Clyde Reed v. Town of Gilbert, Arizona

sеek further administra- upgrade request, 385.15(a). §§ pursuant review See

tive 385.15(c)(2), §§ id. That re-

also 385.17®. agency

view result a final decision violations, challenged

as to the a decision

that has not heretofore occurred. short, all Multistar has received process regard it was due with violations,

contested and FMCSA’s denial petition

of Multistar’s for review was not

arbitrary capricious. Accordingly,

deny petition Multistar’s for review as to process

the due issue. part and DENIED in

DISMISSED

part.

Clyde REED, Pastor Community Church,

News

Plaintiffs-Appellants, GILBERT,

TOWN OF ARIZONA and Adams, capacity

Adam in his official Compliance Manager,

as Code Defen

dants-Appellees.

No. 11-15588. Appeals,

United States Court of

Ninth Circuit.

Argued and Aug. Submitted 2012.

Filed Feb. Scottsdale,

Jeremy (argued), D. Tedesco AZ, Cortman, Lawrenceville, and David A. GA, Plaintiffs-Appellants. (ar- Grasso, Jr., Kim

Robert S. Alvarado Winkler, gued), Jenny J. Grasso Law Firm, P.C., Chandler, AZ, for Defendants- Appellees. (“Gilbert”) during the

the Town of Gilbert not moot this pendency appeal of this do may file a new case and that Good News M. Before: CONSUELO CALLAHAN action in the district court should it wish WATFORD, Judges, J. Circuit and PAUL challenge provisions the new SINGLETON, K. Senior JAMES Code. Judge.* District I. CALLAHAN; Opinion by Judge relatively church Good News is a small by Judge Dissent WATFORD. 4 to 10 with 25 to 30 adult members and News believe children. “Members Good OPINION go commands them to and make the Bible CALLAHAN, Judge: Circuit nations, disciples they of all and that Community News Church and its Good carry by out command reach- should this (referred Clyde Reed to collective- pastor, community together ing out to the meet News”), ly appeal as “Good from dis- so, they a regular display on basis. To do trict court’s determination on remand signs announcing services as an invi- their from the Ninth Circuit that the Town of community in tation for those to at- size, ordinance that restricts the Gilbert’s (internal Reed, tend.” 587 F.3d at 971 di- temporary duration and location omitted). quotation Starting marks signs rectional does not discriminate be- around Good News met at an ele- different forms of noncommercial tween mentary presеntly school in Gilbert. Id. It in a unconstitutional manner. In in space elementary rents at an school Gilbert, (9th Reed v. Town F.3d Chandler, Arizona, which borders Gilbert. Cir.2009), we held that the ordinance time, placed For a Good News about 17 (sometimes “Sign referred to as the signs surrounding place in the area its Code”) is not a content-based worship announcing in Gilbert the time time, place man- and is reasonable and In and location its services. Good However, ner restriction. we remanded advisory News received an notice from court the case to the district “to consider Equal violating the First Amendment and Protec- Gilbert that it was the town’s Sign tion claims that the is unconsti- ordinance because “the were dis- favoring tutional in some noncommercial played statutorily-limited outside the time speech.” over other noncommercial thereafter, period.” For a while Id. signs it News reduced the number of erected and the amount of time its signs in Accepting opinion our Reed as law of place, friction were but with Gilbert case, we conclude that the Code is Reed, at 972. In persisted. because the different treat- constitutional March Good News filed suit feder- temporary ment of types of alleging al court in Arizona that Gilbert’s signs are not that term content-based as Speech the Free Reed, Sign Code violated defined in and the restrictions are Clause of the First Amendment and significant governmental tailored to serve addition, Equal determine that Protection Clause of the Fourteenth interests. Sign-Code the amendments to the made Amendment.

* Alaska, Singleton, sitting by designation. The Honorable James K. Senior Judge District for the U.S. District Court for only permission A. The Ordinances with the of the owner of property they placed.” which municipalities, regu- Gilbert many Like Additional restrictions include that “[n]o signs. of outdoor Gilbert display lates the more that 4 shall displayed be on a Code, Division Development Land Gen- time,” single property any one (the Regulations, “Sign eral Article 4.4 Signs may not be Code”). 4.401(A) pur- outlines the Section placed “in a public right-of-way”2 or on Code, namely, poses for the to “as- “fences, boulders, planters, signs, other ve- proper expression and efficient sure hicles, facilities, utility any structure.” involving communications through visual signs compatible with the character and Sign” A “Political is defined as a “tem- Town; environment of the to eliminate porary sign supports which candidates confusing, distracting, signs; and unsafe urges office or action on other matter the visual environment of enhance primary, general on the ballot of spe- the Town of Gilbert.” (a) Signs may cial elections.” Political be (b) size, up to square feet 4.402(A), person may § no erect

Under any erected time to an prior election but obtaining a sign sign per- a without first days must be taken down within 10 mit, sign exempted unless the is one under (c) election, number, in are not limited and 4.402(D). 4.402(D) § lists nineteen Section (d) may placed public be in the right-of- types signs different of that are allowed way. “Ideological An a Sign” “sign is permit.1 types without a Three of the of communicating a message or ideas for non- are of exempted signs particular relevance: purposes commercial is not a con- “Temporary Signs Relating Directional Event,” Qualifying Signs,” sign, sign, “Political and struction directional temporary “Ideological Signs.” sign, temporary directional directional event, relating qualified political sign, to a asserts, Gilbert and Good News con- garage sign, sale or owned or re- cedes, Tempo- News’ are Good quired by governmental a agency.” Ideo- rary subject Signs Directional to the re- (a) logical Signs may up square be to 20 4.402(P). § quirements of This subsection (b) (c) size, time, feet in not limited in are provides “Temporary Directional (d) number, in are not limited and be Signs Qualifying ... Relating to Event placed public right-of-way. greater height shall be no than 6 feet area,” square only and 6 feet “shall Proceedings B. Initial in the District before, displayed up during to 12 hours Court and 1 hour after the qualifying event ends,” initially prelimi- to a “may stipulated be located off-site and shall be Gilbert level,” nary injunction, at placed grade placed and “shall be but when Gilbert amended (14) (15) types Signs; Signs; Tem- 1. The nineteen are: dow A-Frame Qual- (1) porary Signs Relating to a Signs governmental juris- installed diction; Event; (2) (16) (17) Building Signs; ifying Signs; Identification Construction (3) Regulatory Parking Permanent and Suspended Signs (particular type of com- (4) Signs; Signs (e.g., Information Wall (18) sign); Signs; mercial Restaurant Menu Entrance”); (5) "Delivery Real Estate (19) Required Street Addresses. (6) Signs; Open Signs; Residential House Reed, n. 2. 587 F.3d (7) (8) Signs; Ideological Signs; Political (9) (10) Garage Signs; Sale Business Iden- Sign 2. In October Gilbert amended the during tification Banners street construc- placement Code to allow Di- tion; (11) Interim Business Identification right-of-way. public rectional within the Banners; (12) (13) Boutique Signs; Win- Sign is not a content- News 2. The Code way in a that Good based consti- infringe on its continued believed a second News filed rights, tutional Good Second, reviewing after the evolution injunction. In preliminary motion for a City Menlo opinions our from Foti v. court denied the district September (9th Park, Cir.1998), Me 146 F.3d 629 injunction, an con- News’ motion for (9th Seattle, 409 F.3d 1113 City notti v. 4.402(P) (a) “§ content- cluding that: Cir.2005), Travel v. and G.K. Limited passes regulation, (9th [ ] neutral Cir. Oswego, Lake 436 F.3d scrutiny;” intermediate level of applicable 2006) (“G.K. Ltd.”), fact we determined the (b) not violate Code “does had to read a that an enforcement official uneven effects equal protection, that a ordinance is sign did not mean consequence of the lawful Instead, an unintended concluded content-based. we Reed, regulation.” determining content-neutral “our focus should be on to the appealed Good News targets F.3d certain con whether the ordinance tent; exemption Ninth Circuit. whether the ordinance speaker of a on identification based content; event instead of on and whether Gilbert, 587 F.3d C. Reed Town officer would need to dis enforcement 2009) (9th Cir. applicability tinguish content to determine basically In November 2009 we affirmed Reed, at 976. of the ordinance.”3 injunction. denial of an the district court’s Code, Applying this focus so, doing we made four determinations “regulates physi- found that the ordinance guide appeal. our review this characteristics, size, cal such as number signs,” of the their loca- and construction alleges as-applied an 1. Good News tions, timing displays, and the none Sign challenge to the Code “implicate speech.” which the content First, News’ chal- we held Good at noted that definition “[t]he Id. 977. We lenge as-applied challenge, an and not was sign merely Event encom- Qualifying of a challenge, Sign a facial Code. Id. passes speaking the elements of ‘who’ is News’ at- 974. determined occurring.” We is Id. These and ‘what event’ a “basically tack on the ordinance was speaker-based the and two criteria invoke to challenge applied approved to the ordinance as event-based characteristics activities,” therefore we limited limit and Ltd. because “the [its] d[id] G.K constitutionality way.” analysis of the of the the of [the] our substance 1078). Ltd., 436 F.3d at application (quoting ordinance to its to Good News. Id. G.K. explained that this case: Id. We Ltd., exemptions de- quoted based ... the officer must 3. We from G.K. specific triggering that: only whether a termine temporary the speaker- event-based ex- event has occurred and if Neither the nor implicate emptions sign specified Foti insofar as neither has been erected within the requires enforcement officers to “read law time frame. message sign sign's a to determine if the Reed, 587 F.3d at 976. Foti, exempted from the ordinance.” category, speaker F.3d at 636. In the offi- "Qualifying Sign” Event In Reed used applies exemption cers decide whether exempt- refer to entity through by identifying speaking the 4.402(P) Sign §by Code. 587 F.3d ed sign regard without for the actual sub- at 972. message. In the case of event- stance of highlights absurdity construing etic safety and interests limiting the “officer must read it” test a as bell- size, proliferation duration and signs. content. If applied wether of without See G.K. 436 F.3d at 1073. These sense, principle common this would restricting measures the number of every sign, mean that except blank hmiting and private them to prop- sign, would be content based. aWhile erty do not appear substantially broader n briefly Gilbert officer take in needs required measures than to make sure Qualifying what is written on the Event the rights-of-way are not so thicketed Sign to note who speaking and the with pose safety as to hazard or event, timing of the listed this “kind of create an aesthetic blight. The limita- cursory examination” is not akin to an tion on timing hours before the —twelve synthesizing expressive officer con- event and onе hour equally after —is sign. tent of the narrowly tailored to meet these inter- Reed, 587 F.8d at 978. We concluded ests. it might While be easier pro- 4.402(P) § “that is not a content-based vide broader exposure for Good News to regulation: single It does not out certain have the treatment, up twenty-four hours, content for differential and in enforcing provision an officer must the test is not optimal convenience or merely note the content-neutral elements display. speaking through who is

