Case: 2:07-cv-00522-SRB As of: 03/01/2019 08:04 AM MST 1 of 12

U.S. District Court DISTRICT OF ARIZONA (Phoenix Division) CIVIL DOCKET FOR CASE #: 2:07−cv−00522−SRB

CLOSED,STD

Reed et al v. Gilbert, Town of et al Assigned to: Senior Judge Susan R Bolton Case in other court: Ninth Circuit, 08−17384
Ninth Circuit, 11−15588 Cause: 42:1983 Civil Rights Act Plaintiff Clyde Reed Pastor
Plaintiff Good News Presbyterian Church TERMINATED: 02/13/2008
Plaintiff

Date Filed: 03/08/2007 Date Terminated: 12/30/2015 Jury Demand: Defendant Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question
represented by Benjamin W Bull Alliance Defending Freedom − Scottsdale, AZ 15100 N 90th St. Scottsdale, AZ 85260−0001 480−444−0020 Fax: 480−444−0028 Email: bbull@telladf.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
David A Cortman Alliance Defending Freedom − Lawrenceville, GA 1000 Hurricane Shoals Rd. NE, Ste. D1100 Lawrenceville, GA 30043 770−339−0774 Fax: 770−339−6744 Email: dcortman@telladf.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jeremy David Tedesco Alliance Defending Freedom − Scottsdale, AZ 15100 N 90th St. Scottsdale, AZ 85260−0001 480−444−0020 Fax: 480−444−0028 Email: jtedesco@alliancedefendingfreedom.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Benjamin W Bull (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
David A Cortman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jeremy David Tedesco (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

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Good News Community Church

represented by Jeremy David Tedesco (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Benjamin W Bull (See above for address) ATTORNEY TO BE NOTICED

David A Cortman (See above for address) ATTORNEY TO BE NOTICED

V. Defendant Gilbert, Town of Arizona
Defendant Adam Adams in his official capacity as Code Compliance Manager

represented by Kim Seibert Alvarado Grasso Law Firm PC 2430 W Ray Rd., Ste. 3 Chandler, AZ 85224 480−730−5553 Fax: 480−730−2810 Email: kalvarado@grassolawfirm.com TERMINATED: 10/27/2015 LEAD ATTORNEY
Robert Grasso , Jr. Grasso Law Firm PC 2121 W Chandler Blvd., Ste. 100 Chandler, AZ 85224 480−739−1200 Email: rgrasso@grassolawfirm.com TERMINATED: 10/27/2015 LEAD ATTORNEY
Philip W Savrin Freeman Mathis & Gary LLP 100 Galleria Pkwy., Ste. 1600 Atlanta, GA 30339 770−818−1405 Fax: 770−937−9960 Email: psavrin@fmglaw.com ATTORNEY TO BE NOTICED
represented by Kim Seibert Alvarado (See above for address) TERMINATED: 10/27/2015 LEAD ATTORNEY
Robert Grasso , Jr. (See above for address) TERMINATED: 10/27/2015 LEAD ATTORNEY
Philip W Savrin (See above for address) ATTORNEY TO BE NOTICED

Date Filed # Docket Text

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03/08/2007 03/08/2007
03/12/2007 03/14/2007 03/14/2007 03/14/2007
03/27/2007 03/27/2007 03/30/2007 04/04/2007 04/04/2007 04/12/2007 04/17/2007 04/23/2007
04/23/2007
04/25/2007 04/25/2007 04/26/2007

1 COMPLAINT, filed by Clyde Reed, Good News Presbyterian Church. (Attachments: # 1 Civil Cover Sheet)(Tedesco, Jeremy) (Entered: 03/08/2007)
2 Filing fee paid 03/09/07, receipt number PHX055418. This case has been assigned to the Honorable Michelle H Burns. All future pleadings or documents should bear the correct case number: CV07−522−PHX−MHB. Magistrate Election form attached. (Attachments: # 1 instructions)(entered by PEM) (Entered: 03/12/2007)
3 Summons Issued as to Gilbert, Town of, Adam Adams. (Attachments: # 1 Adams)(entered by PEM) (Entered: 03/12/2007)
4 MOTION for Admission Pro Hac Vice as to attorney David A Cortman on behalf of plaintiffs. (BAS, ) (Entered: 03/14/2007)
PRO HAC VICE FEE PAID. $ 100, receipt number PHX055564 as to David A Cortman. (BAS, ) (Entered: 03/14/2007)
5 ORDER pursuant to General Order 05−25 granting 4 Motion for Admission Pro Hac Vice.Per the Court's Administrative Policies and Procedures Manual, applicant has five (5) days in which to register as a user of the Electronic Filing System. Registration to be accomplished via the court's website at www.azd.uscourts.gov. (BAS, )(This is a TEXT ENTRY ONLY. There is no.pdf document associated with this entry.) (Entered: 03/14/2007)
6 SUMMONS Returned Executed by Clyde Reed. Adam Adams served on 3/15/2007. (Tedesco, Jeremy) (Entered: 03/27/2007)
7 SUMMONS Returned Executed by Clyde Reed. Gilbert, Town of served on 3/15/2007. (Tedesco, Jeremy) (Entered: 03/27/2007)
8 MOTION for Preliminary Injunction and Supporting Memorandum of Law by Clyde Reed, Good News Presbyterian Church. (Attachments: # 1 Exhibit Exhibits 1−5# 2 Exhibit Exhibit 6)(Tedesco, Jeremy) (Entered: 03/30/2007)
9 Defendants' ANSWER to Complaint by Gilbert, Town of, Adam Adams.(Alvarado, Kim) (Entered: 04/04/2007)
10 DEMAND for Trial by Jury by Gilbert, Town of, Adam Adams. (Alvarado, Kim) (Entered: 04/04/2007)
11 STIPULATION to Extend Time to File Defendants' Response to Plaintiffs' Motion for Preliminary Injunction by Gilbert, Town of, Adam Adams. (Alvarado, Kim) (Entered: 04/12/2007)
12 MOTION for Preliminary Injunction by Gilbert, Town of, Adam Adams. (Alvarado, Kim) (Entered: 04/17/2007)
13 Ordered that Clyde Reed, Good News Presbyterian Church show cause for failure to comply with LRCiv 3.8(a) before Judge Mary H Murguia. Show Cause Hearing set for 5/15/2007 04:30 PM before Judge Mary H Murguia. (Attachments: # 1 # 2)(MAP) (Entered: 04/23/2007)
14 Ordered that Town of Gilbert and Adam Adams show cause for failure to comply with LRCiv 3.8(a) before Judge Mary H Murguia. Show Cause Hearing set for 5/15/2007 04:30 PM before Judge Mary H Murguia. (Attachments: # 1 # 2)(MAP) (Entered: 04/23/2007)
15 Party Elects Assignment of Case to District Judge Jurisdiction. TEXT ONLY ENTRY, NO PDF DOCUMENT ATTACHED. (MAP) (Entered: 04/26/2007)
16 Party Elects Assignment of Case to District Judge Jurisdiction. TEXT ONLY ENTRY, NO PDF DOCUMENT ATTACHED. (MAP) (Entered: 04/26/2007)
17 MINUTE ORDER Pursuant to Local Rule 3.8(a), a request has been received for a random reassignment of this case to a District Judge FURTHER ORDERED Case reassigned by random draw to Judge Susan R. Bolton. All further pleadings/papers should now list the following COMPLETE case number: CV−07−522−PHX−SRB. FURTHER ORDERED vacating the Order to Show Cause hearings set for 5/15/07. (MAP) (Entered: 04/26/2007)

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05/02/2007 05/09/2007
05/11/2007 05/11/2007
01/10/2008 01/10/2008 01/10/2008 01/10/2008 01/10/2008 01/15/2008
01/16/2008 02/08/2008 02/08/2008 02/12/2008 02/12/2008

18 ORDER: Scheduling Conference set on 6/18/07 at 11:00 AM before Judge Susan R Bolton. Signed by Judge Susan R Bolton on 5/2/07. (MAW) (Entered: 05/02/2007)
19 ORDER ON STIPULATED PRELIMINARY INJUNCTION. ORDERED withdrawing 8 Plaintiffs' Motion for Preliminary Injunction; granting 12 Motion for Preliminary Injunction. Defendants shall be enjoined from enforcing Chapter I, 4.402(P) of Defendants' Land Development Code against Plaintiffs pending the outcome of this litigation; Plaintiffs shall not be required to give security pursuant to Fed.R.Civ.P. 65(d). Signed by Judge Susan R Bolton on 5/7/07.(TLJ) (Entered: 05/09/2007)
20 STIPULATION re 18 Order, Set Hearings to Stay Discovery Deadlines by Clyde Reed. (Tedesco, Jeremy) (Entered: 05/11/2007)
21 ORDERED that discovery and all deadlines set in this Court's 5/2/07 Order setting Rule 16 Scheduling Conference are stayed until such time as the Town of Gilbert amends and adopts its sign ordinance; the Rule 16 conference set for 6/18/07 is vacated; and the parties must notify the Court regarding the status of settlement negotiations within 14 days of the Town of Gilbert's adoption of the new sign ordinance. Signed by Judge Susan R Bolton on 5/11/07. (TLJ) (Entered: 05/11/2007)
22 NOTICE of Change of Address by Jeremy David Tedesco (Tedesco, Jeremy) (Entered: 01/10/2008)
23 MOTION to Amend/Correct re Verified Complaint by Clyde Reed, Good News Presbyterian Church. (Attachments: # 1 Exhibit 1 − Proposed Amended Complaint, # 2 Text of Proposed Order)(Tedesco, Jeremy) (Entered: 01/10/2008)
24 LODGED Proposed Amended Verified Complaint re: 23 MOTION to Amend/Correct re Verified Complaint. Document to be filed by Clerk if Motion to Leave to File or Amend is granted. Filed by Clyde Reed, Good News Presbyterian Church. (Attachments: # 1 Exhibit 1−6)(Tedesco, Jeremy) (Entered: 01/10/2008)
25 Notice re Plaintiffs' Notice that Defendants' Amended Code Fails to Resolve This Case by Clyde Reed, Good News Presbyterian Church re 21 Order, Terminate Hearings,, (Tedesco, Jeremy) (Entered: 01/10/2008)
26 Second MOTION for Preliminary Injunction and Supporting Memorandum of Law by Clyde Reed, Good News Presbyterian Church. (Attachments: # 1 Exhibit 1−4, # 2 Text of Proposed Order)(Tedesco, Jeremy) (Entered: 01/10/2008)
27 STIPULATION re 26 Second MOTION for Preliminary Injunction and Supporting Memorandum of Law, 23 MOTION to Amend/Correct re Verified Complaint Stipulation To Extend Time To File Defendants Response to Plaintiffs Second Motion for Preliminary Injunction And Motion For Leave To File Amended Verified Complaint by Gilbert, Town of, Adam Adams. (Attachments: # 1 Text of Proposed Order Proposed Order)(Alvarado, Kim) (Entered: 01/15/2008)
28 ORDER granting 27 STIPULATION To Extend Time. IT IS HEREBY ORDERED that Defendants have until February 8, 2008, to respond to Plaintiffs' Second Motion for Preliminary Injunction and Motion for Leave to File Amended Verified Complaint. Signed by Judge Susan R Bolton on 1/16/08. (MAW) (Entered: 01/16/2008)
29 Notice re Defendants Notice of Non−Opposition To Plaintiffs Motion For Leave To File Amended Verified Complaint by Gilbert, Town of, Adam Adams re 23 MOTION to Amend/Correct re Verified Complaint (Alvarado, Kim) (Entered: 02/08/2008)
30 RESPONSE to Motion re 26 Second MOTION for Preliminary Injunction and Supporting Memorandum of Law Defendants Response To Plaintiffs Second Motion For Preliminary Injunction filed by Gilbert, Town of, Adam Adams. (Attachments: # 1 Exhibit Exhibit Index and Exhibit A)(Alvarado, Kim) (Entered: 02/08/2008)
31 ORDER − IT IS ORDERED granting Plaintiffs' 23 Motion for Leave to File Amended Verified Complaint. Signed by Judge Susan R Bolton on 2/12/08.(SAT) (Entered: 02/12/2008)
32 FIRST AMENDED VERIFIED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF against Gilbert, Town of, Adam Adams, filed by Clyde Reed, Good News Presbyterian Church. (Attachments: # 1 Exhibits) (SAT) Modified on

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02/15/2008 02/21/2008 02/27/2008 03/14/2008
03/24/2008
03/31/2008 04/03/2008 04/07/2008 05/07/2008
05/08/2008 09/30/2008 10/01/2008 10/27/2008 10/27/2008

2/13/2008, DOCKET MODIFIED TO ADD Good News Community Church and TERMINATE Good News Presbyterian Church TO THIS CASE, (LSP). (Entered: 02/12/2008)
33 REPLY to Response to Motion re 26 Second MOTION for Preliminary Injunction and Supporting Memorandum of Law filed by Good News Community Church, Clyde Reed. (Tedesco, Jeremy) (Entered: 02/15/2008)
34 ORDER: IT IS ORDERED setting Plaintiffs' Second Motion for Preliminary Injunction 26 for oral argument on Monday, March 24, 2008 at 11:00 a.m. in Courtroom 502, 401 West Washington Street, Phoenix, Arizona. Signed by Judge Susan R Bolton on 2/21/08. (MAW) (Entered: 02/21/2008)
35 ANSWER to 32 Amended Complaint, by Gilbert, Town of, Adam Adams.(Alvarado, Kim) (Entered: 02/27/2008)
36 Minute Order: On the Court's Own Motion due to scheduling conflict, IT IS ORDERED resetting Hearing re: 26 Second MOTION for Preliminary Injunction IN TIME ONLY from 11:00 AM to 03:30 PM on 3/24/08 before Judge Susan R Bolton. This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry. (MAW) (Entered: 03/14/2008)
37 Minute Entry. Proceedings held before Judge Susan R Bolton: Hearing held re: Plaintiffs' Second Motion for Preliminary Injunction. Argument presented. IT IS ORDERED directing counsel to file simultaneous memorandum (no responses to be filed) within 10 days of this date, not to exceed 5 pages, stating the discovery required for this case to proceed to the permanent injunction stage or whether the Court can enter a permanent injunction based on the pleadings filed by counsel. IT IS FURTHER ORDERED taking under advisement 26 Plaintiffs' Second Motion for Preliminary Injunction. (Court Reporter Kim Moll)(MAW) (Entered: 03/25/2008)
38 TRANSCRIPT DESIGNATION AND ORDER FORM by Good News Community Church, Clyde Reed for proceedings held on 03/24/2008 before Judge Susan R. Bolton. (Tedesco, Jeremy) (Entered: 03/31/2008)
39 MEMORANDUM re: Addressing Whether Discovery is Needed Prior to this Case Proceeding to the Permanent Injunction Stage re 37 Order on Motion for Preliminary Injunction, Motion Hearing,,,, by Plaintiffs Good News Community Church, Clyde Reed. (Tedesco, Jeremy) (Entered: 04/03/2008)
40 MEMORANDUM re: Defendants Memorandum Regarding Discovery For Permanent Injunction re 37 Order on Motion for Preliminary Injunction, Motion Hearing,,,, by Defendants Gilbert, Town of, Adam Adams. (Alvarado, Kim) (Entered: 04/07/2008)
41 TRANSCRIPT of Proceedings re: Hearing Regarding Plaintiffs' Second Motion for Preliminary Injunction held on 3/24/08 before Judge Susan R Bolton. Court Reporter: Kim R Moll. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 5/28/2008. Redacted Transcript Deadline set for 6/9/2008. Release of Transcript Restriction set for 8/5/2008. (BAS, ) (Entered: 05/08/2008)
42 NOTICE OF FILING OF OFFICIAL TRANSCRIPT (BAS, ) (Entered: 05/08/2008)
43 ORDER denying Pla's Second 26 Motion for Preliminary Injunction. Signed by Judge Susan R Bolton on 09/30/08.(ESL) (Entered: 10/01/2008)
44 ORDER: Scheduling Conference set on 12/1/08 at 01:15 PM before Judge Susan R Bolton. Signed by Judge Susan R Bolton on 10/1/08. (MAW) (Entered: 10/01/2008)
45 NOTICE OF APPEAL to 9th Circuit, as to 43 Order on Motion for Preliminary Injunction by Good News Community Church, Clyde Reed. Filing fee received: $ 455.00, receipt number 09700000000002325156. (Tedesco, Jeremy) (Entered: 10/27/2008)
46 Representation Statement by Good News Community Church, Clyde Reed re 45 Notice of Appeal (Tedesco, Jeremy) (Entered: 10/27/2008)

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10/28/2008
10/29/2008 10/31/2008 11/03/2008
11/05/2008 11/05/2008 11/06/2008 11/17/2008 11/18/2008 11/20/2008 11/21/2008 11/24/2008 12/01/2008
12/01/2008

47 APPEAL PROCESSED to Ninth Circuit re: 45 Notice of Appeal (Interlocutory/Preliminary Injunction) filed by Clyde Reed, Good News Community Church. Filed dates for: Notice of Appeal *10/27/2008*, *Complaint* *3/8/2007*, Appealed Order *9/30/2008***. Court Reporter *Kim Moll 602−322−7252* Fee Status: *Paid on 10/27/2008 in the amount of $455.00*.************. Appellant Attorney: *Jeremy David Tedesco, Benjamin W. Bull, David A. Cortman* *(ret)* *bbull@telladf.org, dcortman@telladf.org, jtedesco@telladf.org*. Appellee Attorney: *Kim Seibert Alvarado, Robert Grasso, Jr.* *(ret)* *kalvarado@grassolawfirm.com, rgrasso@grassolawfirm.com*** (LAD) (Entered: 10/28/2008)
48 CADS Sent re 45 Notice of Appeal: Civil Appeals docketing sent to 9th Circuit on this date. (LAD) (Entered: 10/29/2008)
49 Ninth Circuit Case Number 08−17384 for 45 Notice of Appeal. (ESL, ) (Entered: 10/31/2008)
50 ORDER of 9th Circuit, this is a preliminary injunction appeal, Ninth Circuit Rule 3−3 shall apply; if they have not already done so, within 7 calendar days the parties shall make arrangements to obtain from the court reporter an official transcript of proceedings in the district court that will be included in the record on appeal; remaining briefing schedule set; if appellants fail to timely file the opening brief, this appeal will be dismissed automatically by the Clerk for failure to prosecute, re: 08−17384 45 Notice of Appeal (REW, ) (Entered: 11/03/2008)
51 MOTION for Summary Judgment by Gilbert, Town of, Adam Adams. (Alvarado, Kim) (Entered: 11/05/2008)
52 STATEMENT of Defendants' Statement of Facts in Support of Motion for Summary Judgment re 51 MOTION for Summary Judgment by Defendants Gilbert, Town of, Adam Adams. (Attachments: # 1 Exhibit Exhibit A to Defendants' Statement of Facts in Support of Motion for Summary Judgment)(Alvarado, Kim) (Entered: 11/05/2008)
53 MOTION to Stay re Proceedings Pending Resolution of Appeal and Supporting Memorandum of Law by Good News Community Church, Clyde Reed. (Attachments: # 1 Text of Proposed Order)(Tedesco, Jeremy) (Entered: 11/06/2008)
54 RESPONSE to Motion re 53 MOTION to Stay re Proceedings Pending Resolution of Appeal and Supporting Memorandum of Law Defendants Response To Plaintiffs Motion To Stay Proceedings Pending Resolution Of Appeal filed by Gilbert, Town of, Adam Adams. (Alvarado, Kim) (Entered: 11/17/2008)
55 NOTICE of Change of Address by Kim Seibert Alvarado (Alvarado, Kim) (Entered: 11/18/2008)
56 REPLY in Support re 53 MOTION to Stay re Proceedings Pending Resolution of Appeal and Supporting Memorandum of Law filed by Good News Community Church, Clyde Reed. (Tedesco, Jeremy) (Entered: 11/20/2008)
57 REPORT re: Rule 26(f) Planning Meeting by Good News Community Church, Clyde Reed. (Tedesco, Jeremy) (Entered: 11/21/2008)
58 MOTION for Plaintiffs' Motion Pursuant to Fed. R. Civ. P. 56(f) for Relief from Defendants' Motion for Summary Judgment with Supporting Memorandum of Law by Good News Community Church, Clyde Reed. (Attachments: # 1 Exhibit 1−3, # 2 Text of Proposed Order)(Tedesco, Jeremy) (Entered: 11/24/2008)
59 STIPULATION re 51 MOTION for Summary Judgment to Stay Plaintiffs' Due Date for Response to Defendants' Motion for Summary Judgment Until After This Court Rules on Plaintiffs' Rule 56(f) Motion by Good News Community Church, Clyde Reed. (Attachments: # 1 Text of Proposed Order)(Tedesco, Jeremy) (Entered: 12/01/2008)
60 Minute Entry. Proceedings held before Judge Susan R Bolton: Scheduling Conference held on 12/1/08. For reasons as stated on the record, IT IS ORDERED denying Plaintiff's Motion to Stay Pending Resolution of Appeal 53 . Deadlines discussed and entered. Scheduling Order to follow. A copy of the Joint Proposed Pretrial Order is provided to counsel this date. (Court Reporter Kim Moll)(MAW) (Entered: 12/02/2008)

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12/02/2008
12/02/2008
12/04/2008 12/08/2008 12/11/2008 12/12/2008
12/16/2008 12/16/2008 12/17/2008 12/18/2008 12/24/2008 12/16/2009 12/18/2009

61 DOCUMENT 61 VACATED PURSUANT TO ORDER 71 FILED 12/24/08. SCHEDULING ORDER: Discovery due by 4/24/09. Dispositive motions due by 5/29/09. Proposed Pretrial Order due by 10/26/09. Final Pretrial Conference set on 11/2/09 at 10:30 AM before Judge Susan R Bolton. Jury Trial set on 11/10/09 at 09:00 AM before Judge Susan R Bolton. Signed by Judge Susan R Bolton on 12/2/08. (MAW) Modified on 12/24/2008 (DNH). (Entered: 12/02/2008)
62 ORDER granting 59 Stipulation of the Parties. IT IS HEREBY ORDERED that the due date for Plaintiffs' response to Defendants' summary judgment motion is stayed until this Court rules on Plaintiffs' pending Fed.R.Civ.Pro. 56(f) motion. The parties shall file a stipulation regarding an agreed to briefing schedule in relation to Defendants' summary judgment motion within 5 business days of the entry of this Court's ruling on Plaintiffs' Rule 56(f) motion. Signed by Judge Susan R Bolton on 12/2/08. (MAW) (Entered: 12/02/2008)
63 Notice re Notice Of Service Of Defendants Initial Rule 26(a)(1) Disclosure Statement by Gilbert, Town of, Adam Adams (Alvarado, Kim) (Entered: 12/04/2008)
64 Notice re Service of Plaintiffs' Fed. R. Civ. P. 26(a) Initial Disclosures by Good News Community Church, Clyde Reed (Tedesco, Jeremy) (Entered: 12/08/2008)
65 Notice re Service of Plaintiffs' First Set of Interrogatories and First Set of Requests for Production of Documents by Good News Community Church, Clyde Reed (Tedesco, Jeremy) (Entered: 12/11/2008)
66 RESPONSE to Motion re 58 MOTION for Plaintiffs' Motion Pursuant to Fed. R. Civ. P. 56(f) for Relief from Defendants' Motion for Summary Judgment with Supporting Memorandum of Law MOTION for Plaintiffs' Motion Pursuant to Fed. R. Civ. P. 56(f) for Relief from Defendants' Motion for Summary Judgment with Supporting Memorandum of Law Defendants Response To Plaintiffs Motion Pursuant to Fed. R. Civ. P. 56(f) For Relief From Defendants Motion For Summary Judgment filed by Gilbert, Town of, Adam Adams. (Alvarado, Kim) (Entered: 12/12/2008)
67 Notice re Defendants Notice Of Correction by Gilbert, Town of, Adam Adams re 30 Response to Motion, (Alvarado, Kim) (Entered: 12/16/2008)
68 WITHDRAWAL OF DOCUMENT Of Dfts' Motion For Summary Judgment And Statement Of Facts by Gilbert, Town of, Adam Adams re 51 MOTION for Summary Judgment, 52 Statement, (Alvarado, Kim) Modified on 12/17/2008 (LAD,). INCORRECT EVENT SELECTED. THIS ENTRY HAS BEEN MODIFIED FROM NOTICE TO WITHDRAWAL OF DOCUMENT. (Entered: 12/16/2008)
69 ORDER that 51 Defendants' Motion for Summary Judgment and 52 Statement of Fact are withdrawn. IT IS THEREFORE ORDERED denying as moot 58 Plaintiffs' Motion for Relief from Defendants' Motion for Summary Judgment. Signed by Judge Susan R Bolton on 12/17/08.(LSP) (Entered: 12/17/2008)
70 STIPULATION to Stay District Court Proceedings While Plaintiffs Pursue Appeal by Good News Community Church, Clyde Reed. Gilbert, Town of and Adam Adams. (Attachments: # 1 Text of Proposed Order)(Tedesco, Jeremy) Modified on 12/19/2008 (LAD). DOCKET TEXT MODIFIED TO REFLECT ADDITIONAL FILERS. (Entered: 12/18/2008)
71 ORDER pursuant to 70 Stipulation: All proceedings in this Court are stayed until the Ninth Circuit Court of Appeals disposes of Plaintiffs' appeal of the Order denying their Second Motion for Preliminary Injunction. The Court's Rule 16 Scheduling Order 61 is hereby vacated. Signed by Judge Susan R Bolton on 12/23/08. (DNH) (Entered: 12/24/2008)
72 MANDATE of 9th Circuit affirming District Court decision in part and REMANDING in part re case number 08−17384, as to 45 Notice of Appeal. (Attachments: #(1) Opinion, #(2) NDA). (LSP) (Entered: 12/16/2009)
73 Minute Order: The Mandate having issued in this matter, Status Conference set for 1/11/2010 at 09:00 AM before Judge Susan R Bolton. This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry. (MAW) (Entered: 12/18/2009)

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01/11/2010
01/19/2010 01/21/2010 01/22/2010 02/22/2010 03/05/2010 04/21/2010 04/28/2010 05/04/2010 05/04/2010 05/04/2010 05/04/2010 05/05/2010 05/07/2010 05/21/2010 05/24/2010
06/08/2010 07/15/2010

74 Minute Entry. Proceedings held before Judge Susan R Bolton: Status Conference held on 1/11/2010 re: 9th Circuit Court of Appeals' partial remand. Discussion held. Upon stipulation of counsel, the Court sets the following deadlines: discovery to be completed by May 28, 2010; dispositive motions are to be filed no later than June 25, 2010, with response due July 30, 2010; reply due August 20, 2010. The Court is advised that the request for Preliminary Injunction will not be renewed. (Court Reporter Elizabeth Lemke)(MAW) (Entered: 01/11/2010)
75 Notice re Service of Plaintiffs' First Set of Interrogatories and First Set of Requests for Production of Documents by Good News Community Church, Clyde Reed (Tedesco, Jeremy) (Entered: 01/19/2010)
76 Notice re Service Of Defendants Requests For Admissions, Interrogatories, And Requests For Production Of Documents To Plaintiffs by Adam Adams, Gilbert, Town of (Alvarado, Kim) (Entered: 01/21/2010)
77 Notice re Service of Defendants' First Supplemental Rule 26(a)(1) Disclosure Statement by Adam Adams, Gilbert, Town of (Alvarado, Kim) (Entered: 01/22/2010)
78 Notice re Notice Of Service Of Defendants Response to Plaintiffs First Set of Interrogatories And First Set Of Requests For Production Of Documents by Adam Adams, Gilbert, Town of (Alvarado, Kim) (Entered: 02/22/2010)
79 Notice re Service of Plaintiffs' Responses to Defendants' Requests for Admissions, Interrogatories, and Requests for Production of Documents by Good News Community Church, Clyde Reed (Tedesco, Jeremy) (Entered: 03/05/2010)
80 Notice re Service of Defendants' Second Supplemental Rule 26(a)(1) Disclosure Statement by Adam Adams, Gilbert, Town of (Alvarado, Kim) (Entered: 04/21/2010)
81 NOTICE of Deposition of Clyde Reed, filed by Adam Adams, Gilbert, Town of. (Alvarado, Kim) (Entered: 04/28/2010)
82 NOTICE of Deposition of Karen Coats, filed by Good News Community Church, Clyde Reed. (Tedesco, Jeremy) (Entered: 05/04/2010)
83 NOTICE of Deposition of Steve Wallace, filed by Good News Community Church, Clyde Reed. (Tedesco, Jeremy) (Entered: 05/04/2010)
84 NOTICE of Deposition of Adam Adams, filed by Good News Community Church, Clyde Reed. (Tedesco, Jeremy) (Entered: 05/04/2010)
85 NOTICE of Deposition of Michael Milillo, filed by Good News Community Church, Clyde Reed. (Tedesco, Jeremy) (Entered: 05/04/2010)
86 NOTICE of Deposition of Clyde Reed, filed by Adam Adams, Gilbert, Town of. (Alvarado, Kim) (Entered: 05/05/2010)
87 Notice re Service of Plaintiffs' Supplemental Responses to Defendants' Requests for Admissions, Interrogatories, and Requests for Production of Documents by Good News Community Church, Clyde Reed (Tedesco, Jeremy) (Entered: 05/07/2010)
88 STIPULATION /JOINT MOTION TO MODIFY BRIEFING SCHEDULE by Adam Adams, Gilbert, Town of. (Attachments: # 1 Text of Proposed Order)(Alvarado, Kim) (Entered: 05/21/2010)
89 ORDER − Upon 88 Stipulation of the parties, IT IS ORDERED that the parties shall follow the following briefing schedule: 7/23/2010, Deadline to file Dispositive motions; 8/27/2010, Deadline for Response to Dispositive motions; and 9/17/2010, Deadline for Replies to Dispositive motions. Signed by Judge Susan R Bolton on 5/24/10. (SAT) (Entered: 05/24/2010)
90 Notice re Service of Defendants Fourth Supplemental Rule 26(a)(1) Disclosure Statement by Adam Adams, Gilbert, Town of (Alvarado, Kim) (Entered: 06/08/2010)
91 STIPULATION Related to Plaintiffs' Claims Against the Original Sign Code by Good News Community Church, Clyde Reed. (Attachments: # 1 Text of Proposed Order)(Tedesco, Jeremy) (Entered: 07/15/2010)

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07/15/2010 07/19/2010
07/19/2010 08/16/2010 08/24/2010 08/27/2010 08/27/2010
08/27/2010
08/27/2010
08/27/2010 08/27/2010 09/02/2010 10/01/2010

92 Joint MOTION for Extension of Time Briefing Schedule by Adam Adams, Gilbert, Town of. (Attachments: # 1 Text of Proposed Order)(Alvarado, Kim) (Entered: 07/15/2010)
93 ORDER pursuant to 91 Stipulation related to plaintiffs' claims againt the original sign code: Plaintiffs will not pursue any of the relief requested in the Prayer for Relief in their Amended Verified Complaint against the Town of Gilbert's Sign Code as it existed at the time this lawsuit was commenced ("the Original Code"). Within 30 days of the entry of this Stipulated Order, Defendants will pay Plaintiffs $1.00 in satisfaction of their request for nominal damages, and $16,380.00 in satisfaction of their request for attorneys' fees and costs, in relation to their claims against the Original Code. This Order does not affect Plaintiffs' claims and the Town Defendants' defenses related to the Amended Code. Signed by Judge Susan R Bolton on 7/19/10. (DMT) (Entered: 07/19/2010)
94 ORDER granting 92 Joint Motion for Extension of Time Dispositive motions due by 8/27/2010. Signed by Judge Susan R Bolton on 7/19/10. (see order for full details)(DMT) (Entered: 07/19/2010)
95 NOTICE re Satisfaction Of Payment Terms Of Stipulated Order (Dkt. No. 93) by Adam Adams, Gilbert, Town of re 93 Order on Stipulation,,,. (Alvarado, Kim) (Entered: 08/16/2010)
96 NOTICE re Service of Plaintiffs' First Supplemental Fed. R. Civ. P. 26(a) Initial Disclosures by Good News Community Church, Clyde Reed. (Tedesco, Jeremy) (Entered: 08/24/2010)
97 Cross MOTION for Summary Judgment by Adam Adams, Gilbert, Town of. (Alvarado, Kim) Modified on 8/30/2010 CORRECTION: not text searchable (REW). (Entered: 08/27/2010)
98 Separate STATEMENT of Facts In Support of Defendants' Cross−Motion for Summary Judgment re 97 Cross MOTION for Summary Judgment by Defendants Adam Adams, Gilbert, Town of. (Attachments: # 1 Exhibit Index, # 2 Exhibit A, # 3 Exhibit A, Exhibit 1, # 4 Exhibit B, # 5 Exhibit C, # 6 Exhibit D, # 7 Errata E, # 8 Exhibit F, # 9 Exhibit G)(Alvarado, Kim) Modified on 8/30/2010 CORRECTION: not text searchable (REW). (Entered: 08/27/2010)
99 Joint Stipulated STATEMENT of Facts in Support of Cross−Motions for Summary Judgment re 97 , 100 Cross MOTIONS for Summary Judgment by Defendants Adam Adams, Gilbert, Town of, Plaintiffs Good News Community Church, Good News Presbyterian Church, Clyde Reed. (Attachments: # 1 Exhibit Index, # 2 Exhibit A, # 3 Exhibit B, # 4 Exhibit C)(Alvarado, Kim) Modified on 8/30/2010 CORRECTION: not text searchable; linkage added (REW). (Entered: 08/27/2010)
100 MOTION for Summary Judgment and Memorandum of Law in Support Thereof by Good News Community Church, Clyde Reed. (Attachments: # 1 Exhibit 1 − Deposition of Michael Milillo, # 2 Exhibit 2 − Deposition of Karen Coats, # 3 Exhibit 3 − Deposition of Adam Adams, # 4 Exhibit 4 − Deposition of Steve Wallace, # 5 Exhibit 5 − Builder Permits for Weekend Directional Signs, # 6 Exhibit 6 − Deposition of Clyde Reed)(Tedesco, Jeremy) (Entered: 08/27/2010)
101 AFFIDAVIT in Support re 100 MOTION for Summary Judgment and Memorandum of Law in Support Thereof filed by Good News Community Church, Clyde Reed. (Attachments: # 1 Exhibit 1−25, # 2 Exhibit 26−56)(Tedesco, Jeremy) (Entered: 08/27/2010)
102 STATEMENT of Plaintiffs' Statement of Undisputed Facts re 100 MOTION for Summary Judgment and Memorandum of Law in Support Thereof by Plaintiffs Good News Community Church, Clyde Reed. (Tedesco, Jeremy) (Entered: 08/27/2010)
103 Minute Order: Motion Hearing set for 11/22/2010 at 09:00AM before Judge Susan R Bolton re: 100 MOTION for Summary Judgment and 97 Cross MOTION for Summary Judgment. This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry. (MAW) (Entered: 09/02/2010)
104 RESPONSE to Motion re 100 MOTION for Summary Judgment and Memorandum of Law in Support Thereof filed by Adam Adams, Gilbert, Town of. (Alvarado, Kim)

Case: 2:07-cv-00522-SRB As of: 03/01/2019 08:04 AM MST 10 of 12

10/01/2010 10/01/2010 10/01/2010 10/29/2010 10/29/2010 10/29/2010 11/02/2010 11/02/2010 11/08/2010 11/09/2010 11/10/2010 11/22/2010
02/11/2011
02/11/2011 03/11/2011

(Entered: 10/01/2010)
105 RESPONSE to Plaintiffs' Statement of Facts re (Doc. 102) by Defendants Adam Adams, Gilbert, Town of. (Attachments: # 1 Exhibit A and B)(Alvarado, Kim) Modified on 10/4/2010 (TLJ). CORRECTIOIN to include linkage. (Entered: 10/01/2010)
106 RESPONSE to Motion re 97 Cross MOTION for Summary Judgment filed by Good News Community Church, Clyde Reed. (Tedesco, Jeremy) (Entered: 10/01/2010)
107 RESPONSE re 98 Statement, of Facts by Plaintiffs Good News Community Church, Clyde Reed. (Attachments: # 1 Exhibit 1)(Tedesco, Jeremy) (Entered: 10/01/2010)
108 REPLY to Response to Motion re 97 Cross MOTION for Summary Judgment filed by Adam Adams, Gilbert, Town of. (Alvarado, Kim) (Entered: 10/29/2010)
109 REPLY to Response to Motion re 100 MOTION for Summary Judgment and Memorandum of Law in Support Thereof filed by Good News Community Church, Clyde Reed. (Tedesco, Jeremy) (Entered: 10/29/2010)
110 AFFIDAVIT in Support re 100 MOTION for Summary Judgment and Memorandum of Law in Support Thereof (in Support of Reply) filed by Good News Community Church, Clyde Reed. (Attachments: # 1 Exhibit 57−80, # 2 Exhibit 81−103)(Tedesco, Jeremy) (Entered: 10/29/2010)
111 MOTION For Leave to File Objection to Admission of Evidence by Adam Adams, Gilbert, Town of. (Alvarado, Kim) (Entered: 11/02/2010)
112 MOTION to Expedite Consideration of Defendants' Motion for Leave to File Objection to Admission of Evidence (Dkt. No. 111) by Adam Adams, Gilbert, Town of. (Alvarado, Kim) (Entered: 11/02/2010)
113 RESPONSE in Opposition re 111 MOTION For Leave to File Objection to Admission of Evidence filed by Good News Community Church, Clyde Reed. (Tedesco, Jeremy) (Entered: 11/08/2010)
114 REPLY to Response to Motion re 111 MOTION For Leave to File Objection to Admission of Evidence filed by Adam Adams, Gilbert, Town of. (Alvarado, Kim) (Entered: 11/09/2010)
115 ORDER − IT IS ORDERED denying Dfts' 112 Motion for Expedited Consideration of Their Motion for Leave to File Objection to Admission of Evidence. Signed by Judge Susan R Bolton on 11/10/10. (SAT) (Entered: 11/10/2010)
116 Minute Entry. Proceedings held before Judge Susan R Bolton: Motion Hearing held on 11/22/2010 re: Plaintiffs' Motion for Summary Judgment 100 and Defendants' Cross Motion for Summary Judgment 97 . Argument held. IT IS ORDERED taking under advisement 97 Defendants' Cross Motion for Summary Judgment and taking under advisement 100 Plaintiffs' Motion for Summary Judgment. (Court Reporter Elizabeth Lemke)(MAW) (Entered: 11/22/2010)
117 ORDER denying 100 Plaintiff's Pastor Clyde Reed and Good News Presbyterian Church's Motion for Summary Judgment; granting 97 Defendants the Town of Gilbert and Adam Adams' Cross−Motion for Summary Judgment and denying as moot 111 Defendants' Motion for Leave to File Objections to Admission of Evidence. The Clerk shall enter judgment in this matter in favor of Defendants. Signed by Judge Susan R Bolton on 2/11/11.(LSP) (Entered: 02/11/2011)
118 CLERK'S JUDGMENT it is ordered and adjudged that pursuant to the Court's order filed February 11, 2011, judgment is entered in favor of defendants and against plaintiffs. Plaintiffs to take nothing, and complaint and action are dismissed. (LSP) (Entered: 02/11/2011)
119 NOTICE OF APPEAL to 9th Circuit, as to 118 Clerk's Judgment, 117 Order on Motion for Summary Judgment,,,, Order on Motion for Miscellaneous Relief, by Good News Community Church, Clyde Reed. Filing fee received: $ 455.00, receipt number 0970−5016903. (Attachments: # 1 Representation Statement)(Tedesco, Jeremy) (Entered: 03/11/2011)

