Clyde Reed v. Town of Gilbert, Arizona

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
CLYDE REED, Pastor; GOOD NEWS 
COMMUNITY CHURCH,
Plaintiffs-Appellants, No. 08-17384
v.
 D.C. No.
2:07-cv-00522-SRB
TOWN OF GILBERT, ARIZONA; ADAM
ADAMS, in his official capacity as OPINION
Code Compliance Manager,
Defendants-Appellees.

Appeal from the United States District Court
for the District of Arizona
Susan R. Bolton, District Judge, Presiding
Argued and Submitted
April 15, 2009—San Francisco, California
Filed November 20, 2009
Before: Stephen Reinhardt, John T. Noonan and
M. Margaret McKeown, Circuit Judges.
Opinion by Judge McKeown
15393
REED v. TOWN OF GILBERT 15397
COUNSEL
Benjamin W. Bull, Jeremy D. Tedesco, Alliance Defense
Fund, Scottsdale, Arizona; David A. Cortman (argued), Alli-
ance Defense Fund, Lawrenceville, Georgia; Deborah M.
Sheasby, Peter A. Gentala, Center for Arizona Policy, Phoe-
nix, Arizona, for the plaintiffs-appellants.
Robert Grasso, Jr., Kim S. Alvarado (argued), Grasso Law
Firm, P.C., Chandler, Arizona, for the defendants-appellees.
OPINION
McKEOWN, Circuit Judge:
Although “[i]t is common ground that governments may
regulate the physical characteristics of signs,” City of Ladue
v. Gilleo, 512 U.S. 43, 48 (1994), sign regulations have
spawned legions of First Amendment challenges. Those chal-
lenges arise because signs “pose distinctive problems that are
subject to municipalities’ police powers,” and yet they are
also “a form of expression protected by the Free Speech
Clause.” Id. This case presents yet another variation on a sign
ordinance—one that prohibits all signs without a permit, sub-
ject to nineteen enumerated exemptions ranging from direc-
tional signs to ideological and political signs.
Good News Community Church wishes to spread the word
about its Sunday services by placing temporary directional
signs around the Town of Gilbert, Arizona. Gilbert, however,
limits Good News’ deployment of temporary directional signs
via the town’s comprehensive sign ordinance. Good News
15398 REED v. TOWN OF GILBERT
Community Church and its Pastor, Clyde Reed (collectively
“Good News”), challenge the ordinance’s constitutionality
under the First and Fourteenth Amendments, contending it
impermissibly burdens the right to free speech and treats simi-
lar speech unequally.
Good News appeals the district court’s denial of a prelimi-
nary injunction barring enforcement of the ordinance.
Although we conclude the provision of the ordinance directly
regulating Good News’ signs does not of itself violate the
First Amendment, the district court did not address Good
News’ claim that the ordinance unfairly discriminates among
forms of noncommercial speech. Consequently, we remand
for the district court to consider this aspect of Good News’
challenge, within the context of the preliminary injunction
motion.
BACKGROUND
I. USE OF SIGNS BY GOOD NEWS COMMUNITY CHURCH
Good News does not have a permanent sanctuary, and at
the commencement of this litigation had been conducting its
Sunday church services at an elementary school in the Town
of Gilbert, Arizona (“Gilbert”) for about five years.1 Good
News averages 45 regular congregants.
Members of Good News believe the Bible commands them
to “go and make disciples of all nations,” and that they
“should carry out this command by reaching out to the com-
munity to meet together on a regular basis.” To do so, they
“display[ ] signs announcing their services as an invitation for
1
According to the parties, Good News meets currently at a school in the
adjacent town of Chandler, Arizona, approximately one mile from the Gil-
bert town line. The change in location does not moot the controversy,
however, because Good News still wishes to place temporary signs in Gil-
bert due to its proximity to the church’s meeting place.
REED v. TOWN OF GILBERT 15399
those in the community to attend.” Good News states that
“[f]or a time, the Church was placing about 17 signs in the
areas surrounding the Church,” and that the signs “were
placed early in the day each Saturday and removed following
the services on Sunday mid-day.” Good News uses moveable
signs that can be placed on or anchored in the ground. The
signs vary slightly, but generally contain the name “Good
News Community,” the phrase “Your Community Church,” a
website address and phone number, the location and time of
the services, and an indicator directing people to the service.
Following is an example of one of the signs:
II. THE SIGN CODE AND ENFORCEMENT AGAINST GOOD
NEWS
Like many municipalities, Gilbert regulates the display of
outdoor signs. Town of Gilbert Land Development Code,
Division 4, General Regulations, Article 4.4, Sign Regula-
tions (“Sign Code” or “Code”). Gilbert’s Sign Code prohibits
certain types of signs altogether. For signs that are not prohib-
ited, the Code imposes a general ban on displaying signs
15400 REED v. TOWN OF GILBERT
without a permit and establishes some generally applicable
restrictions. § 4.402(A). Signs that are allowed with permits
are regulated according to general categories, for example,
“Real Estate.”
The Sign Code exempts from the permitting requirement
nineteen types of signs.2 The signs employed by Good News
fall under one of the exemptions, § 4.402(P), for Temporary
Directional Signs Relating to a Qualifying Event (“Qualifying
Event Signs”).
