Reed v. Town of Gilbert, Ariz.

587 F.3d 966

Clyde REED, Pastor; Good News Community Church, Plaintiffs-Appellants, v. TOWN OF GILBERT, ARIZONA; Adam Adams, in his official capacity as Code Compliance Manager, Defendants-Appellees.

No. 08-17384.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted April 15, 2009.

Filed November 20, 2009.

Benjamin W. Bull, Jeremy D. Tedesco, Alliance Defense Fund, Scottsdale, AZ; David A. Cortman (argued), Alliance Defense Fund, Lawrenceville, GA; Deborah M. Sheasby, Peter A. Gentala, Center for Arizona Policy, Phoenix, AZ, for the plaintiffs-appellants.

Robert Grasso, Jr., Kim S. Alvarado (argued), Grasso Law Firm, P.C., Chandler, AZ, for the defendants-appellees.

Appeal from the United States District Court for the District of Arizona, Susan R. Bolton, District Judge, Presiding.

Before: STEPHEN REINHARDT, JOHN T. NOONAN and M. MARGARET McKeown, Circuit Judges.

McKEOWN, Circuit Judge:

Although "[i]t is common ground that governments may regulate the physical characteristics of signs," City of Ladue v. Gilleo, 512 U.S. 43, 48, 114 S.Ct. 2038, 129 L.Ed.2d 36 (1994), sign regulations have spawned legions of First Amendment challenges. Those challenges arise because signs "pose distinctive problems that are subject to municipalities' police powers," and yet they are also "a form of expression protected by the Free Speech Clause." Id. This case presents yet another variation on a sign ordinance — one that prohibits all signs without a permit, subject to nineteen enumerated exemptions ranging from directional signs to ideological and political signs.

Good News Community Church wishes to spread the word about its Sunday services by placing temporary directional signs around the Town of Gilbert, Arizona. Gilbert, however, limits Good News' deployment of temporary directional signs via the town's comprehensive sign ordinance. Good News Community Church and its Pastor, Clyde Reed (collectively "Good News"), challenge the ordinance's constitutionality under the First and Fourteenth Amendments, contending it impermissibly burdens the right to free speech and treats similar speech unequally.

Good News appeals the district court's denial of a preliminary injunction barring enforcement of the ordinance. Although we conclude the provision of the ordinance directly regulating Good News' signs does not of itself violate the First Amendment, the district court did not address Good News' claim that the ordinance unfairly discriminates among forms of noncommercial speech. Consequently, we remand for the district court to consider this aspect of Good News' challenge, within the context of the preliminary injunction motion.

BACKGROUND

I. USE OF SIGNS BY GOOD NEWS COMMUNITY CHURCH

Good News does not have a permanent sanctuary, and at the commencement of this litigation had been conducting its Sunday church services at an elementary school in the Town of Gilbert, Arizona ("Gilbert") for about five years.¹ Good News averages 45 regular congregants.

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." Good News states that "[f]or a time, the Church was placing about 17 signs in the areas surrounding the Church," and that the signs "were placed early in the day each Saturday and removed following the services on Sunday mid-day." Good News uses moveable signs that can be placed on or anchored in the ground. The signs vary slightly, but generally contain the name "Good News Community," the phrase "Your Community Church," a website address and phone number, the location and time of the services, and an indicator directing people to the service. Following is an example of one of the signs:

NOTE: OPINION CONTAINING TABLE OR OTHER DATA THAT IS NOT VIEWABLE

II. THE SIGN CODE AND ENFORCEMENT AGAINST GOOD NEWS

Like many municipalities, Gilbert regulates the display of outdoor signs. Town of Gilbert Land Development Code, Division 4, General Regulations, Article 4.4, Sign Regulations ("Sign Code" or "Code"). Gilbert's Sign Code prohibits certain types of signs altogether. For signs that are not prohibited, the Code imposes a general ban on displaying signs without a permit and establishes some generally applicable restrictions. § 4.402(A). Signs that are allowed with permits are regulated according to general categories, for example, "Real Estate."

The Sign Code exempts from the permitting requirement nineteen types of signs.² The signs employed by Good News fall under one of the exemptions, § 4.402(P), for Temporary Directional Signs Relating to a Qualifying Event ("Qualifying Event Signs").

