WASHINGTON – A divided appeals court Friday upheld a Gilbert sign ordinance, saying it did not infringe on the First Amendment rights of Good News Presbyterian Church.
A panel of the 9th U.S. Circuit Court of Appeals ruled that town restrictions on the placement of church signs were not based on the signs’ content and did not infringe on the church’s right to free exercise of religion or its right to equal protection.
But in a dissenting opinion, Judge Paul Watford said the sign ordinance is unconstitutional, noting that it favored political and ideological signs over signs promoting events, like those the church used.
“Gilbert’s sign ordinance violates the First and 14th amendments by drawing content-based distinctions among different categories of non-commercial speech,” Watford wrote.
An attorney for the church said he was reviewing the case and will decide soon whether to appeal. The pastor of Good News said Friday he was disappointed in the ruling.
“We thought we had a solid case, but the 9th Circuit said it wasn’t solid enough,” said the Rev. Clyde Reed. “I guess we didn’t do a good enough job.”
The spat began in 2005 when town officials told the several-dozen-member church that the signs it was posting in public rights-of-way to advertise Sunday services were being put up too early.
The church reduced the number of signs and the amount of time the signs were in place, but friction continued.
The church sued the city in 2008, claiming its First Amendment and 14th Amendment rights were violated by the town’s sign ordinance.
Kim S. Alvarado, one of the attorneys who represented Gilbert, said the town was surprised when the suit was filed. She called Gilbert one of the few towns in the area with a sign ordinance, which was intended to help small organizations like the church advertise.
Alvarado said she does not know of any other complaints about the law, which the town changes regularly based on community input. The law changed several times during the course of the case, though that did not affect Friday’s ruling.
The code sets specific rules on how large a sign can be, where and how long it can be displayed.
As “temporary directional signs,” the church’s signs could not exceed 6 square feet or be displayed more than 12 hours before or one hour after an event. But “ideological” signs could be up to 20 square feet and had no time restrictions.
The church argued that the town could not enforce the ordinance without first judging the content of the sign.
Watford agreed, but the other two judges on the panel said the “restrictions are based on objective factors relevant to the creation of the specific exemption and do not otherwise consider the substance of a sign.” As such, the law is constitutional, they wrote.
This is not the first time the circuit court heard this case. In 2009, it upheld a lower court’s decision rejecting the church’s request for an injunction to block enforcement of the ordinance.
But the appeals court then sent the case back, with orders for the district court to more closely consider the First and 14th amendment questions in the case. The district court ruled that the law was content-neutral, a decision upheld in Friday’s ruling.
The church’s attorney, Jeremy Tedesco, said they have 14 days to appeal for rehearing by the full circuit court, “so you’ll know in 14 days what we plan to do.”
“To us it’s a very simple case of content-based discrimination,” said Tedesco, senior legal counsel for the Alliance Defending Freedom. “Of course we’re disappointed the court did not see it this way.”