In July 2005, Good News received an email from a Gilbert
Code Compliance officer noting a violation of an earlier ver-
sion of § 4.402(P) because Good News’ signs had been sited
too early and in a public right-of-way. A few months later, a
Code Compliance officer issued an advisory notice to Good
News, stating that signs were displayed outside of the hours
allowed and did not include a date for the religious service.
Good News relates that “[a]fter receiving these citations,
the Church reduced the number of signs and the amount of
time they placed the signs.” In February 2007, the Code Com-
pliance Manager told Good News “that there is no leniency
under the Code, and that the Church would be cited if it was
determined that it had violated any of the applicable provi-
sions in the Code.”
2
(1) Signs installed by a governmental jurisdiction; (2) Building Identi-
fication Signs; (3) Permanent Regulatory and Parking signs; (4) Informa-
tion Wall Signs (e.g., “Delivery Entrance”); (5) Real Estate Signs; (6)
Residential Open House Signs; (7) Political Signs; (8) Ideological Signs;
(9) Garage Sale Signs; (10) Business Identification Banners during street
construction; (11) Interim Business Identification Banners; (12) Boutique
Signs; (13) Window Signs; (14) A-Frame Signs; (15) Temporary Direc-
tional Signs Relating to a Qualifying Event; (16) Construction Signs; (17)
Suspended Signs (particular type of commercial sign); (18) Restaurant
Menu Signs; and (19) Required Street Addresses. § 4.402(D).
REED v. TOWN OF GILBERT 15401
III. DISTRICT COURT PROCEEDINGS
In March 2008, Good News filed suit in federal court in
Arizona, alleging that, on its face and as applied, Sign Code
§ 4.402(P) violated the Free Speech clause of the First
Amendment and the Equal Protection clause of the Fourteenth
Amendment. Shortly after filing, Good News moved for a
preliminary injunction to stop Gilbert from enforcing
§ 4.402(P). Gilbert stipulated to a preliminary injunction, as
a “sign of good faith,” in order for Gilbert to review and
amend the original ordinance. The district court granted the
stipulated injunction.
In an effort to avoid maintaining a potentially impermissi-
ble content-based ordinance, following public hearings the
Town Council of Gilbert adopted an amended Sign Code rec-
ommended by the Gilbert Planning Commission. Before pas-
sage of the amendment, in January 2008, attorneys for the
parties conferred, and Good News advised that, in its view,
the proposed amendment did not fix § 4.402(P)’s constitu-
tional infirmities.
The amendments left the Sign Code intact except for
§ 4.402(P) and related sections.3 The title of § 4.402(P) was
3
The Sign Code was amended in these pertinent ways.
(1) Title of § 4.402(P)—changed from “Religious Assembly
Temporary Directional Signs” to “Temporary Directional
Signs Relating to a Qualifying Event.” Other references to
the qualifier “Religious Assembly” were replaced with “Re-
lating to a Qualifying Event.”
(2) Size—changed from 3 feet high to 6 feet, although still not
to exceed 6 square feet.
(3) Number—retained limit of four per single property; clari-
fied there may be unlimited total.
(4) Display—changed from “up to 2 hours before, and 1 hour
after the religious service,” to “up to 12 hours before, dur-
ing, and 1 hour after the qualifying event ends.”
15402 REED v. TOWN OF GILBERT
changed from “Religious Assembly Temporary Directional
Signs” to “Temporary Directional Signs Relating to a Quali-
fying Event.” A new definition was added to the glossary for
these signs, expanding the coverage of § 4.402(P) to signs
related to any events sponsored by non-profit organizations,
not just religious gatherings. The restrictions on physical
characteristics and use of signs under § 4.402(P) were some-
what modified, although the restriction that Qualifying Event
Signs may not be placed in public rights-of-way was retained.
Immediately following adoption of the amended regulation,
Good News filed a notice that the amended Sign Code failed
to resolve the lawsuit, an amended verified complaint, and a
second motion for preliminary injunction.4 Good News has
not been cited under the amended Sign Code, but states that
it is not placing signs in the rights-of-way “due to the prohibi-
tions in the amended Code.”
(5) Glossary definition of “Temporary Directional Signs Relat-
ing to a Qualifying Event” added—“A temporary sign
intended to direct pedestrians, motorists, and other pas-
sersby to a ‘Qualifying Event.’ A ‘Qualifying Event’ is any
assembly, gathering, activity or meeting sponsored,
arranged, or promoted by a religious, charitable, community
service, educational, or other similar non-profit organiza-
tion.”
(6) Glossary definition of “Ideological Sign” amend-
ed—definition amended to read: “a sign communicating a
message or ideas for non-commercial purposes that is not a
construction sign, directional sign, temporary directional
sign relating to a qualifying event, political sign, garage sale
sign, or a sign owned or required by a governmental agen-
cy.”
4
In addition to the free speech and equal protection claims, Good News
also claimed that § 4.402(P) violated the Free Exercise Clause of the First
Amendment and Arizona’s Religious Freedom Restoration Act (ARFRA),
A.R.S. § 41-1493.01. Good News did not seek the preliminary injunction
on the basis of these claims, which are not at issue in this appeal.
REED v. TOWN OF GILBERT 15403
In September 2008, the district court denied the motion for
preliminary injunction. The court concluded that § 4.402(P) is
a content-neutral regulation, and that it passes the applicable
intermediate level of scrutiny. It further found that the Sign
Code does not favor commercial speech over noncommercial
speech. Based on its determination that the provision is
content-neutral, the court concluded that § 4.402(P) does not
violate equal protection, as any uneven effects are an unin-
tended consequence of the lawful content-neutral regulation.
