Clyde Reed v. Town of Gilbert, Arizona

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.

2 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

restricted the size, duration and location of temporary

directional signs, was unconstitutional because it favored

some noncommercial speech over other noncommercial

speech.

Accepting the prior opinion in Reed v. Town of Gilbert,

587 F.3d 966 (9th Cir. 2009), as law of the case, the panel

concluded that the sign ordinance was constitutional because

the different treatment of types of noncommercial temporary

signs was not content-based as that term was defined in Reed,

and the restrictions were tailored to serve significant

governmental interests. The panel also concluded that the

ordinance did not violate Good News’ (or its members’) right

to the free exercise of religion or right to equal protection of

law, and was not unconstitutionally vague or overbroad. In

addition, the panel determined that the amendments to the

sign ordinance made by the Town of Gilbert during the

pendency of the appeal did not moot the case and that Good

News could file a new action in the district court should it

wish to challenge the new provisions of the sign ordinance.

**

This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.

REED V . TOWN OF GILBERT , ARIZONA 3

Dissenting, Judge Watford agreed with the majority that

the post-judgment amendments to the Town of Gilbert’s sign

ordinance did not render this appeal moot. Judge Watford

disagreed with the majority’s conclusion that the sign

ordinance was constitutional, and would hold that the

ordinance violated the First and Fourteenth Amendments by

drawing content-based distinctions among different

categories of non-commercial speech.

COUNSEL

Jeremy D. Tedesco (argued), Scottsdale, Arizona, and David

A. Cortman, Lawrenceville, Georgia, for Plaintiffs-

Appellants.

Robert Grasso, Jr., Kim S. Alvarado (argued), and Jenny J.

Winkler, Grasso Law Firm, P.C., Chandler, Arizona, for

Defendants-Appellees.

OPINION

CALLAHAN, Circuit Judge:

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

4 REED V . TOWN OF GILBERT , ARIZONA

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

governmental interests. In addition, we determine that the

amendments to the Sign Code made by the Town of Gilbert

(“Gilbert”) during the pendency of this appeal do not moot

this case and that Good News may file a new action in the

district court should it wish to challenge the new provisions

of the Sign Code.

I.

Good News is a relatively small church with 25 to 30

adult members and 4 to 10 children. “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 community to meet together

on a regular basis. To do so, they display signs announcing

their services as an invitation for those in the community to

attend.” Reed, 587 F.3d at 971 (internal quotation marks

omitted). Starting around 2002, Good News met at an

elementary school in Gilbert. Id. It presently rents space at

an elementary school in Chandler, Arizona, which borders

Gilbert.

REED V . TOWN OF GILBERT , ARIZONA 5

For a time, Good News placed about 17 signs in the area

surrounding its place of worship in Gilbert announcing the

time and location of its services. In 2005, Good News

received an advisory notice from Gilbert that it was violating

the town’s sign ordinance because “the signs were displayed

outside the statutorily-limited time period.” For a while

thereafter, Good News reduced the number of signs it erected

and the amount of time its signs were in place, but friction

with Gilbert persisted. Reed, 587 F.3d at 972. In March

2008, Good News filed suit in federal court in Arizona

alleging that Gilbert’s Sign Code violated the Free Speech

Clause of the First Amendment and the Equal Protection

Clause of the Fourteenth Amendment. Id.

A. The Sign Ordinances

Like many municipalities, Gilbert regulates the display of

outdoor signs. Gilbert Land Development Code, Division 4,

General Regulations, Article 4.4 (the “Sign Code”). Section

4.401(A) outlines the purposes for the Sign Code, namely, to

“assure proper and efficient expression through visual

communications involving signs compatible with the

character and environment of the Town; to eliminate

confusing, distracting, and unsafe signs; and to enhance the

visual environment of the Town of Gilbert.”

Under § 4.402(A), no person may erect a sign without

first obtaining a sign permit, unless the sign is one exempted

under § 4.402(D). Section 4.402(D) lists nineteen different

6 REED V . TOWN OF GILBERT , ARIZONA

types of signs that are allowed without a permit.1 Three of

the types of exempted signs are of particular relevance:

“Temporary Directional Signs Relating to Qualifying Event,”

“Political Signs,” and “Ideological Signs.”

Gilbert asserts, and Good News concedes, that Good

News’ signs are Temporary Directional Signs subject to the

requirements of § 4.402(P). This subsection provides that

“Temporary Directional Signs Relating to a Qualifying Event

. . . shall be no greater than 6 feet in height and 6 square feet

in area,” “shall only be displayed up to 12 hours before,

during and 1 hour after the qualifying event ends,” “may be

located off-site and shall be placed at grade level,” and “shall

be placed only with the permission of the owner of the

property on which they are placed.” Additional restrictions

include that “[n]o more that 4 signs shall be displayed on a

single property at any one time,” and that Temporary

1

The nineteen types of signs are:

(1) Signs installed by a governmental jurisdiction; (2)

B uilding Identification Signs; (3) Permanent

Regulatory and Parking Signs; (4) Information W all

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 B anners during street

construction; (11) Interim Business Identification

Banners; (12) Boutique Signs; (13) W indow Signs; (14)

A-Frame Signs; (15) Temporary Directional 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.

Reed, 587 F.3d at 972 n.2.

REED V . TOWN OF GILBERT , ARIZONA 7

Directional Signs may not be placed “in a public right-of-

way”2 or on “fences, boulders, planters, other signs, vehicles,

utility facilities, or any structure.”

A “Political Sign” is 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.” Political Signs (a) may be up to 32 square feet in

size, (b) may be erected any time prior to an election but must

be taken down within 10 days of the election, (c) are not

limited in number, and (d) may be placed in the public right-

of-way. An “Ideological Sign” is a “sign communicating a

message or ideas for noncommercial purposes that is not a

construction sign, directional sign, temporary directional sign,

temporary directional sign relating to a qualified event,

political sign, garage sale sign, or sign owned or required by

a governmental agency.” Ideological Signs (a) may be up to

20 square feet in size, (b) are not limited in time, (c) are not

limited in number, and (d) may be placed in the public right-

of-way.

B. Initial Proceedings in the District Court

Gilbert initially stipulated to a preliminary injunction, but

when Gilbert amended the Sign Code in a way that Good

News believed continued to infringe on its constitutional

rights, Good News filed a second motion for a preliminary

injunction. In September 2008, the district court denied Good

News’ motion for an injunction, concluding that: (a)

Ҥ 4.402(P) is a content-neutral regulation, and [] it passes the

applicable intermediate level of scrutiny;” and (b) the Sign

2

In October 2011, Gilbert amended the Sign Code to allow placement

of Temporary Directional Signs within the public right-of-way.

8 REED V . TOWN OF GILBERT , ARIZONA

Code “does not violate equal protection, as any uneven

effects are an unintended consequence of the lawful

content-neutral regulation.” Reed, 587 F.3d at 973. Good

News appealed to the Ninth Circuit.

C. Reed v. Town of Gilbert, 587 F.3d 966 (9th Cir.

2009)

In November 2009 we basically affirmed the district

court’s denial of an injunction. In doing so, we made four

determinations that guide our review in this appeal.

1. Good News alleges an as-applied challenge to the

Sign Code

First, we held that Good News’ challenge was an as-

applied challenge, and not a facial challenge, to the Sign

Code. Id. at 974. We determined that Good News’ attack on

the ordinance was “basically a challenge to the ordinance as

applied to [its] activities,” and therefore we limited our

analysis of the constitutionality of the ordinance to its

application to Good News. Id.

2. The Sign Code is not a content-based regulation

Second, after reviewing the evolution of our opinions

from Foti v. City of Menlo Park, 146 F.3d 629 (9th Cir.

1998),to Menotti v. City of Seattle, 409 F.3d 1113 (9th Cir.

