ADF: Supreme Court should end govt speech discrimination against churches

WASHINGTON — Alliance Defending Freedom attorneys representing an Arizona church filed a brief Wednesday with the U.S. Supreme Court in reply to a Phoenix suburb’s defense of its discriminatory sign ordinance.

In October of last year, Alliance Defending Freedom asked the high court to review the case and reverse a 2–1 U.S. Court of Appeals for the 9th Circuit decision that allows local governments to impose stricter regulations on temporary church signs than other temporary, non-commercial signs.

“No law should treat the speech of churches worse than the speech of other similar speakers,” said Alliance Defending Freedom Senior Counsel David Cortman. “The town of Gilbert cannot apply stricter rules to church signs when it doesn’t apply them to ideological, political, and other non-commercial signs. Because the 9th Circuit’s decision conflicts with the decisions of other circuits, we hope the Supreme Court will agree to step in.”

Last November, seven ideologically diverse law professors, including Nadine Strossen, professor of law at New York Law School and former president of the American Civil Liberties Union, submitted a brief to the U.S. Supreme Court asking it to take the case and rule in favor of the church. The professors, represented by Eugene Volokh of the UCLA School of Law and who have all written extensively on the First Amendment, explained in their brief that the court should “reaffirm the importance of treating content-based speech restrictions as presumptively unconstitutional.”

Under Gilbert’s ordinance, political signs can be up to 32 square feet, displayed for many months, and unlimited in number. An ideological sign can be up to 20 square feet, displayed indefinitely, and unlimited in number. The church’s signs can only be six square feet, may be displayed for no more than 14 hours, and are limited to four per property.

In a dissent accompanying the 9th Circuit’s ruling, Circuit Judge Paul Watford commented on the discrepancies: “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.”

The Alliance Defending Freedom reply brief explains that, “Gilbert’s Code requires an examination of the subject matter of a temporary sign because what it says determines how it is treated. That is classic content-based discrimination.”

“The town’s claim that it is concerned about traffic safety doesn’t hold up,” added Senior Legal Counsel Jeremy Tedesco. “If town officials were truly concerned about that, they would apply the rules evenly to all similar temporary signs. Instead, they are playing favorites, and the Constitution does not permit that.”