whether and when an occurring.” event is Id. at 979. We also held that the district court did not abuse its discretion in finding that the narrowly

3. The Code is tailored significant Gilbert’s inter- allowed for alternate channels farther ests of communications for Good News com- municate effectively with members Third, we determined that Code, public. Id. at time, explained 981. We place “as content-neutral regulation,” “[wjhile manner id. at also had to options alternative identified be, was, narrowly Quoting tailored. the district court not be Good Racism, Against Ward Rock preference, News’ “we cannot invalidate 105 L.Ed.2d 661 Sign merely Code because it restricts (1989), recognized “narrowly that to be plaintiffs’ preferred method of communica- Sign tailored” the Code had to “serve a ” (quoting tion.’ Id. G.K. 436 F.3d at significant governmental interest” and had 1074). also noted that We the alternative open ample “leave alternative channels modes available did not appear espe- to be for communication of that information.” cially burdensome. Id. Reed, 587 F.3d at 979. We held that the district court had not abused its discretion This section of Reed concludes with the in concluding Sign that the nar- Code “is affirmative statement that: rowly tailored as it in sweep does not more 4.402(P) reg- Section is a content-neutral speech necessary than is to achieve the time, ulation of place and manner of objectives,” Town’s aesthetic and traffic display Qualifying of Good News’ ‍‌‌​​​​​‌​‌‌‌‌​​​‌‌​​​​‌‌​‌​​‌‌​​‌‌​‌‌‌​​‌‌​‌‌‌​​‍Event 587 F.3d at explaining: Signs; narrowly provision tailored time, place restrictions on and man- significant to further Gilbert’s interests imposed by ner on the display Gilbert safety; in aesthetics and traffic Qualifying Signs Events would indeed appear “actually ample advance” the aesth- Good News has alternative chan- identify speaking who is and what to seeks communicating its invitation

neis of occurring and does not discrimi- event church services. Second, of content.” cit- nate on the basis order, injunction ing preliminary its com- Sign does not 4. The Code favor Sign that the Code court reiterated district speech mercial over noncommercial significant narrowly tailored to serve was holding in Reed is The fourth relevant Third, interests. the court government the district court determination that our finding non-preliminary embraced as a its concluding, in its discretion “did abuse speech determination that noncommercial еxamination, Sign Code after close favorably than commercial is more treated not favor commercial over does speech. speech.”5 Id. at 982. Our non-commercial issue, Addressing the remanded the dis- a limited in Reed remanded on opinion thought trict court that the different treat- consider the First Amend only: issue “to ments of various forms of noncommercial claims that the Equal ment and Protection were “akin to the favoring in Sign Code is unconstitutional in Ltd.” The district court rea- issue G.K. speech over other some noncommercial soned: Id. at 983. speech.” We Signs Qualifying Both Political remand, court the district “[o]n noted substance, relate, Signs Event in opportunity to determine

will have a specified events—an election or event impermissibly ‘evaluate[d] Gilbert whether fitting Sign definition in the Code. In between, of, strength distinguished Signs, the case of Political the event is of communicative in various [noncommercial] place at a widespread interest and takes ” (quoting terests.’ Id. at 983 Metromedia fixed, regular Qualified interval. A Diego, 453 Inc. v. San once, might place might Event take (1981)). 514, 101 S.Ct. 69 L.Ed.2d 800 week, depend- place take several times Qualifying A ing type on the event. Proceedings D. on Remand so-called “core” Event could invoke District Court always Political speech, but remand, agreed to submit parties On distinguish To speech.... core between summary the case on cross-motions for Qualifying a Politicаl and a Event judgment. The district court’s order set Sign, only skim the an officer need preliminary determinations. speaker (e.g. forth three to determine the is a non- First, Reed, part opinion based on our and the event at issue profit speaking?) “is a to an or a (e.g. the court held does this relate election Event?). Qualifying the content-neutral of that G.K explained: Qualifying Signs greater; 5. We Event allowed is Signs may concluded, however, Qualifying placed Event be dur- The district court that weekends; ing week-days as well as the size speech enjoys Good News’ "noncommercial Qualifying Signs allowed for Events is fewer restrictions than its commercial greater; although Qualifying the counterparts.” performed a The court Signs may placed rights-of- Events not be in comparison careful the restrictions way, they placed Qualifying Signs are not restricted to a two-mile on Event versus Signs” "paramount for subdivi- radius from the event. Of im- "Weekend Directional sales, portance” to court was the fact that no sion the commercial show- the receiving permit required display Qualifying more is a cased Good News as Sign, permit in contrast to the re- favorable treatment. The district court Events Signs. Qualifying Signs quired Event for the Weekend Directional concluded that (footnote omitted). top Id. at come out on as the total number of 981-82 determining Sign the speaker After Code court concluded —and— a did not render exemptions among typеs did not discriminate of non- event based because regulation content-based sign speech, commercial the district court re- distinguishing on municipality was the jected argument Sign Good News’ identity and speaker’s the basis of impermissibly vague Code was and over- oc- triggering event had whether a Williams, Citing broad. United States curred, sign’s on the of the not basis content. (2008), L.Ed.2d 650 the district court com- “[v]agueness