ANALYSIS
This case comes to us on appeal from the denial of a pre-
liminary injunction. Although we review the denial of a pre-
liminary injunction for abuse of discretion, “we review the
legal issues underlying the district court’s decision de novo.”
Foti v. City of Menlo Park, 146 F.3d 629, 634-635 (9th Cir.
1998).
The Supreme Court recently summarized the threshold for
granting the extraordinary relief of a preliminary injunction:
“A plaintiff seeking a preliminary injunction must establish
that he is likely to succeed on the merits, that he is likely to
suffer irreparable harm in the absence of preliminary relief,
that the balance of equities tips in his favor, and that an
injunction is in the public interest.” Winter v. Natural Res.
Def. Council, Inc. 129 S.Ct. 365, 374 (2008); see also Am.
Trucking Ass’ns, Inc. v. City of Los Angeles, 559 F.3d 1046,
1052 (9th Cir. 2009) (quoting same). Because the district
court concluded that Good News was unlikely to succeed on
the merits of its claims, the court did not reach the further
inquiries regarding harm, equities and the public interest. Our
focus therefore is a legal one—whether the district court erred
in its judgment that Good News is unlikely to succeed on the
merits because the regulation passes muster under the First
and Fourteenth Amendments.
Good News claims that § 4.402(P) violates the First
Amendment and the Fourteenth Amendment, both on its face
15404 REED v. TOWN OF GILBERT
and as applied to Good News’ signs. There are two ways an
ordinance may be judged unconstitutional on its face:
“[E]ither because it is unconstitutional in every conceivable
application, or because it seeks to prohibit such a broad range
of protected conduct that it is unconstitutionally ‘over-
broad.’ ” Members of City Council v. Taxpayers for Vincent,
466 U.S. 789, 796 (1984). The first type of facial challenge
“may be paired with the more common as-applied challenge,
where a plaintiff argues that the law is unconstitutional as
applied to his own speech or expressive conduct.” Santa Mon-
ica Food Not Bombs v. City of Santa Monica, 450 F.3d 1022,
1034 (9th Cir. 2006). Good News opts for this route, claiming
that § 4.402(P) would be unconstitutional as applied to any
Qualifying Event Sign and that it is also invalid as applied to
Good News’ signs.
Good News, however, has not demonstrated that its facial
challenge to § 4.402(P) warrants separate review. “[W]e have
found nothing in the record to indicate that the ordinance will
have any different impact on any third parties’ interest in free
speech than it has on [Good News.]” Vincent, 466 U.S. at 801.
“[Good News’] attack on the ordinance is basically a chal-
lenge to the ordinance as applied to [its] activities. We there-
fore limit our analysis of the constitutionality of the ordinance
to the concrete case before us . . . ,” whether § 4.402(P) is
unconstitutional as applied to Good News. Id. at 803.
I. CONSTITUTIONALITY OF QUALIFYING EVENT REGULATION
We begin with the simple proposition that Gilbert’s sign
regulation is subject to First Amendment scrutiny. In an effort
to promote a safe, harmonious and pleasant environment—
and presumably to insulate itself from challenges under the
First Amendment—Gilbert has adopted a sign ordinance that
makes one’s head spin to figure out the bounds of its restric-
tions and exemptions. Our initial focus is on § 4.402(P), the
exemption that regulates Qualifying Event Signs.
REED v. TOWN OF GILBERT 15405
A. CONTENT-BASED REGULATIONS
[1] The first question is whether § 4.402(P) is a regulation
based on the content of speech. See Ladue, 512 U.S. at 59(O’Connor, J., concurring) (“The normal inquiry that our doc-
trine dictates is, first, to determine whether a regulation is
content based or content neutral, and then, based on the
answer to that question, to apply the proper level of scruti-
ny.”). “A regulation is content-based if either the underlying
purpose of the regulation is to suppress particular ideas or, if
the regulation, by its very terms, singles out particular content
for differential treatment.” Berger. v City of Seattle, 569 F.3d
1029, 1051 (9th Cir. 2009) (internal citations omitted).
Exemptions to otherwise permissible regulations must none-
theless be scrutinized as “an exemption . . . may represent a
governmental attempt to give one side of a debatable public
question an advantage in expressing its views to the people.”
Ladue, 512 U.S. at 51 (internal quotation omitted).
According to the Purposes section of the ordinance, the
Sign Code was adopted to assure “proper and efficient expres-
sion through visual communication” that is “compatible with
the character and environment” of Gilbert; to eliminate con-
fusing, distracting and unsafe signs; and to enhance the aes-
thetic environment of the town. § 4.401. Nothing in the
regulation suggests any intention by Gilbert to suppress cer-
tain ideas through the Sign Code, nor does Good News claim
that Gilbert had any illicit motive in adopting the ordinance.
Gilbert asserts that the exemptions to the Sign Code were
included to accommodate the speech interests of various
members of the Gilbert community, and that, in particular,
§ 4.402(P) is intended to provide groups such as Good News
the opportunity to spread the word about their events without
the restriction of a permitting process. Gilbert’s unimpeached
intentions, however, do not satisfy our inquiry. See Foti, 146
F.3d at 636 n.7 (“Although Menlo Park’s exemptions for open
house signs and safety, traffic, and informational signs seem
innocuous, we base our content-based determination on
15406 REED v. TOWN OF GILBERT
whether the ordinance singles out certain speech for differen-
tial treatment based on the idea expressed. The reasonable-
ness, harmlessness, or worthiness of the idea is irrelevant.”).