2005), and G.K. Limited Travel v. City of Lake Oswego,

436 F.3d 1064 (9th Cir. 2006) (“G.K. Ltd.”), we determined

the fact that an enforcement official had to read a sign did not

mean that a ordinance is content-based. Instead, we

concluded that “our focus should be on determining whether

the ordinance targets certain content; whether the ordinance

REED V . TOWN OF GILBERT , ARIZONA 9

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.”3 Reed, 587 F.3d at 976.

Applying this focus to the Sign Code, we found that the

ordinance “regulates physical characteristics, such as size,

number and construction of the signs,” their locations, and the

timing of displays, none of which “implicate the content of

speech.” Id. at 977. We noted that “[t]he definition of a

Qualifying Event sign merely encompasses the elements of

‘who’ is speaking and ‘what event’ is occurring.”4 Id. These

two criteria invoke the speaker-based and event-based

characteristics approved in G.K. Ltd. because “the City d[id]

not limit the substance of [the] speech in any way.” Id.

3

W e quoted from G.K. Ltd., 436 F.3d at 1078, 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 ordinance.”

Foti, 146 F.3d at 636. In the speaker category, officers

decide whether an exemption applies by identifying the

entity speaking through the sign without regard for the

actual substance of the message. In the case of

event-based exemptions . . . the officer must determine

only whether a specific triggering event has occurred

and if the temporary sign has been erected within the

specified time frame.

Reed, 587 F.3d at 976.

4

In Reed we used “Qualifying Event Sign” to refer to Temporary

Directional Signs exempted by § 4.402(P) of the Sign Code. 587 F.3d at

972.

10 REED V . TOWN OF GILBERT , ARIZONA

(quoting G.K. Ltd., 436 F.3d at 1078). We explained that this

case:

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.

Reed, 587 F.3d at 978. We concluded “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.” Id. at 979.

3. The Sign Code is narrowly tailored to further

Gilbert’s significant interests

Third, we determined that the Sign Code, “as a content-

neutral time, place and manner regulation,” id. at 978, also

had to be, and was, narrowly tailored. Quoting Ward v. Rock

Against Racism, 491 U.S. 781, 791 (1989), we recognized

that to be “narrowly tailored” the Sign Code had to “serve a

significant governmental interest” and had to “leave open

ample alternative channels for communication of that

information.” Reed, 587 F.3d at 979. We held that the

REED V . TOWN OF GILBERT , ARIZONA 11

district court had not abused its discretion in concluding that

the Sign Code “is narrowly tailored as it does not sweep in

more speech than is necessary to achieve the Town’s

aesthetic and traffic objectives,” 587 F.3d at 980, explaining:

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 limiting 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 convenience or optimal display.

Id.

We also held that the district court did not abuse its

discretion in finding that the Sign Code allowed for alternate

channels of communications for Good News to communicate

effectively with members of the public. Id. at 981. We

explained that “[w]hile the alternative options identified by

the district court may not be Good News’ preference, ‘we

cannot invalidate the Sign Code merely because it restricts

12 REED V . TOWN OF GILBERT , ARIZONA

plaintiffs’ preferred method of communication.’” Id. (quoting

G.K. Ltd., 436 F.3d at 1074). We also noted that the

alternative modes available did not appear to be especially

burdensome. Id.

This section of Reed concludes with the affirmative

statement that:

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 Gilbert’s significant interests in

aesthetics and traffic safety; and Good News

has ample alternative channels of

communicating its invitation to church

services.

Id.

4. The Sign Code does not favor commercial over

noncommercial speech

The fourth relevant holding in Reed is our determination

that the district court “did not abuse its discretion in

concluding, after close examination, that the Sign Code does

not favor commercial speech over non-commercial speech.”5

5

W e explained:

The district court concluded, however, that Good

N ews’ “noncommercial speech enjoys fewer

restrictions than its commercial counterparts.” The

court performed a careful comparison of the restrictions

placed on Qualifying Event Signs versus “Weekend

REED V . TOWN OF GILBERT , ARIZONA 13

Id. at 982. Our opinion in Reed remanded on a limited issue

only: “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. We noted that “[o]n remand, the district

court will have the opportunity to determine whether Gilbert

impermissibly ‘evaluate[d] the strength of, or distinguished

between, various [noncommercial] communicative

interests.’” Id. at 983 (quoting Metromedia Inc. v. City of San

Diego, 453 U.S. 490, 514 (1981)).

D. Proceedings on Remand in the District Court

On remand, the parties agreed to submit the case on cross-

motions for summary judgment. The district court’s order set

forth three preliminary determinations. First, based in part on

our opinion in Reed, the court held that the Sign Code “is a

content-neutral regulation of speech that seeks to identify

who is speaking and what event is occurring and does not

Directional Signs” for subdivision sales, the

commercial speech showcased by Good News as

receiving more favorable treatment. The district 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 W eekend Directional Signs.

Id. at 981–82 (footnote omitted).

14 REED V . TOWN OF GILBERT , ARIZONA

discriminate on the basis of content.” Second, citing its

preliminary injunction order, the district court reiterated that

the Sign Code was narrowly tailored to serve significant

government interests. Third, the court embraced as a non-

preliminary finding its determination that noncommercial

speech is more favorably treated than commercial speech.

Addressing the remanded issue, the district court thought

that the different treatments of various forms of

noncommercial speech were “akin to the regulation at issue

in G.K. Ltd.” The district court reasoned:

Both Political Signs and Qualifying Event

Signs relate, in substance, to events – an

election or a specified event fitting the

definition in the Sign Code. In the case of

Political Signs, the event is of widespread

interest and takes place at a fixed, regular

interval. A Qualified Event might take place

once, or it might take place several times a

week, depending on the type of event. A

Qualifying Event Sign could invoke so-called

“core” speech, but Political Signs are always

core speech. . . . To distinguish between a

Political Sign and a Qualifying Event Sign, an

officer need only skim the sign to determine

the speaker (e.g. is a non-profit speaking?)

and the event at issue (e.g. does this relate to

an election or a Qualifying Event?). In G.K.

Ltd., the court concluded that speaker – and –

event based exemptions did not render a sign

regulation content-based because the

municipality was distinguishing on the basis

of the speaker’s identity and whether a

REED V . TOWN OF GILBERT , ARIZONA 15

triggering event had occurred, not on the basis

of the sign’s content.

....

Ideological Signs are not tied to a specific

event, the way Political and Qualifying Event

Signs are, so they are not subject to an event-

based time restriction under the Sign Code.

This accounts for the different “time”

restriction for Ideological Signs. As for place,

namely whether a particular type of sign can

be placed in the right-of-way, Gilbert argues

that it has made a municipal decision to limit

the overall number of signs in the right-of-

way, and it does not discriminate at all among

Ideological Signs. . . . Nonetheless, the Court

finds that the Sign Code does not distinguish

on the basis of the message of the sign

because, other than signs relating to events –

whether those events are elections or bake

sales – the Sign Code treats all messages on

equal footing. Because Ideological Signs do

not relate to an event, they are distinguishable

from Qualifying Event Signs. To determine

whether a sign is an Ideological Sign or a

Qualifying Event Sign, an officer does not

need to read the content: he or she need only

look to see whether the sign concerns an

event.

After determining that the Sign Code did not discriminate

among types of noncommercial speech, the district court

rejected Good News’ argument that the Sign Code was

16 REED V . TOWN OF GILBERT , ARIZONA

impermissibly vague and overbroad. Citing United States v.