mented doctrine specif- are not tied to a Ideological Signs Amendment, outgrowth not of the First event, way Qualifying Political and ic of the Fifth but of the Due Process Clause are, subject they so are not Signs Event Amendment,” and that a statute is void if time restriction under to an event-based “provide person ordinary it does not accounts for the Sign Code. This fair intelligence prohibit- notice of what is Ideologi- for different “time” restriction ed, or is so standardless that authorizes namely whether Signs. place, cal As for seriously en- encourages discriminatory in particular type sign placed can be The district court forcement”. determined that it right-of-way, argues Gilbert Sign that the deterrent effect of the Code limit municipal made a decision to has was “insubstantial and remote” as the “or- right- the overall number of provides plenty guidance dinance of-way, and it does not discriminate at people ordinary intelligence to deter- Ideological Signs.... None- among all permitted pro- mine conduct what thelеss, the Court finds hibited, arbitrary, and does not foster ca- distinguish not on the basis of Code does pricious, discriminatory enforcement.”6 because, message sign other relating events—whether than E. Gilbert’s Motion to Dismiss are or bake those events elections appeal Good News filed this from the treats all sales—the mes- summary judg- entry district court’s sages equal footing. Because Ideo- However, in favor of ment Gilbert. event, to an logical Signs do relate appeal pend- October while the was they distinguishable Qualifying from ing, Gilbert made two amendments to its Signs. Event To determine whether (1) placement it allowed Code: Qualify- Ideological Sign is an or a Signs Directional Temporary within ing Sign, Event an officer does not need (2) it limited the public right-of-way; only to read the content: he or she need Sign exemption look to concerns an see whether the Town of Gilbert.7 event. events held within placed grade 6. The district court discounted Good News’ cated off-site and shall responses reliance on Gilbert’s officials' BE PLACED IN THE level. MAY depositions hypothetical OR, con- situations RIGHT-OF-WAY WITH PERMISSION cerning signs political and that had both ideo- OWNER, PROPERTY OF THE PRIVATE logical information because the officials said placed ON PRIVATE PROPERTY shall ba they sign. that had never seen such a only permission-of-the of with the owner they placed. property-on the —which read, 4.402(P)(4) (5) § 7. Section now TO SIGNS SHALL RELATE ONLY language capitals with the added and the THE EVENTS OCCURRING WITHIN cross-out, language omitted as follows: TOWN. Signs Temporary 4. Location. Directional Relating Qualifying to a Event be lo- Code, Sign amended Gilbert There is no mere that Based on the risk Jacksonville argu- appeal, repeat allegedly wrongful filed a motion to dismiss this will its con- duct; already News held its ser- it has Nor ing that because Good done so. does Gilbert, qualify it does not it matter that the new ordinance differs vices outside respects for the Directional ex- in certain from the old one. Temporary emption, standing pursue City Mesquite and lacks this not stand for the does proposition only possibility that it is appeal. the statute selfsame will be enacted presents a The motion to dismiss situa moot; prevents being that from if case Supreme that analogods tion before rule, that were the a defendant could Chapter Court Northeastern Florida moot a case repealing challenged Amer Associated General Contractors replacing statute and it with that one Jacksonville, ica v. 508 U.S. only insignificant differs in some re- (1993). 2297, 124 L.Ed.2d 586 S.Ct. spect. Florida, plaintiffs Northeastern chal 662, 113 508 U.S. at 2297. The S.Ct. Court city lenged providing prefer ordinance concluded that the new ordinance disad minority ential treatment to certain owned vantaged plaintiffs “in the same fundamen city for contracts. Id. at businesses way” tal and thus the case was not moot. granted 2297. court The district 662-63, Id. at 113 S.Ct. 2297. Justice plaintiffs summary judgment, holding O’Connor, dissenting, while commented unconstitutional, the ordinance was that: but the Eleventh Circuit vacated or finding der plaintiffs City Mesquite lacked stand proposi- stands

ing. at Shortly Id. 113 S.Ct. 2297. tion that the Court has discretion to Supreme granted after the Court certiora- decide a case which the statute under ri, city repealed questioned ordi repealed review has been or amended. replaced nance and it with new ordinance The appropriately may Court render provided minority for a more narrow judgment where circumstances demon- 660-61, preference. Id. at legislature 113 S.Ct. 2297. strate that the likely will re- city then filed a motion to dismiss the instate the old law—which would amake case as moot. declaratory judgment or an order en- joining the law’s enforcement worth- Thomas, writing Justice for the while. But such circumstances undoubt- Court, held that the case was not moot. edly are rare. He relied on the Court’s “well settled rule” 677, 113 S.Ct. 2297. City Mesquite set forth in v. Aladdin’s Castle, Inc., 455 U.S. Good News’ case is one of those (1982), 71 L.Ed.2d 152 that “a defen rare cases. The amendment of the voluntary dant’s challenged cessation of a placed allow directional to be practice not deprive public does a federal court of in the right-of-way moots Good power legality its to determine objection provision of the News’ to this Florida, practice.” Code, restriction, Northeastern but the new limit 113 S.Ct. 2297. Justice ing Temporary Thomas ex wrote: emption place events that take in Gil- fences, boulders, planters, Prohibited Locations. Di- fera. On other Signs Relating vehicles, Qualifying rectional to a signs, utility facilities or struc- Event shall not be located: ture.

a, public right —In the of wa3r.

1067 979, bert, any erecting News from F.3d and second that bars Good Thus, (i.e., at all. a dismissal generally directional reasonable not unconstitutional) mootness would allow Gilbert contin- time, for place and manner limit News’ without ue to single restriction. Id. at 980. The issue judicial Accordingly, further review. remanded, primary and hence the substan- is denied.8 motion to dismiss tive issue before the district court and now appeal, on is whether the Code im-

II. properly discriminates between different limits our consideration of Reed speech. forms of noncommerieal challenges Good News’ to the Code. We review de novo the district our reviewed the Although opinion Reed grant summary court’s of judgment in fa injunction, preliminary denial of a our de of vor Gilbert. G.K. 436 F.3d at of terminations included conclusions law. 1070; Hawaii, 1091, Arakaki v. 314 F.3d Furthermore, remand, parties on (9th Cir.2002) (“We review a district remaining to resolve all issues on agreed grant summary judgment court’s de summary judgment. cross-motions novo.”); Smith, 1122, Lopez v. 203 F.3d parties There is no indication that (9th Cir.2000) (en banc) (‘We review engaged discovery, in further and Good grant summary judgment”). de novo a any evidentiary News has not asserted appeal facts in this that were not before us Evolving A. The Standard for Evalu- Thus, opinion in Reed. our in Reed consti ating Rеgulation of Noncom- case, Irriga tutes law the see Minidoka Speech mercial Interior, Dep’t tion Dist. v. 406 F.3d (9th 567, Cir.2005),9 binding and is Judicial review the of non- v. Horsley, us. See Santamaria 110 F.3d commercial has evolved over the (1997) (“It 1352, 1355 is settled law that 1981, White, years. last 30 In Justice three-judge panel one of this court cannot Metromedia, his plurality opinion ordinarily or reconsider overrule deci stated that prior panel.”). sion of a city “may distinguish while a between 4.402(P) categories relative value of different “§ Reed first that establishes Reed, regulation,” speech, city not a content-based 587 commercial does not have by precluded reexamining previ- 8. The Ninth Circuit cases cited Gilbert do from an issue Log court, support a different result. In ously higher Cabin decided the same States, Republicans v. United court, 658 F.3d in the same case.” 406 F.3d at 573 (9th Cir.2011), 1166-67 we noted that when a Brown, (citing Old Person v. 312 F.3d statutory repeal provides or amendment (9th Cir.2002)). We noted that “the law achieve, plaintiff everything hoped with it subject excep- of the case doctrine is to three controversy Similarly, is moot. in Out- (1) tions that arise when the decision is Beaumont, Group, door Media Inc. v. clearly erroneous and its enforcement would (9th Cir.2007), we noted (2) injustice, intervening work a manifest con- longer any there is no risk "[b]ecause trolling authority ap- makes reconsideration subject that Outdoor Media will be to the (3) propriate, substantially different evi- ordinanсe, challenged there exists no live is- subsequent dence was adduced at a trial.” upon pro- sue which court could issue (internal omitted). quotation marks None Here, spective relief.” Good News has not exceptions apply of these here. As we subse- obtained the relief seeks and continues to quently explain, opinion in Reed is not our subject limiting ordinance. Moreover, "clearly there is no erroneous.” Minidoka, that, “intervening controlling authority” nor recognized under the doctrine, ordinarily "substantially law of the case “a court is different evidence.” 1068 F.C.C., 622, 643, range Sys.