[2] “[W]hether a statute is content neutral or content based
is something that can be determined on the face of it; if the
statute describes speech by content then it is content based.”
Menotti v. City of Seattle, 409 F.3d 1113, 1129 (9th Cir. 2005)
(quoting City of Los Angeles v. Alameda Books, Inc., 535 U.S.
425, 448 (2002) (Kennedy, J., concurring)) (internal quotation
marks omitted). This succinct summation of the law does not
address what is meant by “content.” We look to two Ninth
Circuit cases that are helpful in giving texture and meaning to
the term when applied to a sign ordinance.
In Foti v. City of Menlo Park, the sign ordinance placed a
general ban on posting signs on public property or displaying
signs in public rights-of-way. 146 F.3d at 633-34. But the
Menlo Park code included exemptions for temporary “open
house” real estate signs; signs placed by government entities;
safety, traffic, and public informational signs; certain signs on
cars; and pickets. Id. Picketers, such as the plaintiffs, who
wanted to protest outside of a family planning clinic, were
limited to carrying one sign under three square feet, and had
to move while carrying the sign. Id.We concluded that the “exemptions [in the Menlo Park
ordinance] for ‘open house’ real estate signs and safety, traf-
fic, and public informational signs are content-based. To
enforce the ordinance, a law enforcement officer must ‘exam-
ine the content of . . . signs to determine whether the exemp-
tion applies.’ ” Foti, 146 F.3d at 636 (quoting Desert Outdoor
Advert. v. City of Moreno Valley, 103 F.3d 814, 820 (9th Cir.
1996)). Good News points to Foti as the controlling case.
Gilbert argues that instead of drawing support from Foti,
we should look to G.K. Limited Travel v. City of Lake
Oswego, 436 F.3d 1064 (9th Cir. 2006). In G.K. Limited, the
REED v. TOWN OF GILBERT 15407
city of Lake Oswego, Oregon, passed a sign ordinance that
banned the erection of new signs on poles and required taking
down existing pole signs,5 either when the “copy” on the sign
changed or by a general deadline set by the ordinance. 436
F.3d at 1069. G.K. Limited, a travel agency, purchased
another agency that owned a pole sign. G.K. Limited wanted
to change the copy of the pole sign by substituting its name,
and objected to the requirement that it remove the sign to
comply with the Lake Oswego code. We concluded that the
grandfather provision of the ordinance was content neutral,
and sounded a caution:
Plaintiffs attempt to broaden Foti to stand for the
proposition that any time an ordinance requires a law
enforcement officer to read a sign, the ordinance
must be content based. We reject such an expansive
reading. The Foti test actually turns on ‘whether the
ordinance singles out certain speech for differential
treatment based on the idea expressed;’ enforcement
officials having to read a sign is persuasive evidence
of such a purpose but may not always be dispositive.
G.K. Ltd., 436 F.3d at 1078 (quoting Foti, 136 F.3d at 636).
We went on to explain the rationale underlying Foti:
In Foti, we evaluated a Menlo Park ordinance ban-
ning all signs on all public property. The law, how-
ever, exempted “open house,” safety, traffic and
public information signs. Relying on our earlier rul-
ing in Desert Outdoor Advertising v. City of Moreno
Valley, 103 F.3d 814, 820 (9th Cir. 1996), we con-
cluded that these exemptions were content based
“because a law enforcement officer must read a
sign’s message to determine if the sign is exempted
5
Pole signs are free-standing signs that stand more than a few feet above
the ground.
15408 REED v. TOWN OF GILBERT
from the ordinance.” Foti, 146 F.3d at 636. Menlo
Park was clearly expressing a preference for certain
types of signs by exempting them from the city’s
general prohibition. The only way to determine if a
sign was the type qualified to receive Menlo Park’s
favorable treatment was to evaluate the content and
substantive message of the sign.
Id.We then noted that:
Neither the speaker- nor event-based exemptions
implicate Foti insofar as neither requires law
enforcement officers to “read a sign’s message to
determine if the sign is exempted from the ordi-
nance.” Foti, 146 F.3d at 636. In the speaker cate-
gory, officers decide whether an exemption applies
by identifying the entity speaking through the sign
without regard for the actual substance of the mes-
sage. In the case of event-based exemptions . . . the
officer must determine only whether a specific trig-
gering event has occurred and if the temporary sign
has been erected within the specified time frame.
Id.[3] Taking these two cases together, we learn that our focus
should be on determining whether the ordinance targets cer-
tain content; whether the ordinance or exemption is based on
identification of a speaker or event instead of on content; and
whether an enforcement officer would need to distinguish
content to determine applicability of the ordinance.
B. CONTENT-BASED ANALYSIS REGARDING QUALIFYING
EVENT REGULATION
With these principles in mind, we turn to § 4.402(P), the
Qualifying Event provision. Following amendment of the
Sign Code, § 4.402(P) reads:
REED v. TOWN OF GILBERT 15409
Temporary Directional Signs Relating to a Qualify-
ing Event. Temporary Directional Signs Relating to
a Qualifying Event shall be permitted subject to the
following regulations:
1. Size. Signs shall be no greater than 6 feet in
height and 6 square feet in area.
