“Free speech for me but not for thee,” might be a better motto for the town of Gilbert, Arizona, which is nestled just south of Mesa in Maricopa County and has grown from a population of 5,000 to over 200,000 in just 30 years. Sadly, its population explosion has swallowed its vigilance to constitutional principles, namely one of the most important – the First Amendment. The resulting legal battle brought by a tiny church is now set to be heard by the U.S. Supreme Court and has caught the attention of Republican Attorneys General.
The First Amendment, which protects citizens’ free speech not only from infringement by Congress but also by States and their local subdivisions, declares that the government “shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech… .” It seems that the powers that be in Gilbert disagree.
Good News Community Church is a small church in Gilbert with about 30 adults and 10 children as members. As a congregation they adhere to the Biblical command of “going and making disciples of all nations” by encouraging the community to attend church together. They do this by displaying signs around town announcing their church services as an invitation for the public to attend. Starting in 2005, town officials began notifying the church that it was violating the town’s sign ordinance.
The provision of the ordinance at issue classifies signs as “temporary, directional signs,” “political signs,” and “ideological signs.” The government uses these categories to dictate the size of such signs, the duration for which they may be erected, the number which may be placed, and whether they may be placed in a public right-of-way. It is undisputed that Good News’ signs are “temporary, directional signs.”
As friction between the town and church grew, Good News filed a lawsuit to prohibit Gilbert from enforcing the ordinance. The case ultimately wound up in the west coast’s Ninth Circuit Court of Appeals, arguably the most liberal court of appeals in the nation with over two-thirds of the judges appointed by a Democrat Presidents. In its decision upholding the town’s enforcement to take down the church signs, the Ninth Circuit found that the differentiation (a.k.a discrimination) within the sign ordinance was justified because there was no evidence that city leaders made the distinction based on the message being conveyed by certain signs (i.e. “come to church with us”). To the contrary of free speech jurisprudence and precedence, the protections afforded by the First Amendment do not hinge on the “intent” of lawmakers in passing an offending law.
Now before the Supreme Court and likely to be heard in January, the case presents an important question to be settled for the rule of law. Republican AGs have been keen to defend the rule of law at every opportunity and the Good News case is no exception. In an amici curiae (or “friend of the court”) brief, West Virginia Attorney General Patrick Morrisey and nine other Republican Attorneys General lend strong support to the small, Arizona church and the rule of law. Those Republican AGs joining represent the states of Georgia, Kansas, Michigan, Montana, Nebraska, Oklahoma, South Carolina, Texas, and Utah.
First Amendment legal theory fills volumes and is rife with nuance and fact-specific analysis. For the purposes of understanding the issue in Good News, however, it’s important to remember that laws which designate a certain subject matter of speech to be more or less worthy of protection violate the Free Speech Clause unless the government meets a very high standard. As the dissenting Ninth Circuit judge said in his opinion, the town improperly makes the “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 organizations.”
General Morrisey added to the reasoning by arguing in the brief, “There are, after all, reasons to think that a sign directing the public to a meeting at which spiritual matters will be discussed is at least equally valuable to both speakers and listeners than a sign containing only a candidate’s name and prospective office.”
Utah Attorney General Sean Reyes, who also joined the brief’s arguments, noted, “If the Ninth Circuit’s ruling is upheld, it would give governments, including the federal government, the authority to systematically favor speech about certain subjects over speech about other subjects.”
Like so many other cases, the majority at the Ninth Circuit here attempts time-travel to determine the “real intent” of a legislative body when it passed the law. Such a journey outside the four corners of the duly enacted statute or ordinance is a dangerous one, and the rule of law usually is left by the wayside.
Supreme Court Justice Oliver Wendell Holmes, Jr., a lion of American jurisprudence, admonished judges over a century ago, “Do not inquire what the legislature meant; ask only what the statute means.” We hope that the Supreme Court justices hearing this case next year will heed the advice of their predecessor and agree with the arguments of the Republican AGs.