the same of choice the area of Broad. v. 512 U.S. speech 2445, 129 noncommercial to evaluate the (1994), 114 S.Ct. L.Ed.2d 497 of, between, distinguish strength vari- Creative, Non-Violence, Cmty. Clark v. for ous communicative interests.” Seven 288, 293, 3065, 468 104 U.S. S.Ct. 82 years Advertising later National Co. (1984)). L.Ed.2d 221 (9th City Orange, 861 F.2d 249 recently, following More these Cir.1988), that an recognized we ordi- guidelines we have fashioned a more nu imposed nance be invalid if it would anced standard. In G.K. we held on noncommercial greater restrictions “[njeither speaker- nor event- than on commercial billboards. noted We exemptions implicate based Foti insofar as that a on content restriction based would requires neither law enforcement officers narrowly it unconstitutional unless was sign’s message to read a if to determine interest, a compelling drawn serve but sign exempted from the ordinance.” suggested city was nonetheless 436 F.3d 1078. The standard of review powerless regulate “not con- billboards forth set is: taining messages.” noncommercial Id. In Advertising, Desert Outdoor Inc. v. “government may impose reason (9th Valley, Moreno 103 F.3d time, place, able restrictions on the Cir.1996), we indicated that an ordinance engaging manner of in protected speech regulating speech would provided that they adequately justi imposed greater be invalid if it restric- fied without reference to the content of tions on noncommercial than commercial regulated speech.” City Cincin regulated or if it billboards noncommer- Network, Inc., Discovery nati v. cial billboards “based on their content.” 410, 428, 113 S.Ct. Regarding Code, Gilbert’s have (1993) (internal L.Ed.2d 99 quotation already held that impose does not omitted). marks and citation In addi greater restrictions on noncommercial justified tion being without reference signs than commercial signs, and thus the content, “nar restrictions must be critical issue now before us is whether the rowly tailored a significant gov to serve improperly regulates noncom- ernmental interest and ... open leave temporary signs mercial based on their ample alternative channels for communi content. cation of the information.” Ward v. The definition of “content neutral” has Racism, Against 781, 791, Rock 491 U.S. also couple evolved over the last of dec (1989) 105 L.Ed.2d 661 Outdoor, ades. In relying on Desert Foti (citing Community Clark v. Creative we indicated that when an officer must Non-Violence, examine the contents of to deter (1984)). 82 L.Ed.2d 221 mine whether an exemption applies, the (parallel F.3d omit- citations Foti, ordinance is content-based. ted). However, at 636. we also noted the Su Reed, applying standard, this we con- preme Court’s advice that “laws that cluded that the Sign single Code “does not their distinguish terms favored out certain content for differential treat- from disfavored on the basis ‍‌‌​​​​​‌​‌‌‌‌​​​‌‌​​​​‌‌​‌​​‌‌​​‌‌​‌‌‌​​‌‌​‌‌‌​​‍of the ment, and in enforcing provision an ideas expressed or views are content merely officer must note the content-neu- based,” “speech and that a restriction is tral elements of speaking through who is justified content neutral if it is without reference to the content and whether regulated and when event is speech.” (quoting Id. at 638 Turner occurring.” 587 F.3d at 979. Nonethe-

1069 Temporary Directional unanswered ment. The less, appeal raises two this exemption sponsor Ltd. standard: of an event under the G.K. allows questions (1) between differing put up temporary signs restrictions directional im- are speech “adequate- mediately of noncommercial event. Each types exemp- before the the con- reference to ly justified without objective on criteria and tion based (2) are speech”; and regulated tent of the par- none draws distinctions based on the first issue is narrowly tailored? The they It sign. ticular content of the makes no appeal. of this the fulcrum supported, difference which candidate is event, sponsors ideologi- or what who Types on of Non- B. The Restrictions perspective Accordingly, cal is asserted. Speech are not Based commercial speaker as the and event determinations Speech. of the on Content neutral,” are “content generally Gilbert’s News’ chal The thrust exemptions types for different different that its different lenge Code is speech prohibited are not types different of noncom restrictions for by the Constitution. inherently content- speech mercial reading of Reed is in accord with Our unconstitutional. Howev based and thus opinion our in G.K. Ltd. There the town er, argument in rejected general this but pole signs ordinance banned most had when we held that distinctions based

Reed signs. a clause grandfather preexisting for permissi or the event are speaker on 436 F.3d at 1072. We determined that where there is no discrimination ble City’s plaintiffs’ pole “the restriction on among speakers. similar events or is not a content-based (“We 4.402(P) § at 979 conclude F.3d plaintiffs’ speech.” Id. We commented: regulation: It does is not a content-based pole sign The restriction is not a “law[ ] certain content for differen single out by distinguishes] terms fa- [its] treatment, enforcing provi and in tial from disfavored vored merely note the con sion an officer must or views ex- the basis of the ideas speaking elements of who is tent-neutral FCC, v. pressed.” Sys. Turner Broad. and whether and when through Thus, occurring.”). under an event (1994). restricts L.Ed.2d 497 The Code Reed, between the distinctions City’s general across the pole all Signs, Ideological Signs, and creating zones without ex- commercial are content-neutral. That Signs Political preferred content. Foti ceptions Cf. and its restric say, is to each classification Park, v. Menlo City objective factors rele tions are based on (9th Cir.1998). imposed by The burdens specific creation of the vant to Gilbert’s sign restrictions are borne pole these exemption permit requirement from the City’s all of the residents. equally the sub and do not otherwise consider Sys., Turner Broad. See sign. The Political stance of Further, offer plaintiffs to the need for com exemption responds illicit suggesting motive no evidence munication about elections.10 Ideo City or that the part on the bias that an logical Sign exemption recognizes general, City pole banned his or her right express individual’s a particular, because of pole sign their at the core of the First Amend- opinion is primary Ariz. pro- period election. See legislation that before 10. Arizona has enacted removing political sign city § hibits a from Rev. St. 16-1019. right-of-way during 60-day public from the Supreme viewpoints. certain desire stifle See C. Court Precedent Affirms our Definition of Content Neu- Angeles Taxpay Los Council of tral. Vincent, 789, 804, ers U.S. (1984). 2118, 80 L.Ed.2d 772 Ltd., suggested in apрroach As G.K our is in accord with Supreme the Court’s omitted). (parallel

