Supreme Court Update: Reed v. Town of Gilbert (13-502) and Walker v. Texas Division, Sons of Confederate Veterans, Inc. (14-144)

June 20, 2015 Supreme Court Update

Greetings, Court Fans!

The trickle has officially become a flood. On Thursday, the Court released six new decisions, on top of the three from Monday. That leaves eleven more as we make our way down the home stretch. In this Update, we'll cover the pair of First Amendment cases handed down Thursday, Reed v. Town of Gilbert (13-502) and Walker v. Texas Division, Sons of Confederate Veterans, Inc. (14-144), courtesy of guest author, and fellow Appellate Group partner, Jeff Babbin. Here's Jeff!

Sign, sign, everywhere a sign
Blockin' out the scenery, breakin' my mind
-- "Signs," Five Man Electrical Band (1971)

The town of Gilbert, Arizona decided to address its signs problem with an ordinance upheld by the district court and Ninth Circuit. The Supreme Court, without dissent, saw it differently. The town was obsessed with regulating signs, prohibiting them outdoors without a permit but then categorizing 23 distinct exceptions. The Supreme Court focused on three: "ideological" signs with non-commercial ideas and messages limited to 20 square feet but no time and place restrictions; "political" signs varying between 16 and 32 square feet (depending on location), allowed from 60 days before the primary to 15 days after the general election; and "Temporary Directional Signs Relating to a Qualifying Event," directing the populace to religious, charitable and other nonprofit organizations' events, limited to just 6 square feet and restricted to 12 hours before the event to 1 hour afterward. Pastor Clyde Reed wanted the good folks of Gilbert to find the Sunday services of Good News Community Church, which were held in varying locations around town due to the lack of its own building, and he saw to it that numerous directional signs were posted in town from early Saturday morning to midday Sunday. The town issued citations, the pastor sued, and now the Supreme Court will let the citizens find their church service. Hallelujah.

In Reed v. Town of Gilbert (13-502), Justice Thomas wrote the Court's opinion joined by Chief Justice Roberts and Justices Scalia, Kennedy, Alito, and Sotomayor. The lower court had treated the town's Sign Code as content neutral. Although the ordinance classified signs by subject matter, the classifications depended on objective factors without scrutinizing the expression of an idea or disagreeing with the message conveyed; hence, the Ninth Circuit applied intermediate scrutiny of the ordinance and upheld it. Not surprisingly, the Court believed the Ninth Circuit got it all wrong. The Court invalidated the Sign Code under the free speech clause of the First Amendment. The town perhaps does not discriminate among different people, ideas or events within each sign classification, but the classifications themselves are based on content. You can support a candidate with one type of sign, support his ideas with a different type, and give directions to his next appearance with yet another, more restricted set of signs. This is, as Justice Thomas wrote, content-based regulation of speech on its face and subject to strict scrutiny – the restriction survives only if it furthers a compelling governmental interest and is narrowly tailored to achieve that interest. It is content based even if the government does not single out a sign because of its message or owner or display any animus toward its content. Preserving the town's aesthetic appeal and traffic safety (the town's proffered reasons) are not sufficient justifications for treating directional signs more harshly than political or ideological signs. The Court emphasized that its decision does not abolish sign laws and sought to give guidance on content-neutral laws that would still enhance safety and aesthetics. Laws could regulate the physical aspects of signs. They could even prohibit them on public property if done evenhandedly.

Justice Alito, joined by Justices Kennedy and Sotomayor, added some concurring words listing the many ways that a town could regulate signs and still do so in a permissible, content-neutral way. We refer you to the opinion for that laundry list, especially if you are on a town council.

Justice Kagan, joined by Justices Ginsburg and Breyer, concurred in the Court's judgment, but wrote what reads more like a dissent and expressed strong concern that the Court's analysis sweeps too broadly and jeopardizes many municipal sign regulations that contain categorical exemptions for truly useful and important safety or historical signs. Will towns still be able to allow "Hidden Driveway" or "George Washington Slept Here" signs without a permit if other signs require one? In the view of these Justices, some drawing of lines by category and differential treatment can be benign for First Amendment purposes, posing little risk of suppression of a message, and these "reasonable" local laws should survive, whereas applying strict scrutiny would doom nearly all of them. But Justice Kagan did not answer what scrutiny should be given to the Town of Gilbert's sign ordinance, citing no need to definitively answer that question because the ordinance "does not pass strict scrutiny, or intermediate scrutiny, or even the laugh test." (Pity the Ninth Circuit and the lawyers supporting its apparently laughable decision.) Justice Breyer added an additional solo concurrence to elaborate more on the topic of why not all content discrimination should trigger strict scrutiny.

The Court was not finished addressing speech under the First Amendment and also issued Walker v. Texas Division, Sons of Confederate Veterans, Inc. (14-144). Texas, no longer content with simple Lone Star State license plates, now offers over 350 varieties of state-issued identification for your vehicle. It allows private groups to suggest all sorts of designs and slogans, although a state board must approve them (and on occasion does not). The board drew the line when the Sons of Confederate Veterans proposed a plate design displaying the group's name and logo (a square Confederate battle flag), with a faint Confederate battle flag in the background. The board found public comment calling the design an offensive expression of hate to be reasonable and rejected the proposal. A divided Fifth Circuit panel required the board to approve the design as an exercise of protected private speech, but in a 5-4 decision, the Supreme Court reversed. It held the license plates to be purely governmental speech, and the First Amendment does not limit the government in choosing what speech it wishes to (or not to) convey.

Justice Breyer wrote for the Court, joined by Justices Thomas, Ginsburg, Sotomayor, and Kagan. The opinion extended the Court's Summum (2009) decision, which had allowed government to reject a proposed monument on public land even after having accepted other groups' donated monuments. In this case, for decades, the Texas legislature had authorized specialty plates conveying specific legislatively approved governmental messages before more recently allowing private groups also to propose designs. The Court concluded that license plates are historically and traditionally associated with government, and the state board retained direct control over the messages displayed on the plates under the current specialty plate program. The Court emphasized that license plates are not traditional public forums, and Texas had not made them so. The speech remains government speech, and Texas can choose its own messages.

Justice Alito disagreed, and his dissent was joined by Chief Justice Roberts and Justices Scalia and Kennedy. He was incredulous that an observer, seeing hundreds of different license plate designs and slogans whiz by on a highway, would associate them with a government message and not private speech. Texas, in its license plate program, had essentially rented out space to car owners (for a fee) to pick and display a private message, creating a limited public forum. The state had moved beyond the historical use of the plates for solely governmental purposes. The state board's action threatens government suppression of unpopular private speech, which is unconstitutional discrimination on the basis of the speaker's viewpoint. Other states have allowed the Confederate battle flag on license plates. Texas permits a "Choose Life" plate, whereas New York does not – and Justice Alito expressed disapproval of a May 2015 Second Circuit decision upholding New York's decision. He would not permit a state to pick and choose among this private speech.

Thanks, Jeff! We'll be back soon with the remaining four decisions from last week, United States v. McFadden (14-378), on the mens rea requirement for possession of "analogue" drugs; Ohio v. Clark (13-152), on the scope of the Confrontation Clause's bar of out-of-court "testimonial" statements; Davis v. Ayala (13-1428), on AEDPA deference to state-court harmless-error determinations; and Brumfield v. Cain (13-1433), on the test for determining mental disability under Atkins v. Virginia (2002). Stay tuned!