By: Philip W. Savrin
FMG's appellate group is headed to the United States Supreme Court for the third time defending a local government for alleged constitutional violations. FMG's team of Phil Savrin, Dana Maine and Bill Buechner will represent the Town of Gilbert, Arizona in the appeal of a Ninth Circuit decision that upheld the constitutionality of a local ordinance regulating the size and duration of signs directing the public to events. Mr. Savrin will make the oral argument to the Court.
The case concerns an ordinance challenged by the Good News Community Church on multiple grounds, including violations of the First Amendment rights to freedom of speech and freedom of religion as well as the Equal Protection Clause of the Fourteenth Amendment. In finding for the Town of Gilbert, the federal district court reasoned that the ordinance did not regulate the content of the signs and did not impede the church-members’ abilities to practice their religion. The Ninth Circuit affirmed on those grounds but remanded for the district court to consider whether the Town’s ordinance was unconstitutional because it drew distinctions between events and other forms of non-commercial speech. On remand, the district court again upheld the ordinance provision, finding the lesser restrictions accorded to political and ideological signs was justified. The Ninth Circuit affirmed, in an opinion joined by two of the three judges on the appellate panel. The dissenting judge sharply disagreed because he believed the ordinance targeted certain types of speech and therefore was a restriction on content that violates the First Amendment protections.
The church applied to the Supreme Court for review, arguing that there is a split among the various appellate federal courts about the appropriate standard for determining whether a law is based impermissibly on content. The church contended that the Ninth Circuit standard would allow an unconstitutional regulation to be “cured” if the government did not have a discriminatory motive, a standard that has been rejected by other courts. The church’s request for review was joined by several prominent First Amendment law professors who agreed that the Ninth Circuit decision warranted further review. The Town of Gilbert opposed the church’s request, claiming that the church had misconstrued the Ninth Circuit’s reasoning and that there is in fact no split among the circuit courts that needs to be clarified.
The odds were against the church because even though the case presents important constitutional issues, the Supreme Court grants review in about 1% only of the requests that come before it each term. After considering the church’s request at several internal conferences, however, the Supreme Court agreed to review the merits of the case, in an order dated July 1, 2014. Briefing is expected to be completed by November and the argument is expected to be held in January. Stay tuned to upcoming issues of Lawline for further information and updates.