2. Number. No more than 4 signs shall be dis-
played on a single property at any time.
3. Display. Signs shall only be displayed up to 12
hours before, during, and 1 hour after the Quali-
fying Event ends. The person who installed the
signs shall be responsible for removal. If the
person installing the signs is unknown, the prop-
erty owner shall be responsible.
4. Location. Temporary Directional Signs Relating
to a Qualifying Event may be located off-site
and shall be placed at grade level. Signs shall be
placed only with the permission of the owner of
the property on which they are placed.
5. Prohibited Locations. Temporary Directional
Signs Relating to a Qualifying Event shall not
be located:
a. In the public right-of-way.
b. On fences, boulders, planters, other
signs, vehicles, utility facilities, or any
structure.
6. Construction. Signs shall be:
a. Constructed of durable and weather-
resistant materials.
15410 REED v. TOWN OF GILBERT
b. Anchored or weighted down to avoid
being displaced in windy conditions, or
otherwise to be a safety hazard to the
public.
[4] Section 4.402(P) regulates physical characteristics, such
as size, number and construction of the signs; location of
placement; and timing of display. None of these restrictions
implicate the content of speech. The only possible content-
based aspect of § 4.402(P) is its limitation to signs related to
“Qualifying Events.” In the Glossary of the amended Code,
Temporary Directional Signs Relating to a Qualifying Event
are defined as temporary signs intended to direct passersby to
a “Qualifying Event,” which, in turn, means:
any assembly, gathering, activity, or meeting spon-
sored, arranged or promoted by a religious, charita-
ble, community service, educational or other similar
non-profit organization.
A directional sign does not contain a message such that reg-
ulating directional signs would inherently “distinguish
favored speech from disfavored speech on the basis of the
ideas or views expressed.” Turner Broad. Sys. v. FCC, 512
U.S. 622, 643 (1994). The definition of Qualifying Event
Signs bears out this observation, as it does not mention any
idea or viewpoint, let alone single one out for differential
treatment.
[5] The definition of a Qualifying Event sign merely
encompasses the elements of “who” is speaking and “what
event” is occurring. These two criteria invoke the speaker-
based and event-based characteristics approved in G.K. Lim-
ited because “the City d[id] not limit the substance of [the]
speech in any way.” 436 F.3d at 1078. In addition to the pole
sign ban, the plaintiffs in G.K. Limited challenged exemptions
in the Lake Oswego sign ordinance. Id. at 1070. We con-
cluded the exemptions from the permitting and fee require-
REED v. TOWN OF GILBERT 15411
ments for “public signs, signs for hospital or emergency
services, legal notices, railroad signs and danger signs” were
speaker-based exemptions that did not relate to the contents
of the signs. Id. at 1076-77. We reached that conclusion
because “officers decide whether an exemption applies by
identifying the entity speaking through the sign without
regard for the actual substance of the message.” Id at 1078.
Here, an officer can likewise determine whether a “religious,
charitable, community service, educational or other similar
non-profit organization” is “speaking through the sign” with-
out assessing the substance of the sign’s contents.
The plaintiffs in G.K. Limited also contested the permit
exemption for “temporary signs in residential zones.” Id at
1070. This exemption allowed homeowners to erect a tempo-
rary sign regarding any subject when a triggering event, such
as a home sale or election, occurred. We characterized the
provision as an event-based exemption that, again, did not
relate to the content of the speech. Id. at 1078. “In the case
of event-based exemptions to the permitting process, the offi-
cer must determine only whether a specific triggering event
has occurred and if the temporary sign has been erected
within the specified time frame.” Id. Similarly, for a Qualify-
ing Event Sign, in addition to the content-neutral step of not-
ing the speaker, the Gilbert officer need only check that an
event is listed on the sign and the timing of the event. Identi-
fying a triggering event under § 4.402(P) does not entail mak-
ing a content-based determination. “We have never held, or
suggested, that it is improper to look at the content of an oral
or written statement in order to determine whether a rule of
law applies to a course of conduct.” Hill v. Colorado, 530
U.S. 703, 721 (2000) (holding that need for officers to some-
times review the contents of oral statements made by “side-
walk counselors” to determine whether ordinance limiting
speech near health care facilities was violated did not make
ordinance content based).
Good News contends that because a Gilbert enforcement
officer must review elements of Good News’ signs in order to
15412 REED v. TOWN OF GILBERT
apply § 4.402(P) the section is content based. Surely, how-
ever, this regulation is a good example that the “officer must
read it” test is not always determinative of whether a regula-
tion is content based or content neutral. The district court
indeed recognized that we have “not applied the ‘officer must
read it test’ so strictly that a law must be invalidated any time
it forces an officer’s eyes to venture within the four corners
of the sign.” See Berger, 569 F.3d 1052 n. 22 (“Whether an
officer must read a message is persuasive evidence of an
impermissible content-based purpose, but is not dispositive.”)
(quoting Ctr. for Bio-Ethical Reform v. Los Angeles Cty.
Sheriff Dep’t, 533 F.3d 780, 789 n. 5) (9th Cir. 2008) (internal
quotation marks omitted); see also ACLU of Nevada v. City
of Las Vegas, 466 F.3d 784, 796 n.12 (9th Cir. 2006) (observ-
ing same).
[6] This case also highlights the absurdity of construing the
“officer must read it” test as a bellwether of content. If
applied without common sense, this principle would mean
that every sign, except a blank sign, would be content based.
