Clyde Reed v. Town of Gilbert, Arizona

dissenting:

I agree with the majority that the post-judgment amendments to the Town of Gil *1078 bert’s sign ordinance do not render this appeal moot. But I disagree with the majority’s conclusion that the sign ordinance is constitutional.

When this case first came before us, we evaluated § 4.402(P) of Gilbert’s sign ordinance in isolation. See Reed v. Town of Gilbert, 587 F.3d 966, 976-79 (9th Cir.2009) (Reed I). That provision specifies the restrictions applicable to “temporary directional signs relating to a qualifying event,” such as the signs plaintiff Good News Community Church seeks to display inviting people to attend its Sunday morning services. 1 We held that, with respect to the temporary directional signs it covers, § 4.402(P) is content-neutral. Id. at 979. We reached that conclusion because, considered on its own, § 4.402(P) “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 an event is occurring.” Id.

Wdiat we did not decide in Reed I is whether § 4.402(P) is impermissibly content-based when viewed in relation to…

Opinion by Judge CALLAHAN; Dissent by Judge WATFORD.

OPINION

Good News Community Church and its pastor, Clyde Reed (referred to collectively as “Good News”), appeal from the district court’s determination on remand from the Ninth Circuit that the Town of Gilbert’s ordinance that restricts the size, duration and location of temporary directional signs does not discriminate between different forms of noncommercial speech in a unconstitutional manner. In Reed v. Town of Gilbert, 587 F.3d 966 (9th Cir.2009), we held that the ordinance (sometimes referred to as the “Sign Code”) is not a content-based regulation and is a reasonable time, place and manner restriction. However, we remanded the case to 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.” Id. at 983 .

Accepting our opinion in Reed as law of the case, we conclude that the Sign Code is constitutional because the different treatment of types of noncommercial temporary signs are not content-based as that term is defined in Reed , and the restrictions are tailored to serve significant…

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

CLYDE REED , Pastor and GOOD No. 11-15588

NEWS COMMUNITY CHURCH ,

Plaintiffs-Appellants, D.C. No. 2:07-cv-00522- v. SRB

TOWN OF GILBERT , ARIZONA and ADAM ADAMS, in his official OPINION capacity as 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 August 10, 2012—San Francisco, California

Filed February 8, 2013

Before: Consuelo M. Callahan and Paul J. Watford, Circuit Judges, and James K. Singleton, Senior District Judge.*

Opinion by Judge Callahan; Dissent by Judge Watford

* The Honorable James K. Singleton, Senior District Judge for the U.S. District Court for Alaska, sitting by designation. REED V . TOWN OF GILBERT , ARIZONA

SUMMARY**

Civil Rights

The panel affirmed the district court’s summary judgment, on remand from the Ninth Circuit, in an action brought by Good News Community Church and its pastor alleging that the Town of Gilbert’s sign ordinance, which…