Rules Are for Schmucks: Ominous Signs at the Supreme Court

The Supreme Court heard arguments earlier this month on a small First Amendment case that should be more about free speech than about religion. There is a strong possibility, though, that the court may seize on this case to create yet another special legal privilege for the God industry —maybe a huge one.

The case involves local regulation of signs. Many of us enjoy visiting Times Square in New York City and the Las Vegas strip now and then, but most of us wouldn’t want to live at either spot. Their ubiquitous, garish signs have a certain “beauty,” if you want to be open-minded about it, but tasteful buildings and trees are more pleasant for most of us over the long run.

The town of Gilbert, Arizona, like thousands of other local jurisdictions across the country, has a sign ordinance: a set of regulations governing the size, location, etc. of various kinds of commercial, political, and other signs. The goal is to make life there easier on the eyes. And, indeed, these restrictions make the residents of Gilbert happier; otherwise, the law wouldn’t exist.

There is a tension, though, between a law regulating signs for aesthetic purposes and the First Amendment to the constitution, which guarantees the right to free speech. Does the First Amendment allow anyone who so desires to put up any kind of sign in any location, because a rule against doing so would limit free speech? No, it doesn’t. A completely neutral rule that “No sign in a residential-zoned neighborhood can be larger than X square feet” would almost certainly not violate the First Amendment. On the other hand, there are lots of sign-related rules that local governments are not allowed to enact. For example, a rule allowing signs for Democrats or Methodists to be larger than signs for Republicans or Baptists would be problematic.

The lawmakers of Gilbert, who are presumably closely attuned to the aesthetic tastes of their residents, enacted a law that, among other things, makes a distinction between “permanent” signs and “temporary, directional” signs, e.g., a sign saying: “Soccer team parents meeting—this way” with an arrow. Permanent signs are allowed to be larger than temporary directional signs. I’m not completely sure what the reasoning for the size difference was, but in common experience those temporary directional signs are often a little shabbier than a sign intended to last for a long time. Gilbert also requires temporary directional signs to be taken down promptly after the event they advertise, for reasons that are fairly obvious.

The Good News Community Church of Gilbert does not like the ordinance. This church routinely posts “temporary directional signs” advertising its Sunday morning services. It wants to put up signs bigger than the local code allows, and not have to take them down promptly after each service. Not content with just lobbying their local officials, the church—with the assistance of well-funded Christian pressure groups—has taken its case all the way to the Supreme Court.

Free speech law gets complicated. When I read the brief for the church, it does make the Gilbert sign ordinance look a little silly. As Justice Samuel Alito pointed out, a sign simply saying, “Come to Good News Community Church” could take advantage of the large sign rules, but if it added “10:00 am this Sunday—around the corner,” it would have to be smaller. But then when I read the amicus brief submitted by the National League of Cities, I get persuaded back the other way. If the First Amendment is interpreted to require that all signs be treated exactly the same way, regardless of their content, that could wreak havoc on thousands of quite beneficial laws around the country.

For example, many communities (including Gilbert) recognize that political speech is exceptionally important, and thus allow more leeway for political campaign signs than they do for others. If towns are not allowed to draw these kinds of distinctions, then either there will be greater restrictions on political speech, or (more likely) fewer restrictions on commercial signs. I am happy that it’s the Supreme Court and not me that has to sort this out.

What I’m not happy about is the distinct possibility that the court will avoid dealing with these hard issues by simply carving out an exception for religious signs, on a theory that religious speech is somehow more important than other types. In other words, the court may rule that the Good News Community Church’s “temporary directional” signs will be privileged over the soccer team’s temporary directional signs.

This fear is not just paranoia. In the church’s brief to the Supreme Court, the single question presented for decision complains of the town’s “differential treatment of Petitioners’ religious signs.” Look at the list of amicus briefs filed in the case. You won’t see groups traditionally interested in free speech in general, like the ACLU; you do see the Seventh-day Adventists, the Becket Fund, the Christian Legal Society, the Family Research Council, the Missouri Baptist Convention, and many other religious special pleaders.

As Noah Feldman pointed out in his discussion of this month’s 9-0 Supreme Court decision giving Muslim prisoners special privileges nonbelievers do not have, the opinion’s language went much further than it had to in order to achieve the result. This court is religion-happy, the amicus brief filers know it, and they’re trying to make all the hay they can while the sun is shining. Don’t be surprised if this little sign dispute results in another sweeping Hobby Lobby type decision creating huge new special privileges for the God industry—you read it here first.