Case: 2:07-cv-00522-SRB As of: 03/01/2019 08:04 AM MST 11 of 12

03/11/2011 03/18/2011 04/05/2011
04/05/2011 08/02/2013 07/28/2014 07/24/2015 09/28/2015
09/30/2015 09/30/2015 09/30/2015
10/23/2015 10/26/2015
10/27/2015

120 Ninth Circuit Court of Appeals Case Number 11−15588 for 119 Notice of Appeal. (LAD) (Entered: 03/11/2011)
121 TRANSCRIPT REQUEST by Good News Community Church, Clyde Reed for proceedings held on 11/22/2010 before Judge Bolton, (Tedesco, Jeremy) (Entered: 03/18/2011)
122 NOTICE OF FILING OF OFFICIAL TRANSCRIPT for Motion Hearing Proceedings held on 11/22/2010, before Judge Susan R Bolton, re 119 Notice of Appeal, Court Reporter Elizabeth A Lemke. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 4/26/2011. Redacted Transcript Deadline set for 5/6/2011. Release of Transcript Restriction set for 7/5/2011. (BAS) (Entered: 04/05/2011)
123 CERTIFICATE OF RECORD TRANSMITTED TO 9TH CIRCUIT COURT OF APPEALS re 119 Notice of Appeal,. (BAS) (Entered: 04/05/2011)
124 MANDATE of USCA affirming District Court decision, re: 11−15588 as to 119 Notice of Appeal, filed by Clyde Reed, Good News Community Church. (Attachments: # 1 Order, # 2 Opinion, # 3 NDA). (LSP) (Entered: 08/02/2013)
125 ORDER of USCA; Petition for Writ of Certiorari granted by US Supreme Court (13−502), re: 11−15588 119 Notice of Appeal. (copies sent by the Ninth Circuit) (REW) (Entered: 07/28/2014)
126 ORDER/Judgment of Supreme Court as to 9CCA #11−15588 re: 119 Notice of Appeal. (Remanding back to the Ninth Circuit Court of Appeals.) (KMG) (Entered: 07/24/2015)
127 MANDATE of USCA, pursuant to the Opinion of the Supreme Court, reversing the judgment of this court, the judgment of the district court is vacated and the case is remanded to the district court for further proceedings consistent with the Supreme Court's opinion, re: 11−15588 119 Notice of Appeal. (Attachments: # 1 Order, # 2 Supreme Court Judgment 13−502, # 3 Superme Court Opinion, # 4 NDA) (copies sent by the Ninth Circuit)(REW) (Entered: 09/28/2015)
128 MOTION for Admission Pro Hac Vice as to attorney Philip W Savrin on behalf of Adam Adams, and Gilbert, Town of. (BAS) (Entered: 09/30/2015)
PRO HAC VICE FEE PAID. $ 35, receipt number PHX163398 as to Philip W Savrin. This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry. (BAS) (Entered: 09/30/2015)
129 ORDER pursuant to General Order 09−08 granting 128 Motion for Admission Pro Hac Vice. Per the Court's Administrative Policies and Procedures Manual, applicant has five (5) days in which to register as a user of the Electronic Filing System. Registration to be accomplished via the court's website at www.azd.uscourts.gov. Counsel is advised that they are limited to two (2) additional e−mail addresses in their District of Arizona User Account. (BAS) (This is a TEXT ENTRY ONLY. There is no.pdf document associated with this entry.) (Entered: 09/30/2015)
130 MOTION to Withdraw as Attorney /Counsel of Record with Consent by Adam Adams, Gilbert, Town of. (Attachments: # 1 Text of Proposed Order Order Granting Motion to Withdraw as Counsel of Record with Consent)(Alvarado, Kim) (Entered: 10/23/2015)
131 ORDER: On October 23, 2015, Defendants filed a Motion to Withdraw as Counsel of Record With Consent 130 . IT IS ORDERED that the Motion to Withdraw as Counsel of Record With Consent will be denied within 3 days of the date of this order if counsel does not comply with the ECF Administrative Policies and Procedures Manual, Section II(G), specifically, subparagraph 1b. Signed by Judge Susan R Bolton on 10/26/15. (MAW) (Entered: 10/26/2015)
132 ORDER that Robert Grasso, Jr., Kim S. Alvarado, and the Grasso Law Firm, P.C. are hereby removed as counsel of record for Defendants Town of Gilbert, Arizona and Adam Adams; (Doc. 130 ). The Clerk of the Court is to remove Robert Grasso, Jr., Kim S. Alvarado, and the Grasso Law Firm, P.C. from any and all notice of electronic filing notification e−mails. Signed by Judge Susan R Bolton on 10/27/15. (KGM)

Case: 2:07-cv-00522-SRB As of: 03/01/2019 08:04 AM MST 12 of 12

10/28/2015
11/24/2015 12/01/2015 12/29/2015 12/30/2015

(Entered: 10/27/2015)
133 ORDER of USCA, Appellants' motion to transfer costs and fees request to the district court is granted. Appellees' motion to extend time to respond to appellants' underlying motion for attorneys' fees and non−taxable costs is denied without prejudice to a renewal of the request in the district court as to 9CCA #11−15588 re: 119 Notice of Appeal. (Copies sent by the Ninth Circuit.)(KMG) (Entered: 10/28/2015)
134 ORDER: IT IS ORDERED that counsel file a joint status report within 7 days of the date of this Order concerning the status the fee request [see attached Order for details]. Signed by Judge Susan R Bolton on 11/24/15. (MAW) (Entered: 11/24/2015)
135 STATUS REPORT (Joint) on Section 1988 Fees by Gilbert, Town of. (Savrin, Philip) (Entered: 12/01/2015)
136 Consent MOTION to Dismiss Case − Motion for Injunctive Relief and Dismissal with Prejudice by Good News Community Church, Good News Presbyterian Church, Clyde Reed. (Attachments: # 1 Text of Proposed Order)(Tedesco, Jeremy) (Entered: 12/29/2015)
137 ORDER − By consent of the parties, and for good cause shown, the Court permanently enjoins Defendants from enforcing Section 4.402P of the Town of Gilbert's Land Development Code entitled "Temporary Directional Signs Relating to a Qualifying Event." Further, having received notice that all remaining legal and equitable claims in this litigation have been resolved between the parties, including Plaintiffs' request for attorney fees and expenses under 42 U.S.C. § 1988, the Complaint, with all amendments thereto, is DISMISSED WITH PREJUDICE. Signed by Judge Susan R Bolton on 12/30/2015. (KMG) (Entered: 12/30/2015)

 
 Case 2:07-cv-00522-SRB Document 1 Filed 03/08/07 Page 1 of 15

1 BENJAMIN W. BULL AZ Bar No. 009940
2 JEREMY D. TEDESCO AZ Bar No. 023497
3 ALLIANCE DEFENSE FUND 15333 N. Pima Road, Ste 165
4 Scottsdale, AZ 85260 (480) 444-0020; (480) 444-0028 facsimile
5 jtedesco@telladf.org

6 DAVID A. CORTMAN* GA Bar No. 188810
7 ALLIANCE DEFENSE FUND 1000 Hurricane Shoals Rd., Ste D-600
8 Lawrenceville, GA 30043 (770)339-0774; (770)339-6744 facsimile
9 dcortman@telladf.org

10 Attorneys for Plaintiffs

11

UNITED STATES DISTRICT COURT

12

DISTRICT OF ARIZONA

PHOENIX DIVISION

13

Pastor Clyde Reed; and Good News

)

14 Presbyterian Church,

)

)

15

Plaintiffs,

)

) CASE NO. __________________

16

v.

)

) VERIFIED COMPLAINT FOR

17 Town of Gilbert, Arizona; and Adam

) INJUNCTIVE AND

Adams in his official capacity as

) DECLARATORY RELIEF

18 Code Compliance Manager,

)

)

19

Defendants.

)

___________________________________ )

20

I. INTRODUCTION

21

1. The Town of Gilbert has decided that ideological signs (however that is

22

defined) and political signs deserve more protection than religious assembly signs.

23

According to the Town Code, religious assembly signs must be smaller in size, less

24

in number, and displayed for much less time than comparable signs. Such content-

25

based discrimination is clearly unconstitutional. The Code, along with Defendants’

26

enforcement, violate Plaintiffs’ civil rights.

27

28

Case 2:07-cv-00522-SRB Document 1 Filed 03/08/07 Page 2 of 15

1

II. JURISDICTION

2

2. This action arises under the United States Constitution, particularly the

3 First and Fourteenth Amendments, under federal law, particularly 28 U.S.C. § 2201

4 and 42 U.S.C. §§ 1983 and 1988, and under state law, particularly Ariz. Rev. Stat.

5 §41-1493.

6

3. This Court is vested with original jurisdiction over these federal claims

7 by operation of 28 U.S.C. §§ 1331 and 1343; and over the supplemental state law

8 claims under §1367.

9

4. This Court is vested with authority to grant the requested declaratory

10 judgment by operation of 28 U.S.C. §§ 2201, et seq.

11

5. This Court is authorized to issue the requested injunctive relief pursuant

12 to 42 U.S.C. §1983 and Rule 65 of the Federal Rules of Civil Procedure.

13

6. This Court is authorized to award any damages pursuant to 28 U.S.C. §

14 1343(4).

15

7. This Court is authorized to award attorneys’ fees pursuant to 42 U.S.C.

16 § 1988 and pursuant to Ariz. Rev. Stat. §41-1493.01(D).

17

III. VENUE

18

8. Venue is proper in the United States District Court for the District of

19 Arizona under 28 U.S.C. § 1391(b), in that the events giving rise to the claim

20 occurred within the district.

21

IV. IDENTIFICATION OF PLAINTIFFS

22

9. Plaintiff Clyde Reed is the Pastor of Good News Presbyterian Church

23 and is a citizen and resident of the District.

24

10. Good News Presbyterian Church (“the Church”) is an unincorporated

25 association and is also located in the District.

26

11. Pastor Reed is charged with the responsibility of representing the Church

27 in its day to day activities, including through preaching of the Word of God and

28 meeting together for worship and fellowship on Sundays and on other days of the

- 2 -

Case 2:07-cv-00522-SRB Document 1 Filed 03/08/07 Page 3 of 15

1 week.

2

V. IDENTIFICATION OF DEFENDANTS

3

12. The Town of Gilbert is a body politic which is able to sue and be sued

4 in its corporate name.

5

13. The Town has adopted the challenged Town of Gilbert Land

6 Development Code (“Code”) sections that discriminate against religious signage.

7

14. The Town, through its Code Compliance Department, has enforced the

8 challenged Code sections against the Plaintiffs.

9

15. Defendant Adam Adams is the Code Compliance Manager of the Town’s

10 Code Compliance Department and is sued in his official capacity.

11

16. Defendant Adams enforced the Code against the Plaintiffs recently when

12 he informed the Church that it would be cited if it violated the terms of the Code

13 regarding religious assembly signs.

14

17. The Town acquiesces in, sanctions, and supports the actions of

15 Defendant Adams in the enforcement of the Code against Plaintiffs.

16

VI. STATEMENT OF FACTS

17

18. Defendants have enacted a Town Code that discriminates against certain

18 signage based on the content of the sign.

19

19. Ideological signs (which is not defined) are allowed without a permit,

20 may be placed in all zoning districts, may be up to 20 square feet in area and 6 feet

21 in height, and have no time or other limitation. See Code, Chap. I, Article 4.402J

22

20. Similarly, political signs (which is also not defined) are allowed without

23 a permit, may be placed on property zoned for residential use, non-residential use,

24 undeveloped Town property, and Town rights-of-way, may be up to 32 square feet

25 in area and 6 feet in height, and only require that they be removed 10 days following

26 an election, with no time constraint of when they can be posted prior to an election.

27 See id. at 4.402I.

28

21. Religious Assembly Temporary Directional Signs, on the other hand, are

- 3 -

Case 2:07-cv-00522-SRB Document 1 Filed 03/08/07 Page 4 of 15

1 not permitted in the public right-of-way, may not exceed 6 square feet in area nor 3

2 feet in height, no more than 4 signs may be placed on any property, a permit is

3 required, and they shall not be displayed earlier than 2 hours before and 1 hour after

4 the religious service. See id. at 4.402P.

5

22. All such permitted signs may contain a non-commercial message. See

6 id. at 4.402V.

7

23. The Code also permits Weekend Directional Residential Signs. A total

8 of 15 signs are permitted for each recorded subdivision plat, they may be placed on

9 Town rights-of-way and each sign may be placed beginning 6 p.m. on Friday and

10 ending at 8 a.m. on the following Monday. See id. at 4.405B(2).

11

24. Lastly, the Code permits Homeowners Association Facilities Temporary

12 Signs for 30 days prior to each event and which must be removed within 48 hours of

13 completion of the event. See id. at 4.406C(3).

14

25. This action is brought to challenge the validity of the denial of equal

15 treatment for religious assembly signs and the Town’s Code upon which the denial

16 rests.

17 The Church’s Religious Beliefs

18

26. Plaintiffs are Christians who hold sincere religious beliefs that they must

19 meet together with like-minded individuals, teach and preach the Gospel, sing

20 religious songs, pray for their community, and encourage others whenever possible.

21

27. Plaintiffs believe in what is commonly referred to as the Great

22 Commission.

23

28. The Bible commands believers in Matthew 28:19-20 to “go and make

24 disciples of all nations, baptizing them in the name of the Father and of the Son and

25 of the Holy Spirit, and teaching them to obey everything I have commanded you.”

26

29. Plaintiffs believe that they should carry out this command by reaching

27 out to the community to meet together on a regular basis.

28

30. Plaintiffs follow this Biblical directive by displaying signs announcing

- 4 -

Case 2:07-cv-00522-SRB Document 1 Filed 03/08/07 Page 5 of 15

1 their services as an invitation for those in the community to attend.

2

31. Plaintiffs’ services are open to the public and Plaintiffs seek to

3 encourage new people from the community to attend.

4

32. One way in which the community may learn about Plaintiffs’ services

5 is through the signs that are placed announcing the time and location of the services.

6

33. The more signs that are permitted to be displayed, the more people will

7 receive the invitation.

8 The Enforcement of the Code against the Church

9

34. The Church currently has about 40 attendees.

10

35. Due to their small size, the church is limited financially in what they can

11 afford to do to invite others to their meetings.

12

36. One effective, yet inexpensive means of reaching others is to display

13 signs letting the community know where and when they are meeting.

14

37. The Church has been meeting at Coronado Elementary School for the

15 past 4 years.

16

38. For a time, the Church was placing about 17 signs in the areas

17 surrounding the Church.

18

39. These signs were placed early in the day each Saturday and removed

19 following the services on Sunday mid-day.

20

40. On September 17, 2005, however, the Church was cited by the Code

21 Compliance Department for exceeding the time limitation of 2 hours before and 1

22 hour after the service (with a notation on the citation that the date of service was

23 missing from the sign).

24

41. The penalties for violating the Code range from a notice of violation to

25 substantial fines and time in jail.

26

42. Since receiving that citation, the Church has reduced the number of signs

27 and the amount of time in which they have placed the signs.

28

43. More visitors attended the services when all signs were being placed and

- 5 -

Case 2:07-cv-00522-SRB Document 1 Filed 03/08/07 Page 6 of 15

1 when they were being placed earlier on Saturdays.

2

44. Because the initial citation was received about 17 months ago, the

3 Church recently contacted the Code Compliance Department to inquire as to whether

4 the limitations found in the Code will presently be enforced against the Church if

5 violated.

6

45. The Church was told by the Code Compliance Manager that there is no

7 leniency under the Code, and that the Church will be cited if it has been found to

8 violate any of the applicable provisions in the Code.

9

46. The Code Compliance Manager told the Church that it will be cited for

10 a violation of the Code if it puts up signs displaying the time and place of its meetings

11 more than 2 hours before those meetings.

12

47. The Code Compliance Manager told the Church that the Code forbids

13 it to put up more than 4 signs displaying the time and place of its meetings.

14

48. The Church has been limiting its speech through signage since receiving

15 the citation fearing that it will again be cited for violating the Code.

16

49. The Church has a continuing desire to reach out to the community

17 through additional signs that may be placed for longer periods of time than currently

18 permitted under the Code.

19

VII. ALLEGATIONS OF LAW

20

50. All acts of the Defendants, their officers, agents, servants, employees,

21 or persons acting at their behest or direction, were done and are continuing to be done

22 under the color and pretense of state law.

23

51. Plaintiffs have no adequate or speedy remedy at law to correct or redress

24 the deprivations of their federal and state rights by Defendants.

25

52. Unless and until the enforcement of the Code is enjoined, the Plaintiffs

26 will suffer and continue to suffer irreparable injury to their rights.

27

28

- 6 -

Case 2:07-cv-00522-SRB Document 1 Filed 03/08/07 Page 7 of 15

1

1. First Cause of Action: Violation of the Free Speech Clause of the

2

First Amendment

3

53. Plaintiffs reallege all matters set forth in the preceding paragraphs and

4 incorporate them herein.

5

54. Plaintiffs’ signs are speech that is protected by the First Amendment.

6

55. Defendants’ Code impermissibly regulates and restricts speech in the

7 form of signs based on the content of that speech.

8

56. Signs that are “ideological” or “political” are permitted to a much greater

9 extent than are signs for religious assemblies.

10

57. Also, residential weekend directional signs are permitted to a much

11 greater extent than similar religious assembly signs.

12

58. Because such discrimination is based on the content of the signs, it is

13 subject to strict scrutiny: it must further a compelling government interest and be

14 narrowly tailored.

15

59. Defendants can proffer no interest, let alone one that is compelling, that

16 justifies discriminating against religious assembly signs.

17

60. Whatever interests Defendants cite, they apply equally to signs that are

18 permitted to a greater extent than religious assembly signs.

19

61. Further, limiting religious assembly signs in the manner authorized by

20 the Code is not narrowly tailored to justify whatever interest Defendants may create.

21

62. Moreover, Defendants’ Code treats commercial speech more favorably

22 than noncommercial speech.

23

63. The Code allows weekend residential signs for the purposes of home

24 sales for a longer period of time than religious assembly signs.

25

64. The Code imposes an unconstitutional prior restraint because it vests

26 Town officials with the unbridled discretion to permit or refuse protected speech

27 without any guidelines or criteria.

28

65. The Code is overbroad because it sweeps within its ambit protected First

- 7 -

Case 2:07-cv-00522-SRB Document 1 Filed 03/08/07 Page 8 of 15

1 Amendment speech.

2

66. The overbreadth of the Code chills protected speech by discouraging

3 individuals and groups from placing signs for the purpose of engaging in protected

4 speech based on the religious nature of the sign.

5

67. Defendants’ Code on its face and as applied violates Plaintiffs’ rights of

6 Free Speech as guaranteed by the First Amendment to the United States Constitution

7 as incorporated and applied to state action under the Fourteenth Amendment.

8

WHEREFORE, Plaintiffs respectfully pray that this Court grant the equitable

9 and legal relief set forth hereinafter in the prayer for relief.

10

2. Second Cause of Action: Violation of the Equal Protection Clause

11

of the Fourteenth Amendment.

12

68. Plaintiffs reallege all matters set forth in the preceding paragraphs and

13 incorporate them herein.

14

69. The Code allows groups and individuals similarly situated to religious

15 assemblies, like Plaintiff, greater access to Town property.

16

70. The Code allows groups and individuals similarly situated to religious

17 assemblies, like Plaintiff, to display signs for greater time periods.

18

71. The Code allows groups and individuals similarly situated to religious

19 assemblies, like Plaintiff, to display larger signs.

20

72. The Code allows groups and individuals similarly situated to religious

21 assemblies, like Plaintiff, to display a greater number of signs

22

73. The Code does not extend those same rights to religious assemblies, like

23 Plaintiff.

24

74. Defendants can offer no compelling interest to justify their

25 discriminatory treatment of certain religious speech and activities while allowing

26 similar secular speech and activities.

27

75. The Code facially and as applied violate Plaintiffs’ rights under the

28 Equal Protection Clause of the Fourteenth Amendment to the United States

- 8 -

Case 2:07-cv-00522-SRB Document 1 Filed 03/08/07 Page 9 of 15

1 Constitution

2

WHEREFORE, Plaintiffs respectfully pray that the Court grant the equitable

3 and legal relief set forth hereinafter in the prayer for relief.

4

3. Third Cause of Action: Violation of the Free Exercise Clause of the

5

First Amendment

6

76. Plaintiffs reallege all matters set forth in the preceding paragraphs and

7 incorporate them herein.

8

77. Plaintiffs hold religious beliefs that they must reach out to the

9 community and invite them to their religious services where they offer Biblical

10 guidance on how to face contemporary issues.

11

78. Plaintiffs also communicate their faith to others in public places through

12 invitations to gather together with like-minded individuals for fellowship and

13 receiving religious instruction as an exercise of their sincerely-held religious beliefs.

14

79. The Code penalizes the exercise of religion by subjecting it to greater

15 restrictions that are not applicable to any other activities.

16

80. The Code expressly discriminates against religion.

17

81. The Code imposes an excessive burden on religious exercise that is not

18 generally applicable.

19

82. The Code burdens religious exercise to a greater extent than non-

20 religious exercise.

21

83. Defendants have interpreted and applied their Code to disqualify

22 Plaintiffs from equal treatment solely because of the religious nature of Plaintiffs’

23 activities and the religious content and viewpoint of Plaintiffs’ speech.

24

84. Defendants’ interpretation and application of the Code impose an

25 excessive burden on Plaintiffs’ rights to the free exercise of religion.

26

85. Both the Code and Defendants’ enforcement against Plaintiffs violate

27 several constitutional rights of Plaintiffs, including freedom of speech, free exercise,

28 and equal protection, and therefore give rise to a hybrid claim.

- 9 -

Case 2:07-cv-00522-SRB Document 1 Filed 03/08/07 Page 10 of 15

1

86. No compelling government interest exists which could justify the Code

2 or Defendants’ discriminatory enforcement against Plaintiffs.

3

87. The Code and its enforcement prohibiting equal use requested by the

4 Plaintiffs are not the least restrictive means necessary to serve any legitimate interest

5 which Defendants seek thereby to secure.

6

88. Defendants’ interpretation and enforcement of the Code chill Plaintiffs’

7 freedom of religious discussion and exercise, which are fundamental rights

8 guaranteed Plaintiffs by the First Amendment.

9

89. The Code facially and as applied thus violate Plaintiffs’ rights under the

10 Free Exercise Clause of the First Amendment to the United States Constitution as

11 incorporated and applied to state action under the Fourteenth Amendment.

12

WHEREFORE, Plaintiffs respectfully pray that the Court grant the equitable

13 and legal relief set forth hereinafter in the prayer for relief.

14

4. Fourth Cause of Action: Violation of the Arizona Religious Freedom

15

Amendment

16

90. Plaintiffs reallege all matters set forth in the preceding paragraphs and

17 incorporate them herein.

18

91. The Arizona Religious Freedom Amendment, Ariz. Rev. Stat. §41-1493,

19 states that government shall not substantially burden a person’s exercise of religion

20 unless it demonstrates a compelling government interest that is furthered by the least

21 restrictive means.

22

92. Plaintiffs hold religious beliefs that they must reach out to the

23 community and invite them to services offering Biblical guidance on how to face

24 contemporary issues.

25

93. Plaintiffs also communicate their faith to others in public places by

26 inviting them to gather together with like-minded individuals for fellowship and

27 receiving religious instruction as an exercise of their sincerely-held religious beliefs.

28

94. The Code penalizes the exercise of religion by subjecting it to greater

- 10 -

Case 2:07-cv-00522-SRB Document 1 Filed 03/08/07 Page 11 of 15

1 restrictions that are not applicable to any other activities.

2

95. The Code expressly discriminates against religion.

3

96. The Code imposes an excessive burden on religious exercise that is not

4 generally applicable.

5

97. Plaintiffs are severely limited in the exercise of their religion, including

6 reaching out to others, based on the terms of Defendants’ Code.

7

98. Defendants have interpreted and applied their Code to disqualify

8 Plaintiffs from equal treatment solely because of the religious nature of Plaintiffs’

9 activities and the religious content and viewpoint of Plaintiffs’ speech.

10

99. Defendants’ interpretation and application of the Code impose an

11 excessive burden on Plaintiffs’ rights to the free exercise of religion.

12

100. No compelling government interest exists which could justify the Code

13 or Defendants’ discriminatory enforcement against Plaintiffs.

14

101. The Code and its enforcement prohibiting equal use requested by the

15 Plaintiffs are not the least restrictive means necessary to serve any legitimate interest

16 which Defendants seek thereby to secure.

17

102. Whatever interest Defendants seek to further by limiting religious

18 assembly signs, all other signage impacts those same interests in the same manner.

19

103. Defendants’ interpretation and enforcement of the Code chill Plaintiffs’

20 freedom of religious discussion and exercise, which are fundamental rights

21 guaranteed Plaintiffs by Arizona Law.

22

104. The Code facially and as applied thus violate Plaintiffs’ rights under the

23 Arizona Religious Freedom Amendment.

24

WHEREFORE, Plaintiffs respectfully pray that the Court grant the equitable

25 and legal relief set forth hereinafter in the prayer for relief.

26

5. Fifth Cause of Action: Violation of the Due Process Clause of the

27

Fourteenth Amendment

28

105. Plaintiffs reallege all matters set forth in the preceding paragraphs and

- 11 -

Case 2:07-cv-00522-SRB Document 1 Filed 03/08/07 Page 12 of 15

1 incorporate them herein.

2

106. The Code allows greater display of “ideological” signs.

3

107. The Code does not define or state what speech activities are considered

4 “ideological.”

5

108. The Code allows for unbridled discretion in determining what does and

6 does not qualify as “ideological.”

7

109. Men of common intelligence must guess and will differ upon what is

8 considered speech that is ideological.

9

110. There is no warning or notice as to what signs will be deemed to fall in

10 this category or what signs will not.

11

111. A sign encouraging people to attend a church service easily falls into the

12 category of an ideological sign.

13

112. Despite the absence of any standards or definitions to guide the Town

14 officials’ determination, Defendants did not afford Plaintiffs’ sign such a meaning.

15

113. The Code allows greater display of “political” signs.

16

114. The Code does not define or state what speech activities are considered

17 “political.”

18

115. The Code allows for unbridled discretion in determining what does and

19 does not qualify as “political.”

20

116. Men of common intelligence must guess and will differ upon what is

21 considered speech that is “political.”

22

117. It is not clear whether this category includes only signs supporting or

23 opposing a candidate; or whether it includes a ballot issue; or any statement

24 addressing issues such as abortion, marriage or religious rights (such as those that are

25 addressed in Plaintiffs’ services); or whether it includes all of the above.

26

118. There is no warning or notice as to what signs will be deemed to fall in

27 this category or what signs will not.

28

119. The Code facially and as applied violate Plaintiffs’ rights under the Due

- 12 -

Case 2:07-cv-00522-SRB Document 1 Filed 03/08/07 Page 13 of 15

1 Process Clause of the Fourteenth Amendment to the United States Constitution

2

WHEREFORE, Plaintiffs respectfully pray that the Court grant the equitable

3 and legal relief set forth hereinafter in the prayer for relief.

4

VIII. PRAYER FOR RELIEF

5

WHEREFORE, Plaintiffs respectfully pray for judgment as follows:

6

a. That this Court render a Declaratory Judgment declaring that Code

7 §4.402P is invalid facially and as applied under the Constitution of the United States

8 and under the Arizona Religious Freedom Amendment;

9

b. That this Court issue an Injunction restraining enforcement of the Code

10 § 4.402P in all respects as challenged herein;

11

c. That this Court retain jurisdiction of this matter for the purpose of

12 enforcing the Court’s Order;

13

d. That this Court award Plaintiffs’ costs and expenses of this action,

14 including a reasonable attorneys’ fees award, in accordance with 42 U.S.C. § 1988,

15 the Arizona Religious Freedom Amendment, and other applicable law;

16

e. That this Court award nominal and compensatory damages in an amount

17 to be determined by the finder of fact in accordance with the proof, plus interest at the

18 legal rate until paid;

19

f. That this Court adjudge, decree and declare the rights and other legal

20 relations of the parties to the subject matter here in controversy, in order that such

21 declarations shall have the force and effect of final judgment; and

22

g. That this Court grant such other and further relief as the Court deems

23 equitable, just, and proper.

24

25

26

27

28

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Case 2:07-cv-00522-SRB Document 1 Filed 03/08/07 Page 14 of 15

1 Respectfully submitted this 8th day of March, 2007.

2 THE ALLIANCE DEFENSE FUND THE ALLIANCE DEFENSE FUND

3
s/Jeremy D. Tedesco 4 Benjamin W. Bull
AZ Bar No. 009940 5 Jeremy D. Tedesco
AZ Bar No. 023497 6 15333 N. Pima Rd. Ste 165
Scottsdale, AZ 7 (480) 444-0020
(480) 444-0028 facsimile 8 jtedesco@telladf.org

David A. Cortman* GA Bar No. 188810
1000 Hurricane Shoals Rd., Ste D-600 Lawrenceville, GA 30043 (770) 339-0774 (770) 339-6744 facsimile dcortman@telladf.org

9 *Application for admission pro hac vice will be submitted once case is assigned a number and Judge.
10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

- 14 -

Case 2:07-cv-00522-SRB Document 1 Filed 03/08/07 Page 15 of 15

 
 Case 2:07-cv-00522-SRB Document 32 Filed 02/12/08 Page 1 of 20

1 BENJAMIN W. BULL AZ Bar No. 009940
2 JEREMY D. TEDESCO AZ Bar No. 023497
3 ALLIANCE DEFENSE FUND 15100 N. 90th Street
4 Scottsdale, AZ 85260 (480) 444-0020; (480) 444-0028 facsimile
5 jtedesco@telladf.org

6 DAVID A. CORTMAN GA Bar No. 188810
7 ALLIANCE DEFENSE FUND 1000 Hurricane Shoals Rd., Ste D-600
8 Lawrenceville, GA 30043 (770)339-0774; (770)339-6744 facsimile
9 dcortman@telladf.org

10 Attorneys for Plaintiffs

11

UNITED STATES DISTRICT COURT

12

DISTRICT OF ARIZONA

PHOENIX DIVISION

13

Pastor Clyde Reed; and Good News

)

14 Community Church,

)

)

15

Plaintiffs,

)

) CASE NO. CV-07-522-PHX-SRB

16

v.

)

) AMENDED VERIFIED

17 Town of Gilbert, Arizona; and Adam

) COMPLAINT FOR

Adams in his official capacity as

) DECLARATORY AND

18 Code Compliance Manager,

) INJUNCTIVE RELIEF

)

19

Defendants.

)

___________________________________ )

20

I. INTRODUCTION

21

1. In March 2007, Plaintiffs filed a Verified Complaint against and moved

22

to preliminarily enjoin the provision of the Town of Gilbert’s Sign Code that

23

discriminates against religious assembly signs by requiring them to be smaller in size,

24

less in number, placed in less favorable locations, and displayed for much less time

25

than political signs, ideological signs, and many other comparable signs. In April

26

2007, the Town of Gilbert and Adam Adams (“Defendants”) assented to a stipulated

27

preliminary injunction that prohibited them from enforcing this provision of the

28

Town’s Sign Code against the Plaintiffs. After this Court granted the stipulated

Case 2:07-cv-00522-SRB Document 32 Filed 02/12/08 Page 2 of 20

1 preliminary injunction in May 2007, the Town set out to amend its Sign Code, and

2 passed such amendment on January 8, 2008.

3

2. Incredibly, the amended Code discriminates against the Plaintiffs’

4 religious signage in the same fundamental way as the original Code.1 Religious

5 assembly signs are still treated far less favorably than similar noncommercial and

6 commercial signs under the amended Code; the Code still discriminates against signs

7 based on their content; and the Code still favors commercial over noncommercial

8 speech. Accordingly, Plaintiffs file this Amended Complaint challenging the Town’s

9 original and amended Codes, and concurrently file a motion for preliminary

10 injunction against the amended Code.

11

3. Prior to its enactment, Plaintiffs’ counsel advised Defendants’ counsel

12 that the amended Code did not cure the constitutional defects, but Defendants failed

13 to heed this advice and enacted it anyway.

14

4. Nothing short of an order from this Court, ruling that Defendants’

15 unapologetic discriminatory treatment of religious signs violates Plaintiffs’ First

16 Amendment rights, will rectify the Defendants astonishing lack of regard for the First

17 Amendment and for the rights of religious institutions to display signs on the same

18 terms as other similar signs.

19

II. JURISDICTION

20

5. This action arises under the United States Constitution, particularly the

21 First and Fourteenth Amendments, under federal law, particularly 28 U.S.C. § 2201

22 and 42 U.S.C. §§ 1983 and 1988, and under state law, particularly Ariz. Rev. Stat.

23 §41-1493.

24

6. This Court is vested with original jurisdiction over these federal claims

25

26

1 In the context of this Amended Complaint, the term “original Code” refers to

27

the Town’s Sign Code as it existed on the day Plaintiffs initiated this lawsuit (attached hereto as Exhibit 1), and the term “amended Code” refers to the Town’s

28 Sign Code as amended on January 8, 2008 (attached hereto as Exhibit 2).

- 2 -

Case 2:07-cv-00522-SRB Document 32 Filed 02/12/08 Page 3 of 20

1 by operation of 28 U.S.C. §§ 1331 and 1343; and over the supplemental state law

2 claims under §1367.

3

7. This Court is vested with authority to grant the requested declaratory

4 judgment by operation of 28 U.S.C. §§ 2201, et seq.

5

8. This Court is authorized to issue the requested injunctive relief pursuant

6 to 42 U.S.C. §1983 and Rule 65 of the Federal Rules of Civil Procedure.

7

9. This Court is authorized to award any damages pursuant to 28 U.S.C. §

8 1343(4).

9

10. This Court is authorized to award attorneys’ fees pursuant to 42 U.S.C.

10 § 1988 and pursuant to Ariz. Rev. Stat. §41-1493.01(D).

11

III. VENUE

12

11. Venue is proper in the United States District Court for the District of

13 Arizona under 28 U.S.C. § 1391(b), in that the events giving rise to the claim

14 occurred within the district.

15

IV. IDENTIFICATION OF PLAINTIFFS

16

12. Plaintiff Clyde Reed is the Pastor of Good News Community Church and

17 is a citizen and resident of the District.

18

13. Good News Presbyterian Church, the named party in the original

19 complaint filed in this case, recently changed its name to Good News Community

20 Church (“the Church”). The Church is an unincorporated association and is also

21 located in the District.

22

14. Good News Community Church is a group of like-minded persons who

23 have come together around a set of common Christian beliefs and purposes, and seeks

24 to promote those purposes through the Church.

25

15. Pastor Reed is charged with the responsibility of representing the Church

26 in its day to day activities, including through preaching of the Word of God and

27 meeting together for worship and fellowship on Sundays and on other days of the

28 week.

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Case 2:07-cv-00522-SRB Document 32 Filed 02/12/08 Page 4 of 20

1

V. IDENTIFICATION OF DEFENDANTS

2

16. The Town of Gilbert is a body politic which is able to sue and be sued

3 in its corporate name.

4

17. The Town has adopted the original and amended Town of Gilbert Land

5 Development Code (“Code”) sections that discriminate against religious signage.

6

18. The Town, through its Code Compliance Department, has enforced the

7 original Code sections against the Plaintiffs.

8

19. Defendant Adam Adams is the Code Compliance Manager of the Town’s

9 Code Compliance Department and is sued in his official capacity.

10

20. Defendant Adams enforced the original Code against the Plaintiffs in

11 February 2007 when he informed the Church that it would be cited if it violated the

12 terms of the original Code regarding religious assembly signs.

13

21. The Town acquiesces in, sanctions, and supports the actions of

14 Defendant Adams in the enforcement of the original Code against Plaintiffs.

15

22. The amended Code, and specifically amended section 4.402P, applies

16 to Plaintiffs’ religious signs.

17

23. The Town, Defendant Adams, and its enforcement officials intend on

18 enforcing the terms of the amended Code against Plaintiffs' religious signs.

19

VI. STATEMENT OF FACTS

20 The Defendants’ Original and Amended Sign Codes

21

24. The Defendants’ original and amended Sign Codes were adopted to

22 serve the Town’s interests in safety and aesthetics. (Ex. 1, § 4.401A; Ex. 2, p. 1.)

23

25. Defendants’ Sign Code, both the original and amended versions,

24 discriminate against certain signage based on the content of the sign.

25

26. Under the original and amended Codes, Ideological Signs may be

26 limitless in number, are allowed without a permit, may be placed in all zoning

27 districts, may be up to 20 square feet in area and 6 feet in height, and have no

28 duration limit. (Ex. 1, at 4, § 4.402J.)

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Case 2:07-cv-00522-SRB Document 32 Filed 02/12/08 Page 5 of 20

1

27. The amended code makes no changes to the Ideological Sign Provision.

2

28. Similarly, under the original and amended Codes, Political Signs are

3 allowed without a permit, may be placed on property zoned for residential use, non-

4 residential use, undeveloped Town property, and Town rights-of-way, may be up to

5 32 square feet in area and 6 feet in height, and only require that they be removed 10

6 days following an election, with no time constraint on when they can be posted prior

7 to an election. (Ex. 1, at 4, § 4.402I.)

8

29. The amended Code makes no changes to the Political Sign provision.

9

30. Under the original Code, Religious Assembly Temporary Directional

10 Signs are not permitted in the public right-of-way, may not exceed 6 square feet in

11 area nor 3 feet in height, no more than 4 signs may be placed on any property, a

12 permit is required, and they shall not be displayed earlier than 2 hours before and 1

13 hour after the religious service. (Ex. 1, at 8, § 4.402P; Ex. 5 (requiring permit).)

14

31. The amended Code makes the following changes to the former Religious

15 Assembly Directional Signs provision:

16

a. changes the name of the provision to “Temporary Directional

17

Signs Relating To A Qualifying Event”;

18

b. permits non-profit organizations to display signs relating to a

19

qualifying event, in addition to religious assemblies;

20

c. increased the height of such signs to 6 feet, but maintained the 6

21

square feet in area requirement;

22

d. allows signs to be displayed for 12 hours before a qualifying

23

event, but maintained the requirement that such signs be taken

24

down within 1 hour of the event ending; and

25

e. clarifies that 4 signs per property are permitted for qualifying

26

events. (Ex. 2, at 2-3, § 4.402P.)

27

32. The original and amended Codes also permit Weekend Directional

28 Residential Signs, which advertise the sale of new homes. A total of 15 signs are

- 5 -

Case 2:07-cv-00522-SRB Document 32 Filed 02/12/08 Page 6 of 20

1 permitted for each recorded subdivision plat, they may be placed on Town rights-of-

2 way and each sign may be placed beginning 6 p.m. on Friday and ending at 8 a.m. on

3 the following Monday. (Ex. 1, at 17-18, § 4.405B(2).)

