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At the U.S. Supreme Court today, the justices wrestled with a question about signs. What should the Constitutional rules be for local governments who want to limit sign clutter on public property? The case pits a small religious group against the suburban town of Gilbert, Arizona. NPR legal affairs correspondent Nina Totenberg has more.
NINA TOTENBERG, BYLINE: Sign regulation is a thorn in the side of local governments. Too little regulation and they get sued for traffic safety problems, sign clutter and degraded property values. Too much regulation and they get sued for First Amendment violations. So like Goldilocks, they're always trying to get the balance just right. The case before the court today was brought by Pastor Clyde Reed and his Good News Community Church, a tiny congregation of 25 to 30 adults who meet in different rented spaces in suburban Gilbert. The town maintains that the church's signs on public property are temporary, directional signs for events and under the town ordinance are thus limited to six square feet and can be posted just 12 hours before the event. But other signs posted on public property, namely political or ideological signs, can be bigger and stay up far longer. On the steps of the Supreme Court today, Pastor Reed said he found the difference shocking.
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CLYDE REED: Our signs inviting people to church are very important yet are treated as second-class speech. We aren't asking for special treatment. We just want our town to stop favoring the speech of others over ours.
TOTENBERG: Pastor Reed's lawyers argue that if local governments are worried about sign clutter, they can limit the number of signs to one per block, for instance, and make it first come, first served. Local and state government officials counter that such a rule would be unrealistic given that there may be 50 or 60 candidates and initiatives in a given election. The town of Gilbert's lawyer, Philip Savrin, says the result would be far less speech.
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PHILIP SAVRIN: And that means if you get a sign out there, the next person can't. So it's going to crowd out more people. And it's going to have the effect of whoever gets there first gets to have their sign.
TOTENBERG: Inside the Supreme Court chamber, Pastor Reed's lawyer, David Cortman, told the justices that the town of Gilbert unconstitutionally discriminates against those seeking to put up temporary event signs because it treats these signs differently based on what they say. Chief Justice Roberts - your argument does not turn on the fact that it's a church sign, does it? Your argument would be the same if this is a temporary sign about where the soccer game was going to be. Answered - that's right. Roberts followed up, don't you think that political speech is more valuable than directions to a soccer game? Lawyer Cortman replied that the government should not be able to decide that question. It must treat all signs equally. So, asked Justice Alito, if the state and city allow election-related signs to stay up for five months on public property, would the commercial organizers of a one-time yard sale have the same right? Answer - yes. Justice Kennedy - it seems to me you're forcing us to make a very wooden distinction that could result in a proliferation of signs for birthday parties or every conceivable event. And they would be allowed to stay up for five months because political signs are allowed for that long. While Kennedy and several other conservative justices sounded doubtful about Pastor Reed's equal treatment demand, both conservative and liberal justices sounded doubtful about the way the town of Gilbert has written its regulations. Justice Ginsburg noted that Pastor Reed's sign not only gives directions; it welcomes people to attend. Lawyer Savrin argued that the town's sign regulations are based on function, not content. And here, the function was directional. He noted that it is the state that makes the rules on political signs, and the town just enacts its ordinance to comply with that state law. Justice Scalia - So your defense is the state made me do it? Answer - in part, yes. Justices Ginsburg and Alito pressed Savrin on the town's position about mixed signs. Would a sign that both invites people to attend church services and gives directions still be limited as a 12-hour directional sign? Answer - yes. Justice Alito asked rhetorically, so could you put up a quote-unquote "ideological sign" that says, come to our service on Sunday morning. We can't tell you now where it'll be because the town won't let us? That prompted Justice Breyer to ask, what is this argument about? Are you saying that if they do that, they can't say, three blocks right and three blocks left? Is that what this argument is about? Answer - that's what it comes down to. Well, my goodness, harrumphed Justice Breyer, it does sound as if the town is being a little unreasonable, doesn't it? A decision in the case is expected by summer. Nina Totenberg, NPR News, Washington.