In July 2005, Good News received an email from a Gilbert Code Compliance officer noting a violation of an earlier version of § 4.402(P) because Good News' signs had been sited too early and in a public right-of-way. A few months later, a Code Compliance officer issued an advisory notice to Good News, stating that signs were displayed outside of the hours allowed and did not include a date for the religious service.

Good News relates that "[a]fter receiving these citations, the Church reduced the number of signs and the amount of time they placed the signs." In February 2007, the Code Compliance Manager told Good News "that there is no leniency under the Code, and that the Church would be cited if it was determined that it had violated any of the applicable provisions in the Code."

III. DISTRICT COURT PROCEEDINGS

In March 2008, Good News filed suit in federal court in Arizona, alleging that, on its face and as applied, Sign Code § 4.402(P) violated the Free Speech clause of the First Amendment and the Equal Protection clause of the Fourteenth Amendment. Shortly after filing, Good News moved for a preliminary injunction to stop Gilbert from enforcing § 4.402(P). Gilbert stipulated to a preliminary injunction, as a "sign of good faith," in order for Gilbert to review and amend the original ordinance. The district court granted the stipulated injunction.

In an effort to avoid maintaining a potentially impermissible content-based ordinance, following public hearings the Town Council of Gilbert adopted an amended Sign Code recommended by the Gilbert Planning Commission. Before passage of the amendment, in January 2008, attorneys for the parties conferred, and Good News advised that, in its view, the proposed amendment did not fix § 4.402(P)'s constitutional infirmities.

The amendments left the Sign Code intact except for § 4.402(P) and related sections.³ The title of § 4.402(P) was changed from "Religious Assembly Temporary Directional Signs" to "Temporary Directional Signs Relating to a Qualifying Event." A new definition was added to the glossary for these signs, expanding the coverage of § 4.402(P) to signs related to any events sponsored by non-profit organizations, not just religious gatherings. The restrictions on physical characteristics and use of signs under § 4.402(P) were somewhat modified, although the restriction that Qualifying Event Signs may not be placed in public rights-of-way was retained.

Immediately following adoption of the amended regulation, Good News filed a notice that the amended Sign Code failed to resolve the lawsuit, an amended verified complaint, and a second motion for preliminary injunction.⁴ Good News has not been cited under the amended Sign Code, but states that it is not placing signs in the rights-of-way "due to the prohibitions in the amended Code."

In September 2008, the district court denied the motion for preliminary injunction. The court concluded that § 4.402(P) is a content-neutral regulation, and that it passes the applicable intermediate level of scrutiny. It further found that the Sign Code does not favor commercial speech over noncommercial speech. Based on its determination that the provision is content-neutral, the court concluded that § 4.402(P) does not violate equal protection, as any uneven effects are an unintended consequence of the lawful content-neutral regulation.

ANALYSIS

This case comes to us on appeal from the denial of a preliminary injunction. Although we review the denial of a preliminary injunction for abuse of discretion, "we review the legal issues underlying the district court's decision de novo." Foti v. City of Menlo Park, 146 F.3d 629, 634-635 (9th Cir.1998).

The Supreme Court recently summarized the threshold for granting the extraordinary relief of a preliminary injunction: "A plaintiff seeking a preliminary injunction must establish that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest." Winter v. Natural Res. Def. Council, Inc. ___ U.S. ___, 129 S.Ct. 365, 374, 172 L.Ed.2d 249 (2008); see also Am. Trucking Ass'ns, Inc. v. City of Los Angeles, 559 F.3d 1046, 1052 (9th Cir.2009) (quoting same). Because the district court concluded that Good News was unlikely to succeed on the merits of its claims, the court did not reach the further inquiries regarding harm, equities and the public interest. Our focus therefore is a legal one — whether the district court erred in its judgment that Good News is unlikely to succeed on the merits because the regulation passes muster under the First and Fourteenth Amendments.

Good News claims that § 4.402(P) violates the First Amendment and the Fourteenth Amendment, both on its face and as applied to Good News' signs. There are two ways an ordinance may be judged unconstitutional on its face: "[E]ither because it is unconstitutional in every conceivable application, or because it seeks to prohibit such a broad range of protected conduct that it is unconstitutionally `overbroad...