4

33. The amended Code makes no changes to the Weekend Directional

5 Residential Signs provision.

6

34. Lastly, the original and amended Codes permit Homeowners Association

7 Facilities Temporary Signs for 30 days prior to each event and requires such signs to

8 be removed within 48 hours of completion of the event. (Ex. 1, at 21, § 4.406C(3).)

9

35. The amended Code makes no changes to the Homeowners Facilities

10 Temporary Signs provision.

11

36. All signs permitted under the Town’s Codes may contain a non-

12 commercial message. (Ex. 1, at 11, § 4.402V.)

13

37. The amended Code also makes some modifications to the Town’s

14 Glossary of Terms for its Sign Code. (Ex. 2, at 3.)

15

38. Among other changes, the following entry has been added to the

16 Glossary of Terms:

17

Temporary directional signs relating to a qualifying event. Temporary

18

directional signs relating to a qualifying event means a temporary sign

intended to direct pedestrians, motorists, and other passersby to a

19

“qualifying event.” A “qualifying event” is any assembly, gathering,

activity, or meeting sponsored, arranged, or promoted by a religious,

20

charitable, community service, educational, or other similar non-profit

organization.

21

(Ex. 2, at 3.)

22

39. A true and accurate copy of the Town’s Glossary of Terms is attached

23

as Exhibit 3.

24

40. This action is brought to challenge the Town’s original and amended

25

Code provisions that deny equal treatment to Plaintiffs’ religious signs.

26

The Church’s Religious Beliefs

27

41. The Church currently averages around 45 attendees a week, and some

28

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Case 2:07-cv-00522-SRB Document 32 Filed 02/12/08 Page 7 of 20

1 weeks exceeds 50.

2

42. The Church, its members and leaders, and Pastor Reed are Christians

3 who hold sincere religious beliefs that they must meet together with like-minded

4 individuals, teach and preach the Gospel, sing religious songs, pray for their

5 community, and encourage others whenever possible.

6

43. Plaintiffs believe in what is commonly referred to as the Great

7 Commission.

8

44. The Bible commands believers in Matthew 28:19-20 to “go and make

9 disciples of all nations, baptizing them in the name of the Father and of the Son and

10 of the Holy Spirit, and teaching them to obey everything I have commanded you.”

11

45. Plaintiffs believe that they should carry out this command by reaching

12 out to the community to meet together on a regular basis.

13

46. Plaintiffs follow this Biblical directive by displaying signs announcing

14 their services as an invitation for those in the community to attend.

15

47. Plaintiffs’ services are open to the public and Plaintiffs seek to

16 encourage new people from the community to attend.

17

48. A primary way in which the community may learn about Plaintiffs’

18 services is through the signs that are placed announcing the time and location of the

19 services.

20

49. The more Church signs that are permitted to be displayed, the longer

21 such signs are permitted to be displayed, the larger such signs are permitted to be, and

22 the more prominent location they are permitted to be located, the more people will

23 receive the invitation.

24 The Enforcement of the Original Code Against the Church

25

50. Due to its small size, the church is limited financially in what it can

26 afford to do to invite others to its meetings.

27

51. One effective, yet inexpensive means of reaching others is to display

28 signs letting the community know where and when it is meeting.

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Case 2:07-cv-00522-SRB Document 32 Filed 02/12/08 Page 8 of 20

1

52. The Church has been meeting at Coronado Elementary School for close

2 to five years.

3

53. For a time, the Church was placing about 17 signs in the areas

4 surrounding the Church.

5

54. These signs were placed early in the day each Saturday and removed

6 following the services on Sunday mid-day.

7

55. On September 17, 2005, however, the Church was cited by the Town’s

8 Code Compliance Department for exceeding the time limitation of 2 hours before and

9 1 hour after the service (with a notation on the citation that the date of service was

10 missing from the sign). A true and accurate copy of this notice of violation is

11 attached as Exhibit 4.

12

56. Earlier in the same year, on July 14, the Church received a citation from

13 the Town’s Code Compliance Department stating that its signs were in violation of

14 the Code because they were placed more than 2 hours before its Church services. A

15 true and accurate copy of this notice of violation is attached as Exhibit 5.

16

57. The penalties for violating the original (and amended) Code range from

17 a notice of violation to substantial fines and time in jail.

18

58. After receiving these citations, the Church reduced the number of signs

19 and the amount of time they placed the signs.

20

59. More visitors attended the services when all signs were being placed and

21 when they were being placed earlier on Saturdays.

22

60. In February 2007, the Church contacted the Code Compliance

23 Department to inquire as to whether the limitations found in the Code would be

24 enforced against the Church if violated.

25

61. The Church was told by the Code Compliance Manager that there is no

26 leniency under the Code, and that the Church would be cited if it was determined that

27 it had violated any of the applicable provisions in the Code.

28

62. Among other things, this meant the Church would be cited for a violation

- 8 -

Case 2:07-cv-00522-SRB Document 32 Filed 02/12/08 Page 9 of 20

1 of the Code if it put up signs displaying the time and place of its meetings more than

2 2 hours before those meetings.

3

63. Also, the Church would be cited for a violation of the Code if it placed

4 more than 4 signs displaying the time and place of its meetings.

5

64. Based on their fear that the Code would be enforced against them, and

6 because they were censoring their speech based on such fear of enforcement, the

7 Plaintiffs filed a Civil Rights lawsuit challenging the Town’s discriminatory Code in

8 March 2007.

9

65. After Plaintiffs filed a motion for preliminary injunction, the Defendants

10 agreed to a stipulated preliminary injunction against enforcement of § 4.402P of the

11 original Code.

12

66. This Court issued a stipulated preliminary injunction in May, 2007,

13 prohibiting enforcement of § 4.402P against Plaintiffs’ signs, and shortly thereafter

14 the City began the process of amending its Sign Code.

15 The Ongoing Discriminatory Treatment of Plaintiffs’ Religious Signs Under the Amended Code
16 67. In August, 2007, counsel for Defendants and counsel for Plaintiffs had
17 a lengthy telephonic conference to discuss the proposed amendments to the Sign
18 Code.
19 68. The amendments discussed during this conference are substantially the
20 same as those adopted by the Town on January 8, 2008. The only difference is that
21 the amended code discussed in August 2007 contained minor revisions to the
22 Ideological Sign Provision that were not part of the code adopted on January 8, 2008.
23 69. Counsel for Plaintiffs unequivocally stated during this conference that
24 the proposed amendments would not settle Plaintiffs’ lawsuit, because the amended
25 Code would still suffer from the same constitutional infirmities as the original Code.
26 70. Counsel for Defendants stated that Churches are privileged to be able to
27 place any temporary signs, and that the Town could prohibit such religious assembly
28

- 9 -

Case 2:07-cv-00522-SRB Document 32 Filed 02/12/08 Page 10 of 20

1 signs altogether.

2

71. On December 5, 2007, the Town of Gilbert Planning Commission held

3 a public meeting at which the proposed amendments to the Sign Code were discussed.

4

72. Attached hereto as exhibit 6 is a true and accurate transcription of the

5 portion of this meeting dealing with the amended Code.

6

73. During the December 5, 2007 meeting, and in response to a question

7 from a Planning Commission member regarding whether the amended § 4.402P

8 applied to signs placed by Home Owners Associations, the Town attorney stated that

9 “[t]emporary signs for HOAs are treated elsewhere within the codes, they would not

10 fall within this.” (Ex. 6, at 3.)

11

74. At the same meeting, the Town attorney explained to the Planning

12 Commission that “the code treats many different kinds of temporary signs

13 differently.” (Ex. 6, at 3.)

14

75. The amended Code’s different treatment of temporary signs is based on

15 the content of the message on the sign.

16

76. The Town Council passed the amended Code on January 8, 2008, and

17 pursuant to the “emergency clause” in the amended Code (Ex. 2, at 4, § IV), the Code

18 went into effect immediately.

19

77. Because the Defendants threatened to enforce the original Code against

20 the Plaintiffs’ signs, and because Defendant Adams told Pastor Reed that the Church

21 would receive no leniency for any violations of the original Code, the Church

22 understands that the Town’s amended Code will be enforced against them if they

23 display signs that in any way violate the provisions of the amended Code.

24

78. The Church has a continuing desire to reach out to the community

25 through additional signs that may be placed in Town rights-of-way and for longer

26 periods of time, but cannot place such signs due to the discriminatory treatment of

27 Plaintiffs’ religious signs under the amended Code, and due to their fear of

28 enforcement of the amended Code against their signs.

- 10 -

Case 2:07-cv-00522-SRB Document 32 Filed 02/12/08 Page 11 of 20

1 79. The Church’s speech is being squelched and it is being limited in the number

2 of citizens it reaches with its invitation message due to the amended Code.

3

VII. ALLEGATIONS OF LAW

4

80. All acts of the Defendants, their officers, agents, servants, employees,

5 or persons acting at their behest or direction, were done and are continuing to be done

6 under the color and pretense of state law.

7

81. Plaintiffs have no adequate or speedy remedy at law to correct or redress

8 the deprivations of their federal and state rights by Defendants.

9

82. Unless and until the enforcement of the original and amended Codes is

10 enjoined, the Plaintiffs will suffer and continue to suffer irreparable injury to their

11 rights.

12

VIII. CAUSES OF ACTION

13

1. First Cause of Action: Violation of the Free Speech Clause of the

14

First Amendment

15

83. Plaintiffs reallege all matters set forth in the preceding paragraphs and

16 incorporate them herein.

17

84. Plaintiffs’ signs are speech that is protected by the First Amendment.

18

85. Defendants’ original and amended Codes impermissibly regulate and

19 restrict speech in the form of signs based on the content of that speech.

20

86. Signs that are ideological or political are permitted to a much greater

21 extent than are Plaintiffs’ religious signs.

22

87. Also, residential weekend directional signs are permitted to a much

23 greater extent than Plaintiffs’ religious signs.

24

88. Because such discrimination is based on the content of the signs, it is

25 subject to strict scrutiny: it must further a compelling government interest and be

26 narrowly tailored.

27

89. Defendants can proffer no interest, let alone one that is compelling, that

28 justifies discriminating against Plaintiffs’ religious signs.

- 11 -

Case 2:07-cv-00522-SRB Document 32 Filed 02/12/08 Page 12 of 20

1

90. Whatever interests Defendants cite, they apply equally to signs that are

2 permitted to a greater extent than Plaintiffs’ religious signs.

3

91. Further, limiting Plaintiffs’ religious signs in the manner authorized by

4 the original and amended Codes is not narrowly tailored to justify whatever interest

5 Defendants may create.

6

92. Moreover, Defendants’ original and amended Codes treat commercial

7 speech more favorably than noncommercial speech.

8

93. The original and amended Codes allow weekend residential signs for the

9 purposes of home sales for a longer period of time than Plaintiffs’ religious signs.

10

94. The original and amended Codes impose an unconstitutional prior

11 restraint because they vest Town officials with the unbridled discretion to permit or

12 refuse protected speech without any guidelines or criteria.

13

95. The original and amended Codes are overbroad because they sweep

14 within their ambit protected First Amendment speech.

15

96. The overbreadth of the original and amended Codes chill protected

16 speech by discouraging individuals and groups from placing signs for the purpose of

17 engaging in protected speech based on the religious nature of the sign.

18

97. Defendants’ original and amended Codes on their face and as applied

19 violate Plaintiffs’ rights of Free Speech as guaranteed by the First Amendment to the

20 United States Constitution as incorporated and applied to state action under the

21 Fourteenth Amendment.

22

WHEREFORE, Plaintiffs respectfully pray that this Court grant the equitable

23 and legal relief set forth hereinafter in the prayer for relief.

24

2. Second Cause of Action: Violation of the Equal Protection Clause

25

of the Fourteenth Amendment.

26

98. Plaintiffs reallege all matters set forth in the preceding paragraphs and

27 incorporate them herein.

28

99. The original and amended Codes allow groups and individuals similarly

- 12 -

Case 2:07-cv-00522-SRB Document 32 Filed 02/12/08 Page 13 of 20

1 situated to religious assemblies, like Plaintiff, greater access to Town property.

2

100. The original and amended Codes allow groups and individuals similarly

3 situated to religious assemblies, like Plaintiff, to display signs for greater time

4 periods.

5

101. The original and amended Codes allow groups and individuals similarly

6 situated to religious assemblies, like Plaintiff, to display larger signs.

7

102. The original and amended Codes allow groups and individuals similarly

8 situated to religious assemblies, like Plaintiff, to display a greater number of signs

9

103. The Codes do not extend those same rights to religious assemblies, like

10 Plaintiff.

11

104. Defendants can offer no compelling interest to justify their

12 discriminatory treatment of certain religious speech and activities while allowing

13 similar secular speech and activities.

14

105. The original and amended Codes facially and as applied violate

15 Plaintiffs’ rights under the Equal Protection Clause of the Fourteenth Amendment to

16 the United States Constitution

17

WHEREFORE, Plaintiffs respectfully pray that the Court grant the equitable

18 and legal relief set forth hereinafter in the prayer for relief.

19

3. Third Cause of Action: Violation of the Free Exercise Clause of the

20

First Amendment

21

106. Plaintiffs reallege all matters set forth in the preceding paragraphs and

22 incorporate them herein.

23

107. Plaintiffs hold religious beliefs that they must reach out to the

24 community and invite them to their religious services where they offer Biblical

25 guidance on how to face contemporary issues.

26

108. Plaintiffs also communicate their faith to others in public places through

27 invitations to gather together with like-minded individuals for fellowship and

28 receiving religious instruction as an exercise of their sincerely-held religious beliefs.

- 13 -

Case 2:07-cv-00522-SRB Document 32 Filed 02/12/08 Page 14 of 20

1

109. The original and amended Codes penalize the exercise of religion by

2 subjecting it to greater restrictions that are not applicable to any other activities.

3

110. The original and amended Codes expressly discriminate against religion.

4

111. The original and amended Codes impose an excessive burden on

5 religious exercise that is not generally applicable.

6

112. The original and amended Codes burden religious exercise to a greater

7 extent than non-religious exercise.

8

113. Defendants have interpreted and applied their original Code to disqualify

9 Plaintiffs from equal treatment solely because of the religious nature of Plaintiffs’

10 activities and the religious content and viewpoint of Plaintiffs’ speech.

11

114. The Defendants’ amended Code similarly disqualifies Plaintiffs from

12 equal treatment based solely on the religious nature, content, and viewpoint of their

13 signs and activities.

14

115. Defendants’ interpretation and application of the original Code impose

15 an excessive burden on Plaintiffs’ rights to the free exercise of religion.

16

116. The Defendants’ amended Code similarly imposes an excessive burden

17 on Plaintiffs’ rights to the free exercise of religion.

18

117. Both the original and amended Codes, and Defendants’ enforcement of

19 the original Code against the Plaintiffs, violate several constitutional rights of

20 Plaintiffs, including freedom of speech, free exercise, and equal protection, and

21 therefore give rise to a hybrid claim.

22

118. No compelling government interest exists which could justify the

23 original and amended Codes discriminatory treatment of Plaintiffs’ religious signs,

24 or Defendants’ discriminatory enforcement of the original Code against Plaintiffs.

25

119. The original and amended Codes unequal treatment of Plaintiffs’

26 religious signs, and the Defendants enforcement of the original Code prohibiting

27 equal treatment of Plaintiffs’ religious signs, are not the least restrictive means to

28 serve any legitimate interest which Defendants seek thereby to secure.

- 14 -

Case 2:07-cv-00522-SRB Document 32 Filed 02/12/08 Page 15 of 20

1

120. The original and amended Codes discriminatory treatment of Plaintiffs’

2 religious signs, and Defendants’ interpretation and enforcement of the original Code

3 against Plaintiffs, chill Plaintiffs’ freedom of religious discussion and exercise, which

4 are fundamental rights guaranteed Plaintiffs by the First Amendment.

5

121. The original and amended Codes facially and as applied thus violate

6 Plaintiffs’ rights under the Free Exercise Clause of the First Amendment to the United

7 States Constitution as incorporated and applied to state action under the Fourteenth

8 Amendment.

9

WHEREFORE, Plaintiffs respectfully pray that the Court grant the equitable

10 and legal relief set forth hereinafter in the prayer for relief.

11

4. Fourth Cause of Action: Violation of the Arizona Religious Freedom

12

Restoration Act

13

122. Plaintiffs reallege all matters set forth in the preceding paragraphs and

14 incorporate them herein.

15

123. The Arizona Religious Freedom Restoration Act, Ariz. Rev. Stat. §41-

16 1493.01, states that government shall not substantially burden a person’s exercise of

17 religion unless it demonstrates a compelling government interest that is furthered by

18 the least restrictive means.

19

124. Plaintiffs hold religious beliefs that they must reach out to the

20 community and invite them to services offering Biblical guidance on how to face

21 contemporary issues.

22

125. Plaintiffs also communicate their faith to others in public places by

23 inviting them to gather together with like-minded individuals for fellowship and

24 receiving religious instruction as an exercise of their sincerely-held religious beliefs.

25

126. The original and amended Codes penalize the exercise of religion by

26 subjecting it to greater restrictions that are not applicable to any other activities.

27

127. The original and amended Codes expressly discriminate against religion.

28

128. The original and amended Codes impose an excessive burden on

- 15 -

Case 2:07-cv-00522-SRB Document 32 Filed 02/12/08 Page 16 of 20

1 religious exercise that is not generally applicable.

2

129. Plaintiffs are severely limited in the exercise of their religion, including

3 reaching out to others, based on the terms of Defendants’ original and amended

4 Codes.

5

130. Defendants have interpreted and applied their original Code to disqualify

6 Plaintiffs from equal treatment solely because of the religious nature of Plaintiffs’

7 activities and the religious content and viewpoint of Plaintiffs’ speech.

8

131. Defendants’ amended Code similarly disqualifies Plaintiffs from equal

9 treatment solely because of the religious nature, content, and viewpoint of Plaintiffs’

10 speech.

11

132. Defendants’ interpretation and application of the original Code imposes

12 an excessive burden on Plaintiffs’ rights to the free exercise of religion.

13

133. Defendants’ amended Code similarly imposes an excessive burden on

14 Plaintiffs’ free exercise rights.

15

134. No compelling government interest exists which could justify the

16 original and amended Codes discriminatory treatment of Plaintiffs’ religious signs,

17 or Defendants’ discriminatory enforcement of the original Code against Plaintiffs.

18

135. The original and amended Codes discriminatory treatment of Plaintiffs’

19 religious signs, and the Defendants enforcement of the original Code prohibiting

20 equal treatment of Plaintiffs’ religious signs, are not the least restrictive means to

21 serve any legitimate interest which Defendants seek thereby to secure.

22

136. Whatever interest Defendants seek to further by limiting Plaintiffs’

23 religious signs, all other signage impacts those same interests in the same manner.

24

137. Defendants’ interpretation and enforcement of the original and amended

25 Codes chill Plaintiffs’ freedom of religious discussion and exercise, which are

26 fundamental rights guaranteed Plaintiffs by Arizona Law.

27

138. The original and amended Codes facially and as applied thus violate

28 Plaintiffs’ rights under the Arizona Religious Freedom Restoration Act.

- 16 -

Case 2:07-cv-00522-SRB Document 32 Filed 02/12/08 Page 17 of 20

1

WHEREFORE, Plaintiffs respectfully pray that the Court grant the equitable

2 and legal relief set forth hereinafter in the prayer for relief.

3

VIII. PRAYER FOR RELIEF

4

WHEREFORE, Plaintiffs respectfully pray for judgment as follows:

5

a. That this Court render a Declaratory Judgment declaring that §4.402P

6 of the Town’s original and amended Codes is invalid facially and as applied under the

7 Constitution of the United States and under the Arizona Religious Freedom

8 Restoration Act;

9

b. That this Court issue an Injunction restraining enforcement of § 4.402P

10 of the amended Code in all respects as challenged herein;

11

c. That this Court retain jurisdiction of this matter for the purpose of

12 enforcing the Court’s Order;

13

d. That this Court award Plaintiffs’ costs and expenses of this action,

14 including a reasonable attorneys’ fees award, in accordance with 42 U.S.C. § 1988,

15 the Arizona Religious Freedom Restoration Act, and other applicable law;

16

e. That this Court award nominal and compensatory damages in an amount

17 to be determined by the finder of fact in accordance with the proof, plus interest at the

18 legal rate until paid;

19

f. That this Court adjudge, decree and declare the rights and other legal

20 relations of the parties to the subject matter here in controversy, in order that such

21 declarations shall have the force and effect of final judgment; and

22

g. That this Court grant such other and further relief as the Court deems

23 equitable, just, and proper.

24

25

26

27

28

- 17 -

Case 2:07-cv-00522-SRB Document 32 Filed 02/12/08 Page 18 of 20

1 Respectfully submitted this 10th day of January, 2008.

2 THE ALLIANCE DEFENSE FUND THE ALLIANCE DEFENSE FUND

3 s/Jeremy D. Tedesco
4 Benjamin W. Bull AZ Bar No. 009940
5 bbull@telladf.org Jeremy D. Tedesco
6 AZ Bar No. 023497 jtedesco@telladf.org
7 15100 N. 90th Street Scottsdale, AZ
8 (480) 444-0020 (480) 444-0028 facsimile
9

David A. Cortman GA Bar No. 188810 dcortman@telladf.org 1000 Hurricane Shoals Rd., Ste D-600 Lawrenceville, GA 30043 (770) 339-0774 (770) 339-6744 facsimile

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

- 18 -

Case 2:07-cv-00522-SRB Document 32 Filed 02/12/08 Page 19 of 20

Case 2:07-cv-00522-SRB Document 32 Filed 02/12/08 Page 20 of 20

1

CERTIFICATE OF SERVICE

2

The undersigned counsel hereby certifies that on January 10, 2008, I

3 electronically lodged the foregoing proposed Amended Verified Complaint For

4 Declaratory and Injunctive Relief with the Clerk of the Court using the CM/ECF

5 system. Pursuant to LRCiv. 15.1(c), should the Court grant Plaintiffs’ motion to

6 amend, the Clerk of Court will file this lodged pleading using the CM/ECF system

7 which will send notification to:

8 Kim S. Alvarado Grasso Law Firm, P.C.
9 Jackson Plaza 4600 South Mill Avenue, Suite 125
10 Tempe, AZ 85282

11 Attorneys for Plaintiffs

12 Benjamin W. Bull
13 AZ Bar No. 009940 bbull@telladf.org
14 Jeremy D. Tedesco AZ Bar No. 023497
15 jtedesco@telladf.org 15100 N. 90th Street
16 Scottsdale, AZ (480) 444-0020
17 (480) 444-0028 facsimile

David A. Cortman GA Bar No. 188810 dcortman@telladf.org 1000 Hurricane Shoals Rd., Ste D-600 Lawrenceville, GA 30043 (770) 339-0774 (770) 339-6744 facsimile

18

Attorneys for Defendants

19

By: /s/Jeremy D. Tedesco

20

Jeremy D. Tedesco

AZ Bar # 023497

21

Alliance Defense Fund

15100 N. 90th Street

22

Scottsdale, Arizona 85260

Phone (480) 444-0020

23

Fax (480) 444-0028

jtedesco@telladf.org

24

25

26

27

28

 
 Case 2:07-cv-00522-SRB Document 72 Filed 12/16/09 Page 1 of 1

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

FILED
DEC 14 2009

MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

CLYDE REED, Pastor; GOOD NEWS COMMUNITY CHURCH,
Plaintiffs - Appellants
v.
TOWN OF GILBERT, ARIZONA; ADAM ADAMS, in his official capacity as Code Compliance Manager,
Defendants - Appellees

No. 08-17384
D.C. No. 2:07-cv-00522-SRB U.S. District Court for Arizona, Phoenix
MANDATE

The judgment of this Court, entered November 20, 2009, takes effect this date.
This constitutes the formal mandate of this Court issued pursuant to Rule 41(a) of the Federal Rules of Appellate Procedure.

FOR THE COURT:
Molly C. Dwyer Clerk of Court
Lee-Ann Collins Deputy Clerk

Case 2:07-cv-00522-SRB Document 72-1 Filed 12/16/09 Page 1 of 25

FOR PUBLICATION
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

⎫ CLYDE REED, Pastor; GOOD NEWS
COMMUNITY CHURCH, Plaintiffs-Appellants,

No. 08-17384

⎬ v.
TOWN OF GILBERT, ARIZONA; ADAM

D.C. No. 2:07-cv-00522-SRB

ADAMS, in his official capacity as

OPINION

Code Compliance Manager,

⎭ Defendants-Appellees.

Appeal from the United States District Court for the District of Arizona
Susan R. Bolton, District Judge, Presiding

Argued and Submitted April 15, 2009—San Francisco, California

Filed November 20, 2009

Before: Stephen Reinhardt, John T. Noonan and M. Margaret McKeown, Circuit Judges.

Opinion by Judge McKeown

15393

Case 2:07-cv-00522-SRB Document 72-1 Filed 12/16/09 Page 2 of 25

REED v. TOWN OF GILBERT

15397

COUNSEL
Benjamin W. Bull, Jeremy D. Tedesco, Alliance Defense Fund, Scottsdale, Arizona; David A. Cortman (argued), Alliance Defense Fund, Lawrenceville, Georgia; Deborah M. Sheasby, Peter A. Gentala, Center for Arizona Policy, Phoenix, Arizona, for the plaintiffs-appellants.
Robert Grasso, Jr., Kim S. Alvarado (argued), Grasso Law Firm, P.C., Chandler, Arizona, for the defendants-appellees.
OPINION
McKEOWN, Circuit Judge:
Although “[i]t is common ground that governments may regulate the physical characteristics of signs,” City of Ladue v. Gilleo, 512 U.S. 43, 48 (1994), sign regulations have spawned legions of First Amendment challenges. Those challenges arise because signs “pose distinctive problems that are subject to municipalities’ police powers,” and yet they are also “a form of expression protected by the Free Speech Clause.” Id. This case presents yet another variation on a sign ordinance—one that prohibits all signs without a permit, subject to nineteen enumerated exemptions ranging from directional signs to ideological and political signs.
Good News Community Church wishes to spread the word about its Sunday services by placing temporary directional signs around the Town of Gilbert, Arizona. Gilbert, however, limits Good News’ deployment of temporary directional signs via the town’s comprehensive sign ordinance. Good News

Case 2:07-cv-00522-SRB Document 72-1 Filed 12/16/09 Page 3 of 25

15398

REED v. TOWN OF GILBERT

Community Church and its Pastor, Clyde Reed (collectively “Good News”), challenge the ordinance’s constitutionality under the First and Fourteenth Amendments, contending it impermissibly burdens the right to free speech and treats similar speech unequally.

Good News appeals the district court’s denial of a preliminary injunction barring enforcement of the ordinance. Although we conclude the provision of the ordinance directly regulating Good News’ signs does not of itself violate the First Amendment, the district court did not address Good News’ claim that the ordinance unfairly discriminates among forms of noncommercial speech. Consequently, we remand for the district court to consider this aspect of Good News’ challenge, within the context of the preliminary injunction motion.

BACKGROUND

I. USE OF SIGNS BY GOOD NEWS COMMUNITY CHURCH

Good News does not have a permanent sanctuary, and at the commencement of this litigation had been conducting its Sunday church services at an elementary school in the Town of Gilbert, Arizona (“Gilbert”) for about five years.1 Good News averages 45 regular congregants.

Members of Good News believe the Bible commands them to “go and make disciples of all nations,” and that they “should carry out this command by reaching out to the community to meet together on a regular basis.” To do so, they “display[ ] signs announcing their services as an invitation for

1According to the parties, Good News meets currently at a school in the adjacent town of Chandler, Arizona, approximately one mile from the Gilbert town line. The change in location does not moot the controversy, however, because Good News still wishes to place temporary signs in Gilbert due to its proximity to the church’s meeting place.

Case 2:07-cv-00522-SRB Document 72-1 Filed 12/16/09 Page 4 of 25

REED v. TOWN OF GILBERT

15399

those in the community to attend.” Good News states that “[f]or a time, the Church was placing about 17 signs in the areas surrounding the Church,” and that the signs “were placed early in the day each Saturday and removed following the services on Sunday mid-day.” Good News uses moveable signs that can be placed on or anchored in the ground. The signs vary slightly, but generally contain the name “Good News Community,” the phrase “Your Community Church,” a website address and phone number, the location and time of the services, and an indicator directing people to the service. Following is an example of one of the signs:

II. THE SIGN CODE AND ENFORCEMENT AGAINST GOOD NEWS
Like many municipalities, Gilbert regulates the display of outdoor signs. Town of Gilbert Land Development Code, Division 4, General Regulations, Article 4.4, Sign Regulations (“Sign Code” or “Code”). Gilbert’s Sign Code prohibits certain types of signs altogether. For signs that are not prohibited, the Code imposes a general ban on displaying signs

Case 2:07-cv-00522-SRB Document 72-1 Filed 12/16/09 Page 5 of 25

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REED v. TOWN OF GILBERT

without a permit and establishes some generally applicable restrictions. § 4.402(A). Signs that are allowed with permits are regulated according to general categories, for example, “Real Estate.”

The Sign Code exempts from the permitting requirement nineteen types of signs.2 The signs employed by Good News fall under one of the exemptions, § 4.402(P), for Temporary Directional Signs Relating to a Qualifying Event (“Qualifying Event Signs”).

In July 2005, Good News received an email from a Gilbert Code Compliance officer noting a violation of an earlier version of § 4.402(P) because Good News’ signs had been sited too early and in a public right-of-way. A few months later, a Code Compliance officer issued an advisory notice to Good News, stating that signs were displayed outside of the hours allowed and did not include a date for the religious service.

Good News relates that “[a]fter receiving these citations, the Church reduced the number of signs and the amount of time they placed the signs.” In February 2007, the Code Compliance Manager told Good News “that there is no leniency under the Code, and that the Church would be cited if it was determined that it had violated any of the applicable provisions in the Code.”

2(1) Signs installed by a governmental jurisdiction; (2) Building Identification Signs; (3) Permanent Regulatory and Parking signs; (4) Information Wall Signs (e.g., “Delivery Entrance”); (5) Real Estate Signs; (6) Residential Open House Signs; (7) Political Signs; (8) Ideological Signs; (9) Garage Sale Signs; (10) Business Identification Banners during street construction; (11) Interim Business Identification Banners; (12) Boutique Signs; (13) Window Signs; (14) A-Frame Signs; (15) Temporary Directional Signs Relating to a Qualifying Event; (16) Construction Signs; (17) Suspended Signs (particular type of commercial sign); (18) Restaurant Menu Signs; and (19) Required Street Addresses. § 4.402(D).

Case 2:07-cv-00522-SRB Document 72-1 Filed 12/16/09 Page 6 of 25

REED v. TOWN OF GILBERT III. DISTRICT COURT PROCEEDINGS

15401

In March 2008, Good News filed suit in federal court in Arizona, alleging that, on its face and as applied, Sign Code § 4.402(P) violated the Free Speech clause of the First Amendment and the Equal Protection clause of the Fourteenth Amendment. Shortly after filing, Good News moved for a preliminary injunction to stop Gilbert from enforcing § 4.402(P). Gilbert stipulated to a preliminary injunction, as a “sign of good faith,” in order for Gilbert to review and amend the original ordinance. The district court granted the stipulated injunction.

In an effort to avoid maintaining a potentially impermissible content-based ordinance, following public hearings the Town Council of Gilbert adopted an amended Sign Code recommended by the Gilbert Planning Commission. Before passage of the amendment, in January 2008, attorneys for the parties conferred, and Good News advised that, in its view, the proposed amendment did not fix § 4.402(P)’s constitutional infirmities.

The amendments left the Sign Code intact except for § 4.402(P) and related sections.3 The title of § 4.402(P) was

3The Sign Code was amended in these pertinent ways.
(1) Title of § 4.402(P)—changed from “Religious Assembly Temporary Directional Signs” to “Temporary Directional Signs Relating to a Qualifying Event.” Other references to the qualifier “Religious Assembly” were replaced with “Relating to a Qualifying Event.”
(2) Size—changed from 3 feet high to 6 feet, although still not to exceed 6 square feet.
(3) Number—retained limit of four per single property; clarified there may be unlimited total.
(4) Display—changed from “up to 2 hours before, and 1 hour after the religious service,” to “up to 12 hours before, during, and 1 hour after the qualifying event ends.”

Case 2:07-cv-00522-SRB Document 72-1 Filed 12/16/09 Page 7 of 25

15402

REED v. TOWN OF GILBERT

changed from “Religious Assembly Temporary Directional Signs” to “Temporary Directional Signs Relating to a Qualifying Event.” A new definition was added to the glossary for these signs, expanding the coverage of § 4.402(P) to signs related to any events sponsored by non-profit organizations, not just religious gatherings. The restrictions on physical characteristics and use of signs under § 4.402(P) were somewhat modified, although the restriction that Qualifying Event Signs may not be placed in public rights-of-way was retained.

Immediately following adoption of the amended regulation, Good News filed a notice that the amended Sign Code failed to resolve the lawsuit, an amended verified complaint, and a second motion for preliminary injunction.4 Good News has not been cited under the amended Sign Code, but states that it is not placing signs in the rights-of-way “due to the prohibitions in the amended Code.”

(5) Glossary definition of “Temporary Directional Signs Relating to a Qualifying Event” added—“A temporary sign intended to direct pedestrians, motorists, and other passersby to a ‘Qualifying Event.’ A ‘Qualifying Event’ is any assembly, gathering, activity or meeting sponsored, arranged, or promoted by a religious, charitable, community service, educational, or other similar non-profit organization.”
(6) Glossary definition of “Ideological Sign” amended—definition amended to read: “a sign communicating a message or ideas for non-commercial purposes that is not a construction sign, directional sign, temporary directional sign relating to a qualifying event, political sign, garage sale sign, or a sign owned or required by a governmental agency.”
4In addition to the free speech and equal protection claims, Good News also claimed that § 4.402(P) violated the Free Exercise Clause of the First Amendment and Arizona’s Religious Freedom Restoration Act (ARFRA), A.R.S. § 41-1493.01. Good News did not seek the preliminary injunction on the basis of these claims, which are not at issue in this appeal.

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REED v. TOWN OF GILBERT

15403

In September 2008, the district court denied the motion for preliminary injunction. The court concluded that § 4.402(P) is a content-neutral regulation, and that it passes the applicable intermediate level of scrutiny. It further found that the Sign Code does not favor commercial speech over noncommercial speech. Based on its determination that the provision is content-neutral, the court concluded that § 4.402(P) does not violate equal protection, as any uneven effects are an unintended consequence of the lawful content-neutral regulation.

ANALYSIS

This case comes to us on appeal from the denial of a preliminary injunction. Although we review the denial of a preliminary injunction for abuse of discretion, “we review the legal issues underlying the district court’s decision de novo.” Foti v. City of Menlo Park, 146 F.3d 629, 634-635 (9th Cir. 1998).

The Supreme Court recently summarized the threshold for granting the extraordinary relief of a preliminary injunction: “A plaintiff seeking a preliminary injunction must establish that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest.” Winter v. Natural Res. Def. Council, Inc. 129 S.Ct. 365, 374 (2008); see also Am. Trucking Ass’ns, Inc. v. City of Los Angeles, 559 F.3d 1046, 1052 (9th Cir. 2009) (quoting same). Because the district court concluded that Good News was unlikely to succeed on the merits of its claims, the court did not reach the further inquiries regarding harm, equities and the public interest. Our focus therefore is a legal one—whether the district court erred in its judgment that Good News is unlikely to succeed on the merits because the regulation passes muster under the First and Fourteenth Amendments.

Good News claims that § 4.402(P) violates the First Amendment and the Fourteenth Amendment, both on its face

Case 2:07-cv-00522-SRB Document 72-1 Filed 12/16/09 Page 9 of 25

15404

REED v. TOWN OF GILBERT

and as applied to Good News’ signs. There are two ways an ordinance may be judged unconstitutional on its face: “[E]ither because it is unconstitutional in every conceivable application, or because it seeks to prohibit such a broad range of protected conduct that it is unconstitutionally ‘overbroad.’ ” Members of City Council v. Taxpayers for Vincent, 466 U.S. 789, 796 (1984). The first type of facial challenge “may be paired with the more common as-applied challenge, where a plaintiff argues that the law is unconstitutional as applied to his own speech or expressive conduct.” Santa Monica Food Not Bombs v. City of Santa Monica, 450 F.3d 1022, 1034 (9th Cir. 2006). Good News opts for this route, claiming that § 4.402(P) would be unconstitutional as applied to any Qualifying Event Sign and that it is also invalid as applied to Good News’ signs.

Good News, however, has not demonstrated that its facial challenge to § 4.402(P) warrants separate review. “[W]e have found nothing in the record to indicate that the ordinance will have any different impact on any third parties’ interest in free speech than it has on [Good News.]” Vincent, 466 U.S. at 801. “[Good News’] attack on the ordinance is basically a challenge to the ordinance as applied to [its] activities. We therefore limit our analysis of the constitutionality of the ordinance to the concrete case before us . . . ,” whether § 4.402(P) is unconstitutional as applied to Good News. Id. at 803.

I. CONSTITUTIONALITY OF QUALIFYING EVENT REGULATION

We begin with the simple proposition that Gilbert’s sign regulation is subject to First Amendment scrutiny. In an effort to promote a safe, harmonious and pleasant environment— and presumably to insulate itself from challenges under the First Amendment—Gilbert has adopted a sign ordinance that makes one’s head spin to figure out the bounds of its restrictions and exemptions. Our initial focus is on § 4.402(P), the exemption that regulates Qualifying Event Signs.

Case 2:07-cv-00522-SRB Document 72-1 Filed 12/16/09 Page 10 of 25

REED v. TOWN OF GILBERT A. CONTENT-BASED REGULATIONS

15405

[1] The first question is whether § 4.402(P) is a regulation based on the content of speech. See Ladue, 512 U.S. at 59 (O’Connor, J., concurring) (“The normal inquiry that our doctrine dictates is, first, to determine whether a regulation is content based or content neutral, and then, based on the answer to that question, to apply the proper level of scrutiny.”). “A regulation is content-based if either the underlying purpose of the regulation is to suppress particular ideas or, if the regulation, by its very terms, singles out particular content for differential treatment.” Berger. v City of Seattle, 569 F.3d 1029, 1051 (9th Cir. 2009) (internal citations omitted). Exemptions to otherwise permissible regulations must nonetheless be scrutinized as “an exemption . . . may represent a governmental attempt to give one side of a debatable public question an advantage in expressing its views to the people.” Ladue, 512 U.S. at 51 (internal quotation omitted).