While a Gilbert officer needs to briefly take in what is written
on the Qualifying Event Sign to note who is speaking and the
timing of the listed event, this “kind of cursory examination”
is not akin to an officer synthesizing the expressive content of
the sign. Hill, 530 U.S. at 721. See G.K. Ltd., 436 F.3d at
1079 (observing that the pole sign grandfather clause “does
not require Lake Oswego officials to evaluate the substantive
message on the preexisting sign and the clause certainly does
not favor speech ‘based on the idea expressed’ ”); see also,
e.g., Covenant Media of South Carolina v. City of North
Charleston, 493 F.3d 421, 434 (4th Cir. 2007) (holding that
to the extent enforcement of a sign ordinance similar to Gil-
bert’s that “defined and distinguished between different types
of signs,” including “directional or instructional signs,”
required “looking generally at what type of message a sign
carries to determine where it can be located, this ‘kind of cur-
sory examination’ did not make the regulation content based”)
(quoting Hill, 530 U.S. at 721); La Tour v. City of Fayette-
REED v. TOWN OF GILBERT 15413
ville, Arkansas, 442 F.3d 1094, 1096 (8th Cir. 2006) (noting
that an exception to a sign ordinance’s ban on electronic mes-
sage signs for “time and temperature” signs was distinguish-
able from a provision in a prior case regulating political signs,
as “[i]t takes some analysis to determine if a sign is ‘political,’
but one can tell at a glance whether a sign is displaying the
time or temperature”). We conclude that § 4.402(P) is not a
content-based regulation: It does not single out certain content
for differential treatment, and in enforcing the provision an
officer must merely note the content-neutral elements of who
is speaking through the sign and whether and when an event
is occurring.
C. TIME, PLACE, MANNER RESTRICTIONS
[7] Resolution of content neutrality does not end our
inquiry. The sign restriction, as a content-neutral time, place
and manner regulation, must also be “narrowly tailored to
serve a significant governmental interest, and [must] leave
open ample alternative channels for communication of that
information.’ ” Ward v. Rock Against Racism, 491 U.S. 781,
791 (1989) (quoting Clark v. Community for Creative Non-
Violence, 468 U.S. 288, 293 (1984)).6
1. Narrow tailoring
We have explained that narrow tailoring to serve a signifi-
cant governmental interest
requires that the regulation actually advance the gov-
ernment’s interest, but it need not do so in the least
restrictive or least intrusive way. “So long as the
6
In Thomas v. Chicago Park Dist., 534 U.S. 316, 323 (2002), the
Supreme Court recognized that content-neutral time, place and manner
regulations must “contain adequate standards to guide the official’s deci-
sion and render it subject to effective judicial review.” Good News has not
claimed that the Sign Code lacks adequate standards for enforcement.
15414 REED v. TOWN OF GILBERT
means chosen are not substantially broader than nec-
essary to achieve the government’s interest . . . the
regulation will not be invalid simply because a court
concludes that the government’s interest could be
adequately served by some less speech-restrictive
alternative.”
G.K. Ltd., 436 F.3d at 1073-74 (quoting State Univ. of New
York v. Fox, 492 U.S. 469, 479 (1989) (internal citation omit-
ted)). See also Hill, 530 U.S. at 726 (emphasizing that “when
a content-neutral regulation does not entirely foreclose any
means of communication, it may satisfy the tailoring require-
ment even though it is not the least restrictive or least intru-
sive means of serving the statutory goal”).
[8] Gilbert identifies two interests motivating § 4.402(P):
aesthetics and traffic and pedestrian safety. Beauty and safety
are familiar players in the free speech skirmishes involving
sign ordinances. See Foti, 146 F.3d at 637 (“The City’s
asserted interests in the ordinance are the oft-invoked and
well-worn interests of preventing visual blight and promoting
traffic and pedestrian safety.”). These purposes are readily
recognized as significant governmental interests. See
Metromedia v. City of San Diego, 453 U.S. 490, 507-508
(1981) (“Nor can there be substantial doubt that the twin goals
that the ordinance seeks to further—traffic safety and the
appearance of the city—are substantial governmental goals.”);
One World One Family Now v. City and County of Honolulu,
76 F.3d 1009, 1013 (9th Cir. 1996) (“Cities have a substantial
interest in protecting the aesthetic appearance of their commu-
nities by ‘avoiding visual clutter’ . . . [and] assuring safe and
convenient circulation on their streets.”) (quoting Vincent,
466 U.S. at 806-07). Gilbert’s identification in the Code of the
recognized interests in safety and aesthetics “is all our review
requires to prove a significant interest.” Get Outdoors II v.
City of San Diego, 506 F.3d 886, 893-94 (9th Cir. 2007).
[9] In assessing § 4.402(P)’s tailoring, the district court
credited Gilbert’s contention that “it ha[d] taken steps to
REED v. TOWN OF GILBERT 15415
ensure that Plaintiffs’ speech is not overly restricted.” The
restrictions on time, place and manner imposed by Gilbert on
the display of Qualifying Events Signs would indeed appear
to “actually advance” the aesthetic and safety interests by lim-
iting the size, duration and proliferation of signs. See G.K.
