(CN) - A Christian church failed for the second time Friday to challenge a Phoenix suburb's sign law that limits its ability to advertise on public roads.
The Good News Community Church and its pastor, Clyde Reed, filed suit in 2008 after running into trouble with the town of Gilbert, Ariz., over a local sign ordinance.
Good News, which has just a few dozen members, said it displays signs that announce its services because the Bible teaches members to "make disciples of all nations." The church had met in a Gilbert elementary school since 2002, but later moved to the neighboring town of Chandler.
After a federal judge refused to enjoin the Gilbert sign law, a three-judge panel of the 9th Circuit affirmed because it said that the sign law "is a content-neutral regulation" and "does not impermissibly favor commercial speech over noncommercial speech."
The San Francisco panel nevertheless sent the case back for further proceedings as to the church's claims that the sign code favors some noncommercial speech over other noncommercial speech in violation of the First Amendment and the equal protection clause.
U.S. District Judge Susan Bolton later granted the town summary judgment on this issue too.
Citing its prior decision, Reed v. Town of Gilbert, a divided panel of the 9th Circuit affirmed again Friday.
"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 governmental interests," according to the decision written by Judge Consuelo Callahan and joined by U.S. District Judge James Singleton, who joined the panel by designation from the District of Alaska.
In October 2011, while the church's latest appeal was pending, Gilbert changed its sign code to allow the placement of temporary directional signs within the public right-of-way; and to limit the temporary directional sign exemption to Gilbert-based events.
The appellate panel found that these changes did not moot the case, "and that Good News may file a new action in the district court should it wish to challenge the new provisions."
Though rare, the court cited precedent for ruling on a case in which the underlying statute has changed.
"The amendment of the Sign Code to allow directional signs to be placed in the public right-of-way moots Good News' objection to this provision of the Sign Code, but the new restriction, limiting the temporary directional signs exemption to events that take place in Gilbert, bars Good News from erecting any directional signs at all," the 42-page ruling states. "Thus, a dismissal for mootness would allow Gilbert to continue to limit Good News' speech without further judicial review."
In a seven-page dissent, Judge Watford said that Gilbert's sign law draws "content-based distinctions among different categories of non-commercial speech" in violation of the First and 14th Amendments.
"The most glaring illustration is the ordinance's favorable treatment of 'political' and 'ideological' signs relative to the treatment accorded the non-commercial signs plaintiffs seek to display," Watford wrote. "Under the ordinance, plaintiffs' temporary directional signs may not exceed six square feet in size and may not be displayed more than 12 hours before or one hour after the relevant event - here, Sunday morning church services. (Given the 9:00 a.m. start time of Good News's church services, this durational restriction limits the display of plaintiffs' signs to periods when it is virtually always dark.) In contrast, 'political' signs - defined as '[a] temporary sign which supports candidates for office or urges action on any other matter on the ballot of primary, general and special elections relating to any national, state or local election' - may be up to 32 square feet in size and may be displayed any time prior to an election and removed within 10 days after the election. 'Ideological' signs - defined as 'a sign communicating a message or ideas for non-commercial purposes' that is not a construction, directional, political, or garage sale sign - may be up to 20 square feet in size and are not subject to any durational limits at all.
"Gilbert's sign ordinance plainly favors certain categories of non-commercial speech (political and ideological signs) over others (signs promoting events sponsored by non-profit organizations) based solely on the content of the message being conveyed." (Parentheses in original.)
Watford said Gilbert's interests in traffic safety and aesthetics do not justify the difference.
"To sustain the distinctions it has drawn, Gilbert must explain why (for example) a 20-square-foot sign displayed indefinitely at a particular location poses an acceptable threat to traffic safety and aesthetics if it bears an ideological message, but would pose an unacceptable threat if the sign's message instead invited people to attend Sunday church services," the dissent states.
"Gilbert has not offered any such explanation, and I doubt it could come up with one if it tried," Watford added.
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