Today, the American Center for Law & Justice filed a “friend of the court” brief with the United States Supreme Court in a First Amendment case of great importance: Reed v. Town of Gilbert. As explained below, the decision in this case will have enormous implications for the exercise of fundamental liberties in our country, specifically, the free speech rights of churches to share the Gospel publicly and to speak on equal terms with others.
The facts of the case are simple and straightforward. Like many small churches throughout the country, Good News Community Church in Arizona does not have a permanent building of its own and so must use temporary facilities to hold its worship services. One way -- perhaps the most effective way -- the church informs the public of where and when it holds its worship services is through signs placed throughout the community. Good News’s signs, however, not only provide the name and location of the church, they contain religious imagery and point the public to church’s website where it can learn more about the church’s religious message. The signs, therefore, do more than just point the way to the church’s place of worship; in fulfillment of the church’s mission and creed, the signs spread the Good News of the Gospel.
As we say in our brief:
Publicly sharing a religious message with others by inviting them to visit, attend, or join a religious body is intrinsic to how many religious groups practice their faith. For a small church like Good News, committed to the “Great Commission” of the Gospel, a critical way of carrying out this religious-based mission is through the posting of signs that -- like political or ideological signs -- communicate the church’s message and invitation to a wide audience.
The essential problem in this case is that the Town of Gilbert’s Sign Code doesn’t treat Good News’s religious signs on an equal basis with other signs, including political and ideological signs. For example, a political sign saying, “Stand Up and Vote for John Smith here -->” is allowed to be up to 32 square feet in size and may be placed up to 60 days before the election. A church’s sign, however, saying, “Stand Up and Worship Jesus With Us here -->,” can only be 6 square feet in size -- less than a fifth of the political sign -- and can be placed only 12 hours in advance of the church service. As we say in the brief, “this is the epitome of content-based discrimination,” that the Constitution doesn’t allow.
Even worse, if an atheist group wanted to post signs next to Good News’s signs saying, “Christianity is Bad for Your Mental Health,” those signs would be classified as “ideological” signs under the Sign Code and could be up to 20 square feet in size (significantly larger than Good News’s signs) and could remain in place indefinitely. Obviously, Gilbert’s signage scheme gives clear preference to one message over another; here, an anti-religious viewpoint over a pro-religious one. (Atheist groups creating signs to advance their message is not a hypothetical notion.)
Gilbert’s Sign Code doesn’t just fail common sense, it fails constitutional sense. And the Supreme Court should hold that the town’s unfair treatment of Good News’s religious signs violates the First Amendment.
Another significant point we raise in the brief goes the legal analysis the lower court used in upholding Gilbert’s Sign Code. Relying on the Supreme Court’s decision in Hill v. Colorado -- a decision that gave “abortion distortion” a new name in how much it undermined prior free speech precedents -- the lower court said that because the town didn’t disagree with any particular viewpoint in adopting its Sign Code, the Code doesn’t discriminate against speech based on its content. As we argue in the brief, the problem with this conclusion doesn’t lie so much with how the lower court applied the Hill opinion, but with the Supreme Court’s opinion itself. In Hill, the Court said governmental disagreement with speech is the “principal inquiry” in determining whether a speech regulation is content-based. This statement, which one preeminent First Amendment scholar called a piece of “sloppy” reasoning, has caused much confusion in the lower courts, including the lower court in this case. As we argue in the brief, the Supreme Court should take the opportunity in this case to either formally disavow the “principal inquiry” test of Hill or, at the very least, reconfigure that test in light of the Court’s more firmly established free speech precedents.
Joining us on the amicus brief is Dr. Mark Goldfeder, Senior Lecturer at Emory Law School and Spruill Family Senior Fellow at Emory’s Center for the Study of Law and Religion. Dr. Goldfeder and students from the Emory Law School Supreme Court Advocacy Project and the Center for the Study of Law and Religion were critical in crafting the style and substance of the brief from beginning to end.
We will keep you posted as this important free speech case goes through the briefing process, is argued before the Court, and how it is ultimately resolved. Whether small churches like Good News will be able to spread the Good News on equal terms with others depends on how this case is decided.
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