Williams, 553 U.S. 285, 304 (2008), the district court

commented that the “[v]agueness doctrine is an outgrowth not

of the First Amendment, but of the Due Process Clause of the

Fifth Amendment,” and that a statute is void if it does not

“provide a person of ordinary intelligence fair notice of what

is prohibited, or is so standardless that it authorizes or

encourages seriously discriminatory enforcement. The district

court determined that the deterrent effect of the Sign Code

was “insubstantial and remote” as the “ordinance provides

plenty of guidance for people of ordinary intelligence to

determine what conduct is permitted and prohibited, and does

not foster arbitrary, capricious, or discriminatory

enforcement.”6

E. Gilbert’s Motion to Dismiss

Good News filed this appeal from the district court’s

entry of summary judgment in favor of Gilbert. However, in

October 2011, while the appeal was pending, Gilbert made

two amendments to its Sign Code: (1) it allowed placement

of Temporary Directional Signs within the public right-of-

way; and (2) it limited the Temporary Directional Sign

exemption to events held within the Town of Gilbert.7 Based

6

T he district court discounted Good News’ reliance on Gilbert’s

officials’ responses in depositions to hypothetical situations concerning

signs that had both political and ideological information because the

officials said that they had never seen such a sign.

7

Section § 4.402(P)(4) and (5) now read, with the added language in

capitals and the omitted language cross-out, as follows:

4. Location. Temporary Directional Signs Relating to

a Qualifying Event may be located off-site and shall be

REED V . TOWN OF GILBERT , ARIZONA 17

on the amended Sign Code, Gilbert filed a motion to dismiss

this appeal, arguing that because Good News held its services

outside of Gilbert, it does not qualify for the Temporary

Directional Sign exemption, and lacks standing to pursue this

appeal.

The motion to dismiss presents a situation analogous to

that before the Supreme Court in Northeastern Florida

Chapter of Associated General Contractors of America v.

City of Jacksonville, 508 U.S. 656 (1993). In Northeastern

Florida, the plaintiffs challenged a city ordinance providing

preferential treatment to certain minority owned businesses

for city contracts. Id. at 658. The district court granted the

plaintiffs summary judgment, holding that the ordinance was

unconstitutional, but the Eleventh Circuit vacated that order

finding that the plaintiffs lacked standing. Id. at 660. Shortly

after the Supreme Court granted certiorari, the city repealed

the questioned ordinance and replaced it with new ordinance

that provided for a more narrow minority preference. Id. at

placed at grade level. Signs MAY BE PLACED IN

THE RIGHT-OF-W AY OR, W ITH PERMISSION OF

THE PRIVATE PROPERTY OW NER, ON PRIVATE

PROPERTYshall be placed only with the permission of

the owner of the property on which they are placed.

SIGNS SHALL RELATE ONLY TO EVENTS

OCCURRING W ITHIN THE TOW N.

5. Prohibited Locations. Temporary Directional Signs

Relating to a Qualifying Event shall not be located:

a. In the public right of way.

b.a. On fences, boulders, planters, other signs, vehicles,

utility facilities or any structure.

18 REED V . TOWN OF GILBERT , ARIZONA

660–61. The city then filed a motion to dismiss the case as

moot.

Justice Thomas, writing for the Court, held that the case

was not moot. He relied on the Court’s “well settled rule” set

forth in City of Mesquite v. Aladdin’s Castle, Inc., 455 U.S.

283, 289 (1982), that “a defendant’s voluntary cessation of a

challenged practice does not deprive a federal court of its

power to determine the legality of the practice.”

Northeastern Florida, 508 U.S. at 662. Justice Thomas

wrote:

There is no mere risk that Jacksonville will

repeat its allegedly wrongful conduct; it has

already done so. Nor does it matter that the

new ordinance differs in certain respects from

the old one. City of Mesquite does not stand

for the proposition that it is only the

possibility that the selfsame statute will be

enacted that prevents a case from being moot;

if that were the rule, a defendant could moot

a case by repealing the challenged statute and

replacing it with one that differs only in some

insignificant respect.

508 U.S. at 662. The Court concluded that the new ordinance

disadvantaged plaintiffs “in the same fundamental way” and

thus the case was not moot. Id. at 662–63. Justice O’Connor,

while dissenting, commented that:

City of Mesquite stands for the proposition

that the Court has discretion to decide a case

in which the statute under review has been

repealed or amended. The Court appropriately

REED V . TOWN OF GILBERT , ARIZONA 19

may render judgment where circumstances

demonstrate that the legislature likely will

reinstate the old law – which would make a

declaratory judgment or an order enjoining the

law’s enforcement worthwhile. But such

circumstances undoubtedly are rare.

Id. at 677.

Good News’ case is one of those rare cases. 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. Thus, a

dismissal for mootness would allow Gilbert to continue to

limit Good News’ speech without further judicial review.

Accordingly, the motion to dismiss is denied.8

II.

Reed limits our consideration of Good News’ challenges

to the Sign Code. Although our opinion in Reed reviewed the

8

The Ninth Circuit cases cited by Gilbert do not support a different

result. In Log Cabin Republicans v. United States, 658 F.3d 1162,

1166–67 (9th Cir. 2011), we noted that when a statutory repeal or

amendment provides a plaintiff with everything it hoped to achieve, the

controversy is moot. Similarly, in Outdoor Media Group, Inc. v. City of

Beaumont, 506 F.3d 895, 901 (9th Cir. 2007), we noted that “[b]ecause

there is no longer any risk that Outdoor Media will be subject to the

challenged ordinance, there exists no live issue upon which the court

could issue prospective relief.” Here, Good News has not obtained the

relief it seeks and continues to be subject to the limiting ordinance.

20 REED V . TOWN OF GILBERT , ARIZONA

denial of a preliminary injunction, our determinations

included conclusions of law. Furthermore, on remand, the

parties agreed to resolve all remaining issues on cross-

motions for summary judgment. There is no indication that

the parties engaged in further discovery, and Good News has

not asserted any evidentiary facts in this appeal that were not

before us in Reed. Thus, our opinion in Reed constitutes law

of the case, see Minidoka Irrigation Dist. v. Dep’t of Interior,

406 F.3d 567, 573 (9th Cir. 2005),9 and is binding on us. See

Santamaria v. Horsley, 110 F.3d 1352, 1355 (1997) (“It is

settled law that one three-judge panel of this court cannot

ordinarily reconsider or overrule the decision of a prior

panel.”).

Reed establishes first that Ҥ 4.402(P) is not a content-

based regulation,” Reed, 587 F.3d at 979, and second that the

Sign Code generally is a reasonable (i.e., not

unconstitutional) time, place and manner restriction. Id. at

980. The single issue remanded, and hence the primary

substantive issue before the district court and now on appeal,

is whether the Sign Code improperly discriminates between

different forms of noncommerical speech.

9

In Minidoka, we recognized that, under the law of the case doctrine, “a

court is ordinarily precluded from reexamining an issue previously

decided by the same court, or a higher court, in the same case.” 406 F.3d

at 573 (citing Old Person v. Brown, 312 F.3d 1036, 1039 (9th Cir. 2002)).

W e noted that “the law of the case doctrine is subject to three exceptions

that may arise when (1) the decision is clearly erroneous and its

enforcement would work a manifest injustice, (2) intervening controlling

authority makes reconsideration appropriate, or (3) substantially different

evidence was adduced at a subsequent trial.” Id. (internal quotation marks

omitted). None of these exceptions apply here. As we subsequently

explain, our opinion in Reed is not “clearly erroneous.” Moreover, there

is no “intervening controlling authority” nor any “substantially different

evidence.”

REED V . TOWN OF GILBERT , ARIZONA 21

We review de novo the district court’s grant of summary

judgment in favor of Gilbert. G.K. Ltd., 436 F.3d at 1070;

Arakaki v. Hawaii, 314 F.3d 1091, 1094 (9th Cir. 2002) (“We

review a district court’s grant of summary judgment de

novo.”); Lopez v. Smith, 203 F.3d 1122, 1131 (9th Cir. 2000)

(en banc) (“We review de novo a grant of summary

judgment”).

A. The Evolving Standard for Evaluating the

Regulation of Noncommercial Speech

Judicial review of the regulation of noncommercial

speech has evolved over the last 30 years. In 1981, Justice

White, in his plurality opinion in Metromedia, 453 U.S. at

514, stated that while a city “may distinguish between the

relative value of different 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.”

