The Supreme Court found so many things to question about an Arizona town’s sign ordinance Monday that it was difficult to tell exactly which grounds the justices might ultimately cite if, as seems likely, they strike it down.
Justices across the court’s ideological spectrum seemed sympathetic to the challenge brought by the tiny Good News Community Church in a long-running dispute with the town of Gilbert, Ariz., over signs planted in public rights of way directing congregants to church meeting places.
The church, which has no permanent home, contends it is being treated differently from politicians, homeowner associations and builders.
Signs for political candidates, for instance, can be larger and stay up longer than “directional” signs, which can be planted only 12 hours before a service and must be removed an hour after the event ends.
The justices took turns quizzing the town’s attorney, Philip W. Savrin, about the differing regulations.
Justice Samuel A. Alito Jr. said that as he understood the ordinances, the church could put up a large “ideological” sign for an extended period of time but not if it directed viewers to services.
The conservative Alito envisioned a sign saying: “ ‘Come to our service on Sunday morning. We can’t tell you now where it will be because the town won’t let us, but if . . . you drive by here tomorrow morning at a certain time, you will see an arrow.’ ”
Savrin agreed that if the sign gives directions, it is under different restrictions about when it can be placed and how long it may remain in place.
Justice Stephen G. Breyer of the court’s liberal wing wanted to make sure he was clear: “Are you saying they can’t say, ‘Three blocks right and two blocks left’? That’s what this argument is about?”
“That is what it comes down to,” Savrin answered.
“Well, my goodness,” Breyer replied. “I mean . . . on that, it does sound as if the town is being a little unreasonable, doesn’t it?”
The case raises First Amendment issues more complicated than that, of course. The church’s attorney, David A. Cortman, suggested that government regulation of signs receive the court’s most strict scrutiny.
The government, Cortman said, should not be “deciding what speech is more valuable than others, because that is exactly what it did in this case.”
But Justice Elena Kagan said the Supreme Court says “all the time” that “political speech is the most valued kind of speech.” Wasn’t Gilbert simply adopting “the same kind of category-based understanding of political speech and its special rule and First Amendment analysis that this court has very frequently articulated?” she asked.
And Justice Anthony M. Kennedy questioned why Gilbert had to treat all signs the same. He suggested signs supporting candidates or commemorating historically significant events might be favored over those someone might plant proclaiming “Happy Birthday, Uncle Fred.”
The federal government tried to find a middle-of-the-road position, saying governments should not be required to treat all signs the same. But it said Gilbert’s law should fail because it did not advance the town’s purported goals of safety and aesthetics.
Gilbert’s attorney, Savrin, said that if the court sides with the church in finding all signs must be treated equally, cities and states will be forced to approve signs that “would have to be all large enough to accommodate the largest message that needs to be communicated.”
More likely, he said, “towns and cities across this country would be inclined to ban all signs except those that the First Amendment absolutely allows.”
But justices had trouble with Savrin’s argument that governments should be held to higher standards when regulating signs because of their content and have more leeway when the messages are simply “functional,” such as providing directions.
“I frankly can’t grasp that,” said Justice Antonin Scalia, adding, “Doesn’t its function depend upon its content?”
“In a literal sense, yes,” Savrin answered.
“Oh, I see,” Scalia replied. “What sense are we talking here? Poetic?”
The case is Reed v. Town of Gilbert.