Clyde Reed v. Town of Gilbert, Arizona

FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

CLYDE REED , Pastor and GOOD No. 11-15588
NEWS COMMUNITY CHURCH ,
Plaintiffs-Appellants, D.C. No.
2:07-cv-00522-
v. SRB

TOWN OF GILBERT , ARIZONA and
ADAM ADAMS, in his official OPINION
capacity as Code Compliance
Manager,
Defendants-Appellees.

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

Argued and Submitted
August 10, 2012—San Francisco, California

Filed February 8, 2013

Before: Consuelo M. Callahan and Paul J. Watford, Circuit
Judges, and James K. Singleton, Senior District Judge.*

Opinion by Judge Callahan;
Dissent by Judge Watford

*
The Honorable James K. Singleton, Senior District Judge for the U.S.
District Court for Alaska, sitting by designation.
2 REED V . TOWN OF GILBERT , ARIZONA

SUMMARY**

Civil Rights

The panel affirmed the district court’s summary
judgment, on remand from the Ninth Circuit, in an action
brought by Good News Community Church and its pastor
alleging that the Town of Gilbert’s sign ordinance, which
restricted the size, duration and location of temporary
directional signs, was unconstitutional because it favored
some noncommercial speech over other noncommercial
speech.

Accepting the prior opinion in Reed v. Town of Gilbert,
587 F.3d 966 (9th Cir. 2009), as law of the case, the panel
concluded that the sign ordinance was constitutional because
the different treatment of types of noncommercial temporary
signs was not content-based as that term was defined in Reed,
and the restrictions were tailored to serve significant
governmental interests. The panel also concluded that the
ordinance did not violate Good News’ (or its members’) right
to the free exercise of religion or right to equal protection of
law, and was not unconstitutionally vague or overbroad. In
addition, the panel determined that the amendments to the
sign ordinance made by the Town of Gilbert during the
pendency of the appeal did not moot the case and that Good
News could file a new action in the district court should it
wish to challenge the new provisions of the sign ordinance.

**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
 REED V . TOWN OF GILBERT , ARIZONA 3

Dissenting, Judge Watford agreed with the majority that
the post-judgment amendments to the Town of Gilbert’s sign
ordinance did not render this appeal moot. Judge Watford
disagreed with the majority’s conclusion that the sign
ordinance was constitutional, and would hold that the
ordinance violated the First and Fourteenth Amendments by
drawing content-based distinctions among different
categories of non-commercial speech.

COUNSEL

Jeremy D. Tedesco (argued), Scottsdale, Arizona, and David
A. Cortman, Lawrenceville, Georgia, for Plaintiffs-
Appellants.

Robert Grasso, Jr., Kim S. Alvarado (argued), and Jenny J.
Winkler, Grasso Law Firm, P.C., Chandler, Arizona, for
Defendants-Appellees.

OPINION

CALLAHAN, Circuit Judge:

Good News Community Church and its pastor, Clyde
Reed (referred to collectively as “Good News”), appeal from
the district court’s determination on remand from the Ninth
Circuit that the Town of Gilbert’s ordinance that restricts the
size, duration and location of temporary directional signs
does not discriminate between different forms of
noncommercial speech in a unconstitutional manner. In Reed
v. Town of Gilbert, 587 F.3d 966 (9th Cir. 2009), we held that
the ordinance (sometimes referred to as the “Sign Code”) is
4 REED V . TOWN OF GILBERT , ARIZONA

not a content-based regulation and is a reasonable time, place
and manner restriction. However, we remanded the case to
the district court “to consider the First Amendment and Equal
Protection claims that the Sign Code is unconstitutional in
favoring some noncommercial speech over other
noncommercial speech.” Id. at 983.

Accepting our opinion in Reed as law of the case, we
conclude that the Sign Code is constitutional because the
different treatment of types of noncommercial temporary
signs are not content-based as that term is defined in Reed,
and the restrictions are tailored to serve significant
governmental interests. In addition, we determine that the
amendments to the Sign Code made by the Town of Gilbert
(“Gilbert”) during the pendency of this appeal do not moot
this case and that Good News may file a new action in the
district court should it wish to challenge the new provisions
of the Sign Code.

I.