According to the Purposes section of the ordinance, the Sign Code was adopted to assure “proper and efficient expression through visual communication” that is “compatible with the character and environment” of Gilbert; to eliminate confusing, distracting and unsafe signs; and to enhance the aesthetic environment of the town. § 4.401. Nothing in the regulation suggests any intention by Gilbert to suppress certain ideas through the Sign Code, nor does Good News claim that Gilbert had any illicit motive in adopting the ordinance. Gilbert asserts that the exemptions to the Sign Code were included to accommodate the speech interests of various members of the Gilbert community, and that, in particular, § 4.402(P) is intended to provide groups such as Good News the opportunity to spread the word about their events without the restriction of a permitting process. Gilbert’s unimpeached intentions, however, do not satisfy our inquiry. See Foti, 146 F.3d at 636 n.7 (“Although Menlo Park’s exemptions for open house signs and safety, traffic, and informational signs seem innocuous, we base our content-based determination on

Case 2:07-cv-00522-SRB Document 72-1 Filed 12/16/09 Page 11 of 25

15406

REED v. TOWN OF GILBERT

whether the ordinance singles out certain speech for differential treatment based on the idea expressed. The reasonableness, harmlessness, or worthiness of the idea is irrelevant.”).

[2] “[W]hether a statute is content neutral or content based is something that can be determined on the face of it; if the statute describes speech by content then it is content based.” Menotti v. City of Seattle, 409 F.3d 1113, 1129 (9th Cir. 2005) (quoting City of Los Angeles v. Alameda Books, Inc., 535 U.S. 425, 448 (2002) (Kennedy, J., concurring)) (internal quotation marks omitted). This succinct summation of the law does not address what is meant by “content.” We look to two Ninth Circuit cases that are helpful in giving texture and meaning to the term when applied to a sign ordinance.

In Foti v. City of Menlo Park, the sign ordinance placed a general ban on posting signs on public property or displaying signs in public rights-of-way. 146 F.3d at 633-34. But the Menlo Park code included exemptions for temporary “open house” real estate signs; signs placed by government entities; safety, traffic, and public informational signs; certain signs on cars; and pickets. Id. Picketers, such as the plaintiffs, who wanted to protest outside of a family planning clinic, were limited to carrying one sign under three square feet, and had to move while carrying the sign. Id.

We concluded that the “exemptions [in the Menlo Park ordinance] for ‘open house’ real estate signs and safety, traffic, and public informational signs are content-based. To enforce the ordinance, a law enforcement officer must ‘examine the content of . . . signs to determine whether the exemption applies.’ ” Foti, 146 F.3d at 636 (quoting Desert Outdoor Advert. v. City of Moreno Valley, 103 F.3d 814, 820 (9th Cir. 1996)). Good News points to Foti as the controlling case.

Gilbert argues that instead of drawing support from Foti, we should look to G.K. Limited Travel v. City of Lake Oswego, 436 F.3d 1064 (9th Cir. 2006). In G.K. Limited, the

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city of Lake Oswego, Oregon, passed a sign ordinance that banned the erection of new signs on poles and required taking down existing pole signs,5 either when the “copy” on the sign changed or by a general deadline set by the ordinance. 436 F.3d at 1069. G.K. Limited, a travel agency, purchased another agency that owned a pole sign. G.K. Limited wanted to change the copy of the pole sign by substituting its name, and objected to the requirement that it remove the sign to comply with the Lake Oswego code. We concluded that the grandfather provision of the ordinance was content neutral, and sounded a caution:

Plaintiffs attempt to broaden Foti to stand for the proposition that any time an ordinance requires a law enforcement officer to read a sign, the ordinance must be content based. We reject such an expansive reading. The Foti test actually turns on ‘whether the ordinance singles out certain speech for differential treatment based on the idea expressed;’ enforcement officials having to read a sign is persuasive evidence of such a purpose but may not always be dispositive.

G.K. Ltd., 436 F.3d at 1078 (quoting Foti, 136 F.3d at 636).

We went on to explain the rationale underlying Foti:

In Foti, we evaluated a Menlo Park ordinance banning all signs on all public property. The law, however, exempted “open house,” safety, traffic and public information signs. Relying on our earlier ruling in Desert Outdoor Advertising v. City of Moreno Valley, 103 F.3d 814, 820 (9th Cir. 1996), we concluded that these exemptions were content based “because a law enforcement officer must read a sign’s message to determine if the sign is exempted

5Pole signs are free-standing signs that stand more than a few feet above the ground.

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from the ordinance.” Foti, 146 F.3d at 636. Menlo Park was clearly expressing a preference for certain types of signs by exempting them from the city’s general prohibition. The only way to determine if a sign was the type qualified to receive Menlo Park’s favorable treatment was to evaluate the content and substantive message of the sign.

Id.

We then noted that:

Neither the speaker- nor event-based exemptions implicate Foti insofar as neither requires law enforcement officers to “read a sign’s message to determine if the sign is exempted from the ordinance.” Foti, 146 F.3d at 636. In the speaker category, officers decide whether an exemption applies by identifying the entity speaking through the sign without regard for the actual substance of the message. In the case of event-based exemptions . . . the officer must determine only whether a specific triggering event has occurred and if the temporary sign has been erected within the specified time frame.

Id.

[3] Taking these two cases together, we learn that our focus should be on determining whether the ordinance targets certain content; whether the ordinance or exemption is based on identification of a speaker or event instead of on content; and whether an enforcement officer would need to distinguish content to determine applicability of the ordinance.

B. CONTENT-BASED ANALYSIS REGARDING QUALIFYING EVENT REGULATION

With these principles in mind, we turn to § 4.402(P), the Qualifying Event provision. Following amendment of the Sign Code, § 4.402(P) reads:

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Temporary Directional Signs Relating to a Qualifying Event. Temporary Directional Signs Relating to a Qualifying Event shall be permitted subject to the following regulations:

1. Size. Signs shall be no greater than 6 feet in height and 6 square feet in area.

2. Number. No more than 4 signs shall be displayed on a single property at any time.

3. Display. Signs shall only be displayed up to 12 hours before, during, and 1 hour after the Qualifying Event ends. The person who installed the signs shall be responsible for removal. If the person installing the signs is unknown, the property owner shall be responsible.

4. Location. Temporary Directional Signs Relating to a Qualifying Event may be located off-site and shall be placed at grade level. Signs shall be placed only with the permission of the owner of the property on which they are placed.

5. Prohibited Locations. Temporary Directional Signs Relating to a Qualifying Event shall not be located:

a. In the public right-of-way.

b. On fences, boulders, planters, other signs, vehicles, utility facilities, or any structure.

6. Construction. Signs shall be:

a. Constructed of durable and weatherresistant materials.

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b. Anchored or weighted down to avoid being displaced in windy conditions, or otherwise to be a safety hazard to the public.

[4] Section 4.402(P) regulates physical characteristics, such as size, number and construction of the signs; location of placement; and timing of display. None of these restrictions implicate the content of speech. The only possible contentbased aspect of § 4.402(P) is its limitation to signs related to “Qualifying Events.” In the Glossary of the amended Code, Temporary Directional Signs Relating to a Qualifying Event are defined as temporary signs intended to direct passersby to a “Qualifying Event,” which, in turn, means:

any assembly, gathering, activity, or meeting sponsored, arranged or promoted by a religious, charitable, community service, educational or other similar non-profit organization.

A directional sign does not contain a message such that regulating directional signs would inherently “distinguish favored speech from disfavored speech on the basis of the ideas or views expressed.” Turner Broad. Sys. v. FCC, 512 U.S. 622, 643 (1994). The definition of Qualifying Event Signs bears out this observation, as it does not mention any idea or viewpoint, let alone single one out for differential treatment.

[5] The definition of a Qualifying Event sign merely encompasses the elements of “who” is speaking and “what event” is occurring. These two criteria invoke the speakerbased and event-based characteristics approved in G.K. Limited because “the City d[id] not limit the substance of [the] speech in any way.” 436 F.3d at 1078. In addition to the pole sign ban, the plaintiffs in G.K. Limited challenged exemptions in the Lake Oswego sign ordinance. Id. at 1070. We concluded the exemptions from the permitting and fee require-

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ments for “public signs, signs for hospital or emergency services, legal notices, railroad signs and danger signs” were speaker-based exemptions that did not relate to the contents of the signs. Id. at 1076-77. We reached that conclusion because “officers decide whether an exemption applies by identifying the entity speaking through the sign without regard for the actual substance of the message.” Id at 1078. Here, an officer can likewise determine whether a “religious, charitable, community service, educational or other similar non-profit organization” is “speaking through the sign” without assessing the substance of the sign’s contents.

The plaintiffs in G.K. Limited also contested the permit exemption for “temporary signs in residential zones.” Id at 1070. This exemption allowed homeowners to erect a temporary sign regarding any subject when a triggering event, such as a home sale or election, occurred. We characterized the provision as an event-based exemption that, again, did not relate to the content of the speech. Id. at 1078. “In the case of event-based exemptions to the permitting process, the officer must determine only whether a specific triggering event has occurred and if the temporary sign has been erected within the specified time frame.” Id. Similarly, for a Qualifying Event Sign, in addition to the content-neutral step of noting the speaker, the Gilbert officer need only check that an event is listed on the sign and the timing of the event. Identifying a triggering event under § 4.402(P) does not entail making a content-based determination. “We have never held, or suggested, that it is improper to look at the content of an oral or written statement in order to determine whether a rule of law applies to a course of conduct.” Hill v. Colorado, 530 U.S. 703, 721 (2000) (holding that need for officers to sometimes review the contents of oral statements made by “sidewalk counselors” to determine whether ordinance limiting speech near health care facilities was violated did not make ordinance content based).

Good News contends that because a Gilbert enforcement officer must review elements of Good News’ signs in order to

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apply § 4.402(P) the section is content based. Surely, however, this regulation is a good example that the “officer must read it” test is not always determinative of whether a regulation is content based or content neutral. The district court indeed recognized that we have “not applied the ‘officer must read it test’ so strictly that a law must be invalidated any time it forces an officer’s eyes to venture within the four corners of the sign.” See Berger, 569 F.3d 1052 n. 22 (“Whether an officer must read a message is persuasive evidence of an impermissible content-based purpose, but is not dispositive.”) (quoting Ctr. for Bio-Ethical Reform v. Los Angeles Cty. Sheriff Dep’t, 533 F.3d 780, 789 n. 5) (9th Cir. 2008) (internal quotation marks omitted); see also ACLU of Nevada v. City of Las Vegas, 466 F.3d 784, 796 n.12 (9th Cir. 2006) (observing same).

[6] This case also highlights the absurdity of construing the “officer must read it” test as a bellwether of content. If applied without common sense, this principle would mean that every sign, except a blank sign, would be content based. While a Gilbert officer needs to briefly take in what is written on the Qualifying Event Sign to note who is speaking and the timing of the listed event, this “kind of cursory examination” is not akin to an officer synthesizing the expressive content of the sign. Hill, 530 U.S. at 721. See G.K. Ltd., 436 F.3d at 1079 (observing that the pole sign grandfather clause “does not require Lake Oswego officials to evaluate the substantive message on the preexisting sign and the clause certainly does not favor speech ‘based on the idea expressed’ ”); see also, e.g., Covenant Media of South Carolina v. City of North Charleston, 493 F.3d 421, 434 (4th Cir. 2007) (holding that to the extent enforcement of a sign ordinance similar to Gilbert’s that “defined and distinguished between different types of signs,” including “directional or instructional signs,” required “looking generally at what type of message a sign carries to determine where it can be located, this ‘kind of cursory examination’ did not make the regulation content based”) (quoting Hill, 530 U.S. at 721); La Tour v. City of Fayette-

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ville, Arkansas, 442 F.3d 1094, 1096 (8th Cir. 2006) (noting that an exception to a sign ordinance’s ban on electronic message signs for “time and temperature” signs was distinguishable from a provision in a prior case regulating political signs, as “[i]t takes some analysis to determine if a sign is ‘political,’ but one can tell at a glance whether a sign is displaying the time or temperature”). We conclude that § 4.402(P) is not a content-based regulation: It does not single out certain content for differential treatment, and in enforcing the provision an officer must merely note the content-neutral elements of who is speaking through the sign and whether and when an event is occurring.

C. TIME, PLACE, MANNER RESTRICTIONS

[7] Resolution of content neutrality does not end our inquiry. The sign restriction, as a content-neutral time, place and manner regulation, must also be “narrowly tailored to serve a significant governmental interest, and [must] leave open ample alternative channels for communication of that information.’ ” Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989) (quoting Clark v. Community for Creative NonViolence, 468 U.S. 288, 293 (1984)).6

1. Narrow tailoring

We have explained that narrow tailoring to serve a significant governmental interest

requires that the regulation actually advance the government’s interest, but it need not do so in the least restrictive or least intrusive way. “So long as the

6In Thomas v. Chicago Park Dist., 534 U.S. 316, 323 (2002), the Supreme Court recognized that content-neutral time, place and manner regulations must “contain adequate standards to guide the official’s decision and render it subject to effective judicial review.” Good News has not claimed that the Sign Code lacks adequate standards for enforcement.

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means chosen are not substantially broader than necessary to achieve the government’s interest . . . the regulation will not be invalid simply because a court concludes that the government’s interest could be adequately served by some less speech-restrictive alternative.”

G.K. Ltd., 436 F.3d at 1073-74 (quoting State Univ. of New York v. Fox, 492 U.S. 469, 479 (1989) (internal citation omitted)). See also Hill, 530 U.S. at 726 (emphasizing that “when a content-neutral regulation does not entirely foreclose any means of communication, it may satisfy the tailoring requirement even though it is not the least restrictive or least intrusive means of serving the statutory goal”).

[8] Gilbert identifies two interests motivating § 4.402(P): aesthetics and traffic and pedestrian safety. Beauty and safety are familiar players in the free speech skirmishes involving sign ordinances. See Foti, 146 F.3d at 637 (“The City’s asserted interests in the ordinance are the oft-invoked and well-worn interests of preventing visual blight and promoting traffic and pedestrian safety.”). These purposes are readily recognized as significant governmental interests. See Metromedia v. City of San Diego, 453 U.S. 490, 507-508 (1981) (“Nor can there be substantial doubt that the twin goals that the ordinance seeks to further—traffic safety and the appearance of the city—are substantial governmental goals.”); One World One Family Now v. City and County of Honolulu, 76 F.3d 1009, 1013 (9th Cir. 1996) (“Cities have a substantial interest in protecting the aesthetic appearance of their communities by ‘avoiding visual clutter’ . . . [and] assuring safe and convenient circulation on their streets.”) (quoting Vincent, 466 U.S. at 806-07). Gilbert’s identification in the Code of the recognized interests in safety and aesthetics “is all our review requires to prove a significant interest.” Get Outdoors II v. City of San Diego, 506 F.3d 886, 893-94 (9th Cir. 2007).

[9] In assessing § 4.402(P)’s tailoring, the district court credited Gilbert’s contention that “it ha[d] taken steps to

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ensure that Plaintiffs’ speech is not overly restricted.” The restrictions on time, place and manner imposed by Gilbert on the display of Qualifying Events Signs would indeed appear to “actually advance” the aesthetic and safety interests by limiting the size, duration and proliferation of signs. See G.K. Ltd., 436 F.3d at 1073. These measures restricting the number of signs and limiting them to private property do not appear substantially broader measures than required to make sure the rights-of-way are not so thicketed with signs as to pose a safety hazard or create an aesthetic blight. The limitation on timing—twelve hours before the event and one hour after—is equally narrowly tailored to meet these interests. While it might be easier and provide broader exposure for Good News to have the sign up for twenty-four hours, the test is not convenience or optimal display. See Hill, 530 U.S. at 727 (noting when reviewing a Colorado ordinance limiting “sidewalk counseling” that “whether or not the 8-foot interval is the best possible accommodation of the competing interests at stake, we must accord a measure of deference to the judgment of the Colorado legislature.”) The district court did not abuse its discretion in concluding § 4.402(P) is narrowly tailored, as it “does not sweep in more speech than is necessary to achieve the Town’s aesthetic and traffic control objectives.”

2. Ample alternative channels for communication

Good News contends that § 4.402(P) leaves it without adequate channels to communicate its message inviting passersby to attend church services. The district court found that “Plaintiffs’ alternative channels of communication include 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.”

[10] On appeal, Good News responds that displaying Qualifying Event Signs is the most effective way of communicat-

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ing its invitation, and claims that when it placed more signs it attracted more congregants. Again, the test is not whether another option would be more optimal for Good News: “[W]e are cautioned against invalidating government regulations for failing to leave open ample alternative channels unless the regulations foreclose[s] ‘an entire medium of public expression across the landscape of a particular community or setting.’ ” G.K. Ltd., 436 F.3d at 1074 (quoting Colacurcio v. City of Kent, 163 F.3d 545, 555 (9th Cir. 1998).7 While the alternative options identified by the district court may not be Good News’ preference, “we cannot invalidate the Sign Code merely because it restricts plaintiffs’ preferred method of communication.” G.K. Ltd., 436 F.3d at 1074. Nor do the alternative modes available appear especially burdensome. The district court did not abuse its discretion by finding that the “alternative channels of communication [it listed] ensure that Plaintiffs are able to ‘communicate effectively’ with members of the public.”

[11] Section 4.402(P) is a content-neutral regulation of the time, place and manner of display of Good News’ Qualifying Event Signs; the provision is narrowly tailored to further Gilbert’s significant interests in aesthetics and traffic safety; and Good News has ample alternative channels of communicating its invitation to church services. The district court did not err in concluding that Good News was unlikely to succeed in demonstrating § 4.402(P) is unconstitutional because it is a content-based regulation that does not survive strict scrutiny.

7Ladue provides a worthwhile contrast. The City of Ladue banned homeowners from displaying signs on their properties, except for certain identification and for sale signs. 512 U.S. at 45. The Supreme Court concluded that displaying a sign at one’s home endows the sign with special meaning, and that “[i]n this case, we are not persuaded that adequate substitutes exist for the important medium of speech that Ladue has closed off.” Id. at 56 (internal citation omitted). Here, Gilbert has not foreclosed the entire medium of temporary signs, and has left open a number of reasonable substitutes for Good News to communicate its message.

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II. SIGN CODE’S TREATMENT OF COMMERCIAL SPEECH vERSUS NONCOMMERCIAL SPEECH

[12] Municipalities stray beyond the boundaries of acceptable time, place and manner regulation when an ordinance favors commercial forms of speech over noncommercial speech. In Metromedia, the Supreme Court tackled this issue in the context of San Diego’s billboard ordinance, which permitted on-site commercial advertising, but forbade off-site commercial billboards and all noncommercial billboards. 453 U.S. at 495-96 (plurality opinion). The Court invalidated the ordinance, emphasizing that San Diego’s priorities were topsy-turvy, as “our recent commercial speech cases have consistently accorded noncommercial speech a greater degree of protection than commercial speech.” Id. at 513. In National Advertising v. City of Orange, 861 F.2d 246 (9th Cir. 1988), we echoed the lesson from Metromedia: “Merely treating noncommercial and commercial speech equally is not constitutionally sufficient. The First Amendment affords greater protection to noncommercial than to commercial expression. Regulations valid as to commercial speech may be unconstitutional as to noncommercial.” Id. at 248 (internal citations omitted).8

[13] Good News argues that the Sign Code advantages commercial speech over the noncommercial speech found in Qualifying Event Signs. The district court concluded, however, that Good News’ “noncommercial speech enjoys fewer restrictions than its commercial counterparts.” The court performed a careful comparison of the restrictions placed on

8See also Berger, 569 F.3d at 1055 (holding invalid an ordinance that restricts speech within 30 feet of a “captive audience” in a public park, but excepts concessionaires: “First, the rule’s preference for concessionaires and licensees leads to the odd result that purely commercial speech, which receives more limited First Amendment protection than noncommercial speech, is allowed and encouraged, while artistic and political speech is not. This bias in favor of commercial speech is, on its own, cause for the rule’s invalidation.”).

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Qualifying Event Signs versus “Weekend Directional Signs” for subdivision sales, the commercial speech showcased by Good News as receiving more favorable treatment.9 The district court concluded that Qualifying Event Signs come out on top as the total number of Qualifying Event Signs allowed is greater; Qualifying Event Signs may be placed during weekdays as well as weekends; the size allowed for Qualifying Events Signs is greater; and although the Qualifying Events Signs may not be placed in rights-of-way, they are not restricted to a two-mile radius from the event. Of “paramount importance” to the court was the fact that no permit is required to display a Qualifying Events Sign, in contrast to the permit required for the Weekend Directional Signs. The district court did not abuse its discretion in concluding, after close examination, that the Sign Code does not favor commercial speech over non-commercial speech, and denying a preliminary injunction on that basis. Cf. Beaulieu v. City of Alabaster, 454 F.3d 1219, 1233 (11th Cir. 2006) (invalidating sign ordinance that made it “easier, cheaper, and faster for [the plaintiff] to post a real estate sign than a campaign sign,” and thereby discriminated against noncommercial speech in favor of commercial speech).

III. SIGN CODE’S TREATMENT OF DIFFERENT FORMS OF NONCOMMERCIAL SPEECH

[14] Not only must a municipality refrain from favoring commercial over noncommercial speech, it also may not favor certain noncommercial speech over other noncommercial speech without facing stricter review. In Metromedia, the

9A Weekend Directional Sign is a “temporary off-site sign directing motorists to a developing subdivision.” § 4.405(B)(2). According to the Code, fifteen Weekend Directional Signs may be permitted to each subdivision plat, and the signs may be placed within two miles of the subdivision perimeter, including in public rights-of-way. The signs may be no greater than four feet high and three feet square; they may be installed after 6:00 p.m. on Friday and must be removed by 8:00 a.m. the following Monday. Id.

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Supreme Court warned against such an approach: “Although 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.” 453 U.S. at 514.

We heeded Metromedia’s warning in National Advertising Co. v. City of Orange. The City of Orange imposed a general ban on offsite signs, with exceptions for “certain governmental signs and flags, memorial tablets, recreational signs, and temporary political, real estate, construction, and advertising signs.” 861 F.2d at 247. We concluded that, through its exemptions, Orange made content-based distinctions among categories of noncommercial speech, and invalidated the ordinance as to noncommercial speech. Id. at 250. Compare Nat’l Advert. Co. v. Town of Babylon, 900 F.2d 551, 557 (2d Cir. 1990) (holding that sign ordinance’s exceptions to sign ban for temporary political signs and signs identifying parades, festivals, and other similar occasions “impermissibly discriminate between types of noncommercial speech based on content”) with Messer v. City of Douglasville, Georgia, 975 F.2d 1505, 1513 (11th Cir. 1992) (holding exemptions in sign code from permitting requirement are not unconstitutional and noting they are more limited than the exemptions in Metromedia or City of Orange; do not “express a preference between noncommercial messages;” and do not include “specific exemptions for political, historical, religious or special event signs”).

Good News argues that the Sign Code makes distinctions between Qualifying Event Signs and other forms of noncommercial speech, thereby impermissibly favoring some noncommercial speech. A preliminary review of the nineteen exemptions to the permit requirement reveals several categories related to noncommercial speech. For example, an “Ideological Sign” is defined as “[a] sign communicating a message or ideas for non-commercial purposes that is not a construction sign, directional sign, temporary directional sign

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relating to a qualifying event, political sign, garage sale sign, or a sign owned or required by a governmental agency.” § 4.402(J). In other words, an Ideological Sign includes a message or idea that is distinct from a Political Sign that supports a candidate or ballot measure or from a Qualifying Event Sign.

[15] 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 district court carefully analyzed the other First Amendment challenges, but did not address whether Good News is likely to succeed on the merits of its claim that § 4.402(P) impermissibly discriminates among certain forms of noncommercial speech. On remand, the district court will have the opportunity to determine whether Gilbert impermissibly “evaluate[d] the strength of, or distinguished between, various [noncommercial] communicative interests.” Metromedia, 453 U.S. at 514.

CONCLUSION

Because § 4.402(P) is a content-neutral regulation that passes muster and because it does not impermissibly favor commercial speech over noncommercial speech, we affirm the denial of a preliminary injunction on those First Amendment and Equal Protection claims. We remand for the district court to consider the First Amendment and Equal Protection claims that the Sign Code is unconstitutional in favoring some noncommercial speech over other noncommercial speech.

AFFIRMED in part, REMANDED in part. Each party shall bear its own costs on appeal.

 
 Case 2:07-cv-00522-SRB Document 117 Filed 02/11/11 Page 1 of 21

1

2

NOT FOR PUBLICATION

3

4

5

6

IN THE UNITED STATES DISTRICT COURT

7

FOR THE DISTRICT OF ARIZONA

8

9 Pastor Clyde Reed; Good News)

Presbyterian Church,

)

10

)

Plaintiffs,

)

11

)

vs.

)

12

)

)

13 Town of Gilbert; Adam Adams, in his)

official capacity as Code Compliance)

14 Manager,

)

)

15

Defendants.

)

)

16

)

No. CV 07-522-PHX-SRB ORDER

17

18 At issue are Plaintiffs Pastor Clyde Reed and Good News Presbyterian Church’s
19 Motion for Summary Judgment (“Pls.’ MSJ”) (Doc. 100) and Defendants the Town of
20 Gilbert (“the Town”) and Adam Adams’ Cross-Motion for Summary Judgment (“Defs.’
21 MSJ”) (Doc. 97). The Court also resolves Defendants’ Motion for Leave to File Objection
22 to Admission of Evidence (“Defs.’ Objection”) (Doc. 111) at this time.
23 I. BACKGROUND
24 The facts of this case were set out in this Court’s Order of September 30, 2008 (the
25 “PI Order”), in which the Court denied Plaintiffs’ Second Motion for Preliminary Injunction.
26 (See Doc. 43, PI Order at 1-7.) The pertinent details are summarized here.
27 A. Factual and Procedural History
28

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1

Plaintiff Clyde Reed is the Pastor of Plaintiff Good News Community Church (“Good

2 News”).1 (Pls.’ Statement of Undisputed Facts (“PSOF”) ¶ 8.) For approximately five years

3 prior to the filing of Plaintiffs’ Complaint in March 2007, Good News met at Coronado

4 Elementary School in Gilbert, Arizona. (Id. ¶ 22.) Good News presently rents space at an

5 elementary school in Chandler, Arizona, which borders Gilbert, Arizona, for its weekly

6 services. (DSOF ¶¶ 3, 5; PSOF ¶ 23.) Good News has about 25-30 adult members, as well

7 as 4-10 children. (DSOF ¶ 4.) As part of their religious beliefs, members of Good News

8 “reach out to the community to meet together on a regular basis.” (PSOF ¶¶ 12-15.)

9

“A primary way in which the community may learn about Plaintiffs’ services is

10 through the signs that are placed announcing the time and location of the services.” (PSOF

11 ¶ 18.) “For a time, the Church was placing about 17 signs in the areas surrounding” the

12 meeting place. (Id. ¶ 24.) On September 17, 2005, Good News received an advisory notice

13 from the Town’s Code Compliance Department, stating that Good News was in violation of

14 § 4.402(P) of the Town’s Sign Code because the signs were displayed outside the statutorily-

15 limited time period of two hours before, during, and one hour after the advertised event. (Id.

16 ¶ 26.) On January 8, 2008, the Town passed amendments to its Sign Code.2 (Joint Statement

17 of Facts in Supp. of Cross-Mots. for Summ. J. (“JSOF”) ¶ 2.) Plaintiffs subsequently filed

18 a First Amended Verified Complaint, in which they allege that the amended Sign Code, in

19 particular § 4.402(P), still violates their rights, as guaranteed by the United States and

20 Arizona Constitutions and the Arizona Free Exercise of Religion Act (“FERA”).3 (See Doc.

21

22 1 Mr. Reed testified in his deposition that the name of the church has “vacillated”
23 between Good News Presbyterian Church and Good News Community Church. (Defs.’
24 Separate Statement of Facts in Supp. of Defs.’ MSJ (“DSOF”), Ex. A, Dep. of Clyde Reed 5:10-16.) Although the electronic docket for this case uses Good News Presbyterian Church,
25 Plaintiffs in their briefing refer to the church as Good News Community Church, and the
26 Court therefore uses “Community” rather than “Presbyterian.”

27

2 All further references in this Order to the Sign Code are to the amended Sign Code.

28

3 The parties refer to FERA as Arizona’s “Religious Freedom Restoration Act.”

- 2 -

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1 32, 1st Am. Verified Compl. ¶¶ 83-138.)

2

On March 24, 2008, the Court heard oral argument on Plaintiffs’ Second Motion for

3 Preliminary Injunction. In the PI Order, which was filed on September 30, 2008, the Court

4 denied preliminary injunctive relief, finding that Plaintiffs had not demonstrated a likelihood

5 of success on the merits of their claims. (PI Order at 16-17.) Plaintiffs appealed the Court’s

6 decision regarding preliminary injunctive relief to the Ninth Circuit Court of Appeals, which

7 in turn issued a decision filed on December 14, 2009. See Reed v. Town of Gilbert, Ariz., 587

8 F.3d 966 (9th Cir. 2009). The Court of Appeals largely affirmed this Court’s conclusions in

9 the PI Order. Id. at 970-71. However, the Court of Appeals remanded this matter for

10 consideration of one issue: whether the Sign Code “unfairly discriminates among forms of

11 noncommercial speech.” Id. at 971. At a status conference held after the mandate of the

12 Court of Appeals issued, the parties stated that their intention was to resolve all remaining

13 issues on summary judgment, rather than renewing a motion for a preliminary injunction or

14 saving some issues for trial. (See Status Conference Hr’g Tr. 3:15-5:2, Jan. 11, 2010.)4

15 Therefore, this Order is fully case dispositive. The Court heard oral argument on the parties’

16 Cross-Motions for Summary Judgment on November 22, 2010. (See Doc. 116, Minute

17 Entry.)

18

B. The Sign Code

19

The Town of Gilbert Land Development Code, Division 4, General Regulations,

20 Article 4.4, Sign Regulations, controls the posting of signs within the Town of Gilbert.

21 (JSOF, Ex. 1, Sign Code (henceforth, the “Sign Code”).) Section 4.401(A) outlines the

22 purposes of the Sign Code, namely, to “assure proper and efficient expression through visual

23 communications involving signs compatible with the character and environment of the Town;

24 to eliminate confusing, distracting, and unsafe signs; and to enhance the visual environment

25 of the Town of Gilbert.” Section 4.401(A) also lists the reasons why Defendants believe that

26

27

4 The parties again confirmed at oral argument on these Motions that there were no

issues for trial and that the case was to be decided on the Cross-Motions for Summary

28 Judgment. (See Motion Hr’g Tr. 3:15-20, 26:23-27-2, Nov. 22, 2010.)

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Case 2:07-cv-00522-SRB Document 117 Filed 02/11/11 Page 4 of 21

1 the regulation of signs is necessary and in the public interest.5

2

Under § 4.402(A), no person may “construct, install, attach, place, paint, alter,

3 relocate, or otherwise maintain any sign in the Town without first obtaining a sign permit”

4 unless the sign is one exempted under § 4.402(D). Section 4.402(D) lists nineteen different

5 exceptions: types of signs that are allowed without a permit. These include, among others,

6 § 4.402(P), “Temporary Directional Signs Relating to a Qualifying Event; ” (“Qualifying

7 Event Signs”) § 4.402(I), “Political Signs;” and § 4.402(J), “Ideological Signs.” (See Sign

8 Code at 2-3.)

9

10

5 Section 4.401(A) provides:

11

The regulation of signs within the Town of Gilbert is necessary

12

and in the public interest for the following reasons:

13

1. To promote and aid the public and private sectors in the

identification, location, and advertisement of goods and

14

services.

15

2. To preserve the beauty and the unique character of the

Town of Gilbert and to protect the Town against visual

16

blight.

17

3. To protect property values within the Town of Gilbert by assuring the compatibility of surrounding land uses.

18

4. To promote general safety and protect the general public

from damage or injury caused by, or partially attributed

19

to, the distractions, hazards, and obstructions which

20

result from improperly designed or located signs.

5. To promote the general welfare and to provide a pleasing

21

environmental setting and community appearance which

22

are vital to the continued economic development of the Town.

23

6. To make signs compatible with overall Town design

objectives which are important in attracting new

24

residents and business to the community.

25

7. To make signs readable to the user in a clear,

unambiguous, and concise manner.

26

8. To ensure signs are clear and compatible with the

27

planned character of the adjacent architecture and

neighborhoods, and to provide the essential identity of,

28

and direction to facilities in the community.

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Case 2:07-cv-00522-SRB Document 117 Filed 02/11/11 Page 5 of 21

1

Section 4.402(P), concerning Qualifying Event Signs, provides, in relevant part:

2

Temporary Directional Signs Relating to a Qualifying Event shall be permitted

subject to the following regulations:

3

1. Size. Signs shall be no greater than 6 feet in height and 6 square feet in

4

area.

5

2. Number. No more than 4 signs shall be displayed on a single property

at any one time.

6

3. Display. Signs shall only be displayed up to 12 hours before, during,

7

and 1 hour after the qualifying event ends. The person who installed

the signs shall be responsible for removal. If the person installing the

8

signs is unknown, the property owner shall be responsible.

9

4. Location. Temporary Directional Signs Relating to a Qualifying Event

may be located off-site and shall be placed at grade level. Signs shall

10

be placed only with the permission of the owner of the property on

which they are placed.

11

5. Prohibited Locations. Temporary Directional Signs Relating to a

12

Qualifying Event shall not be located:

13

a. In the public right-of-way.

14

b. On fences, boulders, planters, other signs, vehicles,

utility facilities, or any structure.

15

The Sign Code’s Glossary of General Terms defines “Temporary Directional Signs Relating

16

to a Qualifying Event” as “a temporary sign intended to direct pedestrians, motorists, and

17

other passersby to a ‘qualifying event’” and a “Qualifying Event” as “any assembly,

18

gathering, activity, or meeting sponsored, arranged, or promoted by a religious, charitable,

19

community service, educational, or other similar non-profit organization.” (JSOF, Ex. B at

20

23). A “Political Sign” is defined as “[a] temporary sign which supports candidates for office

21

or urges action on any other matter on the ballot of primary, general and special elections

22

relating to any national, state or local election.” (Id. at 21-22.) An “Ideological Sign” is “[a]

23

sign communicating a message or ideas for non-commercial purposes that is not a

24

construction sign, directional sign, temporary directional sign relating to a qualifying event,

25

political sign, garage sale sign, or a sign owned or required by a governmental agency.” (Id.

26

at 22.)

27

Plaintiffs also highlight another type of sign: “Homeowners Association Facilities

28

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Case 2:07-cv-00522-SRB Document 117 Filed 02/11/11 Page 6 of 21

1 Temporary Signs,” (“HOA Temporary Event Signs”) governed by § 4.406(C)(4). Section

2 4.406(C)(4), provides, in pertinent part:

3

Temporary Signs for Homeowners Association Facilities shall comply with the

4

following regulations:

5

a. Applicability. Banners and Directional Signs for Homeowners

Association Facilities are permitted that display information concerning

6

seasonal or temporary events occurring in the development.

7

b. Sign Area and Location. A maximum of 80 square feet of sign area is

permitted within the limits of the residential community.

8

c. Installation and Removal. Signs shall be installed no earlier than 30

9

days prior to the date of an event and shall be removed within 48 hours

of completion of the event.

10

. . .

11

e. Placement. The regulations of Section 4.402: General Sign Regulations

12

and Section 4.403.C: Placement of Signs shall apply.

13 II. LEGAL STANDARDS AND ANALYSIS

14

A. Summary Judgment Standard

15

The standard for summary judgment is set forth in Rule 56(c) of the Federal Rules of

16 Civil Procedure. Under Rule 56, summary judgment is properly granted when: (1) no genuine

17 issues of material fact remain; and (2) after viewing the evidence most favorably to the

18 non-moving party, the movant is clearly entitled to prevail as a matter of law. Fed. R. Civ.

19 P. 56; Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); Eisenberg v. Ins. Co. of N. Am.,

20 815 F.2d 1285, 1288-89 (9th Cir. 1987). A fact is “material” when, under the governing

21 substantive law, it could affect the outcome of the case. Anderson v. Liberty Lobby, Inc., 477

22 U.S. 242, 248 (1986). A “genuine issue” of material fact arises if “the evidence is such that

23 a reasonable jury could return a verdict for the nonmoving party.” Id.

24

In considering a motion for summary judgment, the court must regard as true the

25 non-moving party’s evidence, if it is supported by affidavits or other evidentiary material.

26 Celotex, 477 U.S. at 324; Eisenberg, 815 F.2d at 1289. However, the non-moving party may

27 not merely rest on its pleadings; it must produce some significant probative evidence tending

28 to contradict the moving party’s allegations, thereby creating a material question of fact.

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Case 2:07-cv-00522-SRB Document 117 Filed 02/11/11 Page 7 of 21

1 Anderson, 477 U.S. at 256-57 (holding that the plaintiff must present affirmative evidence

2 in order to defeat a properly supported motion for summary judgment); First Nat’l Bank of

3 Ariz. v. Cities Serv. Co., 391 U.S. 253, 289 (1968).

4

B. Free Speech

5

Both Plaintiffs and Defendants move for summary judgment on Plaintiffs’ claim that

6 the Sign Code violates the First Amendment (Count 1). (Pls.’ MSJ at 2; Defs.’ MSJ at 7.)

7 This Court addressed all of the parties’ arguments, save one, in the PI Order, as did the Ninth

8 Circuit Court of Appeals. (See PI Order at 8-15); Reed, 587 F.3d at 973-83. The Court now

9 adopts the reasoning set forth in the PI Order and the opinion of the Ninth Circuit Court of

10 Appeals as regards the content-neutrality of the Town’s sign code and whether the treatment

11 of noncommercial speech versus commercial speech amounts to a First Amendment

12 violation. For the following reasons, the Court finds that Defendants are entitled to summary

13 judgment on Plaintiffs’ First Amendment challenge to the Sign Code.

14

“Facial constitutional challenges come in two varieties: First a plaintiff seeking to

15 vindicate his own constitutional rights may argue that an ordinance ‘is unconstitutionally

16 vague or . . . impermissibly restricts a protected activity.’” Santa Monica Food Not Bombs

17 v. City of Santa Monica, 450 F.3d 1022, 1033 (9th Cir. 2006) (quoting Foti v. City of Menlo

18 Park, 146 F.3d 629, 635 (9th Cir. 1998)). In this type of challenge, “[p]laintiffs may seek

19 directly on their own behalf the facial invalidation of overly broad statutes that ‘create an

20 unacceptable risk of the suppression of ideas.’” Nunez v. City of San Diego, 114 F.3d 935,

21 949 (9th Cir. 1997) (quoting Sec’y of Md. v. Joseph H. Munson Co., 467 U.S. 947, 965 n.13

22 (1984) (internal quotation and citation omitted)). “Second, ‘an individual whose own speech

23 or expressive conduct may validly be prohibited or sanctioned is permitted to challenge a

24 statute on its face because it also threatens others not before the court.’” Santa Monica Food

25 Not Bombs, 450 F.3d 1022 at 1033 (quoting Brockett v. Spokane Arcades, Inc., 472 U.S. 491,

26 503 (1985)). The first kind of challenge, which is what Plaintiffs assert here, is frequently

27 paired with the more common as-applied challenge, wherein a plaintiff argues that a law is

28 unconstitutional as applied to his or her own speech or conduct. See id. at 1034. In reviewing

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Case 2:07-cv-00522-SRB Document 117 Filed 02/11/11 Page 8 of 21

1 the PI Order, the Ninth Circuit Court of Appeals concluded that “Good News . . . has not

2 demonstrated that its facial challenge to § 4.402(P) warrants separate review.” Reed, 587

3 F.3d at 974. Indeed, nothing in the record presently before the Court “‘indicat[es] that the

4 ordinance will have any different impact on any third parties’ interest in free speech than it

5 has on [Good News.]’” Id. (quoting Members of City Council v. Taxpayers for Vincent, 466

6 U.S. 789, 801 (1984)). The Court therefore analyzes the concrete case at issue here: “whether

7 § 4.402(P) is unconstitutional as applied to Good News.” Id.

