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. This commonsense meaning of the phrase “content based” requires a court to consider whether a regulation of speech “on its face” draws distinctions based on the message a speaker conveys. Supreme Court precedents have also recognized a separate and additional category of laws that are considered content-based regulations of speech: laws that cannot be justified without reference to the content of the regulated speech. Those laws must also satisfy strict scrutiny.
Gilbert, Arizona (Town), has a comprehensive code (Sign Code or Code) that prohibited the display of outdoor signs without a permit, but exempts 23 categories of signs, including “Ideological Signs” (i.e. signs communicating a message or idea that does not fit in any other Sign Code category), “Political Signs” (i.e. signs designed to influence the outcome of an election), and “Temporary Directional Signs” (i.e. signs directing the public to a church or other qualifying event). Of the three mentioned, Temporary Directional Signs had greater restrictions – according to the Code, no more than four of the signs, limited to six square feet, may be on a single property at any time, and signs may be displayed no more than 12 hours before the “qualifying event” and 1 hour after. Petitioners, Good News Community Church (Church) and its pastor, Clyde Reed, whose Sunday church services were held at various temporary locations in and near the Town, posted signs early each Saturday bearing the Church name and the time and location of the next service and did not remove the signs until around midday Sunday. The Church was cited for exceeding the time limits for displaying temporary directional signs and for failing to include an event date on the signs. Unable to reach an accommodation with the Town, petitioners filed suit, claiming that the Code abridged their freedom of speech. The District Court denied their motion for a preliminary injunction, and the Ninth Circuit affirmed, ultimately concluding that the Code's sign categories were content neutral, and that the Code satisfied the intermediate scrutiny accorded to content-neutral regulations of speech.
Did the provision in the Sign Code of Gilbert, Arizona imposing a stricter regulation on “Temporary Directional Signs” violate the petitioners’ right to freedom of speech granted under the First Amendment to the U.S. Constitution?
The Court held that the challenged provision could not survive First Amendment strict scrutiny because the town could not claim that placing strict limits on temporary directional signs was necessary to beautify the town while at the same time allowing unlimited numbers of other types of signs that created the same problem. Furthermore, the Court ruled that the town had not shown that limiting temporary directional signs was necessary to eliminate threats to traffic safety, but that limiting other types of signs was not.