FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

CLYDE REED, Pastor; GOOD NEWS 

COMMUNITY CHURCH,

Plaintiffs-Appellants, No. 08-17384

v. D.C. No.  2:07-cv-00522-SRB TOWN OF GILBERT, ARIZONA; ADAM

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
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

REED v. TOWN OF GILBERT 15397
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. 

15398 REED v. TOWN OF GILBERT
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

REED v. TOWN OF GILBERT 15399
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). 

15400 REED v. TOWN OF GILBERT
III. DISTRICT COURT PROCEEDINGS

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.” 

REED v. TOWN OF GILBERT 15401
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.” 

4

In 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. 

15402 REED v. TOWN OF GILBERT
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

REED v. TOWN OF GILBERT 15403
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.

15404 REED v. TOWN OF GILBERT
A. CONTENT-BASED REGULATIONS

[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

REED v. TOWN OF GILBERT 15405
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

15406 REED v. TOWN OF GILBERT
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. 

REED v. TOWN OF GILBERT 15407
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:

15408 REED v. TOWN OF GILBERT
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.

REED v. TOWN OF GILBERT 15409
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 require15410 REED v. TOWN OF GILBERT
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

REED v. TOWN OF GILBERT 15411
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 Fayette15412 REED v. TOWN OF GILBERT
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

6

In 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. 

REED v. TOWN OF GILBERT 15413
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

15414 REED v. TOWN OF GILBERT
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 communicatREED v. TOWN OF GILBERT 15415
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. 

15416 REED v. TOWN OF GILBERT
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

8

See 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.”). 

REED v. TOWN OF GILBERT 15417
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.

15418 REED v. TOWN OF GILBERT
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

REED v. TOWN OF GILBERT 15419
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. 

15420 REED v. TOWN OF GILBERT