By Gary Grado
The Daily Record Newswire
PHOENIX, AZ — The pastor of a small Gilbert congregation says the town government believes political campaign signs are more important than the small placards that give directions to his service.
Attorneys for Clyde Reed, pastor and founder of Good News Presbyterian Church, will now try to convince the U.S. Supreme Court to reverse a 9th Circuit Court of Appeals decision in Gilbert’s favor. Reed’s case is the only one from Arizona that the high court has so far agreed to hear in the 2014-15 term, which begins next month. The court hasn’t set a date to hear it yet.
Reed sued the town in 2007 after he was twice cited for violating an ordinance limiting the time he could have his signs up. He posts roughly 17 signs that are two-feet by three-feet in the vicinity of his church, advertising the service with arrows pointing the way. He has a congregation of 20 to 25 people that has met over the years in rented space. His church is now using the Sunrise Senior Living center in Gilbert.
Jeremy Tedesco, an attorney with Alliance Defending Freedom, the conservative Christian litigation group representing Reed, said if the 9th Circuit decision stands, then a city or town can regulate the content of signs — or even eliminate certain kinds of signs.
“What the 9th Circuit said was a town is able to make value judgments about the constitutional value of speech and determine that your speech happens to be of less value than some other competing speech,” Tedesco said.
He said the 9th Circuit concluded the town did not violate Reed’s constitutional rights because there was no bad motive involved in regulating the content of the pastor’s speech.
“The government typically responds to these kinds of lawsuits with, ‘We didn’t have a bad motive, we had a good reason for doing this,’” Tedesco said.
Reed referred all questions to Tedesco.
Attorneys for the town, which has won twice at the 9th Circuit, argue that the appellate court did not rule in its favor by using a “subjective motive-based” test.
Attorney Robert Grasso argued in a motion to the Supreme Court that the 9th Circuit followed Supreme Court precedent and found Gilbert had no disagreement with Reed’s message, and the ordinance regulated only where the speech could occur. Grasso also argued that the ordinance passed muster because it was approved without regard to the content of the sign and the ordinance places no restriction on particular viewpoints and can be uniformly applied.
Grasso did not return a call seeking comment.
He wrote in his response to Reed’s petition to the Supreme Court that the ordinance didn’t ban protected speech based on content.
“Instead, the amended ordinance recognized that certain speech performed certain functions at certain times, places, and manners, and it regulated time, place, and manner accordingly,” Grasso wrote.
The two sides are also at odds over whether circuit courts are split over the issue of cities regulating signs.
The town has amended the sign ordinance since the case began, allowing Reed and others who want to place temporary signs advertising and directing people to an event to set them 12 hours before their event and take them down one hour after. The code also limits the signs to six square feet.
Tedesco said other temporary signs, such as political signs, ideological signs, homeowners’ association signs and real estate signs are regulated differently.
For example, a homeowners’ association sign can be 80 square feet, while a political sign can be 32 square feet. A political sign can stand for four and a half months before an election and 15 days after. A sign for an HOA event can be up for 30 days before the event and 48 hours after.
“When you allow political signs now for five months uninterrupted, and really virtually all year because there’s four separate election dates in Arizona, and those signs are allowed to be up anytime,” Tedesco said. “The town has never solved the content-based problem with their code and continues to target the church.”
Dan Barr, an attorney with Perkins Coie who specializes in First Amendment law, said the Supreme Court under Chief Justice John Roberts’ leadership has made it clear that making value judgments on types of speech is prohibited.
“Even if speech is totally repugnant, the current court will apply whatever First Amendment protections go to it,” said Barr, who is not involved in the dispute between Reed and Gilbert.
Barr cited as an example the court’s 6-3 decision in 2012 that the Stolen Valor Act, which made it a federal crime to lie about receiving a military decoration or medal, is unconstitutional.
Barr also pointed to the 2011 Supreme Court’s 8-1 ruling striking down a jury verdict against Rev. Fred Phelps and the Westboro Baptist Church.
Phelps was ordered by a Maryland jury in 2009 to pay roughly $11 million to the family of fallen Marine Lance Corporal Matthew Snyder, whose funeral was picketed by Westboro followers with signs bearing messages like, “Thank God for Dead Soldiers” and “You’re Going to Hell.” The group claims that the deaths of U.S. soldiers and others are evidence of God’s wrath against the nation for its tolerance of homosexuals.
Writing for the majority, Roberts noted that the church didn’t prevent the funeral from occurring, and that although their contribution to public discourse may be “negligible,” it is nevertheless protected free speech.
“Such speech cannot be restricted simply because it is upsetting or arouses contempt,” wrote Roberts, who also noted that the protests did nothing to directly interfere with Snyder’s funeral.
U.S. Supreme Court mulls whether to hear Arizona’s redistricting, abortion, death penalty cases
Arizona has put questions of life, death and the existence of the Arizona Independent Redistricting Commission before the U.S. Supreme Court as the justices prepare for their next term.
The court is to hold its “long conference” Sept. 29, during which the nine justices will decide which petitions filed during the summer will be heard.
Among the requests is an appeal by the Arizona Legislature challenging the state’s voter-approved constitutional provision that takes away its authority to draw congressional boundaries, and instead gives that power to an independent five-member commission.
The Legislature contends the constitutional provision violates the U.S. Constitution’s Election Clause, which requires the “Legislature thereof” a state to set the time, place and manner of congressional elections.
A federal three-judge panel rejected the Legislature’s claims in August 2013, ruling that the people of Arizona have the ability to give that legislative authority to the Independent Redistricting Commission.
IRC attorney Joseph Kanefield said in a written brief to the Supreme Court that it has previously held that the Election Clause does not give “power to enact laws in any manner other than that in which the Constitution of the state has provided that laws shall be enacted.”
“Since voters amended the law in 2000, Arizona’s Constitution has required an Independent Redistricting Commission to adopt the state’s congressional redistricting plans rather than the Legislature,” Kanefield wrote.
A ruling in favor of the commission leaves current congressional boundaries in place until 2020, but a ruling against the commission would allow the Republican-controlled Legislature to redraw the lines more favorably for the GOP and alter the 5-4 split among Democrat and Republican members of the U.S. House.
Arizona Attorney General Tom Horne has also appealed a 9th U.S. Circuit Court of Appeals decision that found a 2013 law that requires doctors to follow federal guidelines in administering abortion medication unconstitutional.
Horne wants the Supreme Court to rule that Arizona can legally restrict the right of women to a medication abortion and there is justification and other options available.
Horne is also asking the court to overturn a 9th Circuit decision expanding a death-row inmate’s right to claim “ineffectiveness of counsel” to the appellate level.
The attorney general argues that a 2012 Supreme Court decision gives defendants the right to claim ineffective assistance of counsel in trial court, but not in appellate court.
The case of Richard Hurles, who was sentenced to death for the 1992 stabbing death of Buckeye librarian Kay Blanton, has been to the 9th Circuit and Supreme Court several times.
The Supreme Court mulled it over several times in conference last year, but never granted certiorari. At the time, the only issue was whether the trial court judge was biased.
The 9th Circuit made its most recent ruling on the case in May 2013 as it awaited review by the Supreme Court.
No dates have been set for the abortion or death-penalty cases.
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