Good News is a relatively small church with 25 to 30
adult members and 4 to 10 children. “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.” Reed, 587 F.3d at 971 (internal quotation marks
omitted). Starting around 2002, Good News met at an
elementary school in Gilbert. Id. It presently rents space at
an elementary school in Chandler, Arizona, which borders
Gilbert.
 REED V . TOWN OF GILBERT , ARIZONA 5

For a time, Good News placed about 17 signs in the area
surrounding its place of worship in Gilbert announcing the
time and location of its services. In 2005, Good News
received an advisory notice from Gilbert that it was violating
the town’s sign ordinance because “the signs were displayed
outside the statutorily-limited time period.” For a while
thereafter, Good News reduced the number of signs it erected
and the amount of time its signs were in place, but friction
with Gilbert persisted. Reed, 587 F.3d at 972. In March
2008, Good News filed suit in federal court in Arizona
alleging that Gilbert’s Sign Code violated the Free Speech
Clause of the First Amendment and the Equal Protection
Clause of the Fourteenth Amendment. Id.

A. The Sign Ordinances

Like many municipalities, Gilbert regulates the display of
outdoor signs. Gilbert Land Development Code, Division 4,
General Regulations, Article 4.4 (the “Sign Code”). Section
4.401(A) outlines the purposes for the Sign Code, namely, to
“assure proper and efficient expression through visual
communications involving signs compatible with the
character and environment of the Town; to eliminate
confusing, distracting, and unsafe signs; and to enhance the
visual environment of the Town of Gilbert.”

Under § 4.402(A), no person may erect a sign without
first obtaining a sign permit, unless the sign is one exempted
under § 4.402(D). Section 4.402(D) lists nineteen different
6 REED V . TOWN OF GILBERT , ARIZONA

types of signs that are allowed without a permit.1 Three of
the types of exempted signs are of particular relevance:
“Temporary Directional Signs Relating to Qualifying Event,”
“Political Signs,” and “Ideological Signs.”

Gilbert asserts, and Good News concedes, that Good
News’ signs are Temporary Directional Signs subject to the
requirements of § 4.402(P). This subsection provides that
“Temporary Directional Signs Relating to a Qualifying Event
. . . shall be no greater than 6 feet in height and 6 square feet
in area,” “shall only be displayed up to 12 hours before,
during and 1 hour after the qualifying event ends,” “may be
located off-site and shall be placed at grade level,” and “shall
be placed only with the permission of the owner of the
property on which they are placed.” Additional restrictions
include that “[n]o more that 4 signs shall be displayed on a
single property at any one time,” and that Temporary

1
The nineteen types of signs are:

(1) Signs installed by a governmental jurisdiction; (2)
B uilding Identification Signs; (3) Permanent
Regulatory and Parking Signs; (4) Information W all
Signs (e.g., “Delivery Entrance”); (5) Real Estate Signs;
(6) Residential Open House Signs; (7) Political Signs;
(8) Ideological Signs; (9) Garage Sale Signs; (10)
Business Identification B anners during street
construction; (11) Interim Business Identification
Banners; (12) Boutique Signs; (13) W indow Signs; (14)
A-Frame Signs; (15) Temporary Directional Signs
Relating to a Qualifying Event; (16) Construction
Signs; (17) Suspended Signs (particular type of
commercial sign); (18) Restaurant Menu Signs; and
(19) Required Street Addresses.

Reed, 587 F.3d at 972 n.2.
 REED V . TOWN OF GILBERT , ARIZONA 7

Directional Signs may not be placed “in a public right-of-
way”2 or on “fences, boulders, planters, other signs, vehicles,
utility facilities, or any structure.”

A “Political Sign” is defined as a “temporary sign which
supports candidates for office or urges action on any other
matter on the ballot of primary, general and special
elections.” Political Signs (a) may be up to 32 square feet in
size, (b) may be erected any time prior to an election but must
be taken down within 10 days of the election, (c) are not
limited in number, and (d) may be placed in the public right-
of-way. An “Ideological Sign” is a “sign communicating a
message or ideas for noncommercial purposes that is not a
construction sign, directional sign, temporary directional sign,
temporary directional sign relating to a qualified event,
political sign, garage sale sign, or sign owned or required by
a governmental agency.” Ideological Signs (a) may be up to
20 square feet in size, (b) are not limited in time, (c) are not
limited in number, and (d) may be placed in the public right-
of-way.