Seven years later in National Advertising Co. v. City of

Orange, 861 F.2d 246, 249 (9th Cir. 1988), we recognized

that an ordinance would be invalid if it imposed greater

restrictions on noncommercial than on commercial billboards.

We noted that a restriction based on content would be

unconstitutional unless it was narrowly drawn to serve a

compelling interest, but suggested that the city was

nonetheless “not powerless to regulate billboards containing

noncommercial messages.” Id. In Desert Outdoor

Advertising, Inc. v. City of Moreno Valley, 103 F.3d 814, 819

(9th Cir. 1996), we indicated that an ordinance regulating

noncommercial speech would be invalid if it imposed greater

restrictions on noncommercial than commercial billboards or

if it regulated noncommercial billboards “based on their

content.” Regarding Gilbert’s Sign Code, we have already

22 REED V . TOWN OF GILBERT , ARIZONA

held that it does not impose greater restrictions on

noncommercial signs than commercial signs, and thus the

critical issue now before us is whether the Sign Code

improperly regulates noncommercial temporary signs based

on their content.

The definition of “content neutral” has also evolved over

the last couple of decades. In Foti, relying on Desert

Outdoor, we indicated that when an officer must examine the

contents of a sign to determine whether an exemption applies,

the ordinance is content-based. Foti, 146 F.3d at 636.

However, we also noted the Supreme Court’s advice that

“laws that by their terms distinguish favored speech from

disfavored speech on the basis of the ideas or views expressed

are content based,” and that a “speech restriction is content

neutral if it is justified without reference to the content of the

regulated speech.” Id. at 638 (quoting Turner Broad. Sys. v.

F.C.C., 512 U.S. 622, 643 (1994), and Clark v. Cmty. for

Creative, Non-Violence, 468 U.S. 288, 293 (1984)).

More recently, following these guidelines we have

fashioned a more nuanced standard. In G.K. Ltd., we held

that “[n]either 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 ordinance.” 436 F.3d at 1078. The

standard of review set forth is:

The “government may impose reasonable

restrictions on the time, place, or manner of

engaging in protected speech provided that

they are adequately justified without reference

to the content of the regulated speech.” City

of Cincinnati v. Discovery Network, Inc.,

REED V . TOWN OF GILBERT , ARIZONA 23

507 U.S. 410, 428 (1993) (internal quotation

marks and citation omitted). In addition to

being justified without reference to content,

the restrictions must be “narrowly tailored to

serve a significant governmental interest and

. . . leave open ample alternative channels for

communication of the information.” Ward v.

Rock Against Racism, 491 U.S. 781, 791

(1989) (citing Clark v. Community for

Creative Non-Violence, 468 U.S. 288, 293

(1984)).

436 F.3d at 1071 (parallel citations omitted).

In Reed, applying this standard, we concluded that the

Sign Code “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.” 587 F.3d at 979. Nonetheless, this appeal raises

two unanswered questions under the G.K. Ltd. standard: (1)

are the differing restrictions between types of noncommercial

speech “adequately justified without reference to the content

of the regulated speech”; and (2) are they narrowly tailored?

The first issue is the fulcrum of this appeal.

B. The Restrictions on Types of Noncommercial

Speech are not Based on the Content of the

Speech.

The thrust of Good News’ challenge to the Sign Code is

that its different restrictions for different types of

noncommercial speech are inherently content-based and thus

unconstitutional. However, we rejected this general argument

24 REED V . TOWN OF GILBERT , ARIZONA

in Reed when we held that distinctions based on the speaker

or the event are permissible where there is no discrimination

among similar events or speakers. 587 F.3d at 979 (“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.”). Thus, under

Reed, the distinctions between Temporary Directional Signs,

Ideological Signs, and Political Signs are content-neutral.

That is to say, each classification and its restrictions are based

on objective factors relevant to Gilbert’s creation of the

specific exemption from the permit requirement and do not

otherwise consider the substance of the sign. The Political

Signs exemption responds to the need for communication

about elections.10 The Ideological Sign exemption recognizes

that an individual’s right to express his or her opinion is at the

core of the First Amendment. The Temporary Directional

Sign exemption allows the sponsor of an event to put up

temporary directional signs immediately before the event.

Each exemption is based on objective criteria and none draws

distinctions based on the particular content of the sign. It

makes no difference which candidate is supported, who

sponsors the event, or what ideological perspective is

asserted. Accordingly, as the speaker and event

determinations are generally “content neutral,” Gilbert’s

different exemptions for different types of noncommercial

speech are not prohibited by the Constitution.

10

Arizona has enacted legislation that prohibits a city from removing a

political sign from the public right-of-way during a 60-day period before

a primary election. See Ariz. Rev. St. § 16-1019.

REED V . TOWN OF GILBERT , ARIZONA 25

Our reading of Reed is in accord with our opinion in G.K.

Ltd. There the town ordinance banned most pole signs but

had a grandfather clause for preexisting signs. 436 F.3d at

1072. We determined that “the City’s restriction on

plaintiffs’ pole sign is not a content-based regulation of

plaintiffs’ speech.” Id. We commented:

The pole sign restriction is not a “law[ ] that

by [its] terms distinguish[es] 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

Code restricts all pole signs across the City’s

general commercial zones without creating

exceptions for preferred content. Cf. Foti v.

City of Menlo Park, 146 F.3d 629, 636 (9th

Cir. 1998). The burdens imposed by these

pole sign restrictions are borne equally by all

of the City’s residents. See Turner Broad.

Sys., 512 U.S. at 643. Further, plaintiffs offer

no evidence suggesting illicit motive or bias

on the part of the City or that the City banned

pole signs in general, or their pole sign in

particular, because of a desire to stifle certain

viewpoints. See City Council of Los Angeles

v. Taxpayers for Vincent, 466 U.S. 789, 804

(1984).

Id. at 1071–72 (parallel citations omitted). The plaintiffs in

G.K. Ltd. argued that ordinance’s grandfather clause rendered

it content-based because town officials would have to read

the pole sign to see if it had changed. Id. at 1078. We

rejected this argument, explaining:

26 REED V . TOWN OF GILBERT , ARIZONA

Unlike Foti’s exemptions, the 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.” Id. at 636 n.7. A grandfather

provision requiring an officer to read a sign’s

message for no other purpose than to

determine if the text or logo has changed,

making the sign now subject to the City’s

regulations, is not content-based. See Hill v.

Colorado, 530 U.S. 703, 721 (2000) (“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.”).

Id. at 1079 (parallel citations omitted). Under the controlling

precedent of Reed and G.K. Ltd., Good News has not shown

that the Sign Code imposes a content-based limitation.11

11

Our earlier opinions cited by Good News, City of Orange, 861 F.2d

246, and Desert Outdoor, 103 F.3d 819, are not contrary to this

conclusion. Our opinions have consistently required that the regulation of

noncommercial speech be content-neutral (some times expressed as not

content-based). See City of Orange, 861 F.2d at 249 (holding “only that

the City cannot analyze the content of outdoor noncommercial messages

to determine whether they are allowed, and if so where”); see also Desert

Outdoor, 103 F.3d at 820 (holding that the City’s ordinance “violates the

First Amendment because it regulates noncommercial speech on the basis

of content”). G.K. Ltd. and Reed similarly require that the regulation of

noncommercial speech not be content-based, but, as we have explained,

apply a more nuanced standard for making that determination.

REED V . TOWN OF GILBERT , ARIZONA 27

C. Supreme Court Precedent Affirms our Definition

of Content Neutral.

As suggested in G.K. Ltd., our approach is in accord with

the Supreme Court’s opinion in Hill v. Colorado, 530 U.S.