Ltd., 436 F.3d at 1073. These measures restricting the number
of signs and limiting them to private property do not appear
substantially broader measures than required to make sure the
rights-of-way are not so thicketed with signs as to pose a
safety hazard or create an aesthetic blight. The limitation on
timing—twelve hours before the event and one hour after—is
equally narrowly tailored to meet these interests. While it
might be easier and provide broader exposure for Good News
to have the sign up for twenty-four hours, the test is not con-
venience or optimal display. See Hill, 530 U.S. at 727 (noting
when reviewing a Colorado ordinance limiting “sidewalk
counseling” that “whether or not the 8-foot interval is the best
possible accommodation of the competing interests at stake,
we must accord a measure of deference to the judgment of the
Colorado legislature.”) The district court did not abuse its dis-
cretion in concluding § 4.402(P) is narrowly tailored, as it
“does not sweep in more speech than is necessary to achieve
the Town’s aesthetic and traffic control objectives.”
2. Ample alternative channels for communication
Good News contends that § 4.402(P) leaves it without ade-
quate channels to communicate its message inviting passersby
to attend church services. The district court found that “Plain-
tiffs’ alternative channels of communication include distribut-
ing leaflets, sending email messages or mail advertisements,
walking the sidewalks with signs advertising the church ser-
vices, posting signs carrying religious messages on their own
property, and advertising in the newspaper, phonebook or
other print media.”
[10] On appeal, Good News responds that displaying Qual-
ifying Event Signs is the most effective way of communicat-
15416 REED v. TOWN OF GILBERT
ing its invitation, and claims that when it placed more signs
it attracted more congregants. Again, the test is not whether
another option would be more optimal for Good News: “[W]e
are cautioned against invalidating government regulations for
failing to leave open ample alternative channels unless the
regulations foreclose[s] ‘an entire medium of public expres-
sion across the landscape of a particular community or set-
ting.’ ” G.K. Ltd., 436 F.3d at 1074 (quoting Colacurcio v.
City of Kent, 163 F.3d 545, 555 (9th Cir. 1998).7 While the
alternative options identified by the district court may not be
Good News’ preference, “we cannot invalidate the Sign Code
merely because it restricts plaintiffs’ preferred method of
communication.” G.K. Ltd., 436 F.3d at 1074. Nor do the
alternative modes available appear especially burdensome.
The district court did not abuse its discretion by finding that
the “alternative channels of communication [it listed] ensure
that Plaintiffs are able to ‘communicate effectively’ with
members of the public.”
[11] Section 4.402(P) is a content-neutral regulation of the
time, place and manner of display of Good News’ Qualifying
Event Signs; the provision is narrowly tailored to further Gil-
bert’s significant interests in aesthetics and traffic safety; and
Good News has ample alternative channels of communicating
its invitation to church services. The district court did not err
in concluding that Good News was unlikely to succeed in
demonstrating § 4.402(P) is unconstitutional because it is a
content-based regulation that does not survive strict scrutiny.
7
Ladue provides a worthwhile contrast. The City of Ladue banned
homeowners from displaying signs on their properties, except for certain
identification and for sale signs. 512 U.S. at 45. The Supreme Court con-
cluded that displaying a sign at one’s home endows the sign with special
meaning, and that “[i]n this case, we are not persuaded that adequate sub-
stitutes exist for the important medium of speech that Ladue has closed
off.” Id. at 56 (internal citation omitted). Here, Gilbert has not foreclosed
the entire medium of temporary signs, and has left open a number of rea-
sonable substitutes for Good News to communicate its message.
REED v. TOWN OF GILBERT 15417
II. SIGN CODE’S TREATMENT OF COMMERCIAL SPEECH
vERSUS NONCOMMERCIAL SPEECH
[12] Municipalities stray beyond the boundaries of accept-
able time, place and manner regulation when an ordinance
favors commercial forms of speech over noncommercial
speech. In Metromedia, the Supreme Court tackled this issue
in the context of San Diego’s billboard ordinance, which per-
mitted on-site commercial advertising, but forbade off-site
commercial billboards and all noncommercial billboards. 453
U.S. at 495-96 (plurality opinion). The Court invalidated the
ordinance, emphasizing that San Diego’s priorities were
topsy-turvy, as “our recent commercial speech cases have
consistently accorded noncommercial speech a greater degree
of protection than commercial speech.” Id. at 513. In National
Advertising v. City of Orange, 861 F.2d 246 (9th Cir. 1988),
we echoed the lesson from Metromedia: “Merely treating
noncommercial and commercial speech equally is not consti-
tutionally sufficient. The First Amendment affords greater
protection to noncommercial than to commercial expression.
Regulations valid as to commercial speech may be unconstitu-
tional as to noncommercial.” Id. at 248 (internal citations omit-
ted).8
[13] Good News argues that the Sign Code advantages
commercial speech over the noncommercial speech found in
Qualifying Event Signs. The district court concluded, how-
ever, that Good News’ “noncommercial speech enjoys fewer
restrictions than its commercial counterparts.” The court per-
formed a careful comparison of the restrictions placed on
8
See also Berger, 569 F.3d at 1055 (holding invalid an ordinance that
restricts speech within 30 feet of a “captive audience” in a public park, but
excepts concessionaires: “First, the rule’s preference for concessionaires
and licensees leads to the odd result that purely commercial speech, which
receives more limited First Amendment protection than noncommercial
speech, is allowed and encouraged, while artistic and political speech is
not. This bias in favor of commercial speech is, on its own, cause for the
rule’s invalidation.”).