Id. at 1071-72 citations Colorado, 703, in opinion Hill v. 530 U.S. plaintiffs argued in G.K Ltd. that 2480, (2000). 120 S.Ct. 147 L.Ed.2d 597 In grandfather ordinance’s clause rendered it Hill, plaintiffs challenged “the consti- content-based town because officials would tutionality of a 1993 that Colorado statute have if it pole to read the see had regulates speech-related conduct within changed. rejected Id. at 1078. We this 100 feet of the entrance to health care argument, explaining: 707, facility.” at 120 S.Ct. 2480. constitutional, holding that the exemptions, grandfa- Unlike Foti’s statute was the Supreme Court that it commented had require ther clause does not Lake Oswe- held, “never or suggested, that it is im- go officials to evaluate the substantive proper to look at the content of an oral or message on the preexisting sign and the written statement in order to determine certainly clause does not favor speech applies whether a rule of law ato course of “based on the idea expressed.” Id. at 721, conduct.” Id. at 120 S.Ct. 2480. The grandfather provision 636 n. 7. A requir- Court noted that the statute: ing an sign’s message officer to read a places no clearly restrictions on—and purpose for no other than to determine prohibit does not a particular —either if logo changed, the text or has making viewpoint any subject or matter that subject now City’s regu- Rather, by speaker. be disсussed lations, is not content-based. See Hill v. it simply establishes a place minor re- Colorado, 530 U.S. 120 S.Ct. extremely striction on an category broad (2000) (“We 2480, 147 L.Ed.2d 597 have unwilling communications with listen- held, suggested, never that it is im- drawing ers. Instead of distinctions proper to look at the content of an oral subject based on the that approach- or written statement in order to deter- ing speaker may address, wish to mine whether a rule of applies law to a applies statute equally to used car sales- conduct.”). course of men, activists, fundraisers, animal rights omitted). environmentalists, Id. at 1079 (parallel citations and missionaries. Under the controlling precedent of Reed 723, Id. at Similarly, S.Ct. 2480. Gil- and G.K. Good News has not shown places bert’s Code no restrictions on imposes a content- particular viewpoints any person or based limitation.11 entity that seeks to erect a Temporary News, allowed, opinions where”); 11. Our earlier cited they whether and if so Outdoor, City Orange, (hold- and Desert Out- see also Desert 103 F.3d at 820 door, contrary 103 F.3d at ing City’s are not to this ordinance "violates the opinions consistently conclusion. Our have regulates First Amendment because it non- regulation required content”). that the speech of noncommer- commercial on the basis of (some cial be content-neutral similarly require times G.K. Ltd. and Reed content-based). expressed City as not See of noncommercial not be Orange, content-based, but, (holding “only 861 F.2d at 249 explained, ap- we have analyze ply cannot the content making of outdoor a more nuanced standard for messages determine determination. 719-20, exemption applies and the S.Ct. 2480. The further stated that it had Court “never to all. equally held, suggested, that it improper Furthermore, Hill, in the Supreme content look oral or written statute, only which explained why Court statement order to determine whether a types speech-related certain restricted applies rule of law to a course of conduct.” conduct,12 content properly considered Supreme Id. at 120 S.Ct. 2480. The distinguished opinion Court its also Car that “[t]he neutral. The Court reiterates Brown, ey v. determining content principal inquiry (1980), noting 65 L.Ed.2d 263 that the in neutrality, speech generally in cases “places statute no restrictions Colorado time, in particular, or manner cases place, clearly prohibit on—and does not —either a government adopted the has is whether viewpoint any subject or mat particular disagree of regulation speech of because may by speaker.” that discussed ter be at message conveys.” the it Id. ment with 723, Finally, Id. at 120 S.Ct. 2480. in Ward, (quoting concern that response Justice Scalia’s 2746). It offers then legislation can used for content-based be why reasons for the statute is con three thought-control purposes, invidious the tent neutral: Court stated: a stаtute that re “[b]ut only categories speech stricts certain of First, “regulation speech.” it is not a if lends itself to invidious use there is a Rather, regulation places it is a of the communications, significant number of Second, may occur. speech where some that the raising problem the same statute disagree- “because of adopted it was not solve, fall was enacted to outside the conveys.” it ... message ment with the fall scope, statute’s while others inside.” Third, in protecting the interests State’s providing the privacy, access and Di- regulation Temporary Gilbert’s guidelines, are unrelat- police with clear as that Signs rectional is content-neutral ed to the content of the demonstrators’ by the Court in Supreme term is defined repeatedly As we have ex- speech. regulation its adopt Hill. Gilbert did of ex- plained, government regulation the mes- disagreed because it with activity is “content neutral” if it pressive Rather, conveyed. exempted it from sage con- justified is without reference to the requirement all directional permit the content.13 The signs regardless of their regulated speech. tent of argument can made that Gilbert’s opinion be- 13. An be 12. Justice Stevens' for the court signs permit exemption temporary from its gins by stating: tempo- requirements on such and limitations constitutionality a 1993 At issue is the may disapproval of rary signs be construed as regulates speech-re- Colorado statute However, temporary signs generally. this is en- lated conduct within 100 feet of the "disagreement type of with mes- not the any facility. trance to health care Supreme sage” proscribed by the Court in specific the statute that is chal- section of Hill, 120 S.Ct. 2480. Obvi- 18-9-122(3) § lenged, Colo.Rev.Stat. legislation regulating speech ously, any (1999), regu- it unlawful within the makes speech should not be a view that the based on any person "knowingly lated for areas legisla- This does not render unlimited. eight approach” feet of another within Hill, Supreme tion unconstitutional. consent, person, person's "for without that explained: Court purpose passing a leaflet or handbill case, to, to, disputed that engaging it is not displaying or in In this education, activity; protected speech counseling regulation affects protest, or with oral it is a "reason- question is thus whether person such other time, place, restrictio[n] able U.S. at 120 S.Ct. 2480. places Code is “a of the where boards or maximum temporary number of occur,” may some and was not placed public adopted any disagreement “because of right-of-way. Nor does the erection of conveys.” with message Id. at temporary any way directional Also, S.Ct. 2480. Gilbert’s interests limit person’s rights other to erect regulation temporary signs are unrelated political, ideological, signs. or other Ac- Moreover, sign. to the content of the cordingly, long as the Di- Temporary danger regulation being there is no rectional Signs exemption is the —which thought-control pur- used invidious exemption applied that was to Good News’ poses purport as the Code does not signs and that Good challenges News —is regulate content of Di- Temporary content neutral and reasonable in relation- Signs. rectional Because Gilbert’s ship purpose providing to its direction to — places no particu- restrictions on the temporary constitutionality events—its viewpoints any person entity lar not affected the fact exemp- seeks to erect a tions for Political or Ideological Sign all, exemption applies and the to it is Signs are different. content-neutral as that term has been de- by ques- cases cited the dissent do by the Supreme fined Court.14 tion among distinctions different catego- of speech, ries non-commercial but none

D. Good News has shown that the concerned instances in which types Code’s Different Treat- the of Types unrelated, ment of Different non-commercial speech of Non- were Speech commercial is Unconstitu- and all of the cases by have been refined tional. Supreme more recent opinions. Court In Department Chicago Police Mosley, v. conceivable, Although it is as the dissent 92, 96, 2286, 408 U.S. 92 S.Ct. 33 L.Ed.2d posits, that different ‍‌‌​​​​​‌​‌‌‌‌​​​‌‌​​​​‌‌​‌​​‌‌​​‌‌​‌‌‌​​‌‌​‌‌‌​​‍exemptions for non- (1972), 212 Supreme the Court struck speech might commercial imprоperly re- down an ordinance as unconstitutional be- speech, strict that concern presented is not cause it sought distinguish First, between here. explained, the Temporary peaceful labor picketing peaceful and other Directional exemption is a content Second, picketing. Similarly, in Carey, neutral. 447 Temporary Di- U.S. 455, (1980), rectional 100 S.Ct. 2286 exemption Supreme is not in competi- tion exemptions with other from Court struck down an per- ordinance that mit requirement. sought distinguish This is not a situation picketing between at where there are a limited number of bill- a residence from picketing place at a Ward, 731, protected speech.” Here, manner of U.S., 491 530 U.S. at 120 S.Ct. 2480. Here, at 109 S.Ct. 2746. Temporary limitations on Directional virtue, comprehensiveness of the statute ais apply equally organizations, regardless to all vice, not a against because it is evidence pedigree. of their wealth or being discriminatory governmental there a observed, motive. As Justice Jackson 14. Our per- conclusion is consistent with the practical guar- "there is no more effective spective Phelps-Roper of the Sixth Circuit in anty against arbitrary and unreasonable Manchester, (6th 697 F.3d 683 government require princi- than to Cir.2012) (upholding city regulation pick-