8

Regulation of speech in a traditional public forum “is subject to the highest scrutiny.”

9 Int’l Soc’y for Krishna Consciousness, Inc. v. Lee, 505 U.S. 672, 678 (1992). Public streets

10 and sidewalks are “the archetype of a traditional public forum.” Frisby v. Schultz, 487 U.S.

11 474, 480 (1988); see also Madsen v. Women’s Health Ctr., 512 U.S. 753, 764 (1994)

12 (describing street, sidewalk, and right-of-way surrounding a clinic as a traditional public

13 forum). The appropriate level of scrutiny depends on whether the ban on speech is tied to

14 content of the message. See Frisby, 487 U.S. at 481.

15

“Discrimination against speech because of its message is presumed to be

16 unconstitutional.” Rosenberger v. Rector & Visitors of the Univ. of Va., 515 U.S. 819, 828

17 (1995). A content-based restriction applied to speech in a “public forum[]” is only

18 permissible if it “is necessary to serve a compelling state interest and . . . is narrowly drawn

19 to achieve that end.” Perry Educ. Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37, 45

20 (1983) (citing Carey v. Brown, 447 U.S. 455, 461 (1980)). However, the government may

21 enforce content neutral restrictions on the time, place, and manner of otherwise protected

22 speech. Rosenbaum v. City & Cnty. of S.F., 484 F.3d 1142, 1158 (9th Cir. 2007) (citing

23 Faith Ctr. Church Evangelistic Ministries v. Glover, 480 F.3d 891, 907 (9th Cir. 2007)).To

24 enforce such a regulation, the government must show that the provision is “content neutral,

25 [is] narrowly tailored to serve a significant government interest, and leave[s] open ample

26 alternative channels of communication.” Perry Educ. Ass’n, 460 U.S. at 45 (citations

27 omitted). “A regulation that serves purposes unrelated to the content of expression is deemed

28 neutral, even if it has an incidental effect on some speakers or messages but not others.”

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Case 2:07-cv-00522-SRB Document 117 Filed 02/11/11 Page 9 of 21

1 Ward v. Rock Against Racism, 491 U.S. 781, 797 (1989).

2

1. Content Neutrality and Intermediate Scrutiny

3

“The principal inquiry in determining content neutrality, in speech cases generally and

4 in time, place, or manner cases in particular, is whether the government has adopted a

5 regulation of speech because of disagreement with the message it conveys.” Ward, 491 U.S.

6 at 791. The Supreme Court held in Ward that the government’s purpose in implementing the

7 law “is the controlling consideration,” and, as stated above, “[a] regulation that serves

8 purposes unrelated to the content of expression is deemed neutral.” Id. Therefore,

9 “[g]overnment regulation of expressive activity is content neutral so long as it is ‘justified

10 without reference to the content of the regulated speech.’” Id. (quoting Clark v. Cmty. for

11 Creative Non-Violence, 468 U.S. 288, 293 (1984)).

12

In the PI Order, this Court preliminarily found that § 4.402(P) was content neutral. (PI

13 Order at 11.) The Court of Appeals concurred and noted, “[O]ur focus should be on

14 determining whether the ordinance targets certain content; whether the ordinance or

15 exemption is based on identification of a speaker or event instead of on content; and whether

16 an enforcement officer would need to distinguish content to determine applicability of the

17 ordinance.” Reed, 587 F.3d at 976-79. The Court of Appeals rejected Plaintiffs’ expansive

18 interpretation of the “officer must read it test,” concluding that a cursory examination of a

19 sign to learn who is speaking and the time of the event “is not akin to an officer synthesizing

20 the expressive content of the sign.” Id. at 978 (citations omitted).

21

For the reasons outlined in the PI Order and in Reed, the Court now finds that §

22 4.402(P) is a content-neutral regulation of speech that seeks to identify who is speaking and

23 what event is occurring and does not discriminate on the basis of content. Therefore, it is

24 subject to intermediate scrutiny, and the Court must “determine whether the [c]ode is

25 narrowly tailored to achieve significant government interests and leaves open ample

26 alternative channels for communication.” G.K. Ltd. Travel v. City of Lake Oswego, 436 F.3d

27 1064, 1079 (9th Cir. 2006).

28

2. Time, Place, and Manner Analysis

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Case 2:07-cv-00522-SRB Document 117 Filed 02/11/11 Page 10 of 21

1

For the reasons outlined in both the PI Order and Reed, the Court finds that § 4.402(P)

2 is narrowly tailored to serve a significant government interest. The Town’s asserted interests,

3 namely

4

• Establishing comprehensive sign regulations that are necessary and in

the public interest;

5

• Promoting effective means of communications;

• Promoting public order by allowing charitable, religious, educational,

6

community service, and other organizations to provide announcement

of and directions to events;

7

• Promoting vehicular and pedestrian safety;

• Promoting the general welfare; and

8

• Enhancing the Town’s community aesthetics

9 are significant ones. (Defs.’ MSJ at 12); see also G.K. Ltd., 436 F.3d at 1079 (“[T]he City’s

10 interests in regulating speech to preserve aesthetics and protect traffic and traveler safety are

11 significant.”); One World One Family Now v. City & Cnty. of Honolulu, 76 F.3d 1009, 1013

12 (9th Cir. 1996) (“Cities have a substantial interest in protecting the aesthetic appearance of

13 their communities by ‘avoiding visual clutter’ . . . [and] assuring safe and convenient

14 circulation on their streets.” (quoting Vincent, 466 U.S. at 806-07)); Vincent, 466 U.S. at 805

15 (“It is well settled that [a municipality] may legitimately exercise its police powers to

16 advance esthetic values.”); Metromedia v. City of San Diego, 453 U.S. 490, 507-508 (1981)

17 (“Nor can there be substantial doubt that the twin goals that the ordinance seeks to

18 further–traffic safety and the appearance of the city–are substantial governmental goals.”).

19

Moreover, § 4.402(P) is narrowly tailored to achieve those interests. Narrow tailoring

20

requires that the regulation actually advance the government’s interest, but it

need not do so in the least restrictive or least intrusive way. “So long as the

21

means chosen are not substantially broader than necessary to achieve the

government’s interest . . . the regulation will not be invalid simply because a

22

court concludes that the government’s interest could be adequately served by

some less speech-restrictive alternative.”

23

Reed, 587 F.3d at 979 (quoting G.K. Ltd., 436 F.3d at 1073-74 (internal citation omitted)).

24

The Court examined the restriction in detail in the PI Order and now concludes that the

25

analysis applies to a final determination as well. (See PI Order at 12-13.) The Town asserts

26

that the “regulations are specifically related to the purpose of a temporary directional sign

27

– i.e., traffic direction.” (Defs.’ MSJ at 12.) In other words, the limitations on size, number,

28

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Case 2:07-cv-00522-SRB Document 117 Filed 02/11/11 Page 11 of 21

1 and duration of Qualifying Event Signs is tailored to the goal of alerting passers-by of the

2 time and location of an event, rather than other goals of signage, such as advertising or

3 political advocacy.

4

As detailed in the PI Order, there are numerous other methods Plaintiffs can use to

5 communicate the time, date, and location of their church services. (PI Order at 13 (outlining

6 methods such as leaflets, emails, carrying signs, posting religious signs on public property,

7 advertising in the newspaper, etc.).) In addition, Plaintiffs can use the Internet and social

8 media to communicate with people who might attend the church services. “These alternative

9 channels of communication ensure that Plaintiffs are . . . able to ‘communicate effectively’

10 with members of the public, and there is no evidence to suggest that by failing to expand or

11 eliminate the restrictions of § 4.402(P), the Town is interfering with a ‘uniquely valuable or

12 important mode of communication.’” (PI Order at 13 (quoting G.K. Ltd., 436 F.3d at 1080).)

13

3. Noncommercial v. Commercial Speech

14

The Court also addressed the Sign Code’s treatment of commercial speech as

15 compared to noncommercial speech in the PI Order. (PI Order at 13-15.) Considering the

16 specific examples of “Weekend Directional Signs” and HOA Temporary Event Signs the

17 Court found that the Sign Code “does not impermissibly favor commercial speech over

18 noncommercial speech” and, in fact, that noncommercial speech is more favorably treated

19 than commercial speech, “giving Plaintiffs substantially greater flexibility [than the selected

20 commercial speakers] in directing a larger segment of the public to their events.” (Id. at 15.)

21 The Court of Appeals affirmed this conclusion, Reed, 587 F.3d at 981-82, and the Court now

22 adopts it as a non-preliminary finding.

23

Qualifying Event Signs, such as those Plaintiffs wish to place, may be placed on

24 weekdays as well as weekends, may be a larger size than Weekend Directional Signs, and

25 while Qualifying Events Signs may not be placed in the right-of-way, they are not restricted

26 to a two-mile radius of the event, as Weekend Directional Signs are. See Sign Code §§

27 4.402(D)(15), 4.402(P), 4.405(B)(2). Crucially, Qualifying Event Signs do not require a

28 permit, whereas Weekend Directional Signs do. See id. § 4.402(A), (D). HOA Temporary

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Case 2:07-cv-00522-SRB Document 117 Filed 02/11/11 Page 12 of 21

1 Event Signs are governed by § 4.406(C)(4), may be up to 80 square feet and may only be

2 posted within the limits of the residential community. These signs may be posted up to 30

3 days prior to the event and must be removed within 48 hours of the completion of the event.

4 The Court also considers the Sign Code’s treatment of HOA Temporary Event Signs to be

5 less favorable than its treatment of Qualifying Event Signs because HOA Temporary Event

6 Signs require a permit. See § 4.406(C)(4); see also G.K. Ltd., 436 F.3d at 1082 (reasoning

7 that permits constitute “prior restraints [that] are constitutionally suspect”). Also, Qualifying

8 Event Signs are not limited to a specific geographic location the way Weekend Directional

9 Signs are.

10

4. Discrimination Among Types of Noncommercial Speech

11

The Court of Appeals remanded this matter so that this Court could consider “whether

12 Gilbert impermissibly ‘evaluate[d] the strength of, or distinguished between, various

13 [noncommercial] communicative interests.’” Reed, 587 F.3d at 983 (quoting Metromedia,

14 453 U.S. at 514). “Not only must a municipality refrain from favoring commercial over

15 noncommercial speech, it also may not favor certain noncommercial speech over other

16 noncommercial speech without facing stricter review.” Id. at 982. Municipalities “may

17 distinguish between the relative value of different categories of commercial speech,” but they

18 do “not have the same range of choice in the area of noncommercial speech to evaluate the

19 strength of, or distinguish between, various communicative interests.” Metromedia, 453 U.S.

20 at 514 (holding that an ordinance is invalid if it regulates noncommercial billboards based

21 on their content); see also Nat’l Adver. Co. v. City of Orange, 861 F.2d 246, 249 (9th Cir.

22 1988) (“The Constitution forbids the selective prohibition of protected noncommercial

23 speech based on its content.”). In City of Orange, the Ninth Circuit Court of Appeals held

24 “that the City cannot analyze the content of outdoor noncommercial messages to determine

25 whether they are allowed, and if so where.” 861 F.2d at 249 (citation omitted). The ordinance

26 at issue there exempted “certain governmental signs and flags, memorial tablets, recreational

27 signs, and temporary political, real estate, construction, and advertising signs” from a general

28 ban on off-site signs. Id. at 247.

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Case 2:07-cv-00522-SRB Document 117 Filed 02/11/11 Page 13 of 21

1

Plaintiffs argue that the way Qualifying Event Signs are treated, as opposed to

2 Political or Ideological Signs, violates the First Amendment. (Pls.’ MSJ at 3-8.) Plaintiffs do

3 not argue that their speech or other noncommercial speech is entirely prohibited. The Town

4 responds that the Sign Code does not (a) effect a total ban on off-site noncommercial

5 advertising, as in Metromedia and City of Orange, or (b) regulate on the basis of content.

6 (Defs.’ MSJ at 8.) Instead, the Town argues that the Sign Code contains “speaker- and event-

7 based exemptions,” such as have been upheld by the Ninth Circuit Court of Appeals. (Id.

8 (citing G.K. Ltd, 436 F.3d at 1076).) Indeed, in G.K. Ltd., the court ruled that exemptions

9 from a permitting requirement that were based on speaker or event did not violate the First

10 Amendment because they did not require a law enforcement officer to read the sign’s

11 message in order to enforce the law. See 436 F.3d at 1076-78. The officer was only required

12 to decide whether the exemption applied after identifying the speaker or whether a triggering

13 event occurred, without regard to the content of the sign. Id. at 1078.

14

Section 4.402 of the Sign Code provides a list of types of signs that are exempted from

15 the permitting requirement. Qualifying Event Signs are governed by § 4.402(P) of the Sign

16 Code, which sets forth restrictions on size, number, time, and location for the posting of such

17 signs. A Qualifying Event Sign may be up to six square feet in size and may be posted up to

18 12 hours before the event, during the event, and up to one hour after the event. Up to four

19 Qualifying Event Signs may be posted on a single property, but there is no overall limitation

20 on number of signs. Qualifying Event Signs may be posted off-site, but they may not be

21 placed in the right-of-way or on fences, boulders, plants, other signs, vehicles, utility

22 facilities or any structure.

23

Political Signs are governed by § 4.402(I). Political Signs may be up to 16 square feet

24 on property zoned for residential use and up to 32 square feet on property zoned for

25 nonresidential use, undeveloped Town property, or rights-of-way. Political Signs must be

26 removed no later than 10 days following the election. Political Signs may be placed in the

27 right-of-way, provided that they do not impede visibility. Ideological Signs are covered in

28 § 4.402(J). Ideological Signs may be up to 20 square feet in area and are permitted in all

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Case 2:07-cv-00522-SRB Document 117 Filed 02/11/11 Page 14 of 21

1 zoning districts. Section 4.402(J) is silent on whether Ideological Signs may be placed in the

2 right-of-way.

3

The Court finds that the Gilbert Sign Code’s treatment of Political, Ideological, and

4 Qualifying Event Signs is akin to the regulation at issue in G.K. Ltd. Both Political Signs and

5 Qualifying Event Signs relate, in substance, to events–an election or a specified event fitting

6 the definition in the Sign Code. In the case of Political Signs, the event is of widespread

7 interest and takes place at a fixed, regular interval. A Qualifying Event might take place

8 once, or it might take place several times a week, depending on the type of event. A

9 Qualifying Event Sign could involve so-called “core” speech, but Political Signs are always

10 core speech. See Kaplan v. County of L.A., 894 F.2d 1076, 1079 (9th Cir. 1990) (“Political

11 speech lies at the core of the First Amendment’s protections.”). To distinguish between a

12 Political Sign and a Qualifying Event Sign, an officer need only skim the sign to determine

13 the speaker (e.g., is a non-profit speaking?) and the event at issue (e.g., does this relate to an

14 election or a Qualifying Event?). In G.K. Ltd., the court concluded that speaker- and event-

15 based exemptions did not render a sign regulation content-based because the municipality

16 was distinguishing on the basis of the speaker’s identity and whether a triggering event had

17 occurred, not on the basis of the sign’s content. 436 F.3d at 1076-78. Here, too, the

18 distinction between Political and Qualifying Event Signs is not on the basis of their message,

19 but rather on the basis of the identity of the speaker and the parameters of the event at issue.

20

Ideological Signs are not tied to a specific event, the way Political and Qualifying

21 Event Signs are, so they are not subject to an event-based time restriction under the Sign

22 Code. This accounts for the different “time” restriction for Ideological Signs. As for place,

23 namely whether a particular type of sign can be placed in the right-of-way, Gilbert argues

24 that it has made a municipal decision to limit the overall number of signs in the right-of-way,

25 and it does not discriminate at all among Ideological Signs. In fact, the Sign Code is quite

26 terse when it comes to Ideological Signs and makes no reference to the content of the

27 particular ideological message. Although Defendants assert that “Ideological [S]igns may not

28 be placed within a right-of-way,” the Court was unable to find that restriction in the Sign

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Case 2:07-cv-00522-SRB Document 117 Filed 02/11/11 Page 15 of 21

1 Code itself after careful and thorough review. (See Defs.’ Resp. to PSOF ¶ 36 (citing JSOF,

2 Ex. A at 9).) Nonetheless, the Court finds that the Sign Code does not distinguish on the basis

3 of the message of the sign because, other than signs related to events–whether those events

4 are elections or bake sales–the Sign Code treats all messages on equal footing. Ideological

5 Signs of all types are categorized together. See § 4.402(J). Because Ideological Signs do not

6 relate to an event, they are distinguishable from Qualifying Event Signs. To determine

7 whether a sign is an Ideological Sign or a Qualifying Event Sign, an officer does not need

8 to read the content; he or she need only look to see whether the sign concerns an event. If it

9 does, the officer then determines its treatment, as discussed supra.

10

5. Vagueness and Overbreadth

11

Plaintiffs also argue that the Sign Code is “impermissibly vague and overbroad,” in

12 the context of their First Amendment theory in their first cause of action, because the law

13 does not contain guidelines to govern a situation in which a sign has more than one kind of

14 speech on it, for example a sign with political speech and details about a qualifying event.

15 (Pls.’ MSJ at 9-10.) Plaintiffs also assert that the Sign Code “restricts more speech than

16 necessary to further the Town’s interests in aesthetics and safety.” (Id. at 10.) “Vagueness

17 doctrine is an outgrowth not of the First Amendment, but of the Due Process Clause of the

18 Fifth Amendment.” United States v. Williams, 553 U.S. 285, 128 S. Ct. 1830, 1845 (2008).6

19 A statute is void for vagueness if it does not “provide a person of ordinary intelligence fair

20 notice of what is prohibited, or is so standardless that it authorizes or encourages seriously

21 discriminatory enforcement.” Id. (citing Hill v. Colorado, 530 U.S. 703, 732 (2000); Grayned

22 v. City of Rockford, 408 U.S. 104, 108-109 (1972)).

23

In the First Amendment context, plaintiffs are permitted “to argue that a statute is

24

25

6 The vagueness doctrine arising from the Fifth Amendment’s Due Process Clause and

the First Amendment is incorporated against the states via the Fourteenth Amendment.

26 Gitlow v. New York, 268 U.S. 652, 666 (1925) (incorporating the First Amendment against

27 the states); Great Am. Houseboat Co. v. United States, 780 F.2d 741, 746 n.3 (9th Cir. 1986) (observing that vagueness doctrine applies to the states through the Fourteenth Amendment’s

28 due process clause).

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Case 2:07-cv-00522-SRB Document 117 Filed 02/11/11 Page 16 of 21

1 overbroad because it is unclear whether it regulates a substantial amount of protected

2 speech.” Id. (citing Reno v. A.C.L.U., 521 U.S. 844, 870-874 (1997); Hoffman Estates v.

3 Flipside, Hoffman Estates, Inc., 455 U.S. 489, 494-495 & nn.6-7 (1982)). Requirements for

4 clarity are enhanced both where a statute provides for a criminal penalty and where First

5 Amendment rights are implicated. See Info. Providers’ Coal. for the Def. of the First

6 Amendment v. F.C.C., 928 F.2d 866, 874 (9th Cir. 1991) (citing Grayned, 408 U.S. at 109).

7 However, “perfect clarity and precise guidance have never been required even of regulations

8 that restrict expressive activity.” Ward, 491 U.S. at 794. In recognition that words and their

9 meanings cannot be ascertained with “mathematical certainty,” a “statute’s vagueness

10 exceeds constitutional limits if its ‘deterrent effect on legitimate expression is . . . both real

11 and substantial, and if the statute is [not] readily subject to a narrowing construction’” by the

12 court. Cal. Teachers Ass’n v. State Bd. of Educ., 271 F.3d 1141, 1151 (9th Cir. 2001)

13 (quoting Young v. Am. Mini Theatres, Inc., 427 U.S. 50, 60 (1976)). The law in the Ninth

14 Circuit “is that . . . commercial/non-commercial and onsite/offsite distinctions [in sign

15 ordinances] are not unconstitutionally vague.” Maldonado v. Morales, 556 F.3d 1037, 1046

16 (9th Cir. 2009) (citations omitted) (collecting cases).

17

Here, the deterrent effect of the Town’s Sign Code is insubstantial and remote. The

18 ordinance provides plenty of guidance for people of ordinary intelligence to determine what

19 conduct is permitted and prohibited, and it does not foster arbitrary, capricious, or

20 discriminatory enforcement. The evidence Plaintiffs cite in favor of their vagueness theory

21 is the testimony of Town officials at their depositions in response to hypothetical situations

22 described by Plaintiffs’ attorneys. (See Pls.’ MSJ at 10.) The Town employees also testified

23 that they had never seen a sign like the one proposed in Plaintiffs’ hypothetical, including

24 both political and ideological information. (See id., Ex. 3, Dep. of Adam Adams 30:17-20,

25 Ex. 4, Dep. of Steve Wallace 31:8-15.) For the purposes of a facial challenge, the crucial

26 evidence is the ordinance itself, and the Court finds that the Sign Code is not void for

27 vagueness. The Court further concludes that the Sign Code does not sweep in substantially

28 more speech than necessary to achieve the Town’s goals of safety and aesthetics. As

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Case 2:07-cv-00522-SRB Document 117 Filed 02/11/11 Page 17 of 21

1 explained above, the Sign Code is narrowly tailored to achieve these interests.

2

B. Equal Protection

3

Plaintiffs and Defendants both move for summary judgment on the second cause of

4 action in the Amended Complaint: Plaintiffs’ equal protection claim. (Pls.’ MSJ at 17; Defs.’

5 MSJ at 13.) “The Equal Protection Clause requires that statutes affecting First Amendment

6 interests be narrowly tailored to their legitimate objectives.” Police Dep’t of Chi. v. Mosley,

7 408 U.S. 92, 101 (1972) (citations omitted); accord A.C.L.U. of Nevada v. City of Las Vegas,

8 466 F.3d 784, 799 (9th Cir. 2006). However, “[t]he equal protection guarantee of the

9 Fourteenth Amendment does not take from the States all power of classification.” Personnel

10 Adm’r of Mass. v. Feeney, 442 U.S. 256, 271 (1979) (citing Mass. Bd. of Ret. v. Murgia, 427

11 U.S. 307, 314 (1976)). “When the basic classification is rationally based, uneven effects upon

12 particular groups within a class are ordinarily of no constitutional concern.” Id. at 272

13 (citations omitted). The Court stated in the PI Order, “[A]ny uneven effects on Plaintiffs are

14 merely an unintended consequence of the content-neutral regulation that the Court has

15 already determined to be narrowly tailored to the Town’s legitimate objectives.” (PI Order

16 at 16.) The Sign Code regulates not on the basis of content, but rather to address legitimate

17 concerns of traffic safety and aesthetics. Moreover, the Court concluded above that the Sign

18 Code is narrowly tailored to achieve significant government interests and leaves open ample

19 alternative channels for communication. Therefore, Defendants are entitled to summary

20 judgment on their equal protection claim.

21

C. Free Exercise and Arizona’s FERA

22

Plaintiffs and Defendants both move for summary judgment on Plaintiffs’ third and

23 fourth causes of action: violation of the free exercise clause of the First Amendment and of

24 Arizona’s FERA, respectively. (Pls.’ MSJ at 12-17; Defs.’ MSJ at 13-15.) “[A] law that is

25 neutral and of general applicability need not be justified by a compelling governmental

26 interest even if the law has the incidental effect of burdening a particular religious practice.”

27 Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 531 (1993) (citing

28 Emp’t Div., Dep’t of Human Res. of Or. v. Smith, 494 U.S. 872 (1990)). If a law is not neutral

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Case 2:07-cv-00522-SRB Document 117 Filed 02/11/11 Page 18 of 21

1 and generally-applicable, it must survive strict scrutiny by being narrowly tailored to advance

2 a compelling governmental interest. Id. at 531-32.

3

To ascertain whether a law is neutral, courts begin by examining the language of the

4 statute. Id. at 532. The inquiry does not end there, however: “[f]acial neutrality is not

5 determinative. . . . The Free Exercise Clause protects against governmental hostility which

6 is masked, as well as overt.” Id. at 534. “A law is one of neutrality and general applicability

7 if it does not aim to ‘infringe upon or restrict practices because of their religious motivation,’

8 and if it does not ‘in a selective manner impose burdens only on conduct motivated by

9 religious belief[.]’” San Jose Christian Coll. v. City of Morgan Hill, 360 F.3d 1024, 1031

10 (9th Cir. 2004) (quoting Lukumi, 508 U.S. at 533, 543). The Ninth Circuit Court of Appeals

11 has held that rational basis review applies to determinations of whether a neutral law of

12 general applicability “violate[s] the right to free exercise of religion even though the law

13 incidentally burdens a particular religious belief or practice.” Id. (quoting Miller v. Reed, 176

14 F.3d 1202, 1206 (9th Cir. 1999)).7

15

Plaintiffs have not demonstrated that the Gilbert Sign Code is not neutral and of

16 general applicability. The language of the amended Sign Code does not single out signs with

17 religious messages. Plaintiffs argue that the law is “underinclusive” because “the Church’s

18 temporary directional signs must abide by strict limitations . . . . , while more lenient

19 limitations are placed on Political, Ideological, and HOA Signs.” (Pls.’ MSJ at 12.) However,

20 as explained above, while the restrictions on Political and Ideological Signs might be

21 different, they are not more restrictive than those placed on Qualifying Event Signs. Also,

22

23

7 The Supreme Court stated in Smith that if a generally-applicable law implicates

other constitutional protections along with the free exercise of religion, “such as freedom of 24 speech,” it must withstand strict scrutiny. San Jose Christian Coll., 360 F.3d at 1031 (quoting

25 Smith, 494 U.S. at 881). This is known as “hybrid rights” analysis. Id. (citing Miller, 176 F.3d at 1204). Plaintiffs argue that their Complaint involves a so-called “hybrid rights” claim,
26 a theory that has been widely criticized. (Pls.’ MSJ at 11 n.8.) The Ninth Circuit Court of

27 Appeals has declined to “allow[] a plaintiff to bootstrap a free exercise claim in this manner.” Jacobs v. Clark County Sch. Dist., 526 F.3d 419, 440 n.45 (9th Cir. 2008). The Court will

28 not address this possibility, as it is foreclosed in this circuit.

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Case 2:07-cv-00522-SRB Document 117 Filed 02/11/11 Page 19 of 21

1 the requirements for Qualifying Event Signs that apply to Plaintiffs also apply to any other

2 non-profit wishing to direct the public to an event. Plaintiffs are not singled out, nor is the

3 rule that applies to them geared only to religious events or religious speech. Plaintiffs’

4 argument that the Sign Code violates the free exercise clause of the First Amendment

5 because it treats commercial speech differently from noncommercial speech was addressed

6 above, and it is unavailing.

7

Both Plaintiffs and Defendants also seek summary judgment on Plaintiffs’ claim under

8 Arizona’s FERA. (Pls.’ MSJ at 13-17; Defs.’ MSJ at 15-18.) “The legislature passed FERA

9 in 1999 to protect Arizona citizens’ right to exercise their religious beliefs free from undue

10 governmental interference.” State v. Hardesty, 214 P.3d 1004, 1006 (Ariz. 2009) (citing 1999

11 Ariz. Sess. Laws, ch. 332, § 2 (1st Reg. Sess.)). Under FERA, the government may burden

12 the exercise of religion only if the “application of the burden to the person is both . . . [i]n

13 furtherance of a compelling governmental interest [and] [t]he least restrictive means of

14 furthering that compelling governmental interest.” Ariz. Rev. Stat. (“A.R.S.”) §

15 41-1493.01(C). The Arizona Supreme Court has held that a party bringing a FERA claim

16 must establish: “(1) that an action or refusal to act is motivated by a religious belief, (2) that

17 the religious belief is sincerely held, and (3) that the governmental action substantially

18 burdens the exercise of religious beliefs.” Hardesty, 214 P.3d at 1007. Once the claimant

19 establishes those three elements, the burden shifts to the government to demonstrate that the

20 state action is the least restrictive means of furthering a compelling governmental interest.

21 Id.

22

Defendants argue that they are entitled to summary judgment on this claim because

23 the Sign Code “does not substantially burden [Plaintiffs’] exercise of religion.” (Defs.’ MSJ

24 at 15.) The statute provides, “[T]he term substantially burden is intended solely to ensure that

25 this article is not triggered by trivial, technical, or de minimis infractions.” A.R.S. § 41-

26 1493.01(E). In Hardesty, the Arizona Supreme Court cited to several cases applying different

27 laws that also contain the substantial burden standard or something similar. See 214 P.3d at

28 1007. In Wisconsin v. Yoder, 406 U.S. 205, 215-18 (1972), the Supreme Court considered

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Case 2:07-cv-00522-SRB Document 117 Filed 02/11/11 Page 20 of 21

1 whether Wisconsin’s compulsory attendance law substantially interfered with Amish

2 families’ right to freely exercise their religion. In that case, the Supreme Court held that “the

3 Wisconsin law affirmatively compels [the plaintiffs], under threat of criminal sanction, to

4 perform acts undeniably at odds with fundamental tenets of their religious beliefs.” Id. at 218

5 (citation omitted).

6

Here, Plaintiffs are not being compelled to do anything that undermines their religious

7 beliefs; rather, they assert that not being able to post more signs in different locations

8 prevents them from reaching the maximum number of people they might attract to their

9 services. (Pls.’ MSJ at 15-16 (describing how, when permitted to post more signs, the Church

10 had a congregation of 38 people, as compared to its current attendance of approximately 30

11 people).) Plaintiffs’ situation is not analogous to the plaintiffs in Yoder. For one thing, the

12 evidence regarding attendance rates is hardly overwhelming: a difference of eight people

13 could be attributable to numerous factors besides location and number of signs directing

14 people to the church service. Also, for Amish parents, sending their children to school in

15 Wisconsin was an all-or-nothing proposition, whereas Plaintiffs here are able to post signs

16 under certain conditions and are not wholly prevented from doing so. Similarly, in Sherbert

17 v. Verner, 374 U.S. 398, 406 (1963), another cases cited by the Hardesty court, the plaintiff

18 would have been forced “to violate a cardinal principle of her religious faith” in order to

19 receive state unemployment benefits. That is simply not the case here.

20

The Court finds that the Sign Code does not substantially burden Plaintiffs’ free

21 exercise of their religion. Any burden placed on their religious exercise is more in the nature

22 of a “de minimis” impact, which does not constitute a substantial burden under the FERA.

23 A.R.S. § 41-1493.01(E). Yoder and Sherbert are inapposite: in those cases, the plaintiffs were

24 affirmatively obligated to take some action that would interfere with their religious beliefs.

25 In other words, “a ‘substantial burden’ is imposed only when individuals are forced to choose

26 between following the tenets of their religion and receiving a governmental benefit

27 (Sherbert) or coerced to act contrary to their religious beliefs by the threat of civil or criminal

28 sanctions (Yoder).” Navajo Nation v. U.S. Forest Serv., 535 F.3d 1058, 1070 (9th Cir. 2008)

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Case 2:07-cv-00522-SRB Document 117 Filed 02/11/11 Page 21 of 21

1 (applying federal Religious Freedom Restoration Act, which contains the same standard as

2 Arizona’s FERA); see also Seidman v. Paradise Valley Unified Sch. Dist. No. 69, 327 F.

3 Supp. 2d 1098, 1118 & n.3 (D. Ariz. 2004) (observing that result of free exercise analysis

4 was identical under federal law and the FERA).

5

No genuine issue of material fact exists as to Defendants’ liability on counts three and

6 four of Plaintiffs’ First Amended Verified Complaint. Therefore, summary judgment in

7 Defendants’ favor is appropriate on these claims.

8 II. CONCLUSION

9

For the foregoing reasons, the Court concludes that no genuine issues of material fact

10 remain as to any of Plaintiffs’ claims. Defendants are entitled to summary judgment on all

11 counts. Furthermore, as the Court does not rely on or refer to the evidence at issue in

12 Defendants’ Objection, that Motion is denied as moot.

13

IT IS THEREFORE ORDERED denying Plaintiffs Pastor Clyde Reed and Good

14 News Presbyterian Church’s Motion for Summary Judgment (Doc. 100).

15

IT IS FURTHER ORDERED granting Defendants the Town of Gilbert and Adam

16 Adams’ Cross-Motion for Summary Judgment (Doc. 97).

17

IT IS FURTHER ORDERED denying as moot Defendants’ Motion for Leave to

18 File Objection to Admission of Evidence (Doc. 111).

19

IT IS FURTHER ORDERED directing the Clerk to enter judgment in this matter

20 in favor of Defendants.

21

22

DATED this 11th day of February, 2011.

23

24

25

26

27

28

- 21 -

 
 Reed v. Town of Gilbert, Ariz., 707 F.3d 1057 (2013) 13 Cal. Daily Op. Serv. 1574, 2013 Daily Journal D.A.R. 1891

707 F.3d 1057
Editor’s Note: Additions are indicated by Text and deletions by Text.
United States Court of Appeals, Ninth Circuit.
Clyde REED, Pastor and Good News Community Church, Plaintiffs–Appellants, v.
TOWN OF GILBERT, ARIZONA and Adam Adams, in his official capacity as Code Compliance
Manager, Defendants–Appellees.
No. 11–15588. |
Argued and Submitted Aug. 10, 2012. |
Filed Feb. 8, 2013.
Synopsis Background: Church and pastor seeking to place temporary signs announcing services filed suit claiming that town’s sign ordinance, restricting size, duration, and location of temporary directional signs, violated right to free speech, free exercise of religion, and equal protection. The United States District Court for the District of Arizona, Susan R. Bolton, J., denied church’s motion for preliminary injunction barring enforcement of ordinance. Church appealed. The Court of Appeals, M. Margaret McKeown, Circuit Judge, 587 F.3d 966, affirmed in part and remanded in part. On remand, the District Court, Bolton, J., 832 F.Supp.2d 1070,granted town summary judgment. Church and pastor appealed.
Holdings: The Court of Appeals, Callahan, Circuit Judge, held that:
amendments to ordinance during pendency of appeal did not render case moot;
prior determination that ordinance was content-neutral and reasonable time, place, and manner restriction was law of the case;
ordinance’s restrictions on types of noncommercial speech were not content based;
ordinance’s restrictions on types of noncommercial
1

speech were narrowly tailored; ordinance did not substantially burden free exercise of religion; ordinance was not vague or overbroad; and ordinance did not violate Equal Protection Clause.
Affirmed. Watford, Circuit Judge, filed dissenting opinion.
Attorneys and Law Firms *1059 Jeremy D. Tedesco (argued), Scottsdale, AZ, and David A. Cortman, Lawrenceville, GA, for Plaintiffs– Appellants. Robert Grasso, Jr., Kim S. Alvarado (argued), and Jenny J. Winkler, Grasso Law Firm, P.C., Chandler, AZ, for Defendants–Appellees. Appeal from the United States District Court for the District of Arizona, *1060 Susan R. Bolton, District Judge, Presiding. D.C. No. 2:07–cv–00522–SRB. Before: CONSUELO M. CALLAHAN and PAUL J. WATFORD, Circuit Judges, and JAMES K. SINGLETON, Senior District Judge.*
Opinion by Judge CALLAHAN; Dissent by Judge WATFORD.
OPINION
CALLAHAN, Circuit Judge: Good News Community Church and its pastor, Clyde Reed (referred to collectively as “Good News”), appeal from the district court’s determination on remand from the Ninth Circuit that the Town of Gilbert’s ordinance

Reed v. Town of Gilbert, Ariz., 707 F.3d 1057 (2013) 13 Cal. Daily Op. Serv. 1574, 2013 Daily Journal D.A.R. 1891
that restricts the size, duration and location of temporary directional signs does not discriminate between different forms of noncommercial speech in a unconstitutional manner. In Reed v. Town of Gilbert, 587 F.3d 966 (9th Cir.2009), we held that the ordinance (sometimes referred to as the “Sign Code”) is not a content-based regulation and is a reasonable time, place and manner restriction. However, we remanded the case to the district court “to consider the First Amendment and Equal Protection claims that the Sign Code is unconstitutional in favoring some noncommercial speech over other noncommercial speech.” Id. at 983.
Accepting our opinion in Reed as law of the case, we conclude that the Sign Code is constitutional because the different treatment of types of noncommercial temporary signs are not content-based as that term is defined in Reed, and the restrictions are tailored to serve significant governmental interests. In addition, we determine that the amendments to the Sign Code made by the Town of Gilbert (“Gilbert”) during the pendency of this appeal do not moot this case and that Good News may file a new action in the district court should it wish to challenge the new provisions of the Sign Code.
I.
Good News is a relatively small church with 25 to 30 adult members and 4 to 10 children. “Members of Good News believe the Bible commands them to go and make disciples of all nations, and that they should carry out this command by reaching out to the community to meet together on a regular basis. To do so, they display signs announcing their services as an invitation for those in the community to attend.” Reed, 587 F.3d at 971 (internal quotation marks omitted). Starting around 2002, Good News met at an elementary school in Gilbert. Id. It presently rents space at an elementary school in Chandler, Arizona, which borders Gilbert.
For a time, Good News placed about 17 signs in the area surrounding its place of worship in Gilbert announcing the time and location of its services. In 2005, Good News received an advisory notice from Gilbert that it was violating the town’s sign ordinance because “the signs were displayed outside the statutorily-limited time period.” For a while thereafter, Good News reduced the number of signs it erected and the amount of time its signs were in place, but friction with Gilbert persisted. Reed, 587 F.3d at 972. In March 2008, Good News filed
2

suit in federal court in Arizona alleging that Gilbert’s Sign Code violated the Free Speech Clause of the First Amendment and the Equal Protection Clause of the Fourteenth Amendment. Id.
*1061 A. The Sign Ordinances Like many municipalities, Gilbert regulates the display of outdoor signs. Gilbert Land Development Code, Division 4, General Regulations, Article 4.4 (the “Sign Code”). Section 4.401(A) outlines the purposes for the Sign Code, namely, to “assure proper and efficient expression through visual communications involving signs compatible with the character and environment of the Town; to eliminate confusing, distracting, and unsafe signs; and to enhance the visual environment of the Town of Gilbert.”
Under § 4.402(A), no person may erect a sign without first obtaining a sign permit, unless the sign is one exempted under § 4.402(D). Section 4.402(D) lists nineteen different types of signs that are allowed without a permit.1 Three of the types of exempted signs are of particular relevance: “Temporary Directional Signs Relating to Qualifying Event,” “Political Signs,” and “Ideological Signs.”
Gilbert asserts, and Good News concedes, that Good News’ signs are Temporary Directional Signs subject to the requirements of § 4.402(P). This subsection provides that “Temporary Directional Signs Relating to a Qualifying Event ... shall be no greater than 6 feet in height and 6 square feet in area,” “shall only be displayed up to 12 hours before, during and 1 hour after the qualifying event ends,” “may be located off-site and shall be placed at grade level,” and “shall be placed only with the permission of the owner of the property on which they are placed.” Additional restrictions include that “[n]o more that 4 signs shall be displayed on a single property at any one time,” and that Temporary Directional Signs may not be placed “in a public right-of-way”2 or on “fences, boulders, planters, other signs, vehicles, utility facilities, or any structure.”
A “Political Sign” is 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.” Political Signs (a) may be up to 32 square feet in size, (b) may be erected any time prior to an election but must be taken down within 10 days of the election, (c) are not limited in number, and (d) may be placed in the public right-of-way. An “Ideological Sign” is a “sign

Reed v. Town of Gilbert, Ariz., 707 F.3d 1057 (2013) 13 Cal. Daily Op. Serv. 1574, 2013 Daily Journal D.A.R. 1891
communicating a message or ideas for noncommercial purposes that is not a construction sign, directional sign, temporary directional sign, temporary directional sign relating to a qualified event, political sign, garage sale sign, or sign owned or required by a governmental agency.” Ideological Signs (a) may be up to 20 square feet in size, (b) are not limited in time, (c) are not limited in number, and (d) may be placed in the public right-ofway.
B. Initial Proceedings in the District Court Gilbert initially stipulated to a preliminary injunction, but when Gilbert amended *1062 the Sign Code in a way that Good News believed continued to infringe on its constitutional rights, Good News filed a second motion for a preliminary injunction. In September 2008, the district court denied Good News’ motion for an injunction, concluding that: (a) “§ 4.402(P) is a contentneutral regulation, and [ ] it passes the applicable intermediate level of scrutiny;” and (b) the Sign Code “does not violate equal protection, as any uneven effects are an unintended consequence of the lawful contentneutral regulation.” Reed, 587 F.3d at 973. Good News appealed to the Ninth Circuit.