703 (2000). In Hill, the plaintiffs challenged “the

constitutionality of a 1993 Colorado statute that regulates

speech-related conduct within 100 feet of the entrance to any

health care facility.” Id. at 707. In holding that the statute

was constitutional, the Supreme Court commented that it had

“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.” Id. at

721. The Court noted that the statute:

places no restrictions on – and clearly does

not prohibit – either a particular viewpoint or

any subject matter that may be discussed by a

speaker. Rather, it simply establishes a minor

place restriction on an extremely broad

category of communications with unwilling

listeners. Instead of drawing distinctions

based on the subject that the approaching

speaker may wish to address, the statute

applies equally to used car salesmen, animal

rights activists, fundraisers, environmentalists,

and missionaries.

Id. at 723. Similarly, Gilbert’s Sign Code places no

restrictions on the particular viewpoints of any person or

entity that seeks to erect a Temporary Directional Sign and

the exemption applies equally to all.

28 REED V . TOWN OF GILBERT , ARIZONA

Furthermore, in Hill, the Supreme Court explained why

a statute, which only restricted certain types of speech-related

conduct,12 is properly considered content neutral. The Court

reiterates that “[t]he principal inquiry in determining content

neutrality, in speech cases generally and in time, place, or

manner cases in particular, is whether the government has

adopted a regulation of speech because of disagreement with

the message it conveys.” Id. at 719 (quoting Ward, 491 U.S.

at 791). It then offers three reasons for why the statute is

content neutral:

First, it is not a “regulation of speech.”

Rather, it is a regulation of the places where

some speech may occur. Second, it was not

adopted “because of disagreement with the

message it conveys.” . . . Third, the State’s

interests in protecting access and privacy, and

providing the police with clear guidelines, are

unrelated to the content of the demonstrators’

12

Justice Stevens’ opinion for the court begins by stating:

At issue is the constitutionality of a 1993 Colorado

statute that regulates speech-related conduct within 100

feet of the entrance to any health care facility. The

specific section of the statute that is challenged, Colo.

Rev. Stat. § 18-9-122(3) (1999), makes it unlawful

within the regulated areas for any person to “knowingly

approach” within eight feet of another person, without

that person’s consent, “for the purpose of passing a

leaflet or handbill to, displaying a sign to, or engaging

in oral protest, education, or counseling with such other

person . . . .”

530 U.S. at 707.

REED V . TOWN OF GILBERT , ARIZONA 29

speech. As we have repeatedly explained,

government regulation of expressive activity

is “content neutral” if it is justified without

reference to the content of regulated speech.

530 U.S. at 719–20. The Court further stated that it had

“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.” Id. at

721. The Supreme Court also distinguished its opinion in

Carey v. Brown, 447 U.S. 455 (1980), noting that the

Colorado statute “places no restrictions on – and clearly does

not prohibit – either a particular viewpoint or any subject

matter that may be discussed by a speaker.” Id. at 723.

Finally, in response to Justice Scalia’s concern that content-

based legislation can be used for invidious thought-control

purposes, the Court stated: “[b]ut a statute that restricts

certain categories of speech only lends itself to invidious use

if there is a significant number of communications, raising

the same problem that the statute was enacted to solve, that

fall outside the statute’s scope, while others fall inside.” Id.

Gilbert’s regulation of Temporary Directional Signs is

content-neutral as that term is defined by the Supreme Court

in Hill. Gilbert did not adopt its regulation of speech because

it disagreed with the message conveyed. Rather, it exempted

from the permit requirement all directional signs regardless

of their content.13 The Code is “a regulation of the places

13

An argument can be made that Gilbert’s exemption of temporary signs

from its permit requirements and limitations on such temporary signs may

be construed as disapproval of temporary signs generally. However, this

is not the type of “disagreement with the message” proscribed by the

Supreme Court in Hill, 530 U.S. at 719. Obviously, any legislation

30 REED V . TOWN OF GILBERT , ARIZONA

where some speech may occur,” and was not adopted

“because of any disagreement with the message it conveys.”

Id. at 719. Also, Gilbert’s interests in regulation temporary

signs are unrelated to the content of the sign. Moreover, there

is no danger of the regulation being used for invidious

thought-control purposes as the Sign Code does not purport

to regulate the content of Temporary Directional Signs.

Because Gilbert’s Sign Code places no restrictions on the

particular viewpoints of any person or entity that seeks to

erect a Temporary Directional Sign and the exemption applies

to all, it is content-neutral as that term has been defined by

the Supreme Court.14

regulating speech is based on a view that the speech should not be

unlimited. This does not render the legislation unconstitutional. In Hill,

the Supreme Court explained:

In this case, it is not disputed that the regulation affects

protected speech activity; the question is thus whether

it is a “reasonable restrictio[n] on the time, place, or

manner of protected speech.” Ward, 491 U.S., at 791,

109 S. Ct. 2746. Here, the comprehensiveness of the

statute is a virtue, not a vice, because it is evidence

against there being a discriminatory governmental

motive. As Justice Jackson observed, “there is no more

effective practical guaranty against arbitrary and

unreasonable government than to require that the

principles of law which officials would impose upon a

minority must be imposed generally.” Railway Express

Agency, Inc. v. New York, 336 U.S. 106, 112, 69 S. Ct.

463, 93 L. Ed. 533 (1949) (concurring opinion).

530 U.S. at 731. Here, the limitations on Temporary Directional Signs

apply equally to all organizations, regardless of their wealth or pedigree.

14

Our conclusion is consistent with the perspective of the Sixth Circuit

in Phelps-Roper v. City of Manchester, 697 F.3d 678, 683 (6th Cir. 2012)

(upholding a city regulation of picketing at funerals and burials as a

REED V . TOWN OF GILBERT , ARIZONA 31

D. Good News has not shown that the Sign Code’s

Different Treatment of Different Types of

Noncommercial Speech is Unconstitutional.

Although it is conceivable, as the dissent posits, that

different exemptions for noncommercial speech might

improperly restrict speech, that concern is not presented here.

First, as explained, the Temporary Directional Sign

exemption is a content neutral. Second, the Temporary

Directional Sign exemption is not in competition with other

exemptions from the permit requirement. This is not a

situation where there are a limited number of billboards or

maximum number of temporary signs that may be placed in

the public right-of-way. Nor does the erection of temporary

directional signs in any way limit any other person’s rights to

erect political, ideological, or other signs. Accordingly, as

long as the Temporary Directional Signs exemption – which

is the exemption that was applied to Good News’ signs and

that Good News challenges – is content neutral and

reasonable in relationship to its purpose – providing direction

to temporary events – its constitutionality is not affected by

the fact that the exemptions for Political Signs or Ideological

Signs are different.

The cases cited by the dissent do question distinctions

among different categories of non-commercial speech, but

none concerned instances in which the types of non-

commercial speech were unrelated, and all of the cases have

been refined by more recent Supreme Court opinions. In

Police Department of Chicago v. Mosley, 408 U.S. 92, 96

(1972), the Supreme Court struck down an ordinance as

legitimate time, place, and manner regulation consistent with the First

Amendment).

32 REED V . TOWN OF GILBERT , ARIZONA

unconstitutional because it sought to distinguish between

peaceful labor picketing and other peaceful picketing.

Similarly, in Carey, 447 U.S. 455 (1980), the Supreme Court

struck down an ordinance that sought to distinguish between

picketing at a residence from picketing at a place of

employment. In Metromedia, 453 U.S. 490, the Court, in a

fractured opinion, considered an ordinance that differentiated

between commercial and non-commercial billboards, but also

suggested that the city had less leeway to distinguish between

types of non-commercial speech than between types of

commercial speech. Id. at 514–15. These cases concerned

related and competing forms of speech.15 Id. at 514–15. In

contrast, Gilbert’s Temporary Directional Signs exemption

neither restricts nor competes with a person’s or entity’s

ability to take advantage of the exemptions for political,

ideological, or other types of temporary signs.