15418 REED v. TOWN OF GILBERT
Qualifying Event Signs versus “Weekend Directional Signs”
for subdivision sales, the commercial speech showcased by
Good News as receiving more favorable treatment.9 The dis-
trict court concluded that Qualifying Event Signs come out on
top as the total number of Qualifying Event Signs allowed is
greater; Qualifying Event Signs may be placed during week-
days as well as weekends; the size allowed for Qualifying
Events Signs is greater; and although the Qualifying Events
Signs may not be placed in rights-of-way, they are not
restricted to a two-mile radius from the event. Of “paramount
importance” to the court was the fact that no permit is
required to display a Qualifying Events Sign, in contrast to
the permit required for the Weekend Directional Signs. The
district court did not abuse its discretion in concluding, after
close examination, that the Sign Code does not favor commer-
cial speech over non-commercial speech, and denying a pre-
liminary injunction on that basis. Cf. Beaulieu v. City of
Alabaster, 454 F.3d 1219, 1233 (11th Cir. 2006) (invalidating
sign ordinance that made it “easier, cheaper, and faster for
[the plaintiff] to post a real estate sign than a campaign sign,”
and thereby discriminated against noncommercial speech in
favor of commercial speech).
III. SIGN CODE’S TREATMENT OF DIFFERENT FORMS OF
NONCOMMERCIAL SPEECH
[14] Not only must a municipality refrain from favoring
commercial over noncommercial speech, it also may not favor
certain noncommercial speech over other noncommercial
speech without facing stricter review. In Metromedia, the
9
A Weekend Directional Sign is a “temporary off-site sign directing
motorists to a developing subdivision.” § 4.405(B)(2). According to the
Code, fifteen Weekend Directional Signs may be permitted to each subdi-
vision plat, and the signs may be placed within two miles of the subdivi-
sion perimeter, including in public rights-of-way. The signs may be no
greater than four feet high and three feet square; they may be installed
after 6:00 p.m. on Friday and must be removed by 8:00 a.m. the following
Monday. Id.
REED v. TOWN OF GILBERT 15419
Supreme Court warned against such an approach: “Although
the city may distinguish between the relative value of differ-
ent categories of commercial speech, the city does not have
the same range of choice in the area of noncommercial speech
to evaluate the strength of, or distinguish between, various
communicative interests.” 453 U.S. at 514.
We heeded Metromedia’s warning in National Advertising
Co. v. City of Orange. The City of Orange imposed a general
ban on offsite signs, with exceptions for “certain governmen-
tal signs and flags, memorial tablets, recreational signs, and
temporary political, real estate, construction, and advertising
signs.” 861 F.2d at 247. We concluded that, through its
exemptions, Orange made content-based distinctions among
categories of noncommercial speech, and invalidated the ordi-
nance as to noncommercial speech. Id. at 250. Compare Nat’l
Advert. Co. v. Town of Babylon, 900 F.2d 551, 557 (2d Cir.
1990) (holding that sign ordinance’s exceptions to sign ban
for temporary political signs and signs identifying parades,
festivals, and other similar occasions “impermissibly discrim-
inate between types of noncommercial speech based on con-
tent”) with Messer v. City of Douglasville, Georgia, 975 F.2d
1505, 1513 (11th Cir. 1992) (holding exemptions in sign code
from permitting requirement are not unconstitutional and not-
ing they are more limited than the exemptions in Metromedia
or City of Orange; do not “express a preference between non-
commercial messages;” and do not include “specific exemp-
tions for political, historical, religious or special event signs”).
Good News argues that the Sign Code makes distinctions
between Qualifying Event Signs and other forms of noncom-
mercial speech, thereby impermissibly favoring some non-
commercial speech. A preliminary review of the nineteen
exemptions to the permit requirement reveals several catego-
ries related to noncommercial speech. For example, an “Ideo-
logical Sign” is defined as “[a] sign communicating a
message or ideas for non-commercial purposes that is not a
construction sign, directional sign, temporary directional sign
15420 REED v. TOWN OF GILBERT
relating to a qualifying event, political sign, garage sale sign,
or a sign owned or required by a governmental agency.”
§ 4.402(J). In other words, an Ideological Sign includes a
message or idea that is distinct from a Political Sign that sup-
ports a candidate or ballot measure or from a Qualifying
Event Sign.
[15] Although Ideological Signs, Political Signs, and Quali-
fying Event Signs are all exempted from the Sign Code’s per-
mit requirement, and treated favorably under the Code in that
respect, each category faces different restrictions and require-
ments. The district court carefully analyzed the other First
Amendment challenges, but did not address whether Good
News is likely to succeed on the merits of its claim that
§ 4.402(P) impermissibly discriminates among certain forms
of noncommercial speech. On remand, the district court will
have the opportunity to determine whether Gilbert impermiss-
ibly “evaluate[d] the strength of, or distinguished between,
various [noncommercial] communicative interests.”
Metromedia, 453 U.S. at 514.
CONCLUSION
Because § 4.402(P) is a content-neutral regulation that
passes muster and because it does not impermissibly favor
commercial speech over noncommercial speech, we affirm
the denial of a preliminary injunction on those First Amend-
ment and Equal Protection claims. We remand for the district
court to consider the First Amendment and Equal Protection
claims that the Sign Code is unconstitutional in favoring some
noncommercial speech over other noncommercial speech.
AFFIRMED in part, REMANDED in part. Each party
shall bear its own costs on appeal.