2. The Sign Code is not a content-based regulation Second, after reviewing the evolution of our opinions from Foti v. City of Menlo Park, 146 F.3d 629 (9th Cir.1998), to Menotti v. City of Seattle, 409 F.3d 1113 (9th Cir.2005), and G.K. Limited Travel v. City of Lake Oswego, 436 F.3d 1064 (9th Cir.2006) (“G.K. Ltd.”), we determined the fact that an enforcement official had to read a sign did not mean that a ordinance is contentbased. Instead, we concluded that “our focus should be on determining whether the ordinance targets certain content; whether the ordinance or exemption is based on identification of a speaker or event instead of on content; and whether an enforcement officer would need to distinguish content to determine applicability of the ordinance.”3 Reed, 587 F.3d at 976.
Applying this focus to the Sign Code, we found that the ordinance “regulates physical characteristics, such as size, number and construction of the signs,” their locations, and the timing of displays, none of which “implicate the content of speech.” Id. at 977. We noted that “[t]he definition of a Qualifying Event sign merely encompasses the elements of ‘who’ is speaking and ‘what event’ is occurring.”4 Id. These two criteria invoke the speakerbased and event-based characteristics approved in G.K. Ltd. because “the City d[id] not limit the substance of [the] speech in any way.” Id. (quoting G.K. Ltd., 436 F.3d at 1078). We explained that this case:

C. Reed v. Town of Gilbert, 587 F.3d 966 (9th Cir. 2009) In November 2009 we basically affirmed the district court’s denial of an injunction. In doing so, we made four determinations that guide our review in this appeal.
1. Good News alleges an as-applied challenge to the Sign Code First, we held that Good News’ challenge was an asapplied challenge, and not a facial challenge, to the Sign Code. Id. at 974. We determined that Good News’ attack on the ordinance was “basically a challenge to the ordinance as applied to [its] activities,” and therefore we limited our analysis of the constitutionality of the ordinance to its application to Good News. Id.
3

*1063 highlights the absurdity of construing the “officer must read it” test as a bellwether of content. If applied without common sense, this principle would mean that every sign, except a blank sign, would be content based. While a Gilbert officer needs to briefly take in what is written on the Qualifying Event Sign to note who is speaking and the timing of the listed event, this “kind of cursory examination” is not akin to an officer synthesizing the expressive content of the sign. Reed, 587 F.3d at 978. We concluded “that § 4.402(P) is not a content-based regulation: It does not single out certain content for differential treatment, and in enforcing the provision an officer must merely note the content-neutral elements of who is speaking through the sign and whether and when an event is occurring.” Id. at 979.
3. The Sign Code is narrowly tailored to further Gilbert’s significant interests Third, we determined that the Sign Code, “as a contentneutral time, place and manner regulation,” id. at 978, also had to be, and was, narrowly tailored. Quoting Ward

Reed v. Town of Gilbert, Ariz., 707 F.3d 1057 (2013)
13 Cal. Daily Op. Serv. 1574, 2013 Daily Journal D.A.R. 1891
v. Rock Against Racism, 491 U.S. 781, 791, 109 S.Ct. 2746, 105 L.Ed.2d 661 (1989), we recognized that to be “narrowly tailored” the Sign Code had to “serve a significant governmental interest” and had to “leave open ample alternative channels for communication of that information.” Reed, 587 F.3d at 979. We held that the district court had not abused its discretion in concluding that the Sign Code “is narrowly tailored as it does not sweep in more speech than is necessary to achieve the Town’s aesthetic and traffic objectives,” 587 F.3d at 980, explaining:
The restrictions on time, place and manner imposed by Gilbert on the display of Qualifying Events Signs would indeed appear to “actually advance” the aesthetic and safety interests by limiting the size, duration and proliferation of signs. See G.K. Ltd., 436 F.3d at 1073. These measures restricting the number of signs and limiting them to private property do not appear substantially broader measures than required to make sure the rights-ofway are not so thicketed with signs as to pose a safety hazard or create an aesthetic blight. The limitation on timing—twelve hours before the event and one hour after—is equally narrowly tailored to meet these interests. While it might be easier and provide broader exposure for Good News to have the sign up for twenty-four hours, the test is not convenience or optimal display.
Id.
We also held that the district court did not abuse its discretion in finding that the Sign Code allowed for alternate channels of communications for Good News to communicate effectively with members of the public. Id. at 981. We explained that “[w]hile the alternative options identified by the district court may not be Good News’ preference, ‘we cannot invalidate the Sign Code merely because it restricts plaintiffs’ preferred method of communication.’ ” Id. (quoting G.K. Ltd., 436 F.3d at 1074). We also noted that the alternative modes available did not appear to be especially burdensome. Id.
4

This section of Reed concludes with the affirmative statement that:
Section 4.402(P) is a contentneutral regulation of the time, place and manner of display of Good News’ Qualifying Event Signs; the provision is narrowly tailored to further Gilbert’s significant interests in aesthetics and traffic safety; and Good News has ample alternative channels *1064 of communicating its invitation to church services.
Id.
4. The Sign Code does not favor commercial over noncommercial speech The fourth relevant holding in Reed is our determination that the district court “did not abuse its discretion in concluding, after close examination, that the Sign Code does not favor commercial speech over non-commercial speech.”5 Id. at 982. Our opinion in Reed remanded on a limited issue only: “to consider the First Amendment and Equal Protection claims that the Sign Code is unconstitutional in favoring some noncommercial speech over other noncommercial speech.” Id. at 983. We noted that “[o]n remand, the district court will have the opportunity to determine whether Gilbert impermissibly ‘evaluate[d] the strength of, or distinguished between, various [noncommercial] communicative interests.’ ” Id. at 983 (quoting Metromedia Inc. v. City of San Diego, 453 U.S. 490, 514, 101 S.Ct. 2882, 69 L.Ed.2d 800 (1981)).
D. Proceedings on Remand in the District Court On remand, the parties agreed to submit the case on crossmotions for summary judgment. The district court’s order set forth three preliminary determinations. First, based in part on our opinion in Reed, the court held that the Sign Code “is a content-neutral regulation of speech that seeks to identify who is speaking and what event is occurring

Reed v. Town of Gilbert, Ariz., 707 F.3d 1057 (2013)
13 Cal. Daily Op. Serv. 1574, 2013 Daily Journal D.A.R. 1891
and does not discriminate on the basis of content.” Second, citing its preliminary injunction order, the district court reiterated that the Sign Code was narrowly tailored to serve significant government interests. Third, the court embraced as a non-preliminary finding its determination that noncommercial speech is more favorably treated than commercial speech.
Addressing the remanded issue, the district court thought that the different treatments of various forms of noncommercial speech were “akin to the regulation at issue in G.K. Ltd.” The district court reasoned:
Both Political Signs and Qualifying Event Signs relate, in substance, to events—an election or a specified event fitting the definition in the Sign Code. In the case of Political Signs, the event is of widespread interest and takes place at a fixed, regular interval. A Qualified Event might take place once, or it might take place several times a week, depending on the type of event. A Qualifying Event Sign could invoke so-called “core” speech, but Political Signs are always core speech.... To distinguish between a Political Sign and a Qualifying Event Sign, an 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?). In G.K. Ltd., the *1065 court concluded that speaker—and—event based exemptions did not render a sign regulation contentbased because the municipality was distinguishing on the basis of the speaker’s identity and whether a triggering event had occurred, not on the basis of the sign’s content.
....
Ideological Signs are not tied to a specific event, the way Political and Qualifying Event Signs are, so they are not subject to an event-based time restriction under the Sign Code. This accounts for the different “time” restriction for Ideological Signs. As for place, namely whether a particular type of sign can be placed in the right-of-way, Gilbert argues that it has made a municipal decision to limit the overall number of signs in the right-of-way, and it does not discriminate at all among Ideological Signs.... Nonetheless, the Court finds that the Sign Code does not distinguish on the basis of the message of the sign because, other than signs relating to events—whether those events are elections or bake sales—the Sign Code treats all messages on equal footing. Because Ideological Signs do not relate to an event, they are distinguishable from Qualifying Event Signs. To determine whether a sign is an Ideological Sign or a Qualifying Event Sign, an officer does not need to read the content: he or she need
5

only look to see whether the sign concerns an event.
After determining that the Sign Code did not discriminate among types of noncommercial speech, the district court rejected Good News’ argument that the Sign Code was impermissibly vague and overbroad. Citing United States v. Williams, 553 U.S. 285, 304, 128 S.Ct. 1830, 170 L.Ed.2d 650 (2008), the district court commented that the “[v]agueness doctrine is an outgrowth not of the First Amendment, but of the Due Process Clause of the Fifth Amendment,” and that a statute is void if it does not “provide a person of ordinary intelligence fair notice of what is prohibited, or is so standardless that it authorizes or encourages seriously discriminatory enforcement”. The district court determined that the deterrent effect of the Sign Code was “insubstantial and remote” as the “ordinance provides plenty of guidance for people of ordinary intelligence to determine what conduct is permitted and prohibited, and does not foster arbitrary, capricious, or discriminatory enforcement.”6
E. Gilbert’s Motion to Dismiss Good News filed this appeal from the district court’s entry of summary judgment in favor of Gilbert. However, in October 2011, while the appeal was pending, Gilbert made two amendments to its Sign Code: (1) it allowed placement of Temporary Directional Signs within the public right-of-way; and (2) it limited the Temporary Directional Sign exemption to events held within the Town of Gilbert.7 *1066 Based on the amended Sign Code, Gilbert filed a motion to dismiss this appeal, arguing that because Good News held its services outside of Gilbert, it does not qualify for the Temporary Directional Sign exemption, and lacks standing to pursue this appeal.
The motion to dismiss presents a situation analogous to that before the Supreme Court in Northeastern Florida Chapter of Associated General Contractors of America v. City of Jacksonville, 508 U.S. 656, 113 S.Ct. 2297, 124 L.Ed.2d 586 (1993). In Northeastern Florida, the plaintiffs challenged a city ordinance providing preferential treatment to certain minority owned businesses for city contracts. Id. at 658, 113 S.Ct. 2297. The district court granted the plaintiffs summary judgment, holding that the ordinance was unconstitutional, but the Eleventh Circuit vacated that order finding that the plaintiffs lacked standing. Id. at 660, 113 S.Ct. 2297. Shortly after the Supreme Court granted certiorari, the city repealed the questioned ordinance and replaced it with new ordinance that provided for a more

Reed v. Town of Gilbert, Ariz., 707 F.3d 1057 (2013) 13 Cal. Daily Op. Serv. 1574, 2013 Daily Journal D.A.R. 1891
narrow minority preference. Id. at 660–61, 113 S.Ct. 2297. The city then filed a motion to dismiss the case as moot.
Justice Thomas, writing for the Court, held that the case was not moot. He relied on the Court’s “well settled rule” set forth in City of Mesquite v. Aladdin’s Castle, Inc., 455 U.S. 283, 289, 102 S.Ct. 1070, 71 L.Ed.2d 152 (1982), that “a defendant’s voluntary cessation of a challenged practice does not deprive a federal court of its power to determine the legality of the practice.” Northeastern Florida, 508 U.S. at 662, 113 S.Ct. 2297. Justice Thomas wrote:
There is no mere risk that Jacksonville will repeat its allegedly wrongful conduct; it has already done so. Nor does it matter that the new ordinance differs in certain respects from the old one. City of Mesquite does not stand for the proposition that it is only the possibility that the selfsame statute will be enacted that prevents a case from being moot; if that were the rule, a defendant could moot a case by repealing the challenged statute and replacing it with one that differs only in some insignificant respect.
508 U.S. at 662, 113 S.Ct. 2297. The Court concluded that the new ordinance disadvantaged plaintiffs “in the same fundamental way” and thus the case was not moot. Id. at 662–63, 113 S.Ct. 2297. Justice O’Connor, while dissenting, commented that:
City of Mesquite stands for the proposition that the Court has discretion to decide a case in which the statute under review has been repealed or amended. The Court appropriately may render judgment where circumstances demonstrate that the legislature likely will reinstate the old law—which would make a declaratory judgment or an order enjoining the law’s enforcement worthwhile. But such circumstances undoubtedly are
6

rare.
Id. at 677, 113 S.Ct. 2297.
Good News’ case is one of those rare cases. The amendment of the Sign Code to allow directional signs to be placed in the public right-of-way moots Good News’ objection to this provision of the Sign Code, but the new restriction, limiting the Temporary Directional Signs exemption to events that take place in Gilbert, *1067 bars Good News from erecting any directional signs at all. Thus, a dismissal for mootness would allow Gilbert to continue to limit Good News’ speech without further judicial review. Accordingly, the motion to dismiss is denied.8
II.
Reed limits our consideration of Good News’ challenges to the Sign Code. Although our opinion in Reed reviewed the denial of a preliminary injunction, our determinations included conclusions of law. Furthermore, on remand, the parties agreed to resolve all remaining issues on crossmotions for summary judgment. There is no indication that the parties engaged in further discovery, and Good News has not asserted any evidentiary facts in this appeal that were not before us in Reed. Thus, our opinion in Reed constitutes law of the case, see Minidoka Irrigation Dist. v. Dep’t of Interior, 406 F.3d 567, 573 (9th Cir.2005),9 and is binding on us. See Santamaria v. Horsley, 110 F.3d 1352, 1355 (1997) (“It is settled law that one three-judge panel of this court cannot ordinarily reconsider or overrule the decision of a prior panel.”).
Reed establishes first that “§ 4.402(P) is not a contentbased regulation,” Reed, 587 F.3d at 979, and second that the Sign Code generally is a reasonable (i.e., not unconstitutional) time, place and manner restriction. Id. at 980. The single issue remanded, and hence the primary substantive issue before the district court and now on appeal, is whether the Sign Code improperly discriminates between different forms of noncommerical speech.
We review de novo the district court’s grant of summary judgment in favor of Gilbert. G.K. Ltd., 436 F.3d at 1070; Arakaki v. Hawaii, 314 F.3d 1091, 1094 (9th Cir.2002) (“We review a district court’s grant of summary judgment

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de novo.”); Lopez v. Smith, 203 F.3d 1122, 1131 (9th Cir.2000) (en banc) (“We review de novo a grant of summary judgment”).
A. The Evolving Standard for Evaluating the Regulation of Noncommercial Speech Judicial review of the regulation of noncommercial speech has evolved over the last 30 years. In 1981, Justice White, in his plurality opinion in Metromedia, 453 U.S. at 514, 101 S.Ct. 2882, stated that while a city “may distinguish between the relative value of different categories of commercial speech, the city does not have *1068 the same range of choice in the area of noncommercial speech to evaluate the strength of, or distinguish between, various communicative interests.” Seven years later in National Advertising Co. v. City of Orange, 861 F.2d 246, 249 (9th Cir.1988), we recognized that an ordinance would be invalid if it imposed greater restrictions on noncommercial than on commercial billboards. We noted that a restriction based on content would be unconstitutional unless it was narrowly drawn to serve a compelling interest, but suggested that the city was nonetheless “not powerless to regulate billboards containing noncommercial messages.” Id. In Desert Outdoor Advertising, Inc. v. City of Moreno Valley, 103 F.3d 814, 819 (9th Cir.1996), we indicated that an ordinance regulating noncommercial speech would be invalid if it imposed greater restrictions on noncommercial than commercial billboards or if it regulated noncommercial billboards “based on their content.” Regarding Gilbert’s Sign Code, we have already held that it does not impose greater restrictions on noncommercial signs than commercial signs, and thus the critical issue now before us is whether the Sign Code improperly regulates noncommercial temporary signs based on their content.
The definition of “content neutral” has also evolved over the last couple of decades. In Foti, relying on Desert Outdoor, we indicated that when an officer must examine the contents of a sign to determine whether an exemption applies, the ordinance is content-based. Foti, 146 F.3d at 636. However, we also noted the Supreme Court’s advice that “laws that by their terms distinguish favored speech from disfavored speech on the basis of the ideas or views expressed are content based,” and that a “speech restriction is content neutral if it is justified without reference to the content of the regulated speech.” Id. at 638 (quoting Turner Broad. Sys. v. F.C.C., 512 U.S. 622, 643, 114 S.Ct. 2445, 129 L.Ed.2d 497 (1994), and Clark v. Cmty. for Creative, Non–Violence, 468 U.S. 288, 293,
7

104 S.Ct. 3065, 82 L.Ed.2d 221 (1984)).
More recently, following these guidelines we have fashioned a more nuanced standard. In G.K. Ltd., we held that “[n]either the speaker- nor event-based exemptions implicate Foti insofar as neither requires law enforcement officers to read a sign’s message to determine if the sign is exempted from the ordinance.” 436 F.3d at 1078. The standard of review set forth is:
The “government may impose reasonable restrictions on the time, place, or manner of engaging in protected speech provided that they are adequately justified without reference to the content of the regulated speech.” City of Cincinnati v. Discovery Network, Inc., 507 U.S. 410, 428, 113 S.Ct. 1505, 123 L.Ed.2d 99 (1993) (internal quotation marks and citation omitted). In addition to being justified without reference to content, the restrictions must be “narrowly tailored to serve a significant governmental interest and ... leave open ample alternative channels for communication of the information.” Ward v. Rock Against Racism, 491 U.S. 781, 791, 109 S.Ct. 2746, 105 L.Ed.2d 661 (1989) (citing Clark v. Community for Creative Non–Violence, 468 U.S. 288, 293, 104 S.Ct. 3065, 82 L.Ed.2d 221 (1984)).
436 F.3d at 1071 (parallel citations omitted).
In Reed, applying this standard, we concluded that the Sign Code “does not single out certain content for differential treatment, and in enforcing the provision an officer must merely note the content-neutral elements of who is speaking through the sign and whether and when an event is occurring.” 587 F.3d at 979. Nonetheless, *1069 this appeal raises two unanswered questions under the G.K. Ltd. standard: (1) are the differing restrictions between types of noncommercial speech “adequately justified without reference to the content of the regulated speech”; and (2) are they narrowly tailored? The first issue is the fulcrum of this appeal.
B. The Restrictions on Types of Noncommercial Speech are not Based on the Content of the Speech. The thrust of Good News’ challenge to the Sign Code is that its different restrictions for different types of noncommercial speech are inherently content-based and thus unconstitutional. However, we rejected this general argument in Reed when we held that distinctions based on the speaker or the event are permissible where there is no discrimination among similar events or speakers. 587

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F.3d at 979 (“We conclude that § 4.402(P) is not a content-based regulation: It does not single out certain content for differential treatment, and in enforcing the provision an officer must merely note the content-neutral elements of who is speaking through the sign and whether and when an event is occurring.”). Thus, under Reed, the distinctions between Temporary Directional Signs, Ideological Signs, and Political Signs are content-neutral. That is to say, each classification and its restrictions are based on objective factors relevant to Gilbert’s creation of the specific exemption from the permit requirement and do not otherwise consider the substance of the sign. The Political Signs exemption responds to the need for communication about elections.10 The Ideological Sign exemption recognizes that an individual’s right to express his or her opinion is at the core of the First Amendment. The Temporary Directional Sign exemption allows the sponsor of an event to put up temporary directional signs immediately before the event. Each exemption is based on objective criteria and none draws distinctions based on the particular content of the sign. It makes no difference which candidate is supported, who sponsors the event, or what ideological perspective is asserted. Accordingly, as the speaker and event determinations are generally “content neutral,” Gilbert’s different exemptions for different types of noncommercial speech are not prohibited by the Constitution.
Our reading of Reed is in accord with our opinion in G.K. Ltd. There the town ordinance banned most pole signs but had a grandfather clause for preexisting signs. 436 F.3d at 1072. We determined that “the City’s restriction on plaintiffs’ pole sign is not a content-based regulation of plaintiffs’ speech.” Id. We commented:
The pole sign restriction is not a “law[ ] that by [its] terms distinguish[es] favored speech from disfavored speech on the basis of the ideas or views expressed.” Turner Broad. Sys. v. FCC, 512 U.S. 622, 643, 114 S.Ct. 2445, 129 L.Ed.2d 497 (1994). The Code restricts all pole signs across the City’s general commercial zones without creating exceptions for preferred content. Cf. Foti v. City of Menlo Park, 146 F.3d 629, 636 (9th Cir.1998). The burdens imposed by these pole sign restrictions are borne equally by all of the City’s residents. See Turner Broad. Sys., 512 U.S. at 643, 114 S.Ct. 2445. Further, plaintiffs offer no evidence suggesting illicit motive or bias on the part of the City or that the City banned pole signs in general, or their pole sign in particular, because of a *1070 desire to stifle certain viewpoints. See City Council of Los Angeles v. Taxpayers for Vincent, 466 U.S. 789, 804, 104 S.Ct. 2118, 80 L.Ed.2d 772 (1984).
Id. at 1071–72 (parallel citations omitted). The plaintiffs
8

in G.K. Ltd. argued that ordinance’s grandfather clause rendered it content-based because town officials would have to read the pole sign to see if it had changed. Id. at 1078. We rejected this argument, explaining:
Unlike Foti’s exemptions, the grandfather clause does not require Lake Oswego officials to evaluate the substantive message on the preexisting sign and the clause certainly does not favor speech “based on the idea expressed.” Id. at 636 n. 7. A grandfather provision requiring an officer to read a sign’s message for no other purpose than to determine if the text or logo has changed, making the sign now subject to the City’s regulations, is not content-based. See Hill v. Colorado, 530 U.S. 703, 721, 120 S.Ct. 2480, 147 L.Ed.2d 597 (2000) (“We have never held, or suggested, that it is improper to look at the content of an oral or written statement in order to determine whether a rule of law applies to a course of conduct.”).
Id. at 1079 (parallel citations omitted). Under the controlling precedent of Reed and G.K. Ltd., Good News has not shown that the Sign Code imposes a contentbased limitation.11
C. Supreme Court Precedent Affirms our Definition of Content Neutral. As suggested in G.K. Ltd., our approach is in accord with the Supreme Court’s opinion in Hill v. Colorado, 530 U.S. 703, 120 S.Ct. 2480, 147 L.Ed.2d 597 (2000). In Hill, the plaintiffs challenged “the constitutionality of a 1993 Colorado statute that regulates speech-related conduct within 100 feet of the entrance to any health care facility.” Id. at 707, 120 S.Ct. 2480. In holding that the statute was constitutional, the Supreme Court commented that it had “never held, or suggested, that it is improper to look at the content of an oral or written statement in order to determine whether a rule of law applies to a course of conduct.” Id. at 721, 120 S.Ct. 2480. The Court noted 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. Rather, it simply establishes a minor place restriction on an extremely broad category of communications with unwilling

Reed v. Town of Gilbert, Ariz., 707 F.3d 1057 (2013) 13 Cal. Daily Op. Serv. 1574, 2013 Daily Journal D.A.R. 1891

listeners. Instead of drawing

distinctions based on the subject

that the approaching speaker may

wish to address, the statute applies

equally to used car salesmen,

animal rights activists, fundraisers,

environmentalists,

and

missionaries.

Id. at 723, 120 S.Ct. 2480. Similarly, Gilbert’s Sign Code places no restrictions on the particular viewpoints of any person or entity that seeks to erect a Temporary *1071 Directional Sign and the exemption applies equally to all.
Furthermore, in Hill, the Supreme Court explained why a statute, which only restricted certain types of speechrelated conduct,12 is properly considered content neutral. The Court reiterates that “[t]he principal inquiry in determining content neutrality, in speech cases generally and in time, place, or manner cases in particular, is whether the government has adopted a regulation of speech because of disagreement with the message it conveys.” Id. at 719, 120 S.Ct. 2480 (quoting Ward, 491 U.S. at 791, 109 S.Ct. 2746). It then offers three reasons for why the statute is content neutral:
First, it is not a “regulation of speech.” Rather, it is a regulation of the places where some speech may occur. Second, it was not adopted “because of disagreement with the message it conveys.” ... Third, the State’s interests in protecting access and privacy, and providing the police with clear guidelines, are unrelated to the content of the demonstrators’ speech. As we have repeatedly explained, government regulation of expressive activity is “content neutral” if it is justified without reference to the content of regulated speech. 530 U.S. at 719–20, 120 S.Ct. 2480. The Court further stated that it had “never held, or suggested, that it is improper to look at the content of an oral or written statement in order to determine whether a rule of law applies to a course of conduct.” Id. at 721, 120 S.Ct. 2480. The Supreme Court also distinguished its opinion in Carey v. Brown, 447 U.S. 455, 100 S.Ct. 2286, 65 L.Ed.2d 263 (1980), noting that the Colorado 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.” Id. at 723, 120 S.Ct. 2480. Finally, in response to Justice Scalia’s concern that content-based legislation can be used for invidious thought-control purposes, the Court stated: “[b]ut a statute that restricts certain categories of speech only lends itself to invidious use if there is a
9

significant number of communications, raising the same problem that the statute was enacted to solve, that fall outside the statute’s scope, while others fall inside.” Id. Gilbert’s regulation of Temporary Directional Signs is content-neutral as that term is defined by the Supreme Court in Hill. Gilbert did not adopt its regulation of speech because it disagreed with the message conveyed. Rather, it exempted from the permit requirement all directional signs regardless of their content.13 The *1072 Code is “a regulation of the places where some speech may occur,” and was not adopted “because of any disagreement with the message it conveys.” Id. at 719, 120 S.Ct. 2480. Also, Gilbert’s interests in regulation temporary signs are unrelated to the content of the sign. Moreover, there is no danger of the regulation being used for invidious thought-control purposes as the Sign Code does not purport to regulate the content of Temporary Directional Signs. Because Gilbert’s Sign Code places no restrictions on the particular viewpoints of any person or entity that seeks to erect a Temporary Directional Sign and the exemption applies to all, it is content-neutral as that term has been defined by the Supreme Court.14
D. Good News has not shown that the Sign Code’s Different Treatment of Different Types of Noncommercial Speech is Unconstitutional. Although it is conceivable, as the dissent posits, that different exemptions for noncommercial speech might improperly restrict speech, that concern is not presented here. First, as explained, the Temporary Directional Sign exemption is a content neutral. Second, the Temporary Directional Sign exemption is not in competition with other exemptions from the permit requirement. This is not a situation where there are a limited number of billboards or maximum number of temporary signs that may be placed in the public right-of-way. Nor does the erection of temporary directional signs in any way limit any other person’s rights to erect political, ideological, or other signs. Accordingly, as long as the Temporary Directional Signs exemption—which is the exemption that was applied to Good News’ signs and that Good News challenges—is content neutral and reasonable in relationship to its purpose—providing direction to temporary events—its constitutionality is not affected by the fact that the exemptions for Political Signs or Ideological Signs are different.
The cases cited by the dissent do question distinctions among different categories of non-commercial speech, but none concerned instances in which the types of non-

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commercial speech were unrelated, and all of the cases have been refined by more recent Supreme Court opinions. In Police Department of Chicago v. Mosley, 408 U.S. 92, 96, 92 S.Ct. 2286, 33 L.Ed.2d 212 (1972), the Supreme Court struck down an ordinance as unconstitutional because it sought to distinguish between peaceful labor picketing and other peaceful picketing. Similarly, in Carey, 447 U.S. 455, 100 S.Ct. 2286 (1980), the Supreme Court struck down an ordinance that sought to distinguish between picketing at a residence from picketing at a place of *1073 employment. In Metromedia, 453 U.S. 490, 101 S.Ct. 2882, the Court, in a fractured opinion, considered an ordinance that differentiated between commercial and non-commercial billboards, but also suggested that the city had less leeway to distinguish between types of non-commercial speech than between types of commercial speech. Id. at 514–15, 101 S.Ct. 2882. These cases concerned related and competing forms of speech.15 Id. at 514–15, 101 S.Ct. 2882. In contrast, Gilbert’s Temporary Directional Signs exemption neither restricts nor competes with a person’s or entity’s ability to take advantage of the exemptions for political, ideological, or other types of temporary signs.
Critically, as noted, over the last thirty years, the Supreme Court has refined the concerns set forth in Justice White’s plurality opinion in Metromedia. Most notably, in Hill, the Supreme Court upheld a statute that clearly distinguished between types of noncommercial speech. The statute prohibited the noncommercial speech of “approaching” an individual “for the purpose of passing a leaflet or handbill to, displaying a sign to, or engaging in oral protest, education or counseling with such other person.” 530 U.S. at 707, 120 S.Ct. 2480. No other form of noncommercial speech was regulated. Nonetheless, the Supreme Court upheld the ordinance. Similarly, in Ward, the Supreme Court stated that a “regulation that serves purposes unrelated to the content of expression is deemed neutral, even if it has an incidental effect on some speakers or messages but not others.” 491 U.S. at 791, 109 S.Ct. 2746. Thus, the Sign Code’s different provisions for Political, Ideological and Temporary Directional Signs is not in itself unconstitutional.
Although Good News voices some objections to the size, location, and duration limitations on its signs, Good News does not assert that the restrictions actually interfere with the purpose of the signs: providing directions to Good News’ services. Moreover, courts have generally deferred to municipal decisions concerning the actual limitations on the sizes and shapes of signs. See Ward, 491 U.S. at 800, 109 S.Ct. 2746 (“So long as the means chosen are not substantially broader than necessary to achieve the
10

government’s interest, however, the regulation will not be invalid simply because a court concludes that the government’s interest could be adequately served by some less-speech-restrictive alternative.”); Foti, 146 F.3d at 641 (noting that the “restrictions on the size and number of picket signs are reasonable legislative judgments in light of the City’s concerns for traffic safety”); City of Orange, 861 F.2d at 249 (“Under Metromedia, the City’s interests in traffic safety and aesthetics are sufficient to justify continued contentneutral regulation of the noncommunicative aspects of billboards, such as size, spacing and design.”).
E. The Temporary Directional Signs Exemption is Narrowly Tailored to Serve Significant Governmental Interests The Supreme Court has explained that “[c]ontent-neutral regulations do not pose the same inherent dangers to free expression that content-based regulations do, and thus are subject to a less rigorous analysis, which affords the Government latitude in designing a regulatory solution.” Turner Broadcasting System, Inc. v. F.C.C., 520 U.S. 180, 213, 117 S.Ct. 1174, 137 L.Ed.2d 369 (1997) (internal quotation *1074 marks and citation omitted).16 Nonetheless, a content-neutral, reasonable time, place and manner restriction must also be narrowly tailored to serve a significant governmental interest and leave open ample alternative channels of communication. G.K. Ltd., 436 F.3d at 1071.17
There is no real question that Gilbert’s interests in safety and aesthetics are significant. See One World One Family Now v. City & Cnty. of Honolulu, 76 F.3d 1009, 1013 (9th Cir.1996) (holding that cities have substantial interests in protecting the aesthetic appearance of their communities and in assuring the safe and convenient circulation on their streets); see also Metromedia, 453 U.S. at 507–08, 101 S.Ct. 2882 (“Nor can there be substantial doubt that the twin goals that the ordinance seeks to further—traffic safety and the appearance of the city—are substantial governmental goals.”). Good News argues only that such interests are not “sufficiently compelling to satisfy a content-based sign code,” but we find that the Sign Code does not impose any content-based restriction.
Good News contends that the Sign Code is not narrowly tailored because all temporary signs placed within the public right-of-way implicate safety and aesthetic concerns, but Temporary Directional Signs are more severely limited than Political and Ideological Signs.

Reed v. Town of Gilbert, Ariz., 707 F.3d 1057 (2013)
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Political and Ideological Signs may infringe on Gilbert’s interests to a greater extent than Temporary Directional Signs, but for a number of reasons this is permissible. First, unlike political, ideological and religious speech which are clearly entitled to First Amendment protection, there does not appear to be a constitutional right to an exemption for Temporary Directional Signs. If Good News has no constitutional right to erect Temporary Directional Signs, how can it suffer a cognizable harm when Gilbert creates an exemption facilitating the display of such signs?
Second, each exemption reflects a balance between Gilbert’s interests and the constitutional interests of the type of sign covered. With the recent amendment to the Sign Code, there are no longer any differences as to where temporary signs may be located. The differences as to duration are based on the natures of the types of speech involved. Thus, under Arizona law political signs are allowed for an extended period of time before an election. Ideological signs, not being tied to any event, have no time limit. However, the purpose of a Temporary Directional Sign inherently contemplates a limit on duration.
Third, as noted, the exemptions are not in competition. The exemptions are not competing for limited space and the erection of one type of temporary sign does not preclude the placement of another. Accordingly, each exemption may be evaluated on its own merits.
*1075 Fourth, there is no showing that the restrictions on Temporary Directional Signs interfere with their purpose: directing interested individuals to temporary events. Good News does not allege that the public cannot see its signs or that the size limit is too small to allow it to adequately provide directions.
Finally, as also noted, courts generally defer to a city’s determinations of size and duration. See Ward, 491 U.S. at 800, 109 S.Ct. 2746; Foti, 146 F.3d at 641. Here, the restrictions on Temporary Directional Signs are reasonable. There are no limits on the number of events that a person or entity may hold, and no limit on the number of signs that may be erected (other than no more than four on any single piece of property). Also, the 12– hour limitation seems reasonable as a person is unlikely to seek directions to an event more than 12 hours before the event.
We conclude that these considerations refute Good News’ arguments that to be narrowly tailored restrictions on types of noncommercial speech must be uniform or vary only to the extent that the type of speech affects a town’s
11

interests. Our opinions in G.K. Ltd. and Reed support, if not compel, our conclusion. In G.K. Ltd., we held a total ban on changed pole signs was narrowly tailored because pole signs could reasonably be perceived as aesthetically harmful and distracting to travelers, even though this is also true of unchanged pole signs. See 436 F.3d at 1074. In Reed, we determined that “[t]he restrictions on time, place and manner imposed by on the display of [signs] would indeed appear to ‘actually advance’ the aesthetic and safety interests by limiting the size duration and proliferation of signs.” 587 F.3d at 980. Our determination in Reed that the Sign Code is narrowly tailored, if not controlling, remains sound.
In sum, (a) Gilbert was not required to create an exemption for Temporary Directional Signs, (b) the restrictions on directional signs are rationally related to the purpose of the directional signs, and (c) the restrictions are reasonably designed to promote Gilbert’s interests in aesthetics and safety. True, the number of temporary signs might be substantially reduced if there were not exemptions for political and ideological signs, but those signs raise different legal rights and interests that Gilbert has to respect. Moreover, there need only be a reasonable fit between the Gilbert’s interest and the regulations. See Hill, 530 U.S. at 726, 120 S.Ct. 2480 (stating that “when a content-neutral regulation does not entirely foreclose any means of communication, it may satisfy the tailoring requirement even though it is not the least restrictive or least intrusive means of serving the statutory goal”); see also Bd. of Trustees of State Univ. of N.Y. v. Fox, 492 U.S. 469, 480, 109 S.Ct. 3028, 106 L.Ed.2d 388 (1989) (“What our decisions require is a ‘fit’ between the legislature’s ends and the means chosen to accomplish those ends—a fit that is not necessarily perfect, but reasonable; that represents not necessarily the single best disposition but one whose scope is in proportion to the interest served.”) (internal quotation marks and citation omitted). At least between elections, the Sign Code may well limit the number of temporary signs in Gilbert without unreasonably limiting anyone’s speech, and thus the Sign Code serves significant governmental interests.
Finally, the Sign Code leaves open ample alternate means of communication. Assuming that Good News events are eligible for the exemption, it may erect as many temporary signs as it wants twelve hours before each scheduled event. The Sign Code does not regulate any of the many other ways in which Good News can “go and make disciples of all nations.” Indeed, there is no suggestion that Good News’ tenets require that it or its members *1076 erect temporary directional signs. Thus, the Sign Code’s restrictions do not require that the

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13 Cal. Daily Op. Serv. 1574, 2013 Daily Journal D.A.R. 1891
members of Good News violate any cardinal principle of their faith, see Sherbert v. Verner, 374 U.S. 398, 406, 83 S.Ct. 1790, 10 L.Ed.2d 965 (1963), and do not limit the many other ways the members may advertise their services and attract individuals.
F. Good News’ Other Challenges do not Merit Relief 1. To prevail on its claims of violation of its members’ right to the free exercise of religion under the Constitution and under Arizona’s Free Exercise of Religion Act, Ariz. Rev. St. § 41–1493, Good News must show that “the government action substantially burdens the exercise of religious beliefs.” State v. Hardesty, 222 Ariz. 363, 366, 214 P.3d 1004 (Ariz.2009). Good News’ free exercise claim fails because the Sign Code’s restrictions on the size and duration of Temporary Directional Signs is a generally applicable law, and it does not substantially interfere with any of Good News’ tenets. The Supreme Court has held that religion may not exempt a person from complying with neutral laws. See Employment Div., Dep’t of Human Res. of Or. v. Smith, 494 U.S. 872, 878– 79, 110 S.Ct. 1595, 108 L.Ed.2d 876 (1990) (holding that “the right of free exercise does not relieve an individual of the obligation to comply with a valid and neutral law of general applicability on the ground that the law proscribes (or prescribes) conduct that his religion prescribes (or proscribes).” (internal quotation marks and citation omitted)). Furthermore, while Good News’ members may be obligated to spread their message and advertise their events, there is no suggestion that Good News’ tenets require that they do so in any particular way. Accordingly, we agree with the district court that the Sign Code’s restrictions on Temporary Directional Signs do not constitute a substantial burden on Good News’ free exercise rights.
2. We also agree with the district court that the Sign Code is not vague or overbroad. The Supreme Court noted in Ward, 491 U.S. at 794, 109 S.Ct. 2746, that “perfect clarity and precise guidance have never been required even of regulations that restrict express activity.” Good News’ claim of vagueness is based on an alleged lack of definitions for signs that arguably meet the requirements of more than one temporary sign exemption. However, Gilbert officials claim that they have yet to see such a sign and Good News does not argue that its signs meet the requirements of more than one exemption.18 In addition, in Reed, 587 F.3d at 974, we held that Good News’ mounted only an as-applied challenge to the Sign Code. This is law of the case, and is not really challenged
12

by Good News.
3. Good News’ assertion that the Sign Code violates its right to equal protection of law is basically a revision of its argument that Gilbert cannot treat different types of noncommercial speech differently. Clothed in the garb of equal protection the argument still is not persuasive. The Sign Code does not make any distinctions based on religion. Rather, the Temporary Directional Signs exemption is *1077 available to all noncommercial entities. Because we conclude that the Sign Code is not unconstitutional just because it differentiates between types of noncommercial signs, Good News’ equal protection argument depends on it establishing a cognizable class of noncommercial entities wishing to erect temporary directional signs to their events whose interests may be compared to some other class. Good News has failed to identify such entities.
G. Any Challenge Good News May Advance to the Amended Sign Code Should Be Initially Litigated in the District Court Although the amendment to the Sign Code does not moot this appeal, we need not, and do not, determine the merits of the amendment. Unlike the situation before the Supreme Court in Northeastern Florida, 508 U.S. 656, 113 S.Ct. 2297, here the amendment arguably increases rather than decreases the barriers to Good News erecting temporary directional signs. Also, unlike the holding in Northeastern Florida, we have determined that Good News has not shown that the other restrictions imposed by the Sign Code violate its constitutional rights. However, the added restriction to the Sign Code—that Temporary Directional Signs are only exempt from the permit requirement if they concern events that take place within the Town of Gilbert—is different in nature from the time, place, and manner restrictions that Good News previously challenged. Moreover, even if we assume that Good News will challenge the new restriction, we do not know what constitutional and legal arguments Good News will present in challenging the restriction, or what defenses Gilbert will proffer. Accordingly, any challenge Good News may have to the amendment limiting the Temporary Directional Sign exemption to events in the Town of Gilbert should be raised in the first instance in the district court. As we affirm the district court’s grant of summary judgment for Gilbert, we leave it to the district court to determine whether Good News may seek to amend its existing complaint or should file a new complaint.