ples of law which impose officials would eting at legitimate funerals and burials aas upon minority imposed general- must be time, place, regulation and mаnner consistent ly.” Railway Express Agency, Inc. v. New Amendment). with the First York, 336 U.S. 69 S.Ct. (1949) L.Ed. (concurring opinion). Metromedia, Although objec- News voices some In employment. Court, size, location, in a frac- and duration tions to signs, considered ordinance limitations on its Good News does opinion, tured commercial actually between not assert the restrictions that differentiated billboards, but also purpose signs: non-commercial interfere with the of the city leeway had less suggested that the providing directions Good News’ ser- types Moreover, of non-eommer- distinguish between generally vices. courts have types than between of commer- cial municipal deferred to concerning decisions 514-15, Id. at 101 S.Ct. 2882. speech. cial the actual limitations on the sizes and com- cases concerned related and These Ward, shapes signs. See at 514-15, speech.15 forms of peting (“So 800, 109 long S.Ct. 2746 as the means contrast, Gilbert’s substantially chosen are not broader than Signs exemption necessary government’s to achieve the in- competes per- neither restricts nor with terest, however, will not be advantage entity’s ability to take son’s simply invalid because a court concludes ideological, exemptions political, government’s interest could be temporary signs. types or other adequately less-speech- some served alternative.”); Foti, restrictive noted, the last Critically, as over (noting the “restrictions on the has re thirty years, Supreme Court picket signs size and number of are rea- forth in fined the concerns set Justice legislative judgments light sonable in Metromedia. plurality opinion White’s City’s safety”); concerns for traffic Hill, notably, Supreme Most Court (“Under City Orange, 861 F.2d at 249 clearly distinguished that upheld a statute City’s interests in traffic Metromedia^ types speech. between of noncommercial justi- safety and aesthetics are sufficient to the noncommercial prohibited The statute fy content-neutral continued an individual “for “approaching” aspects the noncommunicative of bill- a purpose passing leaflet or handbill boards, size, spacing design.”). such as to, to, engaging a in oral displaying sign protest, counseling education or with such Signs Temporary E. The Directional 707, person.” other 530 U.S. S.Ct. Narrowly Exemption Tailored No other form of noncommercial 2480. Significant to Serve Governmen- Nonetheless, regulated. speech was tal Interests Supreme upheld Court the ordinance. has ex Supreme Court Ward, Supreme Similarly, Court plained regulations that “[c]ontent-neutral pur “regulation stated that a serves pose dangers do not the same inherent poses expres unrelated to the content of regula expression free content-based neutral, even if it has an sion is deemed do, subject to a less tions and thus speakers incidental effect on some or mes analysis, the Gov rigorous which affords not others.” 491 sages but regulatory designing ernment latitude Thus, 2746. Code’s System, Broadcasting Turner Political, solution.” provisions Ideologi different F.C.C., 180, 213, 117 S.Ct. Inc. v. Temporary cal and Directional is not (1997) (internal quo- L.Ed.2d 369 in itself unconstitutional. billboards Similarly, opinion in Advertis- cial billboards than commercial our National ing, regulate 861 F.2d and Desert Outdoor Adver- bill- and could not non-commercial tising, held that could not 103 F.3d cities on content. boards based greater impose restrictions on non-commer- omitted).16 and citation Temporary tation marks extent than Directional Signs, Nonetheless, content-neutral, reasonable but for a number of permis- reasons this is time, place and manner restriction must First, political, sible. unlike ideological narrowly also a signifi- tailored serve and religious speech clearly which are enti- governmental cant interest and leave open protection, tled to First Amendment there ample alternative channels of communica- appear does not to be a constitutional right tion. 436 F.3d at 1071.17 G.K. exemption to an for Temporary Directional Signs. If Good News no has constitutional question

There is no real that Gil right Temporary to erect Directional safety bert’s interests in and aesthetics are Signs, can it cognizable how suffer a harm significant. Family See One World One when Honolulu, exemption Gilbert creates an facili- City Cnty. Now v. & (9th Cir.1996) tating display signs? of such (holding that cit proteсting ies have substantial interests in Second, exemption each reflects bal- appearance the aesthetic of their communi ance between Gilbert’s interests and the in assuring ties and the safe and conve constitutional type interests of the streets); nient circulation on their see also covered. theWith recent amendment to Metromedia, 507-08, 453 U.S. at Code, there are longer any no (“Nor can there be substantial doubt differences as to temporary signs where goals twin the ordinance may be located. The differences safety seeks to further —traffic and the duration are based on the natures of the appearance city substantial —are types Thus, involved. under governmental goals.”). argues Good News Arizona law political signs are allowed for only that such interests are not “sufficient period extended of time before an elec- ly compelling satisfy a content-based Ideological tion. signs, being tied to. code,” but we find that the Sign Code event, However, no have time limit. impose any does not content-based restric the purpose of a tion. Sign inherently contemplates a limit on Good News that contends the duration. narrowly

is not tailored because all tempo- rary signs placed right- within the public Third, noted, exemptions the are not of-way implicate safety and aesthetic con- in competition. The exemptions are not cerns, but Temporary Directional Signs comрeting for limited space and the erec- severely are more limited than Political tion type of one of temporary sign not does and Ideological Signs. preclude placement the of another. Ac-

Political Ideological Signs may cordingly, and in- each exemption may be evaluat- fringe on Gilbert’s greater interests to a ed on its own merits. stated, Ward,

16. citing The Court further 491 opinion To the extent that our in Seattle 799, 2746, U.S. at 109 S.Ct. and Turner Stop Oct. 22nd Coalition to Police Affiliate of FCC, Broadcasting System, Inc. v. 512 U.S. Seattle, Brutality 791 of 114 S.Ct. 129 L.Ed.2d 497 (9th Cir.2008), requires further that an ordi- (1994), scrutiny, "[u]nder that intermediate delegate overly nance not broad discretion to may employ the Government the means of its official, government this condition is satis- choosing long regulation pro- so as the ... person any fied. A approval does not need governmental motes a substantial interest that Rather, temporary sign. erect a Gilbert will effectively would be achieved less absent the only seek the removal of a if its size or regulation, substantially and does not burden relatively duration violates the Code’s necessary more than is to further that time, place, clear and manner limitations. (internal omitted). quotation interest.” marks

1075 (b) Fourth, showing Signs, is no that the rectional the restrictions on di- there Temporary signs on Directional related to the rationally restrictions rectional (c) direct- purpose: with their purpose signs, interfere of the directional and ing temporary individuals to interested reasonably designed restrictions are allege that News does not events. Good in promote Gilbert’s interests aesthetics signs see or that public cannot its True, safety. tempo- and the number of it to ade- limit is too small to allow size rary signs might substantially be reduced quately provide directions. political if were not exemptions there signs, signs raise ideological but those noted, generally also courts

Finally, as rights that legal different and interests city’s determinations of size and defer to a Moreover, respect. has to there Gilbert Ward, 800, 109 duration. See U.S. only need be reasonable fit between Foti, Here, 2746; at 641. S.Ct. F.3d regulations. Gilbert’s interest See restrictions (stat- Hill, no limits Signs are reasonable. There are regula- that “when a ing content-neutral person of that a or on the number events entirely tion does not foreclose means hold, num and no limit on the entity may communication, it (other may satisfy of the tailor- may erected signs ber of be requirement even not the ing though is any single piece than four on than no more Also, least restrictive least intrusive means limitation the 12-hour property). statutory serving goal”); see also Bd. person unlikely reasonable as seems Fox, Trustees State N.Y. v. to an than Univ. seek directions event more 3028, 106 the event. hours before (1989) (“What L.Ed.2d 388 our decisions conclude that these considerations We require legislaturе’s is a ‘fit’ between arguments to be refute Good News’ accomplish and the means ends chosen types of narrowly tailored restrictions on necessarily fit those ends—a is not must be uniform reasonable; perfect, represents but vary only type to the extent that the necessarily single disposition not best speech affects a town’s interests. Our scope proportion but one whose if opinions support, Ltd. Reed G.K. served.”) (internal quotation interest our compel, conclusion. G.K omitted). and citation At least be- marks changed signs a total ban on pole held elections, well Sign Code tween narrowly tailored pole was because temporary limit the number reasonably perceived as aestheti- could any- unreasonably limiting without Gilbert travelers, and cally distracting harmful speech, Sign and Code one’s thus unchanged is also though even this true of governmental interests. significant serves In pole signs. See 436 F.3d at 1074. Reed, we determined that restric- “[t]he Sign am- Finally, open Code leaves time, place imposed on and manner tions alternate of communication. ple means by display [signs] on the of would indeed Assuming that Good events are eli- News ‘actually appear to advance’ the aesthetic exemption, may for the it erect gible safety limiting interests the size signs twelve many temporary as wants proliferation signs.” duration The hours before each scheduled event. in Reеd F.3d at 980. Our determination any not regulate does Sign Code tailored, is if Sign narrowly Code can many ways other which Good News controlling, not remains sound. nations.” and make of all “go disciples (a) Indeed, that sum, suggestion there is no Good required to Gilbert was not mem- require Di- it or its exemption Temporary News’ tenets that create an temporary signs. obligated spread bers erect directional their message and ad- Thus, Sign Code’s restrictions do not events, vertise their there no suggestion require that the members Good News that Good require they News’ tenets that faith, any principle violate of their cardinal in any particular way. Accordingly, do so Verner, 398, 406, see Sherbert v. 374 U.S. agree with the district court that the (1963), 83 S.Ct. 10 L.Ed.2d 965 and Sign Code’s restrictions on Di- many do not limit the other ways the Signs rectional not do constitute a substan- members advertise ‍‌‌​​​​​‌​‌‌‌‌​​​‌‌​​​​‌‌​‌​​‌‌​​‌‌​‌‌‌​​‌‌​‌‌‌​​‍their services and tial burden on Good News’ free exercise attract individuals. rights. 2. agree We also with the dis Challenges