B. Initial Proceedings in the District Court

Gilbert initially stipulated to a preliminary injunction, but
when Gilbert amended the Sign Code in a way that Good
News believed continued to infringe on its constitutional
rights, Good News filed a second motion for a preliminary
injunction. In September 2008, the district court denied Good
News’ motion for an injunction, concluding that: (a)
Ҥ 4.402(P) is a content-neutral regulation, and [] it passes the
applicable intermediate level of scrutiny;” and (b) the Sign

2
In October 2011, Gilbert amended the Sign Code to allow placement
of Temporary Directional Signs within the public right-of-way.
8 REED V . TOWN OF GILBERT , ARIZONA

Code “does not violate equal protection, as any uneven
effects are an unintended consequence of the lawful
content-neutral regulation.” Reed, 587 F.3d at 973. Good
News appealed to the Ninth Circuit.

C. Reed v. Town of Gilbert, 587 F.3d 966 (9th Cir.
2009)

In November 2009 we basically affirmed the district
court’s denial of an injunction. In doing so, we made four
determinations that guide our review in this appeal.

1. Good News alleges an as-applied challenge to the
Sign Code

First, we held that Good News’ challenge was an as-
applied challenge, and not a facial challenge, to the Sign
Code. Id. at 974. We determined that Good News’ attack on
the ordinance was “basically a challenge to the ordinance as
applied to [its] activities,” and therefore we limited our
analysis of the constitutionality of the ordinance to its
application to Good News. Id.

2. The Sign Code is not a content-based regulation

Second, after reviewing the evolution of our opinions
from Foti v. City of Menlo Park, 146 F.3d 629 (9th Cir.
1998),to Menotti v. City of Seattle, 409 F.3d 1113 (9th Cir.
2005), and G.K. Limited Travel v. City of Lake Oswego,
436 F.3d 1064 (9th Cir. 2006) (“G.K. Ltd.”), we determined
the fact that an enforcement official had to read a sign did not
mean that a ordinance is content-based. Instead, we
concluded that “our focus should be on determining whether
the ordinance targets certain content; whether the ordinance
 REED V . TOWN OF GILBERT , ARIZONA 9

or exemption is based on identification of a speaker or event
instead of on content; and whether an enforcement officer
would need to distinguish content to determine applicability
of the ordinance.”3 Reed, 587 F.3d at 976.

Applying this focus to the Sign Code, we found that the
ordinance “regulates physical characteristics, such as size,
number and construction of the signs,” their locations, and the
timing of displays, none of which “implicate the content of
speech.” Id. at 977. We noted that “[t]he definition of a
Qualifying Event sign merely encompasses the elements of
‘who’ is speaking and ‘what event’ is occurring.”4 Id. These
two criteria invoke the speaker-based and event-based
characteristics approved in G.K. Ltd. because “the City d[id]
not limit the substance of [the] speech in any way.” Id.

3
W e quoted from G.K. Ltd., 436 F.3d at 1078, that:

Neither the speaker- nor event-based exemptions
implicate Foti insofar as neither requires law
enforcement officers to “read a sign’s message to
determine if the sign is exempted from the ordinance.”
Foti, 146 F.3d at 636. In the speaker category, officers
decide whether an exemption applies by identifying the
entity speaking through the sign without regard for the
actual substance of the message. In the case of
event-based exemptions . . . the officer must determine
only whether a specific triggering event has occurred
and if the temporary sign has been erected within the
specified time frame.

Reed, 587 F.3d at 976.

4
In Reed we used “Qualifying Event Sign” to refer to Temporary
Directional Signs exempted by § 4.402(P) of the Sign Code. 587 F.3d at
972.
10 REED V . TOWN OF GILBERT , ARIZONA

(quoting G.K. Ltd., 436 F.3d at 1078). We explained that this
case:

highlights the absurdity of construing the
“officer must read it” test as a bellwether of
content. If applied without common sense,
this principle would mean that every sign,
except a blank sign, would be content based.
While a Gilbert officer needs to briefly take in
what is written on the Qualifying Event Sign
to note who is speaking and the timing of the
listed event, this “kind of cursory
examination” is not akin to an officer
synthesizing the expressive content of the
sign.