Critically, as noted, over the last thirty years, the Supreme

Court has refined the concerns set forth in Justice White’s

plurality opinion in Metromedia. Most notably, in Hill, the

Supreme Court upheld a statute that clearly distinguished

between types of noncommercial speech. The statute

prohibited the noncommercial speech of “approaching” an

individual “for the purpose of passing a leaflet or handbill to,

displaying a sign to, or engaging in oral protest, education or

counseling with such other person.” 530 U.S. at 707. No

other form of noncommercial speech was regulated.

Nonetheless, the Supreme Court upheld the ordinance.

15

Similarly, our opinion in National Advertising, 861 F.2d 246, and

Desert Outdoor Advertising, 103 F.3d 814, held that cities could not

impose greater restrictions on non-commercial billboards than commercial

billboards and could not regulate non-commercial billboards based on

content.

REED V . TOWN OF GILBERT , ARIZONA 33

Similarly, in Ward, the Supreme Court stated that a

“regulation that serves purposes unrelated to the content of

expression is deemed neutral, even if it has an incidental

effect on some speakers or messages but not others.”

491 U.S. at 791. Thus, the Sign Code’s different provisions

for Political, Ideological and Temporary Directional Signs is

not in itself unconstitutional.

Although Good News voices some objections to the size,

location, and duration limitations on its signs, Good News

does not assert that the restrictions actually interfere with the

purpose of the signs: providing directions to Good News’

services. Moreover, courts have generally deferred to

municipal decisions concerning the actual limitations on the

sizes and shapes of signs. See Ward, 491 U.S. at 800 (“So

long as the means chosen are not substantially broader than

necessary to achieve the government’s interest, however, 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.”); Foti,

146 F.3d at 641 (noting that the “restrictions on the size and

number of picket signs are reasonable legislative judgments

in light of the City’s concerns for traffic safety”); City of

Orange, 861 F.2d at 249 (“Under Metromedia, the City’s

interests in traffic safety and aesthetics are sufficient to

justify continued content-neutral regulation of the

noncommunicative aspects of billboards, such as size,

spacing and design.”).

34 REED V . TOWN OF GILBERT , ARIZONA

E. The Temporary Directional Signs Exemption is

Narrowly Tailored to Serve Significant

Governmental Interests

The Supreme Court has explained that “[c]ontent-neutral

regulations do not pose the same inherent dangers to free

expression that content-based regulations do, and thus are

subject to a less rigorous analysis, which affords the

Government latitude in designing a regulatory solution.”

Turner Broadcasting System, Inc. v. F.C.C., 520 U.S. 180,

213 (1997) (internal quotation marks and citation omitted).16

Nonetheless, a content-neutral, reasonable time, place and

manner restriction must also be narrowly tailored to serve a

significant governmental interest and leave open ample

alternative channels of communication. G.K. Ltd., 436 F.3d

at 1071.17

There is no real question that Gilbert’s interests in safety

and aesthetics are significant. See One World One Family

Now v. City & Cnty. of Honolulu, 76 F.3d 1009, 1013 (9th

16

The Court further stated, citing Ward, 491 U.S. at 799, and Turner

Broadcasting System, Inc. v. FCC, 512 U.S. 622, 662 (1994), that “[u]nder

intermediate scrutiny, the Government may employ the means of its

choosing so long as the . . . regulation promotes a substantial

governmental interest that would be achieved less effectively absent the

regulation, and does not burden substantially more speech than is

necessary to further that interest.” (internal quotation marks omitted).

17

To the extent that our opinion in Seattle Affiliate of Oct. 22nd

Coalition to Stop Police Brutality v. City of Seattle, 550 F.3d 788, 791 (9th

Cir. 2008), further requires that an ordinance not delegate overly broad

discretion to a government official, this condition is satisfied. A person

does not need any approval to erect a temporary sign. Rather, Gilbert will

only seek the removal of a sign if its size or duration violates the Sign

Code’s relatively clear time, place, and manner limitations.

REED V . TOWN OF GILBERT , ARIZONA 35

Cir. 1996) (holding that cities have substantial interests in

protecting the aesthetic appearance of their communities and

in assuring the safe and convenient circulation on their

streets); see also Metromedia, 453 U.S. at 507–08 (“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.”). Good

News argues only that such interests are not “sufficiently

compelling to satisfy a content-based sign code,” but we find

that the Sign Code does not impose any content-based

restriction.

Good News contends that the Sign Code is not narrowly

tailored because all temporary signs placed within the public

right-of-way implicate safety and aesthetic concerns, but

Temporary Directional Signs are more severely limited than

Political and Ideological Signs.

Political and Ideological Signs may infringe on Gilbert’s

interests to a greater extent than Temporary Directional

Signs, but for a number of reasons this is permissible. First,

unlike political, ideological and religious speech which are

clearly entitled to First Amendment protection, there does not

appear to be a constitutional right to an exemption for

Temporary Directional Signs. If Good News has no

constitutional right to erect Temporary Directional Signs,

how can it suffer a cognizable harm when Gilbert creates an

exemption facilitating the display of such signs?

Second, each exemption reflects a balance between

Gilbert’s interests and the constitutional interests of the type

of sign covered. With the recent amendment to the Sign

Code, there are no longer any differences as to where

temporary signs may be located. The differences as to

36 REED V . TOWN OF GILBERT , ARIZONA

duration are based on the natures of the types of speech

involved. Thus, under Arizona law political signs are

allowed for an extended period of time before an election.

Ideological signs, not being tied to any event, have no time

limit. However, the purpose of a Temporary Directional Sign

inherently contemplates a limit on duration.

Third, as noted, the exemptions are not in competition.

The exemptions are not competing for limited space and the

erection of one type of temporary sign does not preclude the

placement of another. Accordingly, each exemption may be

evaluated on its own merits.

Fourth, there is no showing that the restrictions on

Temporary Directional Signs interfere with their purpose:

directing interested individuals to temporary events. Good

News does not allege that the public cannot see its signs or

that the size limit is too small to allow it to adequately

provide directions.

Finally, as also noted, courts generally defer to a city’s

determinations of size and duration. See Ward, 491 U.S. at

800; Foti,146 F.3d at 641. Here, the restrictions on

Temporary Directional Signs are reasonable. There are no

limits on the number of events that a person or entity may

hold, and no limit on the number of signs that may be erected

(other than no more than four on any single piece of

property). Also, the 12-hour limitation seems reasonable as

a person is unlikely to seek directions to an event more than

12 hours before the event.

We conclude that these considerations refute Good News’

arguments that to be narrowly tailored restrictions on types of

noncommercial speech must be uniform or vary only to the

REED V . TOWN OF GILBERT , ARIZONA 37

extent that the type of speech affects a town’s interests. Our

opinions in G.K. Ltd. and Reed support, if not compel, our

conclusion. In G.K. Ltd., we held a total ban on changed pole

signs was narrowly tailored because pole signs could

reasonably be perceived as aesthetically harmful and

distracting to travelers, even though this is also true of

unchanged pole signs. See 436 F.3d at 1074. In Reed, we

determined that “[t]he restrictions on time, place and manner

imposed by on the display of [signs] would indeed appear to

‘actually advance’ the aesthetic and safety interests by

limiting the size duration and proliferation of signs.”

587 F.3d at 980. Our determination in Reed that the Sign

Code is narrowly tailored, if not controlling, remains sound.

In sum, (a) Gilbert was not required to create an

exemption for Temporary Directional Signs, (b) the

restrictions on directional signs are rationally related to the

purpose of the directional signs, and (c) the restrictions are

reasonably designed to promote Gilbert’s interests in

aesthetics and safety. True, the number of temporary signs

might be substantially reduced if there were not exemptions

for political and ideological signs, but those signs raise

different legal rights and interests that Gilbert has to respect.