F. Good News’ Other do trict Sign not Merit Relief court that the Code is vague not Supreme overbroad. The Court noted prevail To claims its of vio Ward, 491 U.S. at 109 S.Ct. right lation of its members’ to the free “perfect clarity precise guidance religion exercise of under the Constitution required have never been regula even of and under Arizona’s Free Exercise of Reli tions that express activity.” restrict Good Act, gion 41-1493, § Ariz. Rev. St. News’ claim of vagueness is based on News must show that government “the аlleged lack of substantially action definitions for burdens the exercise religious beliefs.” Hardesty, arguably requirements State v. meet the of more (Ariz. 222 Ariz. 214 P.3d 1004 than temporary one sign exemption. 2009). Good News’ free exercise claim However, they Gilbert officials claim that fails because the Sign Code’s restrictions yet have to see such a sign and Good News on the size and duration of Temporary does not argue its meet a generally applicable requirements of more than one exempt law, and it substantially does not interfere addition, Reed, ion.18 In 587 F.3d at any with of Good News’ tenets. The Su 974, we held that Good News’ mounted preme Court has held that religion may only an as-applied challenge exempt person from complying with case, Code. This is law of the and is not Div., neutral laws. Employment See Dep’t really challenged by Good News. Smith, Human Res. v.Or. 3. Good News’ assertion that the 872, 878-79, 108 L.Ed.2d right Code violates its equal pro (1990) (holding right that “the of free tection of basically law is a revision of its exercise does not relieve an individual of argument that Gilbert cannot treat differ obligation comply with a valid and types ent differ general neutral law of applicability on the ently. Clothed in (or garb equal protec ground that proscribes law pre scribes) argument tion the persuasive. still is not conduct religion pre his (or (internal proscribes).” scribes quotation does not make distinc omitted)). Rather, marks and citation religion. Further tions based on the Tem more, while may Good News’ members porary Directional Signs exemption is Moreover, procedures the enforcing for the directions would be allowed the duration lim- Sign respect rights Code speaker. the of a If political signs. Similarly, it for religious a temporary sign an official noted a that fits might quali- also included directions exemptions, within two he or she would fy ideological sign. as an Good News has city manager check with the and Gilbert temporary never asserted that its directional presumably would accord the the broad- ideological signs. should be treated as Thus, exemption. er political sign a with grant affirm the court’s of sum- entities. district all noncommercial available to Gilbert, the Sign mary judgment Code is leave it conclude we to Because we it just because differ- not unconstitutional the district court to determine whether types of noncommercial entiates between to amend its may existing Good News seek protection argu- equal signs, Good News’ complaint. or complaint should file new establishing cogniza- ment on depends Ill wishing noncommercial entities

ble class of directional to temporary to erect Reed, 966, In and G.K. 587 F.3d may interests be com- their events whose 1064, held that distinctions we other class. News pared some to event speaker based the or the are identify has such entities. failed to permissible there is no discrimina- where among speakers. tion events or similar May Any Challenge Good News G. Hill, U.S. at Sign the Amended Advance to types that not all Supreme Court indicated Initially Litigat- Be Code Should of noncommercial need be treated District Court ed in the Ward, the same. also 491 U.S. See Sign amendment to the Although the (noting “regulation 109 S.Ct. that a appeal, this need not moot we Code does to the purposes that serves unrelated con- not, not, do determine the merits and neutral, expression tent of deemed even is the situation be- the amendment. Unlike speak- some if it has incidental effect on fore Court Northeastern Supreme others.”). Apply- not messages ers but Florida, here this case Town of ing law to the Gilbert’s arguably increases rather amendment types Sign Code’s treatment of different the barriers Good News than decreases we conclude that speech, signs. directional erecting temporary That the treatment is content-neutral. Also, holding in unlike the Northeastern say, allowing each for the exemption Florida, we have determined that Good its temporary signs erection restric- that the other restric- News has not shown objective are factors tions based on rele- violate its imposed tions specific exemp- vant to creation of the However, added rights. constitutional tion and do not otherwise consider the Tempo- restriction to the Code—that further sign. substancе We conclude rary only exempt are narrowly that the tailored exemptions requirement they if con- permit from the they governmen- significant because serve place cern take within the events open ample tal interests and leave alterna- different in nature Town of Gilbert—is tive communication. We also channels of time, place, from manner restric- Code does vio- conclude previously chal- that Good News tions members’) (or right to late Good News’ its Moreover, even if we lenged. assume right religion the free exercise challenge the will new restric- Good News law, not uncon- equal protection of and is tion, know what do not constitutional stitutionally The dis- vague or overbroad. arguments pres- Good News will legal summary judgment in grant trict court’s restriction, challenging ent in or what Town of Gilbert AF- favor proffer. Accordingly, will defenses Gilbert FIRMED. challenge Good News have Di- limiting amendment dissenting: WATFORD, Judge, Circuit in the Sign exemption events rectional post- agree majority I with the in the should be raised Town of Gilbert to the Town Gil- judgment amendments in the district court. As we first instance 1078 sign

