitutional protection,” and constitutional protection should not be confined only “to expressions conveying a ‘particularized message.’”[54]

Distinguishing between expressions of thought and mere facts would allow the government to place more onerous restrictions on someone shouting the current time than someone shouting “The U.S. government is corrupt.” What about distinctions among fact-based signs? A sign giving the time of and directions to a Tea Party meeting, and a sign accurately stating that, “The national debt increased more in Obama’s first four years than in all of Bush’s eight,” are both merely statements of fact. Assumedly, most would view the second fact-based sign as inherently involving a thought, although it certainly is not explicit. This official sanction of differential treatment creates a dangerous amount of discretion for a government officer, allowing him to deem one man’s facts another man’s opinions, restricting the first and allowing the second.

Moreover, it is important to note that facts carry an implicit message. For example, the Good News Church’s directional signs contain the implied ideas that (a) Christian worship is good; and (b) you should worship with us Sunday morning. In the area of commercial speech, the Ninth Circuit has recognized that advertising can have either an express or implied message.[55] The Circuit has also held, in a case involving the selling of t-shirts, that a “city’s argument that the message conveyed must be either explicit or implicit but obvious in order to merit protection must fail,” thus extending protection even to implied unobvious messages.[56] Why should commercial speech earn such protection, but noncommercial speech should not? The Gilbert ordinance defines an ideological sign as a “sign communicating a message or ideas for non-commercial purpose,” but does not differentiate between implied and express messages. It could easily be argued that the Good News Church’s signs are a form of religiously-motivated speech that communicates an implied message about Christian worship and Sabbath day observance. The signs also facilitate core First Amendment activities: assembly, the free exercise of religion, and more speech.

Reed II also misses one of the communicative purposes of the temporary directional signs. Although the majority notes that “a person is unlikely to seek directions to an event more than 12 hours before the event,”[57] temporary directional event signs both direct people to find the location of the event, as well as inform people an event will take place. The function the sign serves depends on when someone reads it. Hence, Good News cannot advertise an event more than 12 hours beforehand, and many people, particularly families, make plans for their weekend at least a day, if not many days, in advance.[58] And the function of the sign also depends on who reads it. The sign sends a different message to someone who is already planning on attending the event, but needs to know when and where the worship service will occur, compared to someone who knows nothing about the church or the service. For the first sign observer, the message is mostly informational, but for the second observer the sign also has a proselytizing function.

Finally on this point, a historical hypothetical may help illustrate the folly of the Ninth Circuit’s logic. Imagine Boston in the year 1774. The Crown-appointed governor of Massachusetts Colony strolls down Beacon Street and sees three signs. The first states: “Elect John Adams to the Continental Congress.” The second states: “No Taxation Without Representation.” The third states: “Meeting of the Sons of Liberty, Tomorrow, 7 PM, at the Green Dragon Tavern.”[59] Which sign would the royal governor see as the most threatening, and, therefore, most valuable to the Patriots’ cause and in need of greater protection from government suppression? Arguably the last, which, though merely a fact-based sign, it is only devoid of the expression of thought in the strictest, most technical sense. Thus, a bright line division between fact-based and political or ideological speech is indefensible as it ignores context and subtext. In the end it is nothing more than free speech gerrymandering.

Hence, Reed II’s suggestion that political or ideological speech is more valuable, and thus merits greater First Amendment protection than directional speech, creates precarious precedent and has been rejected before by the Supreme Court: “[a]lthough the city may distinguish between the relative value of different categories of commercial speech, the city does not have the same range of choice in the area of noncommercial speech to evaluate the strength of, or distinguish between, various communicative interests.”[60] The argument by the Reed II majority that the ordinance does not foreclose any type of sign to the appellant, since it can display political or ideological signs as well, is hardly comforting to members of the Good News Church, who must compete in the cluttered marketplace of signs on unequal grounds when it comes to the main type of speech they desire to engage in—inviting and directing people to their worship services.