Moreover, there need only be a reasonable fit between the

Gilbert’s interest and the regulations. See Hill, 530 U.S. at

726 (stating that “when a content-neutral regulation does not

entirely foreclose any means of communication, it may

satisfy the tailoring requirement even though it is not the least

restrictive or least intrusive means of serving the statutory

goal”); see also Bd. of Trustees of State Univ. of N.Y. v. Fox,

492 U.S. 469, 480 (1989) (“What our decisions require is a

‘fit’ between the legislature’s ends and the means chosen to

accomplish those ends – a fit that is not necessarily perfect,

but reasonable; that represents not necessarily the single best

38 REED V . TOWN OF GILBERT , ARIZONA

disposition but one whose scope is in proportion to the

interest served.”) (internal quotation marks and citation

omitted). At least between elections, the Sign Code may well

limit the number of temporary signs in Gilbert without

unreasonably limiting anyone’s speech, and thus the Sign

Code serves significant governmental interests.

Finally, the Sign Code leaves open ample alternate means

of communication. Assuming that Good News events are

eligible for the exemption, it may erect as many temporary

signs as it wants twelve hours before each scheduled event.

The Sign Code does not regulate any of the many other ways

in which Good News can “go and make disciples of all

nations.” Indeed, there is no suggestion that Good News’

tenets require that it or its members erect temporary

directional signs. Thus, the Sign Code’s restrictions do not

require that the members of Good News violate any cardinal

principle of their faith, see Sherbert v. Verner, 374 U.S. 398,

406 (1963), and do not limit the many other ways the

members may advertise their services and attract individuals.

F. Good News’ Other Challenges do not Merit Relief

1. To prevail on its claims of violation of its members’

right to the free exercise of religion under the Constitution

and under Arizona’s Free Exercise of Religion Act, Ariz.

Rev. St. § 41-1493, Good News must show that “the

government action substantially burdens the exercise of

religious beliefs.” State v. Hardesty, 222 Ariz. 363, 366

(Ariz. 2009). Good News’ free exercise claim fails because

the Sign Code’s restrictions on the size and duration of

Temporary Directional Signs is a generally applicable law,

and it does not substantially interfere with any of Good

News’ tenets. The Supreme Court has held that religion may

REED V . TOWN OF GILBERT , ARIZONA 39

not exempt a person from complying with neutral laws. See

Employment Div., Dep’t of Human Res. of Or. v. Smith,

494 U.S. 872, 878–79 (1990) (holding that “the right of free

exercise does not relieve an individual of the obligation to

comply with a valid and neutral law of general applicability

on the ground that the law proscribes (or prescribes) conduct

that his religion prescribes (or proscribes).” (internal

quotation marks and citation omitted)). Furthermore, while

Good News’ members may be obligated to spread their

message and advertise their events, there is no suggestion that

Good News’ tenets require that they do so in any particular

way. Accordingly, we agree with the district court that the

Sign Code’s restrictions on Temporary Directional Signs do

not constitute a substantial burden on Good News’ free

exercise rights.

2. We also agree with the district court that the Sign

Code is not vague or overbroad. The Supreme Court noted in

Ward, 491 U.S. at 794, that “perfect clarity and precise

guidance have never been required even of regulations that

restrict express activity.” Good News’ claim of vagueness is

based on an alleged lack of definitions for signs that arguably

meet the requirements of more than one temporary sign

exemption. However, Gilbert officials claim that they have

yet to see such a sign and Good News does not argue that its

signs meet the requirements of more than one exemption.18

18

M oreover, the procedures for enforcing the Sign Code respect the

rights of a speaker. If an official noted a temporary sign that fits within

two exemptions, he or she would check with the city manager and Gilbert

would presumably accord the sign the broader exemption. Thus, a

political sign with directions would be allowed the duration limit for

political signs. Similarly, a religious sign that also included directions

might qualify as an ideological sign. Good News has never asserted that

its temporary directional signs should be treated as ideological signs.

40 REED V . TOWN OF GILBERT , ARIZONA

In addition, in Reed, 587 F.3d at 974, we held that Good

News’ mounted only an as-applied challenge to the Sign

Code. This is law of the case, and is not really challenged by

Good News.

3. Good News’ assertion that the Sign Code violates its

right to equal protection of law is basically a revision of its

argument that Gilbert cannot treat different types of

noncommercial speech differently. Clothed in the garb of

equal protection the argument still is not persuasive. The

Sign Code does not make any distinctions based on religion.

Rather, the Temporary Directional Signs exemption is

available to all noncommercial entities. Because we conclude

that the Sign Code is not unconstitutional just because it

differentiates between types of noncommercial signs, Good

News’ equal protection argument depends on it establishing

a cognizable class of noncommercial entities wishing to erect

temporary directional signs to their events whose interests

may be compared to some other class. Good News has failed

to identify such entities.

G. Any Challenge Good News May Advance to the

Amended Sign Code Should Be Initially Litigated

in the District Court

Although the amendment to the Sign Code does not moot

this appeal, we need not, and do not, determine the merits of

the amendment. Unlike the situation before the Supreme

Court in Northeastern Florida, 508 U.S. 656, here the

amendment arguably increases rather than decreases the

barriers to Good News erecting temporary directional signs.

Also, unlike the holding in Northeastern Florida, we have

determined that Good News has not shown that the other

restrictions imposed by the Sign Code violate its

REED V . TOWN OF GILBERT , ARIZONA 41

constitutional rights. However, the added restriction to the

Sign Code – that Temporary Directional Signs are only

exempt from the permit requirement if they concern events

that take place within the Town of Gilbert – is different in

nature from the time, place, and manner restrictions that

Good News previously challenged. Moreover, even if we

assume that Good News will challenge the new restriction,

we do not know what constitutional and legal arguments

Good News will present in challenging the restriction, or

what defenses Gilbert will proffer. Accordingly, any

challenge Good News may have to the amendment limiting

the Temporary Directional Sign exemption to events in the

Town of Gilbert should be raised in the first instance in the

district court. As we affirm the district court’s grant of

summary judgment for Gilbert, we leave it to the district

court to determine whether Good News may seek to amend

its existing complaint or should file a new complaint.

III

In Reed, 587 F.3d 966, and G.K. Ltd., 436 F.3d 1064, we

held that distinctions based on the speaker or the event are

permissible where there is no discrimination among similar

events or speakers. In Hill, 530 U.S. at 703, the Supreme

Court indicated that not all types of noncommercial speech

need be treated the same. See also Ward, 491 U.S. 791

(noting that a “regulation that serves purposes unrelated to the

content of expression is deemed neutral, even if it has an

incidental effect on some speakers or messages but not

others.”). Applying this case law to the Town of Gilbert’s

Sign Code’s treatment of different types of noncommercial

speech, we conclude that the treatment is content-neutral.

42 REED V . TOWN OF GILBERT , ARIZONA

That is to say, each exemption allowing for the erection of

temporary signs and its restrictions are based on objective

factors relevant to the creation of the specific exemption and

do not otherwise consider the substance of a sign. We further

conclude that the exemptions are narrowly tailored because

they serve significant governmental interests and leave open

ample alternative channels of communication. We also

conclude that the Sign Code does not violate Good News’ (or

its members’) right to the free exercise of religion or right to

equal protection of law, and is not unconstitutionally vague

or overbroad. The district court’s grant of summary judgment

in favor of the Town of Gilbert is AFFIRMED.

WATFORD, Circuit Judge, dissenting:

I agree with the majority that the post-judgment

amendments to the Town of Gilbert’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

1

“Temporary directional signs relating to a qualifying event” are defined

as signs “intended to direct pedestrians, motorists, and other passersby to

a ‘qualifying event.’ A ‘qualifying event’ is any assembly, gathering,

REED V . TOWN OF GILBERT , ARIZONA 43

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.

What we did not decide in Reed I is whether § 4.402(P) is

impermissibly content-based when viewed in relation to the

other provisions of Gilbert’s sign ordinance. In particular, we

noted that the district court had not addressed plaintiffs’

argument that “the ordinance unfairly discriminates among

forms of noncommercial speech,” id. at 971, by granting

more favorable treatment to signs that Gilbert categorizes as

“political” and “ideological.” Id. at 983. We therefore

remanded the case for resolution of plaintiffs’ “First

Amendment and Equal Protection claims that the Sign Code

is unconstitutional in favoring some noncommercial speech

over other noncommercial speech.” Id.