bert’s ordinance do not render this The Fourteenth Equal Amendment’s But I appeal disagree moot. with the Protection Clause and the First Amend majority’s sign conclusion that ordi- Speech ment’s Free prohibit Clause nance is constitutional. government from favoring catego certain ries of speech non-commercial оver others us, When this case first came before solely based on the content of the message 4.402(P) § sign evaluated of Gilbert’s ordi being conveyed. Brown, Carey See 447 in nance isolation. See Reed v. Town of 455, 459-61, 2286, U.S. 100 S.Ct. Gilbert, 966, (9th 976-79 Cir. (1980); L.Ed.2d 263 Dep’t Police Chica 2009) (Reed I). provision That specifies go v. Mosley, 408 U.S. 92 S.Ct. applicable “temporary restrictions (1972). 2286, 33 L.Ed.2d regu When signs relating directional qualifying to a forum, lating speech in a public gov event,” signs plaintiff such as the may ernment draw among distinctions dif Community display News Church seeks to categories ferent speech non-commercial inviting people Sunday to attend its morn only if justified those distinctions are by that, ing services.1 held respect We with some aspect non-communicative of the temporary signs directional it cov Carey, involved. See 447 U.S. at 4.402(P) ers, § is content-neutral. Id. at 465, 2286; Mosley, S.Ct. 408 U.S. at because, 979. We reached conclusion 100, 92 S.Ct. example, 2286. For- a State own, 4.402(P) § considered on its “does not exempt picketing labor from a single out certain content for differential general ban on picketing front of homes treatment, in enforcing provision (enacted protect residential privacy), an officer merely must note the content- unless it can show that labor picketing is neutral elements of who is speaking inherently disruptive less of residential through and whether an event is privacy picketing than on subjects. other occurring.” Id. Carey, 447 U.S. 100 S.Ct. 2286. Wdiat we did not decide Reed I is simple: The reason is Within the realm of 4.402(P) § whether impermissibly con- noncommercial speech, government tent-based when viewed in relation to the may not decide that speech on certain provisions other of Gilbert’s ordi- (or less) subjects is more valuable—and particular, nance. we noted that the (or less) therefore more deserving of First district court had not plaintiffs’ addressed protection Amendment speech on —-than argument that “the unfairly ordinance dis- subjects. 2286; other Id. at among criminates forms of noncommercial Mosley, see U.S. 92 S.Ct. 2286. speech,” id. at granting fa- more Supreme vorable treatment Court relied on gener this Gilbert categorizes principle al “political” strike down a “ideological.” municipal sign Metromedia, Id. at 983. We therefore ordinance remanded the Inc. v. 490, 101 case for plaintiffs’ Diego, resolution of San “First (1981). Equal Amendment and Protection L.Ed.2d 800 A plurality claims Code is unconstitutional in Court Diego’s invalidated San ordinance favoring some noncommercial banning over most non-commercial billboards other speech.” ground imper- ordinance "Temporary signs relating directional activity, meeting to a sponsored, arranged, qualifying event” are defined as "in- charitable, promoted by religious, commu- motorists, pedestrians, tended to direct service, educational, nity or other similar passersby other 'qualifying to a event.’ A non-profit оrganization.” 'qualifying any assembly, gathering, event' is address, equally to used applies statute the billboards for exemptions missibly granted activists, salesmen, animal fund- rights speech on favored car non-commercial bearing environmentalists, raisers, mes and missionar- campaign political subjects, such as (As 514, 101 (plurality ex- S.Ct. 2882 120 S.Ct. 2480. at Id. at Id. ies.” sages. that, although below, held issue in plurality The ordinance at the opinion). plained rela the distinguish between “may on cities based draw distinctions this case does com categories address.) of different tive value to subject speaker the wishes the the not they do have speech,” mercial among Thus, than distinguishing rather in the realm non-commer freedom same of non-commercial categories different of, or strength the “to evaluate cial being con- message on the speech based between, various communica distinguish all prohibited veyed, Colorado statute the Carey, 447 U.S. (citing Id. tive interests.” through speech expressed non-commercial at 2286; Mosley, 408 U.S. 462, 100 S.Ct. at communication—a mode of particular 2286). Diego could San 92 S.Ct. Carey “easily distin- that rendered fact aspect of any non-communicative identify Id. guishable.” justify the distinc at to issue sign ordinance violates Gilbert’s show, for failed to It tions it had drawn. Amendments First Fourteenth bill non-commercial example, among drawing content-based distinctions on any effect greater had it banned boards non-commеrcial categories of different promoting interests city’s asserted illustration is most speech. glaring The non than the safety aesthetics traffic “po- favorable treatment the ordinance’s permitted. it See commercial billboards to “ideological” signs relative litical” and 2882; also Desert see at 101 S.Ct. id. non-commer- accorded the the treatment Adver., City Inc. v. Moreno Outdoor to Under display. seek signs plaintiffs cial Cir.1996) (9th 814, 820 Valley, 103 F.3d ordinance, di- plaintiffs’ temporary holding); plurality’s (applying Metromedia square six may not exceed rectional Orange, 861 Co. v. Nat’l Adver. more displayed may not be feet size Cir.1988) (same). (9th 246, 248-49 F.2d hour after before or one than 12 hours majority’s Contrary suggestion, here, morning Sunday relevant event— Colorado, Hill v. (Given a.m. start the 9:00 church services. (2000), modi did not 2480, 147 L.Ed.2d services, this News’s church time of Good underlying principle the core fy or refine display of limits the restriction durational and Metromedia. Carey, Mosley, it is virtu- periods to when plaintiffs’ within prohibited, in Hill at issue statute dark.) contrast, “political” ally always areas, approaching designated certain temporary “[a] signs—defined' pur for of another eight within feet for office or candidates supports which education, engaging protest, in oral pose of matter on the any other urges action 707, 120 S.Ct. 2480. counseling. or Id. elec- special primary, general and ballot of con the statute was held The Court national, оr local state relating any to tions regulated particu tent-neutral because feet in square may up be election”— approaching lar mode of communication— prior time displayed be size and to engage of another eight feet within days and removed within election education, counseling— protest, oral signs— “Ideological” the election. after speak subject regard without a mes- communicating as “a defined 720-24, message. er’s pur- non-commercial sage or ideas stressed, “Instead 2480. As the Court construction, direction- not a poses” that subject based on drawing distinctions sign may al, garage sale political, may wish approaching speaker — 1080 in

up square feet size and are not definitely particular at a poses location an subject any durational at limits all.2 acceptable safety threat to traffic and aesthetics if it an ideological bears mes- sign plainly

Gilbert’s ordinance favors sage, but pose unacceptable would categories certain of non-commercial sign’s threat if the message instead invited speech (political ideological and signs) over people to Sunday attend church services. (signs promoting sponsored others events by non-profit organizations) solely based Gilbert has not expla- offered such message on the content of the being con- nation, and I it doubt could come up with veyed. These are not content-neutral if with, one it tried. What we are left “speaker” distinctions, and “event” based then, is apparent Gilbert’s determination approved like those we in G.K. Ltd. Travel that “ideological” and “political” speech is City Lake Oswego, 436 F.3d valuable, categorically more and therefore (9th Cir.2006), I, 1076-78 and in Reed greater entitled to protection from regula- 977-78, F.3d at when we reviewed tion, than speech promoting spon- events 4.402(P) § standing alone. Determining by non-profit sored organizations. That is a particular sign whether will regulated precisely the judgment value that the First “political” sign as a opposed as to an “ideo- and Fourteenth Amendments forbid Gil- logical” sign or a “temporary directional Metromedia, bert to make. See sign relating to a qualifying event” turns 2882; at 101 S.Ct. Carey, 447 at entirely on the message content of the 2286; 100 S.Ct. Mosley, 408 U.S. at displayed sign. on the G.K Cf. 96, 92 S.Ct. 2286. F.3d at (speaker and event based Nothing we said Reed I is inconsistent distinctions were content-neutral because with this conclusion. only There we held they applied regard “without for the actual 4.402(P), § isolation, viewed is a substance of message” “regardless time, valid content-neutral place, and man- content”). I, ner regulation. Reed 587 F.3d at 979- The content-based distinctions Gilbert decide, 82. We did not and instead re- impermissible has drawn are unless can manded for decide, the district court to identify some non-communicative aspect of whether sign Gilbert’s ordinance draws signs justify issue to this differential content-based distinctions “favoring Metromedia, treatment. See 453 U.S. at some over other 2882; Carey, 447 U.S. at noncommercial speech.” Id. at 983. 2286; Mosley, 408 U.S. at so, doing we potentially mentioned as rele- 100, 92 S.Ct. 2286. merely Gilbert has vant National Advertising Co. v. offered, ‍‌‌​​​​​‌​‌‌‌‌​​​‌‌​​​​‌‌​‌​​‌‌​​‌‌​‌‌‌​​‌‌​‌‌‌​​‍support for the ordinance (9th Orange, Cir.1988), 861 F.2d 246 whole, where as a its interest in enhancing traffic (we I) noted in safety Reed invalidated a safety aesthetics. Traffic municipal sign certainly aesthetics are ordinance that important “made con- inter- ests. But to sustain the tent-based distinctions among categories distinctions it has drawn, (for Gilbert explain why I, must speech.” ex- noncommercial Reed ample) a 20-square-foot sign Thus, in- displayed at 982. when we said Reed I that recently, Until Gilbert’s ordinance con- replaced moved this restriction but it with an tained blatantly an even more discriminatory equally suspect one. Under the amended or- ideological distinction: Political and dinance, “temporary signs relating directional displayed public could be right way in the qualifying displayed event” not be “temporary but relating directional to a anywhere in "qualifying Gilbert unless the qualifying parties event” could not. After the place event” takes within the town's borders. court, filed their briefs in this Gilbert re- Jp.Jp02(P) out certain single § “does treatment,” id. for differential

content whether obviously did not decide singles a whole out sign ordinance as for differential treatment.

certain content

Otherwise, the district court our remand to entirely unnecessary.

would have been above, I given would

For the reasons regulatory distinctions Gil-

hold that categories among has drawn different

bert are unconstitu-

of non-commercial

tional, I remand for the district and would provi- whether those

court to determine sign ordinance are sever-

sions of Gilbert’s ma- I dissent from the respectfully

able. contrary holding.

jority’s HENRIQUEZ- Brenda

Rocio Petitioner,

RIVAS, Attorney HOLDER, Jr.,

Eric H.

General, Respondent.

No. 09-71571. Appeals, Court of

United States

Ninth Circuit. En

Argued and Submitted 20, 2012.

Banc March Feb.

Filed

Case Details

Case Name: Clyde Reed v. Town of Gilbert, Arizona

Court Name: Court of Appeals for the Ninth Circuit

Date Published: Feb 8, 2013

Citation: 707 F.3d 1057

Docket Number: 11-15588

Court Abbreviation: 9th Cir.