E. No logical link exists between regulatory purpose and differing restrictions

In a First Amendment context, the U.S. Supreme Court has held that the government carries the burden of explaining how the law furthers governmental interests.[61] Regulations, if content-neutral, must also be “narrowly tailored to serve a significant governmental interest.”[62] The City of Gilbert never explains how treating ideological and political signs more favorably than signs announcing and directing people to a worship service furthers the town’s claimed regulatory interest in aesthetics and traffic safety. The lack of such an argument may reveal the difficulty in making it. Because the favored political and ideological signs are allowed to be larger and posted longer than the disfavored signs, aesthetics and traffic safety appear unimportant to the city as the ordinance is woefully under-inclusive as to its purported aims: ideological and political signs can be posted longer, be much larger, and be unlimited in number compared to temporary event signs, cluttering the town, particularly near roads.[63]

Furthermore, Reed II finds “no showing that the restrictions on Temporary Directional Signs interfere with their purpose: directing interested individuals to temporary events.”[64] This contention ignores the advertising purpose of these signs and the fact that Good News experienced a 26.7 percent higher level of attendance at its services when allowed to display signs approximately 24 hours prior to an event.[65] In reality, the ordinance disproportionately impacts smaller organizations that meet in the morning. As Judge Watford’s dissent correctly noted, most of the 12-hour window in which one can post a sign before an event will be shrouded in darkness when one is advertising a morning event.[66]

Reed II also found that there were ample alternative channels of communication open to the church to convey its message regarding worship services. Relying on the analysis in Reed I, the court suggested that Good News could engage in “distributing leaflets, sending email messages or mail advertisements, walking the sidewalks with signs advertising the church services, posting signs carrying religious messages on their own property, and advertising in the newspaper, phonebook or other print media.”[67] However, only larger organizations have the money and manpower to utilize alternative channels of communication. Given that Good News is a church of about 25-30 members (four to ten of those being children) and does not have its own property,[68] it is a stretch to say that any of these alternative channels of communication are realistic options to attract prospective worshippers. The Reed II majority appears to be thinking more of a mega-church with deep financial pockets and an army of congregants, quite different than the facts at hand.

III. Content-Neutrality Tests and the Widening Circuit Split

Much of the disagreement between the majority and the dissent in Reed II rests on differing interpretations of content-neutrality, sometimes called the “officer must read it test”—a disagreement that can be found amongst the circuits.[69] Five circuits take a more formalistic, literal approach that narrowly reads content-based restrictions to disallow any restriction requiring a government officer to read the content of a message.[70] And five circuits, the Ninth Circuit included, take an informal, functional approach, based on their interpretation of Hill and Ward v. Rock Against Racism.[71] Under this approach, the courts broadly read content-based restrictions to require “that a regulation do more than merely differentiate based on content to qualify as content based.”[72] Specifically, the circuits on the functional side of the divide focus on the intent of the regulation rather than its effects.

Prior to Reed II, the Ninth Circuit’s view appeared to have been between the two camps in the circuit split, but leaning toward the functional side. The Ninth Circuit had previously held in G.K. Ltd. that officers could read signs to determine whether an exemption applied as long as they did so “without regard for the actual substance of the message.”[73] But the Ninth Circuit refused to extend G.K. Ltd., and thus moved closer to the functional camp in ACLU of Nevada v. City of Las Vegas,[74] which regarded an ordinance prohibiting solicitations in a downtown area. There the Ninth Circuit found that “[t]he exceptions to the ‘officer must read it’ test identified in Hill and G.K. Ltd. do not apply in the present case, where officers must evaluate the substantive content of a message to know whether the solicitation ordinance applies.”[75] Even among the sister circuits to which the Ninth Circuit is closer,[76] no circuit allows for speech restrictions to be justified based on differing values of non-commercial speech, as Reed II holds. Thus, Reed II has not only shifted the Ninth Circuit’s position in this inter-circuit spat over tests determining content-neutrality, it has set up a new split with the Ninth Circuit on one side, and the remaining circuits on the other.

Conclusion

The Ninth Circuit erred in Reed II when it applied viewpoint neutrality within sections of a sign code to determine content neutrality across sections of the code. Likewise, the court created precedent injurious to core First Amendment values when it held that all non-commercial sign speech is not created equal, and therefore speech perceived to be of a lesser value may be less free. Hopefully the Supreme Court will remove this doctrinal deformity to avoid further contagion of the First Amendment.

Phillips_Separate Because Unequal

Preferred Citation: James Cleith Phillips, Separate Because Unequal: The Ninth Circuit’s Mangling of the Firs Amendment in Reed v. Gilbert 119 Penn St. L. Rev. Penn Statim 21 (2014), available at http://www.pennstatelawreview.org/penn-statim/separate-because-unequal-the-ninth-circuits-mangling-of-the-first-amendment-in-reed-v-gilbert/

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