The Fourteenth Amendment’s Equal Protection Clause

and the First Amendment’s Free Speech Clause prohibit the

government from favoring certain categories of non-

commercial speech over others based solely on the content of

the message being conveyed. See Carey v. Brown, 447 U.S.

455, 459–61 (1980); Police Dep’t of Chicago v. Mosley,

408 U.S. 92, 96 (1972). When regulating speech in a public

forum, the government may draw distinctions among

different categories of non-commercial speech only if those

activity, or meeting sponsored, arranged, or promoted by a religious,

charitable, community service, educational, or other similar non-profit

organization.”

44 REED V . TOWN OF GILBERT , ARIZONA

distinctions are justified by some non-communicative aspect

of the speech involved. See Carey, 447 U.S. at 465; Mosley,

408 U.S. at 100. For example, a State may not exempt labor

picketing from a general ban on picketing in front of homes

(enacted to protect residential privacy), unless it can show

that labor picketing is inherently less disruptive of residential

privacy than picketing on other subjects. Carey, 447 U.S. at

465. The reason is simple: Within the realm of non-

commercial speech, the government may not decide that

speech on certain subjects is more (or less) valuable—and

therefore more (or less) deserving of First Amendment

protection—than speech on other subjects. Id. at 466; see

Mosley, 408 U.S. at 96.

The Supreme Court relied on this general principle to

strike down a municipal sign ordinance in Metromedia, Inc.

v. City of San Diego, 453 U.S. 490 (1981). A plurality of the

Court invalidated San Diego’s ordinance banning most non-

commercial billboards on the ground that the ordinance

impermissibly granted exemptions for billboards bearing non-

commercial speech on favored subjects, such as political

campaign messages. Id. at 514 (plurality opinion). The

plurality held that, although cities “may distinguish between

the relative value of different categories of commercial

speech,” they do not have the same freedom in the realm of

non-commercial speech “to evaluate the strength of, or

distinguish between, various communicative interests.” Id.

(citing Carey, 447 U.S. at 462; Mosley, 408 U.S. at 96). San

Diego could not identify any non-communicative aspect of

the speech at issue to justify the distinctions it had drawn. It

failed to show, for example, that the non-commercial

billboards it banned had any greater effect on the city’s

asserted interests in promoting traffic safety and aesthetics

than the non-commercial billboards it permitted. See id. at

REED V . TOWN OF GILBERT , ARIZONA 45

513; see also Desert Outdoor Adver., Inc. v. City of Moreno

Valley, 103 F.3d 814, 820 (9th Cir. 1996) (applying

Metromedia plurality’s holding); Nat’l Adver. Co. v. City of

Orange, 861 F.2d 246, 248–49 (9th Cir. 1988) (same).

Contrary to the majority’s suggestion, Hill v. Colorado,

530 U.S. 703 (2000), did not modify or refine the core

principle underlying Mosley, Carey, and Metromedia. The

statute at issue in Hill prohibited, within certain designated

areas, approaching within eight feet of another for the

purpose of engaging in oral protest, education, or counseling.

Id. at 707. The Court held that the statute was content-neutral

because it regulated a particular mode of communication—

approaching within eight feet of another to engage in oral

protest, education, or counseling—without regard to the

subject of the speaker’s message. Id. at 720–24. As the

Court stressed, “Instead of drawing distinctions based on the

subject that the approaching speaker may wish to address, the

statute applies equally to used car salesmen, animal rights

activists, fundraisers, environmentalists, and missionaries.”

Id. at 723. (As explained below, the ordinance at issue in this

case does draw distinctions based on the subject the speaker

wishes to address.) Thus, rather than distinguishing among

different categories of non-commercial speech based on the

message being conveyed, the Colorado statute prohibited all

non-commercial speech expressed through a particular mode

of communication—a fact that rendered Carey “easily

distinguishable.” Id.

Gilbert’s sign ordinance violates the First and Fourteenth

Amendments by drawing content-based distinctions among

different categories of non-commercial speech. The most

glaring illustration is the ordinance’s favorable treatment of

“political” and “ideological” signs relative to the treatment

46 REED V . TOWN OF GILBERT , ARIZONA

accorded the non-commercial signs plaintiffs seek to display.

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.2

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. These are not content-neutral “speaker” and

2

Until recently, Gilbert’s sign ordinance contained an even more

blatantly discriminatory distinction: Political and ideological signs could

be displayed in the public right of way but “temporary directional signs

relating to a qualifying event” could not. After the parties filed their briefs

in this court, Gilbert removed this restriction but replaced it with an

equally suspect one. Under the amended ordinance, “temporary

directional signs relating to a qualifying event” may not be displayed

anywhere in Gilbert unless the “qualifying event” takes place within the

town’s borders.

REED V . TOWN OF GILBERT , ARIZONA 47

“event” based distinctions, like those we approved in G.K.

Ltd. Travel v. City of Lake Oswego, 436 F.3d 1064, 1076–78

(9th Cir. 2006), and in Reed I, 587 F.3d at 977–78, when we

reviewed § 4.402(P) standing alone. Determining whether a

particular sign will be regulated as a “political” sign as

opposed to an “ideological” sign or a “temporary directional

sign relating to a qualifying event” turns entirely on the

content of the message displayed on the sign. Cf. G.K. Ltd.,

436 F.3d at 1078 (speaker and event based distinctions were

content-neutral because they applied “without regard for the

actual substance of the message” and “regardless of

content”).

The content-based distinctions Gilbert has drawn are

impermissible unless it can identify some non-communicative

aspect of the signs at issue to justify this differential

treatment. See Metromedia, 453 U.S. at 513; Carey, 447 U.S.

at 465; Mosley, 408 U.S. at 100. Gilbert has merely offered,

as support for the sign ordinance as a whole, its interest in

enhancing traffic safety and aesthetics. Traffic safety and

aesthetics are certainly important interests. But 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.

Gilbert has not offered any such explanation, and I doubt

it could come up with one if it tried. What we are left with,

then, is Gilbert’s apparent determination that “ideological”

and “political” speech is categorically more valuable, and

therefore entitled to greater protection from regulation, than

speech promoting events sponsored by non-profit

48 REED V . TOWN OF GILBERT , ARIZONA

organizations. That is precisely the value judgment that the

First and Fourteenth Amendments forbid Gilbert to make.

See Metromedia, 453 U.S. at 514; Carey, 447 U.S. at 466;

Mosley, 408 U.S. at 96.

Nothing we said in Reed I is inconsistent with this

conclusion. There we held only that § 4.402(P), viewed in

isolation, is a valid content-neutral time, place, and manner

regulation. Reed I, 587 F.3d at 979–82. We did not decide,

and instead remanded for the district court to decide, whether

Gilbert’s sign ordinance draws content-based distinctions by

“favoring some noncommercial speech over other

noncommercial speech.” Id. at 983. In doing so, we

mentioned as potentially relevant National Advertising Co. v.

City of Orange, 861 F.2d 246 (9th Cir. 1988), where (we

noted in Reed I) we invalidated a municipal sign ordinance

that “made content-based distinctions among categories of

noncommercial speech.” Reed I, 587 F.3d at 982. Thus,

when we said in Reed I that § 4.402(P) “does not single out

certain content for differential treatment,” id. at 979, we

obviously did not decide whether the sign ordinance as a

whole singles out certain content for differential treatment.

Otherwise, our remand to the district court would have been

entirely unnecessary.

For the reasons given above, I would hold that the

regulatory distinctions Gilbert has drawn among different

categories of non-commercial speech are unconstitutional,

and I would remand for the district court to determine

whether those provisions of Gilbert’s sign ordinance are

severable. I respectfully dissent from the majority’s contrary

holding.