Reed v. Town of Gilbert, Ariz., 707 F.3d 1057 (2013) 13 Cal. Daily Op. Serv. 1574, 2013 Daily Journal D.A.R. 1891
III
In Reed, 587 F.3d 966, and G.K. Ltd., 436 F.3d 1064, we held that distinctions based on the speaker or the event are permissible where there is no discrimination among similar events or speakers. In Hill, 530 U.S. at 703, 120 S.Ct. 2480, the Supreme Court indicated that not all types of noncommercial speech need be treated the same. See also Ward, 491 U.S. at 791, 109 S.Ct. 2746 (noting that a “regulation that serves purposes unrelated to the content of expression is deemed neutral, even if it has an incidental effect on some speakers or messages but not others.”). Applying this case law to the Town of Gilbert’s Sign Code’s treatment of different types of noncommercial speech, we conclude that the treatment is content-neutral. That is to say, each exemption allowing for the erection of temporary signs and its restrictions are based on objective factors relevant to the creation of the specific exemption and do not otherwise consider the substance of a sign. We further conclude that the exemptions are narrowly tailored because they serve significant governmental interests and leave open ample alternative channels of communication. We also conclude that the Sign Code does not violate Good News’ (or its members’) right to the free exercise of religion or right to equal protection of law, and is not unconstitutionally vague or overbroad. The district court’s grant of summary judgment in favor of the Town of Gilbert is AFFIRMED.
WATFORD, Circuit Judge, dissenting:
I agree with the majority that the post-judgment amendments to the Town of Gilbert’s *1078 sign ordinance do not render this appeal moot. But I disagree with the majority’s conclusion that the sign ordinance is constitutional.
When this case first came before us, we evaluated § 4.402(P) of Gilbert’s sign ordinance in isolation. See Reed v. Town of Gilbert, 587 F.3d 966, 976–79 (9th Cir.2009) (Reed I ). That provision specifies the restrictions applicable to “temporary directional signs relating to a qualifying event,” such as the signs plaintiff Good News Community Church seeks to display inviting people to attend its Sunday morning services.1 We held that, with respect to the temporary directional signs it covers, § 4.402(P) is content-neutral. Id. at 979. We reached that
13

conclusion because, considered on its own, § 4.402(P) “does not single out certain content for differential treatment, and in enforcing the provision an officer must merely note the content-neutral elements of who is speaking through the sign and whether an event is occurring.” Id.
What we did not decide in Reed I is whether § 4.402(P) is impermissibly content-based when viewed in relation to the other provisions of Gilbert’s sign ordinance. In particular, we noted that the district court had not addressed plaintiffs’ argument that “the ordinance unfairly discriminates among forms of noncommercial speech,” id. at 971, by granting more favorable treatment to signs that Gilbert categorizes as “political” and “ideological.” Id. at 983. We therefore remanded the case for resolution of plaintiffs’ “First Amendment and Equal Protection claims that the Sign Code is unconstitutional in favoring some noncommercial speech over other noncommercial speech.” Id.
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, 100 S.Ct. 2286, 65 L.Ed.2d 263 (1980); Police Dep’t of Chicago v. Mosley, 408 U.S. 92, 96, 92 S.Ct. 2286, 33 L.Ed.2d 212 (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. See Carey, 447 U.S. at 465, 100 S.Ct. 2286; Mosley, 408 U.S. at 100, 92 S.Ct. 2286. 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. Carey, 447 U.S. at 465, 100 S.Ct. 2286. 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. Id. at 466, 100 S.Ct. 2286; see Mosley, 408 U.S. at 96, 92 S.Ct. 2286.
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, 101 S.Ct. 2882, 69 L.Ed.2d 800 (1981). A plurality of the Court invalidated San Diego’s ordinance banning most noncommercial billboards on the ground that the ordinance

Reed v. Town of Gilbert, Ariz., 707 F.3d 1057 (2013)
13 Cal. Daily Op. Serv. 1574, 2013 Daily Journal D.A.R. 1891
impermissibly *1079 granted exemptions for billboards bearing non-commercial speech on favored subjects, such as political campaign messages. Id. at 514, 101 S.Ct. 2882 (plurality opinion). The plurality held that, although cities “may distinguish between the relative value of different categories of commercial speech,” 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.” Id. (citing Carey, 447 U.S. at 462, 100 S.Ct. 2286; Mosley, 408 U.S. at 96, 92 S.Ct. 2286). San Diego could not identify any noncommunicative 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. See id. at 513, 101 S.Ct. 2882; see also Desert Outdoor Adver., Inc. v. City of Moreno Valley, 103 F.3d 814, 820 (9th Cir.1996) (applying Metromedia plurality’s holding); Nat’l Adver. Co. v. City of Orange, 861 F.2d 246, 248–49 (9th Cir.1988) (same).
Contrary to the majority’s suggestion, Hill v. Colorado, 530 U.S. 703, 120 S.Ct. 2480, 147 L.Ed.2d 597 (2000), did not modify or refine the core principle underlying Mosley, Carey, and Metromedia. The statute at issue in Hill prohibited, within certain designated areas, approaching within eight feet of another for the purpose of engaging in oral protest, education, or counseling. Id. at 707, 120 S.Ct. 2480. The Court held that the statute was content-neutral because it regulated a particular mode of communication—approaching within eight feet of another to engage in oral protest, education, or counseling—without regard to the subject of the speaker’s message. Id. at 720–24, 120 S.Ct. 2480. As the Court stressed, “Instead of drawing distinctions based on the subject that the approaching speaker may wish to address, the statute applies equally to used car salesmen, animal rights activists, fundraisers, environmentalists, and missionaries.” Id. at 723, 120 S.Ct. 2480. (As explained below, the ordinance at issue in this case does draw distinctions based on the subject the speaker wishes to address.) Thus, rather than distinguishing among different categories of non-commercial speech based on the message being conveyed, the Colorado statute prohibited all non-commercial speech expressed through a particular mode of communication—a fact that rendered Carey “easily distinguishable.” Id.
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
14

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 *1080 up to 20 square feet in size and are not subject to any durational limits at all.2
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 contentneutral “speaker” and “event” based distinctions, like those we approved in G.K. Ltd. Travel v. City of Lake Oswego, 436 F.3d 1064, 1076–78 (9th Cir.2006), and in Reed I, 587 F.3d at 977–78, when we reviewed § 4.402(P) standing alone. 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. Cf. G.K. Ltd., 436 F.3d at 1078 (speaker and event based distinctions were content-neutral because they applied “without regard for the actual substance of the message” and “regardless of content”).
The content-based distinctions Gilbert has drawn are impermissible unless it can identify some noncommunicative aspect of the signs at issue to justify this differential treatment. See Metromedia, 453 U.S. at 513, 101 S.Ct. 2882; Carey, 447 U.S. at 465, 100 S.Ct. 2286; Mosley, 408 U.S. at 100, 92 S.Ct. 2286. 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

Reed v. Town of Gilbert, Ariz., 707 F.3d 1057 (2013) 13 Cal. Daily Op. Serv. 1574, 2013 Daily Journal D.A.R. 1891

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, 101 S.Ct. 2882; Carey, 447 U.S. at 466, 100 S.Ct. 2286; Mosley, 408 U.S. at 96, 92 S.Ct. 2286.
Nothing we said in Reed I is inconsistent with this conclusion. There we held only that § 4.402(P), viewed in isolation, is a valid content-neutral time, place, and manner regulation. Reed I, 587 F.3d at 979–82. We did not decide, and instead remanded for the district court to decide, whether Gilbert’s sign ordinance draws contentbased distinctions by “favoring some noncommercial speech over other noncommercial speech.” Id. at 983. In doing so, we mentioned as potentially relevant National Advertising Co. v. City of Orange, 861 F.2d 246 (9th Cir.1988), where (we noted in Reed I) we invalidated a

municipal sign ordinance that “made content-based distinctions among categories of noncommercial speech.” Reed I, 587 F.3d at 982. Thus, when we said in Reed I that *1081 § 4.402(P) “does not single out certain content for differential treatment,” id. at 979, we obviously did not decide whether the sign ordinance as a whole singles out certain content for differential treatment. Otherwise, our remand to the district court would have been entirely unnecessary.
For the reasons given above, I would hold that the regulatory distinctions Gilbert has drawn among different categories of non-commercial speech are unconstitutional, and I would remand for the district court to determine whether those provisions of Gilbert’s sign ordinance are severable. I respectfully dissent from the majority’s contrary holding.
All Citations
707 F.3d 1057, 13 Cal. Daily Op. Serv. 1574, 2013 Daily Journal D.A.R. 1891

Footnotes

*

The Honorable James K. Singleton, Senior District Judge for the U.S. District Court for Alaska, sitting by designation.

1

The nineteen types of signs are:

(1) Signs installed by a governmental jurisdiction; (2) Building Identification Signs; (3) Permanent Regulatory and Parking

Signs; (4) Information Wall Signs (e.g., “Delivery Entrance”); (5) Real Estate Signs; (6) Residential Open House Signs; (7)

Political Signs; (8) Ideological Signs; (9) Garage Sale Signs; (10) Business Identification Banners during street construction;

(11) Interim Business Identification Banners; (12) Boutique Signs; (13) Window Signs; (14) A–Frame Signs; (15) Temporary

Directional Signs Relating to a Qualifying Event; (16) Construction Signs; (17) Suspended Signs (particular type of commercial

sign); (18) Restaurant Menu Signs; and (19) Required Street Addresses.

Reed, 587 F.3d at 972 n. 2.

2

In October 2011, Gilbert amended the Sign Code to allow placement of Temporary Directional Signs within the public right-of-

way.

3

We quoted from G.K. Ltd., 436 F.3d at 1078, that:

Neither the speaker- nor event-based exemptions implicate Foti insofar as neither requires law enforcement officers to

“read a sign’s message to determine if the sign is exempted from the ordinance.” Foti, 146 F.3d at 636. In the speaker

category, officers decide whether an exemption applies by identifying the entity speaking through the sign without regard

for the actual substance of the message. In the case of event-based exemptions ... the officer must determine only whether

a specific triggering event has occurred and if the temporary sign has been erected within the specified time frame.

Reed, 587 F.3d at 976.

4

In Reed we used “Qualifying Event Sign” to refer to Temporary Directional Signs exempted by § 4.402(P) of the Sign Code. 587

F.3d at 972.

5

We explained:

15

Reed v. Town of Gilbert, Ariz., 707 F.3d 1057 (2013) 13 Cal. Daily Op. Serv. 1574, 2013 Daily Journal D.A.R. 1891

The district court concluded, however, that Good News’ “noncommercial speech enjoys fewer restrictions than its commercial counterparts.” The court performed a careful comparison of the restrictions placed on Qualifying Event Signs versus “Weekend Directional Signs” for subdivision sales, the commercial speech showcased by Good News as receiving more favorable treatment. The district court concluded that Qualifying Event Signs come out on top as the total number of Qualifying Event Signs allowed is greater; Qualifying Event Signs may be placed during week-days as well as weekends; the size allowed for Qualifying Events Signs is greater; and although the Qualifying Events Signs may not be placed in rights-ofway, they are not restricted to a two-mile radius from the event. Of “paramount importance” to the court was the fact that no permit is required to display a Qualifying Events Sign, in contrast to the permit required for the Weekend Directional Signs. Id. at 981–82 (footnote omitted).

6

The district court discounted Good News’ reliance on Gilbert’s officials’ responses in depositions to hypothetical situations

concerning signs that had both political and ideological information because the officials said that they had never seen such a

sign.

7

Section § 4.402(P)(4) and (5) now read, with the added language in capitals and the omitted language cross-out, as follows:

4. Location. Temporary Directional Signs Relating to a Qualifying Event may be located off-site and shall be placed at grade

level. Signs MAY BE PLACED IN THE RIGHT–OF–WAY OR, WITH PERMISSION OF THE PRIVATE PROPERTY OWNER, ON

PRIVATE PROPERTY shall be placed only with the permission of the owner of the property on which they are placed. SIGNS

SHALL RELATE ONLY TO EVENTS OCCURRING WITHIN THE TOWN.

5. Prohibited Locations. Temporary Directional Signs Relating to a Qualifying Event shall not be located:

a. In the public right of way.

b.a. On fences, boulders, planters, other signs, vehicles, utility facilities or any structure.

8

The Ninth Circuit cases cited by Gilbert do not support a different result. In Log Cabin Republicans v. United States, 658 F.3d 1162,

1166–67 (9th Cir.2011), we noted that when a statutory repeal or amendment provides a plaintiff with everything it hoped to

achieve, the controversy is moot. Similarly, in Outdoor Media Group, Inc. v. City of Beaumont, 506 F.3d 895, 901 (9th Cir.2007),

we noted that “[b]ecause there is no longer any risk that Outdoor Media will be subject to the challenged ordinance, there exists

no live issue upon which the court could issue prospective relief.” Here, Good News has not obtained the relief it seeks and

continues to be subject to the limiting ordinance.

9

In Minidoka, we recognized that, under the law of the case doctrine, “a court is ordinarily precluded from reexamining an issue

previously decided by the same court, or a higher court, in the same case.” 406 F.3d at 573 (citing Old Person v. Brown, 312 F.3d

1036, 1039 (9th Cir.2002)). We noted that “the law of the case doctrine is subject to three exceptions that may arise when (1) the

decision is clearly erroneous and its enforcement would work a manifest injustice, (2) intervening controlling authority makes

reconsideration appropriate, or (3) substantially different evidence was adduced at a subsequent trial.” Id. (internal quotation

marks omitted). None of these exceptions apply here. As we subsequently explain, our opinion in Reed is not “clearly erroneous.”

Moreover, there is no “intervening controlling authority” nor any “substantially different evidence.”

10 Arizona has enacted legislation that prohibits a city from removing a political sign from the public right-of-way during a 60–day period before a primary election. See Ariz. Rev. St. § 16–1019.

11 Our earlier opinions cited by Good News, City of Orange, 861 F.2d 246, and Desert Outdoor, 103 F.3d at 819, are not contrary to this conclusion. Our opinions have consistently required that the regulation of noncommercial speech be content-neutral (some times expressed as not content-based). See City of Orange, 861 F.2d at 249 (holding “only that the City cannot analyze the content of outdoor noncommercial messages to determine whether they are allowed, and if so where”); see also Desert Outdoor, 103 F.3d at 820 (holding that the City’s ordinance “violates the First Amendment because it regulates noncommercial speech on the basis of content”). G.K. Ltd. and Reed similarly require that the regulation of noncommercial speech not be content-based, but, as we have explained, apply a more nuanced standard for making that determination.

12 Justice Stevens’ opinion for the court begins by stating: At issue is the constitutionality of a 1993 Colorado statute that regulates speech-related conduct within 100 feet of the entrance to any health care facility. The specific section of the statute that is challenged, Colo.Rev.Stat. § 18–9–122(3) (1999), makes it unlawful within the regulated areas for any person to “knowingly approach” within eight feet of another person, without that person’s consent, “for the purpose of passing a leaflet or handbill to, displaying a sign to, or engaging in oral protest, education, or counseling with such other person ....”
530 U.S. at 707, 120 S.Ct. 2480.

16

Reed v. Town of Gilbert, Ariz., 707 F.3d 1057 (2013) 13 Cal. Daily Op. Serv. 1574, 2013 Daily Journal D.A.R. 1891

13 An argument can be made that Gilbert’s exemption of temporary signs from its permit requirements and limitations on such temporary signs may be construed as disapproval of temporary signs generally. However, this is not the type of “disagreement with the message” proscribed by the Supreme Court in Hill, 530 U.S. at 719, 120 S.Ct. 2480. Obviously, any legislation regulating speech is based on a view that the speech should not be unlimited. This does not render the legislation unconstitutional. In Hill, the Supreme Court explained: In this case, it is not disputed that the regulation affects protected speech activity; the question is thus whether it is a “reasonable restrictio[n] on the time, place, or manner of protected speech.” Ward, 491 U.S., at 791, 109 S.Ct. 2746. Here, the comprehensiveness of the statute is a virtue, not a vice, because it is evidence against there being a discriminatory governmental motive. As Justice Jackson observed, “there is no more effective practical guaranty against arbitrary and unreasonable government than to require that the principles of law which officials would impose upon a minority must be imposed generally.” Railway Express Agency, Inc. v. New York, 336 U.S. 106, 112, 69 S.Ct. 463, 93 L.Ed. 533 (1949) (concurring opinion). 530 U.S. at 731, 120 S.Ct. 2480. Here, the limitations on Temporary Directional Signs apply equally to all organizations, regardless of their wealth or pedigree.

14 Our conclusion is consistent with the perspective of the Sixth Circuit in Phelps–Roper v. City of Manchester, 697 F.3d 678, 683 (6th Cir.2012) (upholding a city regulation of picketing at funerals and burials as a legitimate time, place, and manner regulation consistent with the First Amendment).

15 Similarly, our opinion in National Advertising, 861 F.2d 246, and Desert Outdoor Advertising, 103 F.3d 814, held that cities could not impose greater restrictions on non-commercial billboards than commercial billboards and could not regulate non-commercial billboards based on content.

16 The Court further stated, citing Ward, 491 U.S. at 799, 109 S.Ct. 2746, and Turner Broadcasting System, Inc. v. FCC, 512 U.S. 622, 662, 114 S.Ct. 2445, 129 L.Ed.2d 497 (1994), that “[u]nder intermediate scrutiny, the Government may employ the means of its choosing so long as the ... regulation promotes a substantial governmental interest that would be achieved less effectively absent the regulation, and does not burden substantially more speech than is necessary to further that interest.” (internal quotation marks omitted).

17 To the extent that our opinion in Seattle Affiliate of Oct. 22nd Coalition to Stop Police Brutality v. City of Seattle, 550 F.3d 788, 791 (9th Cir.2008), further requires that an ordinance not delegate overly broad discretion to a government official, this condition is satisfied. A person does not need any approval to erect a temporary sign. Rather, Gilbert will only seek the removal of a sign if its size or duration violates the Sign Code’s relatively clear time, place, and manner limitations.

18 Moreover, the procedures for enforcing the Sign Code respect the rights of a speaker. If an official noted a temporary sign that fits within two exemptions, he or she would check with the city manager and Gilbert would presumably accord the sign the broader exemption. Thus, a political sign with directions would be allowed the duration limit for political signs. Similarly, a religious sign that also included directions might qualify as an ideological sign. Good News has never asserted that its temporary directional signs should be treated as ideological signs.

1

“Temporary directional signs relating to a qualifying event” are defined as signs “intended to direct pedestrians, motorists, and

other passersby to a ‘qualifying event.’ A ‘qualifying event’ is any assembly, gathering, activity, or meeting sponsored, arranged,

or promoted by a religious, charitable, community service, educational, or other similar non-profit organization.”

2

Until recently, Gilbert’s sign ordinance contained an even more blatantly discriminatory distinction: Political and ideological signs

could be displayed in the public right of way but “temporary directional signs relating to a qualifying event” could not. After the

parties filed their briefs in this court, Gilbert removed this restriction but replaced it with an equally suspect one. Under the

amended ordinance, “temporary directional signs relating to a qualifying event” may not be displayed anywhere in Gilbert unless

the “qualifying event” takes place within the town’s borders.

End of Document
17

Reed v. Town of Gilbert, Ariz., 707 F.3d 1057 (2013) 13 Cal. Daily Op. Serv. 1574, 2013 Daily Journal D.A.R. 1891
18

 
 Reed v. Town of Gilbert, Ariz., 135 S.Ct. 2218 (2015) 192 L.Ed.2d 236, 83 USLW 4444, 15 Cal. Daily Op. Serv. 6239...

135 S.Ct. 2218 Supreme Court of the United States
Clyde REED, et al., Petitioners v.
TOWN OF GILBERT, ARIZONA, et al.
No. 13–502. |
Argued Jan. 12, 2015. |
Decided June 18, 2015.
Synopsis Background: Church and pastor seeking to place temporary signs announcing services filed suit claiming that town’s sign ordinance, restricting size, duration, and location of temporary directional signs violated the right to free speech. The United States District Court for the District of Arizona, Susan R. Bolton, J., denied church’s motion for preliminary injunction barring enforcement of ordinance. Church appealed. The United States Court of Appeals for the Ninth Circuit, M. Margaret McKeown, Circuit Judge, 587 F.3d 966, affirmed in part and remanded in part.On remand, the District Court, Bolton, J., 832 F.Supp.2d 1070, granted town summary judgment. Church and pastor appealed. The Court of Appeals, Callahan, Circuit Judge, 707 F.3d 1057, affirmed. Certiorari was granted.
Holdings: The Supreme Court, Justice Thomas, held that:
sign code was subject to strict scrutiny, and
sign code violated free speech guarantees.
Reversed and remanded.
Justice Alito filed concurring opinion in which Justices Kennedy and Sotomayor joined.
Justice Breyer filed opinion concurring in the judgment.
Justice Kagan filed opinion concurring in the judgment, in which Justices Ginsburg and Breyer joined.
*2221 Syllabus*
1

Gilbert, Arizona (Town), has a comprehensive code (Sign Code or Code) that prohibits the display of outdoor signs without a permit, but exempts 23 categories of signs, including three relevant here. “Ideological Signs,” defined as signs “communicating a message or ideas” that do not fit in any other Sign Code category, may be up to 20 square feet and have no placement or time restrictions. “Political Signs,” defined as signs “designed to influence the outcome of an election,” may be up to 32 square feet and may only be displayed during an election season. “Temporary Directional Signs,” defined as signs directing the public to a church or other “qualifying event,” have even greater restrictions: 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 are 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 *2222 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.
Held : The Sign Code’s provisions are content-based regulations of speech that do not survive strict scrutiny. Pp. 2226 – 2233.
(a) Because content-based laws target speech based on its communicative content, they are presumptively unconstitutional and may be justified only if the government proves that they are narrowly tailored to serve compelling state interests. E.g., R.A.V. v. St. Paul, 505 U.S. 377, 395, 112 S.Ct. 2538, 120 L.Ed.2d 305. Speech regulation is content based if a law applies to particular speech because of the topic discussed or the idea or message expressed. E.g., Sorrell v. IMS Health, Inc., 564 U.S. ––––, –––– – ––––, 131 S.Ct. 2653, 2663– 2664, 180 L.Ed.2d 544. And courts are required to consider whether a regulation of speech “on its face” draws distinctions based on the message a speaker conveys. Id., at ––––, 131 S.Ct., at 2664. Whether laws

Reed v. Town of Gilbert, Ariz., 135 S.Ct. 2218 (2015) 192 L.Ed.2d 236, 83 USLW 4444, 15 Cal. Daily Op. Serv. 6239...

define regulated speech by particular subject matter or by its function or purpose, they are subject to strict scrutiny. The same is true for laws that, though facially content neutral, cannot be “ ‘justified without reference to the content of the regulated speech,’ ” or were adopted by the government “because of disagreement with the message” conveyed. Ward v. Rock Against Racism, 491 U.S. 781, 791, 109 S.Ct. 2746, 105 L.Ed.2d 661. Pp. 2226 – 2227.
(b) The Sign Code is content based on its face. It defines the categories of temporary, political, and ideological signs on the basis of their messages and then subjects each category to different restrictions. The restrictions applied thus depend entirely on the sign’s communicative content. Because the Code, on its face, is a content-based regulation of speech, there is no need to consider the government’s justifications or purposes for enacting the Code to determine whether it is subject to strict scrutiny. P. 2227.
(c) None of the Ninth Circuit’s theories for its contrary holding is persuasive. Its conclusion that the Town’s regulation was not based on a disagreement with the message conveyed skips the crucial first step in the content-neutrality analysis: determining whether the law is content neutral on its face. A law that is content based on its face is subject to strict scrutiny regardless of the government’s benign motive, content-neutral justification, or lack of “animus toward the ideas contained” in the regulated speech. Cincinnati v. Discovery Network, Inc., 507 U.S. 410, 429, 113 S.Ct. 1505, 123 L.Ed.2d 99. Thus, an innocuous justification cannot transform a facially content-based law into one that is content neutral. A court must evaluate each question—whether a law is content based on its face and whether the purpose and justification for the law are content based—before concluding that a law is content neutral. Ward does not require otherwise, for its framework applies only to a content-neutral statute.
The Ninth Circuit’s conclusion that the Sign Code does not single out any idea or viewpoint for discrimination conflates two distinct but related limitations that the First Amendment places on government *2223 regulation of speech. Government discrimination among viewpoints is a “more blatant” and “egregious form of content discrimination,” Rosenberger v. Rector and Visitors of Univ. of Va., 515 U.S. 819, 829, 115 S.Ct. 2510, 132 L.Ed.2d 700, but “[t]he First Amendment’s hostility to content-based regulation [also] extends ... to prohibition of public discussion of an entire topic,” Consolidated Edison Co. of N.Y. v. Public Serv. Comm’n of N. Y., 447 U.S. 530, 537, 100 S.Ct. 2326, 65 L.Ed.2d 319. The Sign Code, a paradigmatic example of content-based

discrimination, singles out specific subject matter for differential treatment, even if it does not target viewpoints within that subject matter.
The Ninth Circuit also erred in concluding that the Sign Code was not content based because it made only speaker-based and event-based distinctions. The Code’s categories are not speaker-based—the restrictions for political, ideological, and temporary event signs apply equally no matter who sponsors them. And even if the sign categories were speaker based, that would not automatically render the law content neutral. Rather, “laws favoring some speakers over others demand strict scrutiny when the legislature’s speaker preference reflects a content preference.” Turner Broadcasting System, Inc. v. FCC, 512 U.S. 622, 658, 114 S.Ct. 2445, 129 L.Ed.2d 497. This same analysis applies to event-based distinctions. Pp. 2227 – 2231.
(d) The Sign Code’s content-based restrictions do not survive strict scrutiny because the Town has not demonstrated that the Code’s differentiation between temporary directional signs and other types of signs furthers a compelling governmental interest and is narrowly tailored to that end. See Arizona Free Enterprise Club’s Freedom Club PAC v. Bennett, 564 U.S. ––––, ––– –, 131 S.Ct. 2806, 2817, 180 L.Ed.2d 664. Assuming that the Town has a compelling interest in preserving its aesthetic appeal and traffic safety, the Code’s distinctions are highly underinclusive. The Town cannot claim that placing strict limits on temporary directional signs is necessary to beautify the Town when other types of signs create the same problem. See Discovery Network, supra, at 425, 113 S.Ct. 1505. Nor has it shown that temporary directional signs pose a greater threat to public safety than ideological or political signs. Pp. 2231 – 2232.
(e) This decision will not prevent governments from enacting effective sign laws. The Town has ample content-neutral options available to resolve problems with safety and aesthetics, including regulating size, building materials, lighting, moving parts, and portability. And the Town may be able to forbid postings on public property, so long as it does so in an evenhanded, content-neutral manner. See Members of City Council of Los Angeles v. Taxpayers for Vincent, 466 U.S. 789, 817, 104 S.Ct. 2118, 80 L.Ed.2d 772. An ordinance narrowly tailored to the challenges of protecting the safety of pedestrians, drivers, and passengers—e.g., warning signs marking hazards on private property or signs directing traffic— might also survive strict scrutiny. Pp. 2232 – 2233.
707 F.3d 1057, reversed and remanded.

2

Reed v. Town of Gilbert, Ariz., 135 S.Ct. 2218 (2015) 192 L.Ed.2d 236, 83 USLW 4444, 15 Cal. Daily Op. Serv. 6239...

THOMAS, J., delivered the opinion of the Court, in which ROBERTS, C.J., and SCALIA, KENNEDY, ALITO, and SOTOMAYOR, JJ., joined. ALITO, J., filed a concurring opinion, in which KENNEDY and SOTOMAYOR, JJ., joined. BREYER, J., filed an opinion concurring in the judgment. KAGAN, J., filed an opinion concurring in the judgment, in which GINSBURG and BREYER, JJ., joined.
Attorneys and Law Firms
David A. Cortman, Lawrenceville, GA, for Petitioners.
*2224 Eric J. Feigin, Washington, DC, for the United States as amicus curiae, by special leave of the Court, supporting neither party.
Philip W. Savrin, Atlanta, GA, for Respondents.
Kevin H. Theriot, Jeremy D. Tedesco, Alliance Defending Freedom, Scottsdale, AZ, David A. Cortman, Counsel of Record, Rory T. Gray, Alliance Defending Freedom, Lawrenceville, GA, for Petitioner.
Philip W. Savrin, Counsel of Record, Dana K. Maine, William H. Buechner, Jr., Freeman Mathis & Gary, LLP, Atlanta, GA, for Respondents.
Opinion
Justice THOMAS delivered the opinion of the Court.
The town of Gilbert, Arizona (or Town), has adopted a comprehensive code governing the manner in which people may display outdoor signs. Gilbert, Ariz., Land Development Code (Sign Code or Code), ch. 1, § 4.402 (2005).1 The Sign Code identifies various categories of signs based on the type of information they convey, then subjects each category to different restrictions. One of the categories is “Temporary Directional Signs Relating to a Qualifying Event,” loosely defined as signs directing the public to a meeting of a nonprofit group. § 4.402(P). The Code imposes more stringent restrictions on these signs than it does on signs conveying other messages. We hold that these provisions are content-based regulations of speech that cannot survive strict scrutiny.
I
3

A
The Sign Code prohibits the display of outdoor signs anywhere within the Town without a permit, but it then exempts 23 categories of signs from that requirement. These exemptions include everything from bazaar signs to flying banners. Three categories of exempt signs are particularly relevant here.
The first is “Ideological Sign[s].” This category includes any “sign communicating a message or ideas for noncommercial purposes that is not a Construction Sign, Directional Sign, Temporary Directional Sign Relating to a Qualifying Event, Political Sign, Garage Sale Sign, or a sign owned or required by a governmental agency.” Sign Code, Glossary of General Terms (Glossary), p. 23 (emphasis deleted). Of the three categories discussed here, the Code treats ideological signs most favorably, allowing them to be up to 20 square feet in area and to be placed in all “zoning districts” without time limits. § 4.402(J).
The second category is “Political Sign[s].” This includes any “temporary sign designed to influence the outcome of an election called by a public body.” Glossary 23.2 The Code treats these signs less favorably than ideological signs. The Code allows the placement of political signs up to 16 square feet on residential property and up to 32 square feet on nonresidential property, undeveloped municipal property, and “rights-of-way.” *2225 § 4.402(I).3 These signs may be displayed up to 60 days before a primary election and up to 15 days following a general election. Ibid.
The third category is “Temporary Directional Signs Relating to a Qualifying Event.” This includes any “Temporary Sign intended to direct pedestrians, motorists, and other passersby to a ‘qualifying event.’ ” Glossary 25 (emphasis deleted). A “qualifying event” is defined as any “assembly, gathering, activity, or meeting sponsored, arranged, or promoted by a religious, charitable, community service, educational, or other similar non-profit organization.” Ibid. The Code treats temporary directional signs even less favorably than political signs.4 Temporary directional signs may be no larger than six square feet. § 4.402(P). They may be placed on private property or on a public right-of-way, but no more than four signs may be placed on a single property at any time. Ibid. And, they may be displayed no more than 12 hours before the “qualifying event” and no more than 1 hour afterward. Ibid.

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B
Petitioners Good News Community Church (Church) and its pastor, Clyde Reed, wish to advertise the time and location of their Sunday church services. The Church is a small, cash-strapped entity that owns no building, so it holds its services at elementary schools or other locations in or near the Town. In order to inform the public about its services, which are held in a variety of different locations, the Church began placing 15 to 20 temporary signs around the Town, frequently in the public right-ofway abutting the street. The signs typically displayed the Church’s name, along with the time and location of the upcoming service. Church members would post the signs early in the day on Saturday and then remove them around midday on Sunday. The display of these signs requires little money and manpower, and thus has proved to be an economical and effective way for the Church to let the community know where its services are being held each week.
This practice caught the attention of the Town’s Sign Code compliance manager, who twice cited the Church for violating the Code. The first citation noted that the Church exceeded the time limits for displaying its temporary directional signs. The second citation referred to the same problem, along with the Church’s failure to include the date of the event on the signs. Town officials even confiscated one of the Church’s signs, which Reed had to retrieve from the municipal offices.
Reed contacted the Sign Code Compliance Department in an attempt to reach an accommodation. His efforts proved unsuccessful. The Town’s Code compliance manager informed the Church that there *2226 would be “no leniency under the Code” and promised to punish any future violations.
Shortly thereafter, petitioners filed a complaint in the United States District Court for the District of Arizona, arguing that the Sign Code abridged their freedom of speech in violation of the First and Fourteenth Amendments. The District Court denied the petitioners’ motion for a preliminary injunction. The Court of Appeals for the Ninth Circuit affirmed, holding that the Sign Code’s provision regulating temporary directional signs did not regulate speech on the basis of content. 587 F.3d 966, 979 (2009). It reasoned that, even though an enforcement officer would have to read the sign to
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determine what provisions of the Sign Code applied to it, the “ ‘kind of cursory examination’ ” that would be necessary for an officer to classify it as a temporary directional sign was “not akin to an officer synthesizing the expressive content of the sign.” Id., at 978. It then remanded for the District Court to determine in the first instance whether the Sign Code’s distinctions among temporary directional signs, political signs, and ideological signs nevertheless constituted a content-based regulation of speech.
On remand, the District Court granted summary judgment in favor of the Town. The Court of Appeals again affirmed, holding that the Code’s sign categories were content neutral. The court concluded that “the distinctions between Temporary Directional Signs, Ideological Signs, and Political Signs ... are based on objective factors relevant to Gilbert’s creation of the specific exemption from the permit requirement and do not otherwise consider the substance of the sign.” 707 F.3d 1057, 1069 (C.A.9 2013). Relying on this Court’s decision in Hill v. Colorado, 530 U.S. 703, 120 S.Ct. 2480, 147 L.Ed.2d 597 (2000), the Court of Appeals concluded that the Sign Code is content neutral. 707 F.3d, at 1071–1072. As the court explained, “Gilbert did not adopt its regulation of speech because it disagreed with the message conveyed” and its “interests in regulat[ing] temporary signs are unrelated to the content of the sign.” Ibid. Accordingly, the court believed that the Code was “content-neutral as that term [has been] defined by the Supreme Court.” Id., at 1071. In light of that determination, it applied a lower level of scrutiny to the Sign Code and concluded that the law did not violate the First Amendment. Id., at 1073– 1076.
We granted certiorari, 573 U.S. ––––, 134 S.Ct. 2900, 189 L.Ed.2d 854 (2014), and now reverse.
II
A
The First Amendment, applicable to the States through the Fourteenth Amendment, prohibits the enactment of laws “abridging the freedom of speech.” U.S. Const., Amdt. 1. Under that Clause, a government, including a municipal government vested with state authority, “has no

Reed v. Town of Gilbert, Ariz., 135 S.Ct. 2218 (2015) 192 L.Ed.2d 236, 83 USLW 4444, 15 Cal. Daily Op. Serv. 6239...

power to restrict expression because of its message, its ideas, its subject matter, or its content.” Police Dept. of Chicago v. Mosley, 408 U.S. 92, 95, 92 S.Ct. 2286, 33 L.Ed.2d 212 (1972). 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. R.A.V. v. St. Paul, 505 U.S. 377, 395, 112 S.Ct. 2538, 120 L.Ed.2d 305 (1992); Simon & Schuster, Inc. v. Members of N.Y. State Crime Victims Bd., 502 U.S. 105, 115, 118, 112 S.Ct. 501, 116 L.Ed.2d 476 (1991).
*2227 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. E.g., Sorrell v. IMS Health, Inc., 564 U.S. ––––, –––– – ––––, 131 S.Ct. 2653, 2663–2664, 180 L.Ed.2d 544 (2011); Carey v. Brown, 447 U.S. 455, 462, 100 S.Ct. 2286, 65 L.Ed.2d 263 (1980); Mosley, supra, at 95, 92 S.Ct. 2286. 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. Sorrell, supra, at ––––, 131 S.Ct., at 2664. Some facial distinctions based on a message are obvious, defining regulated speech by particular subject matter, and others are more subtle, defining regulated speech by its function or purpose. Both are distinctions drawn based on the message a speaker conveys, and, therefore, are subject to strict scrutiny.
Our precedents have also recognized a separate and additional category of laws that, though facially content neutral, will be considered content-based regulations of speech: laws that cannot be “ ‘justified without reference to the content of the regulated speech,’ ” or that were adopted by the government “because of disagreement with the message [the speech] conveys,” Ward v. Rock Against Racism, 491 U.S. 781, 791, 109 S.Ct. 2746, 105 L.Ed.2d 661 (1989). Those laws, like those that are content based on their face, must also satisfy strict scrutiny.
B
The Town’s Sign Code is content based on its face. It defines “Temporary Directional Signs” on the basis of whether a sign conveys the message of directing the public to church or some other “qualifying event.” Glossary 25. It defines “Political Signs” on the basis of
5

whether a sign’s message is “designed to influence the outcome of an election.” Id., at 24. And it defines “Ideological Signs” on the basis of whether a sign “communicat [es] a message or ideas” that do not fit within the Code’s other categories. Id., at 23. It then subjects each of these categories to different restrictions.
The restrictions in the Sign Code that apply to any given sign thus depend entirely on the communicative content of the sign. If a sign informs its reader of the time and place a book club will discuss John Locke’s Two Treatises of Government, that sign will be treated differently from a sign expressing the view that one should vote for one of Locke’s followers in an upcoming election, and both signs will be treated differently from a sign expressing an ideological view rooted in Locke’s theory of government. More to the point, the Church’s signs inviting people to attend its worship services are treated differently from signs conveying other types of ideas. On its face, the Sign Code is a content-based regulation of speech. We thus have no need to consider the government’s justifications or purposes for enacting the Code to determine whether it is subject to strict scrutiny.
C
In reaching the contrary conclusion, the Court of Appeals offered several theories to explain why the Town’s Sign Code should be deemed content neutral. None is persuasive.
1
The Court of Appeals first determined that the Sign Code was content neutral because the Town “did not adopt its regulation of speech [based on] disagree [ment] with the message conveyed,” and its justifications for regulating temporary directional signs were “unrelated to the content of the sign.” 707 F.3d, at 1071–1072. *2228 In its brief to this Court, the United States similarly contends that a sign regulation is content neutral—even if it expressly draws distinctions based on the sign’s communicative content— if those distinctions can be “ ‘justified without reference to the content of the regulated speech.’ ” Brief for United States as Amicus Curiae 20, 24 (quoting Ward, supra, at

Reed v. Town of Gilbert, Ariz., 135 S.Ct. 2218 (2015) 192 L.Ed.2d 236, 83 USLW 4444, 15 Cal. Daily Op. Serv. 6239...

791, 109 S.Ct. 2746; emphasis deleted).
But this analysis skips the crucial first step in the contentneutrality analysis: determining whether the law is content neutral on its face. A law that is content based on its face is subject to strict scrutiny regardless of the government’s benign motive, content-neutral justification, or lack of “animus toward the ideas contained” in the regulated speech. Cincinnati v. Discovery Network, Inc., 507 U.S. 410, 429, 113 S.Ct. 1505, 123 L.Ed.2d 99 (1993). We have thus made clear that “ ‘[i]llicit legislative intent is not the sine qua non of a violation of the First Amendment,’ ” and a party opposing the government “need adduce ‘no evidence of an improper censorial motive.’ ” Simon & Schuster, supra, at 117, 112 S.Ct. 501. Although “a content-based purpose may be sufficient in certain circumstances to show that a regulation is content based, it is not necessary.” Turner Broadcasting System, Inc. v. FCC, 512 U.S. 622, 642, 114 S.Ct. 2445, 129 L.Ed.2d 497 (1994). In other words, an innocuous justification cannot transform a facially content-based law into one that is content neutral.
That is why we have repeatedly considered whether a law is content neutral on its face before turning to the law’s justification or purpose. See, e.g., Sorrell, supra, at –––– – ––––, 131 S.Ct., at 2663–2664 (statute was content based “on its face,” and there was also evidence of an impermissible legislative motive); United States v. Eichman, 496 U.S. 310, 315, 110 S.Ct. 2404, 110 L.Ed.2d 287 (1990) (“Although the [statute] contains no explicit content-based limitation on the scope of prohibited conduct, it is nevertheless clear that the Government’s asserted interest is related to the suppression of free expression” (internal quotation marks omitted)); Members of City Council of Los Angeles v. Taxpayers for Vincent, 466 U.S. 789, 804, 104 S.Ct. 2118, 80 L.Ed.2d 772 (1984) (“The text of the ordinance is neutral,” and “there is not even a hint of bias or censorship in the City’s enactment or enforcement of this ordinance”); Clark v. Community for Creative Non–Violence, 468 U.S. 288, 293, 104 S.Ct. 3065, 82 L.Ed.2d 221 (1984) (requiring that a facially content-neutral ban on camping must be “justified without reference to the content of the regulated speech”); United States v. O’Brien, 391 U.S. 367, 375, 377, 88 S.Ct. 1673, 20 L.Ed.2d 672 (1968) (noting that the statute “on its face deals with conduct having no connection with speech,” but examining whether the “the governmental interest is unrelated to the suppression of free expression”). Because strict scrutiny applies either when a law is content based on its face or when the purpose and justification for the law are content based, a court must evaluate each question before it concludes that the law is content neutral and thus subject to a lower level

of scrutiny.
The Court of Appeals and the United States misunderstand our decision in Ward as suggesting that a government’s purpose is relevant even when a law is content based on its face. That is incorrect. Ward had nothing to say about facially content-based restrictions because it involved a facially content-neutral ban on the use, in a city-owned music venue, of sound amplification systems not provided by the city. 491 U.S., at 787, and n. 2, 109 S.Ct. 2746. In that context, we looked to *2229 governmental motive, including whether the government had regulated speech “because of disagreement” with its message, and whether the regulation was “ ‘justified without reference to the content of the speech.’ ” Id., at 791, 109 S.Ct. 2746. But Ward ‘s framework “applies only if a statute is content neutral.” Hill, 530 U.S., at 766, 120 S.Ct. 2480 (KENNEDY, J., dissenting). Its rules thus operate “to protect speech,” not “to restrict it.” Id., at 765, 120 S.Ct. 2480.
The First Amendment requires no less. Innocent motives do not eliminate the danger of censorship presented by a facially content-based statute, as future government officials may one day wield such statutes to suppress disfavored speech. That is why the First Amendment expressly targets the operation of the laws—i.e., the “abridg[ement] of speech”—rather than merely the motives of those who enacted them. U.S. Const., Amdt. 1. “ ‘The vice of content-based legislation ... is not that it is always used for invidious, thought-control purposes, but that it lends itself to use for those purposes.’ ” Hill, supra, at 743, 120 S.Ct. 2480 (SCALIA, J., dissenting).
For instance, in NAACP v. Button, 371 U.S. 415, 83 S.Ct. 328, 9 L.Ed.2d 405 (1963), the Court encountered a State’s attempt to use a statute prohibiting “ ‘improper solicitation’ ” by attorneys to outlaw litigation-related speech of the National Association for the Advancement of Colored People. Id., at 438, 83 S.Ct. 328. Although Button predated our more recent formulations of strict scrutiny, the Court rightly rejected the State’s claim that its interest in the “regulation of professional conduct” rendered the statute consistent with the First Amendment, observing that “it is no answer ... to say ... that the purpose of these regulations was merely to insure high professional standards and not to curtail free expression.” Id., at 438–439, 83 S.Ct. 328. Likewise, one could easily imagine a Sign Code compliance manager who disliked the Church’s substantive teachings deploying the Sign Code to make it more difficult for the Church to inform the public of the location of its services. Accordingly, we have repeatedly “rejected the argument that ‘discriminatory ... treatment is suspect under the First

6

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Amendment only when the legislature intends to suppress certain ideas.’ ” Discovery Network, 507 U.S., at 429, 113 S.Ct. 1505. We do so again today.
2
The Court of Appeals next reasoned that the Sign Code was content neutral because it “does not mention any idea or viewpoint, let alone single one out for differential treatment.” 587 F.3d, at 977. It reasoned that, for the purpose of the Code provisions, “[i]t makes no difference which candidate is supported, who sponsors the event, or what ideological perspective is asserted.” 707 F.3d, at 1069.
The Town seizes on this reasoning, insisting that “content based” is a term of art that “should be applied flexibly” with the goal of protecting “viewpoints and ideas from government censorship or favoritism.” Brief for Respondents 22. In the Town’s view, a sign regulation that “does not censor or favor particular viewpoints or ideas” cannot be content based. Ibid. The Sign Code allegedly passes this test because its treatment of temporary directional signs does not raise any concerns that the government is “endorsing or suppressing ‘ideas or viewpoints,’ ” id., at 27, and the provisions for political signs and ideological signs “are neutral as to particular ideas or viewpoints” within those categories. Id., at 37.
This analysis conflates two distinct but related limitations that the First *2230 Amendment places on government regulation of speech. Government discrimination among viewpoints—or the regulation of speech based on “the specific motivating ideology or the opinion or perspective of the speaker”—is a “more blatant” and “egregious form of content discrimination.” Rosenberger v. Rector and Visitors of Univ. of Va., 515 U.S. 819, 829, 115 S.Ct. 2510, 132 L.Ed.2d 700 (1995). But it is well established that “[t]he First Amendment’s hostility to content-based regulation extends not only to restrictions on particular viewpoints, but also to prohibition of public discussion of an entire topic.” Consolidated Edison Co. of N.Y. v. Public Serv. Comm’n of N. Y., 447 U.S. 530, 537, 100 S.Ct. 2326, 65 L.Ed.2d 319 (1980).
Thus, a speech regulation targeted at specific subject matter is content based even if it does not discriminate among viewpoints within that subject matter. Ibid. For example, a law banning the use of sound trucks for political speech—and only political speech—would be a
7

content-based regulation, even if it imposed no limits on the political viewpoints that could be expressed. See Discovery Network, supra, at 428, 113 S.Ct. 1505. The Town’s Sign Code likewise singles out specific subject matter for differential treatment, even if it does not target viewpoints within that subject matter. Ideological messages are given more favorable treatment than messages concerning a political candidate, which are themselves given more favorable treatment than messages announcing an assembly of like-minded individuals. That is a paradigmatic example of content-based discrimination.
3
Finally, the Court of Appeals characterized the Sign Code’s distinctions as turning on “ ‘the content-neutral elements of who is speaking through the sign and whether and when an event is occurring.’ ” 707 F.3d, at 1069. That analysis is mistaken on both factual and legal grounds.
To start, the Sign Code’s distinctions are not speaker based. The restrictions for political, ideological, and temporary event signs apply equally no matter who sponsors them. If a local business, for example, sought to put up signs advertising the Church’s meetings, those signs would be subject to the same limitations as such signs placed by the Church. And if Reed had decided to display signs in support of a particular candidate, he could have made those signs far larger—and kept them up for far longer—than signs inviting people to attend his church services. If the Code’s distinctions were truly speaker based, both types of signs would receive the same treatment.
In any case, the fact that a distinction is speaker based does not, as the Court of Appeals seemed to believe, automatically render the distinction content neutral. Because “[s]peech restrictions based on the identity of the speaker are all too often simply a means to control content,” Citizens United v. Federal Election Comm’n, 558 U.S. 310, 340, 130 S.Ct. 876, 175 L.Ed.2d 753 (2010), we have insisted that “laws favoring some speakers over others demand strict scrutiny when the legislature’s speaker preference reflects a content preference,” Turner, 512 U.S., at 658, 114 S.Ct. 2445. Thus, a law limiting the content of newspapers, but only newspapers, could not evade strict scrutiny simply because it could be characterized as speaker based. Likewise, a content-based law that restricted the political

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speech of all corporations would not become content neutral just because it singled out corporations as a class of speakers. See Citizens United, supra, at 340–341, 130 S.Ct. 876. Characterizing a distinction *2231 as speaker based is only the beginning—not the end—of the inquiry.
Nor do the Sign Code’s distinctions hinge on “whether and when an event is occurring.” The Code does not permit citizens to post signs on any topic whatsoever within a set period leading up to an election, for example. Instead, come election time, it requires Town officials to determine whether a sign is “designed to influence the outcome of an election” (and thus “political”) or merely “communicating a message or ideas for noncommercial purposes” (and thus “ideological”). Glossary 24. That obvious content-based inquiry does not evade strict scrutiny review simply because an event (i.e., an election) is involved.
And, just as with speaker-based laws, the fact that a distinction is event based does not render it content neutral. The Court of Appeals cited no precedent from this Court supporting its novel theory of an exception from the content-neutrality requirement for event-based laws. As we have explained, a speech regulation is content based if the law applies to particular speech because of the topic discussed or the idea or message expressed. Supra, at 2226 – 2227. 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.” City of Ladue v. Gilleo, 512 U.S. 43, 60, 114 S.Ct. 2038, 129 L.Ed.2d 36 (1994) (O’Connor, J., concurring).
III
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,’ ” Arizona Free Enterprise Club’s Freedom
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Club PAC v. Bennett, 564 U.S. ––––, ––––, 131 S.Ct. 2806, 2817, 180 L.Ed.2d 664 (2011) (quoting Citizens United, 558 U.S., at 340, 130 S.Ct. 876). Thus, it is the Town’s burden to demonstrate that the Code’s differentiation between temporary directional signs and other types of signs, such as political signs and ideological signs, furthers a compelling governmental interest and is narrowly tailored to that end. See ibid.
The Town cannot do so. It has offered only two governmental interests in support of the distinctions the Sign Code draws: preserving the Town’s aesthetic appeal and traffic safety. Assuming for the sake of argument that those are compelling governmental interests, the Code’s distinctions fail as hopelessly underinclusive.
Starting with the preservation of aesthetics, temporary directional signs are “no greater an eyesore,” Discovery Network, 507 U.S., at 425, 113 S.Ct. 1505, than ideological or political ones. Yet the Code allows unlimited proliferation of larger ideological signs while strictly limiting the number, size, and duration of smaller directional ones. The Town cannot claim that placing strict limits on temporary directional signs is necessary to beautify the Town while at the same time allowing unlimited numbers of other types of signs that create the same problem.
*2232 The Town similarly has not shown that limiting temporary directional signs is necessary to eliminate threats to traffic safety, but that limiting other types of signs is not. The Town has offered no reason to believe that directional signs pose a greater threat to safety than do ideological or political signs. If anything, a sharply worded ideological sign seems more likely to distract a driver than a sign directing the public to a nearby church meeting.
In light of this underinclusiveness, the Town has not met its burden to prove that its Sign Code is narrowly tailored to further a compelling government interest. Because a “ ‘law cannot be regarded as protecting an interest of the highest order, and thus as justifying a restriction on truthful speech, when it leaves appreciable damage to that supposedly vital interest unprohibited,’ ” Republican Party of Minn. v. White, 536 U.S. 765, 780, 122 S.Ct. 2528, 153 L.Ed.2d 694 (2002), the Sign Code fails strict scrutiny.
IV

Reed v. Town of Gilbert, Ariz., 135 S.Ct. 2218 (2015) 192 L.Ed.2d 236, 83 USLW 4444, 15 Cal. Daily Op. Serv. 6239...

Our decision today will not prevent governments from enacting effective sign laws. The Town asserts that an “ ‘absolutist’ ” content-neutrality rule would render “virtually all distinctions in sign laws ... subject to strict scrutiny,” Brief for Respondents 34–35, but that is not the case. Not “all distinctions” are subject to strict scrutiny, only content-based ones are. Laws that are content neutral are instead subject to lesser scrutiny. See Clark, 468 U.S., at 295, 104 S.Ct. 3065.
The Town has ample content-neutral options available to resolve problems with safety and aesthetics. For example, its current Code regulates many aspects of signs that have nothing to do with a sign’s message: size, building materials, lighting, moving parts, and portability. See, e.g., § 4.402(R). And on public property, the Town may go a long way toward entirely forbidding the posting of signs, so long as it does so in an evenhanded, contentneutral manner. See Taxpayers for Vincent, 466 U.S., at 817, 104 S.Ct. 2118 (upholding content-neutral ban against posting signs on public property). Indeed, some lower courts have long held that similar content-based sign laws receive strict scrutiny, but there is no evidence that towns in those jurisdictions have suffered catastrophic effects. See, e.g., Solantic, LLC v. Neptune Beach, 410 F.3d 1250, 1264–1269 (C.A.11 2005) (sign categories similar to the town of Gilbert’s were content based and subject to strict scrutiny); Matthews v. Needham, 764 F.2d 58, 59–60 (C.A.1 1985) (law banning political signs but not commercial signs was content based and subject to strict scrutiny).
We acknowledge that a city might reasonably view the general regulation of signs as necessary because signs “take up space and may obstruct views, distract motorists, displace alternative uses for land, and pose other problems that legitimately call for regulation.” City of Ladue, 512 U.S., at 48, 114 S.Ct. 2038. At the same time, the presence of certain signs may be essential, both for vehicles and pedestrians, to guide traffic or to identify hazards and ensure safety. A sign ordinance narrowly tailored to the challenges of protecting the safety of pedestrians, drivers, and passengers—such as warning signs marking hazards on private property, signs directing traffic, or street numbers associated with private houses— well might survive strict scrutiny. The signs at issue in this case, including political and ideological signs and signs for events, are far removed from those purposes. As discussed above, they are facially content based and are neither justified by traditional safety concerns nor narrowly tailored.
* * *
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*2233 We reverse the judgment of the Court of Appeals and remand the case for proceedings consistent with this opinion.
It is so ordered.
Justice ALITO, with whom Justice KENNEDY and Justice SOTOMAYOR join, concurring.
I join the opinion of the Court but add a few words of further explanation.
As the Court holds, what we have termed “content-based” laws must satisfy strict scrutiny. Content-based laws merit this protection because they present, albeit sometimes in a subtler form, the same dangers as laws that regulate speech based on viewpoint. Limiting speech based on its “topic” or “subject” favors those who do not want to disturb the status quo. Such regulations may interfere with democratic self-government and the search for truth. See Consolidated Edison Co. of N.Y. v. Public Serv. Comm’n of N. Y., 447 U.S. 530, 537, 100 S.Ct. 2326, 65 L.Ed.2d 319 (1980).
As the Court shows, the regulations at issue in this case are replete with content-based distinctions, and as a result they must satisfy strict scrutiny. This does not mean, however, that municipalities are powerless to enact and enforce reasonable sign regulations. I will not attempt to provide anything like a comprehensive list, but here are some rules that would not be content based:
Rules regulating the size of signs. These rules may distinguish among signs based on any content-neutral criteria, including any relevant criteria listed below.
Rules regulating the locations in which signs may be placed. These rules may distinguish between freestanding signs and those attached to buildings.
Rules distinguishing between lighted and unlighted signs.
Rules distinguishing between signs with fixed messages and electronic signs with messages that change.
Rules that distinguish between the placement of signs on private and public property.
Rules distinguishing between the placement of signs on commercial and residential property.
Rules distinguishing between on-premises and off-

Reed v. Town of Gilbert, Ariz., 135 S.Ct. 2218 (2015) 192 L.Ed.2d 236, 83 USLW 4444, 15 Cal. Daily Op. Serv. 6239...

premises signs.
Rules restricting the total number of signs allowed per mile of roadway.
Rules imposing time restrictions on signs advertising a one-time event. Rules of this nature do not discriminate based on topic or subject and are akin to rules restricting the times within which oral speech or music is allowed.*
In addition to regulating signs put up by private actors, government entities may also erect their own signs consistent with the principles that allow governmental speech. See Pleasant Grove City v. Summum, 555 U.S. 460, 467–469, 129 S.Ct. 1125, 172 L.Ed.2d 853 (2009). They may put up all manner of signs to promote safety, as well as directional signs and signs pointing out historic sites and scenic spots.
Properly understood, today’s decision will not prevent cities from regulating signs in a way that fully protects public *2234 safety and serves legitimate esthetic objectives.
Justice BREYER, concurring in the judgment.
I join Justice KAGAN’s separate opinion. Like Justice KAGAN I believe that categories alone cannot satisfactorily resolve the legal problem before us. The First Amendment requires greater judicial sensitivity both to the Amendment’s expressive objectives and to the public’s legitimate need for regulation than a simple recitation of categories, such as “content discrimination” and “strict scrutiny,” would permit. In my view, the category “content discrimination” is better considered in many contexts, including here, as a rule of thumb, rather than as an automatic “strict scrutiny” trigger, leading to almost certain legal condemnation.
To use content discrimination to trigger strict scrutiny sometimes makes perfect sense. There are cases in which the Court has found content discrimination an unconstitutional method for suppressing a viewpoint. E.g., Rosenberger v. Rector and Visitors of Univ. of Va., 515 U.S. 819, 828–829, 115 S.Ct. 2510, 132 L.Ed.2d 700 (1995); see also Boos v. Barry, 485 U.S. 312, 318–319, 108 S.Ct. 1157, 99 L.Ed.2d 333 (1988) (plurality opinion) (applying strict scrutiny where the line between subject matter and viewpoint was not obvious). And there are cases where the Court has found content discrimination to reveal that rules governing a traditional public forum are, in fact, not a neutral way of fairly managing the forum in the interest of all speakers. Police Dept. of Chicago v.

Mosley, 408 U.S. 92, 96, 92 S.Ct. 2286, 33 L.Ed.2d 212 (1972) (“Once a forum is opened up to assembly or speaking by some groups, government may not prohibit others from assembling or speaking on the basis of what they intend to say”). In these types of cases, strict scrutiny is often appropriate, and content discrimination has thus served a useful purpose.
But content discrimination, while helping courts to identify unconstitutional suppression of expression, cannot and should not always trigger strict scrutiny. To say that it is not an automatic “strict scrutiny” trigger is not to argue against that concept’s use. I readily concede, for example, that content discrimination, as a conceptual tool, can sometimes reveal weaknesses in the government’s rationale for a rule that limits speech. If, for example, a city looks to litter prevention as the rationale for a prohibition against placing newsracks dispensing free advertisements on public property, why does it exempt other newsracks causing similar litter? Cf. Cincinnati v. Discovery Network, Inc., 507 U.S. 410, 113 S.Ct. 1505, 123 L.Ed.2d 99 (1993). I also concede that, whenever government disfavors one kind of speech, it places that speech at a disadvantage, potentially interfering with the free marketplace of ideas and with an individual’s ability to express thoughts and ideas that can help that individual determine the kind of society in which he wishes to live, help shape that society, and help define his place within it.
Nonetheless, in these latter instances to use the presence of content discrimination automatically to trigger strict scrutiny and thereby call into play a strong presumption against constitutionality goes too far. That is because virtually all government activities involve speech, many of which involve the regulation of speech. Regulatory programs almost always require content discrimination. And to hold that such content discrimination triggers strict scrutiny is to write a recipe for judicial management of ordinary government regulatory activity.
Consider a few examples of speech regulated by government that inevitably involve *2235 content discrimination, but where a strong presumption against constitutionality has no place. Consider governmental regulation of securities, e.g., 15 U.S.C. § 78l (requirements for content that must be included in a registration statement); of energy conservation labelingpractices, e.g., 42 U.S.C. § 6294 (requirements for content that must be included on labels of certain consumer electronics); of prescription drugs, e.g., 21 U.S.C. § 353(b)(4)(A) (requiring a prescription drug label to bear the symbol “Rx only”); of doctor-patient confidentiality, e.g., 38 U.S.C. § 7332 (requiring confidentiality of certain

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medical records, but allowing a physician to disclose that the patient has HIV to the patient’s spouse or sexual partner); of income tax statements, e.g., 26 U.S.C. § 6039F (requiring taxpayers to furnish information about foreign gifts received if the aggregate amount exceeds $10,000); of commercial airplane briefings, e.g., 14 CFR § 136.7 (2015) (requiring pilots to ensure that each passenger has been briefed on flight procedures, such as seatbelt fastening); of signs at petting zoos, e.g., N.Y. Gen. Bus. Law Ann. § 399–ff(3) (West Cum. Supp. 2015) (requiring petting zoos to post a sign at every exit “ ‘strongly recommend[ing] that persons wash their hands upon exiting the petting zoo area’ ”); and so on.
Nor can the majority avoid the application of strict scrutiny to all sorts of justifiable governmental regulations by relying on this Court’s many subcategories and exceptions to the rule. The Court has said, for example, that we should apply less strict standards to “commercial speech.” Central Hudson Gas & Elec. Corp. v. Public Service Comm’n of N. Y., 447 U.S. 557, 562– 563, 100 S.Ct. 2343, 65 L.Ed.2d 341 (1980). But I have great concern that many justifiable instances of “contentbased” regulation are noncommercial. And, worse than that, the Court has applied the heightened “strict scrutiny” standard even in cases where the less stringent “commercial speech” standard was appropriate. See Sorrell v. IMS Health Inc., 564 U.S. ––––, ––––, 131 S.Ct. 2653, 2664, 180 L.Ed.2d 544 (2011) (BREYER, J., dissenting). The Court has also said that “government speech” escapes First Amendment strictures. See Rust v. Sullivan, 500 U.S. 173, 193–194, 111 S.Ct. 1759, 114 L.Ed.2d 233 (1991). But regulated speech is typically private speech, not government speech. Further, the Court has said that, “[w]hen the basis for the content discrimination consists entirely of the very reason the entire class of speech at issue is proscribable, no significant danger of idea or viewpoint discrimination exists.” R.A.V. v. St. Paul, 505 U.S. 377, 388, 112 S.Ct. 2538, 120 L.Ed.2d 305 (1992). But this exception accounts for only a few of the instances in which content discrimination is readily justifiable.
I recognize that the Court could escape the problem by watering down the force of the presumption against constitutionality that “strict scrutiny” normally carries with it. But, in my view, doing so will weaken the First Amendment’s protection in instances where “strict scrutiny” should apply in full force.
The better approach is to generally treat content discrimination as a strong reason weighing against the constitutionality of a rule where a traditional public forum, or where viewpoint discrimination, is threatened,

but elsewhere treat it as a rule of thumb, finding it a helpful, but not determinative legal tool, in an appropriate case, to determine the strength of a justification. I would use content discrimination as a supplement to a more basic analysis, which, tracking most of our First Amendment cases, asks whether the regulation at issue works harm to First Amendment interests that is disproportionate in light of *2236 the relevant regulatory objectives. Answering this question requires examining the seriousness of the harm to speech, the importance of the countervailing objectives, the extent to which the law will achieve those objectives, and whether there are other, less restrictive ways of doing so. See, e.g., United States v. Alvarez, 567 U.S. ––––, –––– – ––––, 132 S.Ct. 2537, 2551–2553, 183 L.Ed.2d 574 (2012) (BREYER, J., concurring in judgment); Nixon v. Shrink Missouri Government PAC, 528 U.S. 377, 400–403, 120 S.Ct. 897, 145 L.Ed.2d 886 (2000) (BREYER, J., concurring). Admittedly, this approach does not have the simplicity of a mechanical use of categories. But it does permit the government to regulate speech in numerous instances where the voters have authorized the government to regulate and where courts should hesitate to substitute judicial judgment for that of administrators.
Here, regulation of signage along the roadside, for purposes of safety and beautification is at issue. There is no traditional public forum nor do I find any general effort to censor a particular viewpoint. Consequently, the specific regulation at issue does not warrant “strict scrutiny.” Nonetheless, for the reasons that Justice KAGAN sets forth, I believe that the Town of Gilbert’s regulatory rules violate the First Amendment. I consequently concur in the Court’s judgment only.
Justice KAGAN, with whom Justice GINSBURG and Justice BREYER join, concurring in the judgment.
Countless cities and towns across America have adopted ordinances regulating the posting of signs, while exempting certain categories of signs based on their subject matter. For example, some municipalities generally prohibit illuminated signs in residential neighborhoods, but lift that ban for signs that identify the address of a home or the name of its owner or occupant. See, e.g., City of Truth or Consequences, N. M., Code of Ordinances, ch. 16, Art. XIII, §§ 11–13–2.3, 11–13– 2.9(H)(4) (2014). In other municipalities, safety signs such as “Blind Pedestrian Crossing” and “Hidden Driveway” can be posted without a permit, even as other permanent signs require one. See, e.g., Code of Athens– Clarke County, Ga., Pt. III, § 7–4–7(1) (1993). Elsewhere, historic site markers—for example, “George Washington

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Slept Here”—are also exempt from general regulations. See, e.g., Dover, Del., Code of Ordinances, Pt. II, App. B, Art. 5, § 4.5(F) (2012). And similarly, the federal Highway Beautification Act limits signs along interstate highways unless, for instance, they direct travelers to “scenic and historical attractions” or advertise free coffee. See 23 U.S.C. §§ 131(b), (c)(1), (c)(5).
Given the Court’s analysis, many sign ordinances of that kind are now in jeopardy. See ante, at 2231 (acknowledging that “entirely reasonable” sign laws “will sometimes be struck down” under its approach (internal quotation marks omitted)). Says the majority: When laws “single[ ] out specific subject matter,” they are “facially content based”; and when they are facially content based, they are automatically subject to strict scrutiny. Ante, at 2230, 2232 – 2233. And although the majority holds out hope that some sign laws with subject-matter exemptions “might survive” that stringent review, ante, at 2232 – 2233, the likelihood is that most will be struck down. After all, it is the “rare case[ ] in which a speech restriction withstands strict scrutiny.” Williams–Yulee v. Florida Bar, 575 U.S. ––––, ––––, 135 S.Ct. 1656, 1666, –––L.Ed.2d –––– (2015). To clear that high bar, the government must show that a content-based distinction “is necessary to serve a compelling state interest and is narrowly drawn to achieve that end.” Arkansas Writers’ Project, Inc. *2237 v. Ragland, 481 U.S. 221, 231, 107 S.Ct. 1722, 95 L.Ed.2d 209 (1987). So on the majority’s view, courts would have to determine that a town has a compelling interest in informing passersby where George Washington slept. And likewise, courts would have to find that a town has no other way to prevent hiddendriveway mishaps than by specially treating hiddendriveway signs. (Well-placed speed bumps? Lower speed limits? Or how about just a ban on hidden driveways?) 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.*
Although the majority insists that applying strict scrutiny to all such ordinances is “essential” to protecting First Amendment freedoms, ante, at 2231, I find it challenging to understand why that is so. This Court’s decisions articulate two important and related reasons for subjecting content-based speech regulations to the most exacting standard of review. The first is “to preserve an uninhibited marketplace of ideas in which truth will ultimately prevail.” McCullen v. Coakley, 573 U.S. ––––, –––– – –– ––, 134 S.Ct. 2518, 2529, 189 L.Ed.2d 502 (2014)

(internal quotation marks omitted). The second is to ensure that the government has not regulated speech “based on hostility—or favoritism—towards the underlying message expressed.” R.A.V. v. St. Paul, 505 U.S. 377, 386, 112 S.Ct. 2538, 120 L.Ed.2d 305 (1992). Yet the subject-matter exemptions included in many sign ordinances do not implicate those concerns. Allowing residents, say, to install a light bulb over “name and address” signs but no others does not distort the marketplace of ideas. Nor does that different treatment give rise to an inference of impermissible government motive.
We apply strict scrutiny to facially content-based regulations of speech, in keeping with the rationales just described, when there is any “realistic possibility that official suppression of ideas is afoot.” Davenport v. Washington Ed. Assn., 551 U.S. 177, 189, 127 S.Ct. 2372, 168 L.Ed.2d 71 (2007) (quoting R.A.V., 505 U.S., at 390, 112 S.Ct. 2538). That is always the case when the regulation facially differentiates on the basis of viewpoint. See Rosenberger v. Rector and Visitors of Univ. of Va., 515 U.S. 819, 829, 115 S.Ct. 2510, 132 L.Ed.2d 700 (1995). It is also the case (except in non-public or limited public forums) when a law restricts “discussion of an entire topic” in public debate. Consolidated Edison Co. of N.Y. v. Public Serv. Comm’n of N. Y., 447 U.S. 530, 537, 539–540, 100 S.Ct. 2326, 65 L.Ed.2d 319 (1980) (invalidating a limitation on speech about nuclear power). We have stated that “[i]f the marketplace of ideas is to remain free and open, governments must not be allowed to choose ‘which issues are worth discussing or debating.’ ” Id., at 537–538, 100 S.Ct. 2326 (quoting Police Dept. of *2238 Chicago v. Mosley, 408 U.S. 92, 96, 92 S.Ct. 2286, 33 L.Ed.2d 212 (1972)). And we have recognized that such subject-matter restrictions, even though viewpointneutral on their face, may “suggest[ ] an attempt to give one side of a debatable public question an advantage in expressing its views to the people.” First Nat. Bank of Boston v. Bellotti, 435 U.S. 765, 785, 98 S.Ct. 1407, 55 L.Ed.2d 707 (1978); accord, ante, at 2233 (ALITO, J., concurring) (limiting all speech on one topic “favors those who do not want to disturb the status quo”). Subjectmatter regulation, in other words, may have the intent or effect of favoring some ideas over others. When that is realistically possible—when the restriction “raises the specter that the Government may effectively drive certain ideas or viewpoints from the marketplace”—we insist that the law pass the most demanding constitutional test. R.A.V., 505 U.S., at 387, 112 S.Ct. 2538 (quoting Simon & Schuster, Inc. v. Members of N.Y. State Crime Victims Bd., 502 U.S. 105, 116, 112 S.Ct. 501, 116 L.Ed.2d 476 (1991)).

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But when that is not realistically possible, we may do well to relax our guard so that “entirely reasonable” laws imperiled by strict scrutiny can survive. Ante, at 2231. This point is by no means new. Our concern with contentbased regulation arises from the fear that the government will skew the public’s debate of ideas—so when “that risk is inconsequential, ... strict scrutiny is unwarranted.” Davenport, 551 U.S., at 188, 127 S.Ct. 2372; see R.A.V., 505 U.S., at 388, 112 S.Ct. 2538 (approving certain content-based distinctions when there is “no significant danger of idea or viewpoint discrimination”). To do its intended work, of course, the category of content-based regulation triggering strict scrutiny must sweep more broadly than the actual harm; that category exists to create a buffer zone guaranteeing that the government cannot favor or disfavor certain viewpoints. But that buffer zone need not extend forever. We can administer our contentregulation doctrine with a dose of common sense, so as to leave standing laws that in no way implicate its intended function.
And indeed we have done just that: Our cases have been far less rigid than the majority admits in applying strict scrutiny to facially content-based laws—including in cases just like this one. See Davenport, 551 U.S., at 188, 127 S.Ct. 2372 (noting that “we have identified numerous situations in which [the] risk” attached to content-based laws is “attenuated”). In Members of City Council of Los Angeles v. Taxpayers for Vincent, 466 U.S. 789, 104 S.Ct. 2118, 80 L.Ed.2d 772 (1984), the Court declined to apply strict scrutiny to a municipal ordinance that exempted address numbers and markers commemorating “historical, cultural, or artistic event[s]” from a generally applicable limit on sidewalk signs. Id., at 792, n. 1, 104 S.Ct. 2118 (listing exemptions); see id., at 804–810, 104 S.Ct. 2118 (upholding ordinance under intermediate scrutiny). After all, we explained, the law’s enactment and enforcement revealed “not even a hint of bias or censorship.” Id., at 804, 104 S.Ct. 2118; see also Renton v. Playtime Theatres, Inc., 475 U.S. 41, 48, 106 S.Ct. 925, 89 L.Ed.2d 29 (1986) (applying intermediate scrutiny to a zoning law that facially distinguished among movie theaters based on content because it was “designed to prevent crime, protect the city’s retail trade, [and] maintain property values ..., not to suppress the expression of unpopular views”). And another decision involving a similar law provides an alternative model. In City of Ladue v. Gilleo, 512 U.S. 43, 114 S.Ct. 2038, 129 L.Ed.2d 36 (1994), the Court assumed arguendo that a sign ordinance’s exceptions for address *2239 signs, safety signs, and for-sale signs in residential areas did not trigger strict scrutiny. See id., at 46–47, and n. 6, 114 S.Ct. 2038 (listing exemptions); id., at 53, 114 S.Ct. 2038 (noting this assumption). We did not need to, and so did not, decide the level-of-scrutiny

question because the law’s breadth made it unconstitutional under any standard.
The majority could easily have taken Ladue ‘s tack here. The Town of Gilbert’s defense of its sign ordinance— most notably, the law’s distinctions between directional signs and others—does not pass strict scrutiny, or intermediate scrutiny, or even the laugh test. See ante, at 2231 – 2232 (discussing those distinctions). The Town, for example, provides no reason at all for prohibiting more than four directional signs on a property while placing no limits on the number of other types of signs. See Gilbert, Ariz., Land Development Code, ch. I, §§ 4.402(J), (P)(2) (2014). Similarly, the Town offers no coherent justification for restricting the size of directional signs to 6 square feet while allowing other signs to reach 20 square feet. See §§ 4.402(J), (P)(1). The best the Town could come up with at oral argument was that directional signs “need to be smaller because they need to guide travelers along a route.” Tr. of Oral Arg. 40. Why exactly a smaller sign better helps travelers get to where they are going is left a mystery. The absence of any sensible basis for these and other distinctions dooms the Town’s ordinance under even the intermediate scrutiny that the Court typically applies to “time, place, or manner” speech regulations. Accordingly, there is no need to decide in this case whether strict scrutiny applies to every sign ordinance in every town across this country containing a subject-matter exemption.
I suspect this Court and others will regret the majority’s insistence today on answering that question in the affirmative. As the years go by, courts will discover that thousands of towns have such ordinances, many of them “entirely reasonable.” Ante, at 2231. 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. Because I see no reason why such an easy case calls for us to cast a constitutional pall on reasonable regulations quite unlike the law before us, I concur only in the judgment.
All Citations
135 S.Ct. 2218, 192 L.Ed.2d 236, 83 USLW 4444, 15 Cal. Daily Op. Serv. 6239, 2015 Daily Journal D.A.R. 6831, 25 Fla. L. Weekly Fed. S 383

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Footnotes

*

The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the

convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U.S. 321, 337, 26 S.Ct. 282, 50 L.Ed. 499.

1

The Town’s Sign Code is available online at http://www. gilbertaz.gov/departments/development-service/planning-

development/land-development-code (as visited June 16, 2015, and available in Clerk of Court’s case file).

2

A “Temporary Sign” is a “sign not permanently attached to the ground, a wall or a building, and not designed or intended for

permanent display.” Glossary 25.

3

The Code defines “Right–of–Way” as a “strip of publicly owned land occupied by or planned for a street, utilities, landscaping,

sidewalks, trails, and similar facilities.” Id., at 18.

4

The Sign Code has been amended twice during the pendency of this case. When litigation began in 2007, the Code defined the

signs at issue as “Religious Assembly Temporary Direction Signs.” App. 75. The Code entirely prohibited placement of those signs

in the public right-of-way, and it forbade posting them in any location for more than two hours before the religious assembly or

more than one hour afterward. Id., at 75–76. In 2008, the Town redefined the category as “Temporary Directional Signs Related

to a Qualifying Event,” and it expanded the time limit to 12 hours before and 1 hour after the “qualifying event.” Ibid. In 2011,

the Town amended the Code to authorize placement of temporary directional signs in the public right-of-way. Id., at 89.

*

Of course, content-neutral restrictions on speech are not necessarily consistent with the First Amendment. Time, place, and

manner restrictions “must be narrowly tailored to serve the government’s legitimate, content-neutral interests.” Ward v. Rock

Against Racism, 491 U.S. 781, 798, 109 S.Ct. 2746, 105 L.Ed.2d 661 (1989). But they need not meet the high standard imposed on

viewpoint- and content-based restrictions.

*

Even in trying (commendably) to limit today’s decision, Justice ALITO’s concurrence highlights its far-reaching effects. According

to Justice ALITO, the majority does not subject to strict scrutiny regulations of “signs advertising a one-time event.” Ante, at 2233

(ALITO, J., concurring). But of course it does. On the majority’s view, a law with an exception for such signs “singles out specific

subject matter for differential treatment” and “defin[es] regulated speech by particular subject matter.” Ante, at 2227, 2230

(majority opinion). Indeed, the precise reason the majority applies strict scrutiny here is that “the Code singles out signs bearing a

particular message: the time and location of a specific event.” Ante, at 2231.

End of Document

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