Reed, 587 F.3d at 978. We concluded “that § 4.402(P) is not
a content-based regulation: It does not single out certain
content for differential treatment, and in enforcing the
provision an officer must merely note the content-neutral
elements of who is speaking through the sign and whether
and when an event is occurring.” Id. at 979.

3. The Sign Code is narrowly tailored to further
Gilbert’s significant interests

Third, we determined that the Sign Code, “as a content-
neutral time, place and manner regulation,” id. at 978, also
had to be, and was, narrowly tailored. Quoting Ward v. Rock
Against Racism, 491 U.S. 781, 791 (1989), we recognized
that to be “narrowly tailored” the Sign Code had to “serve a
significant governmental interest” and had to “leave open
ample alternative channels for communication of that
information.” Reed, 587 F.3d at 979. We held that the
 REED V . TOWN OF GILBERT , ARIZONA 11

district court had not abused its discretion in concluding that
the Sign Code “is narrowly tailored as it does not sweep in
more speech than is necessary to achieve the Town’s
aesthetic and traffic objectives,” 587 F.3d at 980, explaining:

The restrictions on time, place and manner
imposed by Gilbert on the display of
Qualifying Events Signs would indeed appear
to “actually advance” the aesthetic and safety
interests by limiting the size, duration and
proliferation of signs. See G.K. Ltd., 436 F.3d
at 1073. These measures restricting the
number of signs and limiting them to private
property do not appear substantially broader
measures than required to make sure the
rights-of-way are not so thicketed with signs
as to pose a safety hazard or create an
aesthetic blight. The limitation on timing –
twelve hours before the event and one hour
after – is equally narrowly tailored to meet
these interests. While it might be easier and
provide broader exposure for Good News to
have the sign up for twenty-four hours, the
test is not convenience or optimal display.

Id.

We also held that the district court did not abuse its
discretion in finding that the Sign Code allowed for alternate
channels of communications for Good News to communicate
effectively with members of the public. Id. at 981. We
explained that “[w]hile the alternative options identified by
the district court may not be Good News’ preference, ‘we
cannot invalidate the Sign Code merely because it restricts
12 REED V . TOWN OF GILBERT , ARIZONA

plaintiffs’ preferred method of communication.’” Id. (quoting
G.K. Ltd., 436 F.3d at 1074). We also noted that the
alternative modes available did not appear to be especially
burdensome. Id.

This section of Reed concludes with the affirmative
statement that:

Section 4.402(P) is a content-neutral
regulation of the time, place and manner of
display of Good News’ Qualifying Event
Signs; the provision is narrowly tailored to
further Gilbert’s significant interests in
aesthetics and traffic safety; and Good News
has ample alternative channels of
communicating its invitation to church
services.

Id.

4. The Sign Code does not favor commercial over
noncommercial speech

The fourth relevant holding in Reed is our determination
that the district court “did not abuse its discretion in
concluding, after close examination, that the Sign Code does
not favor commercial speech over non-commercial speech.”5

5
W e explained:

The district court concluded, however, that Good
N ews’ “noncommercial speech enjoys fewer
restrictions than its commercial counterparts.” The
court performed a careful comparison of the restrictions
placed on Qualifying Event Signs versus “Weekend
 REED V . TOWN OF GILBERT , ARIZONA 13

Id. at 982. Our opinion in Reed remanded on a limited issue
only: “to consider the First Amendment and Equal Protection
claims that the Sign Code is unconstitutional in favoring
some noncommercial speech over other noncommercial
speech.” Id. at 983. We noted that “[o]n remand, the district
court will have the opportunity to determine whether Gilbert
impermissibly ‘evaluate[d] the strength of, or distinguished
between, various [noncommercial] communicative
interests.’” Id. at 983 (quoting Metromedia Inc. v. City of San
Diego, 453 U.S. 490, 514 (1981)).

D. Proceedings on Remand in the District Court

On remand, the parties agreed to submit the case on cross-
motions for summary judgment. The district court’s order set
forth three preliminary determinations. First, based in part on
our opinion in Reed, the court held that the Sign Code “is a
content-neutral regulation of speech that seeks to identify
who is speaking and what event is occurring and does not

Directional Signs” for subdivision sales, the
commercial speech showcased by Good News as
receiving more favorable treatment. The district court
concluded that Qualifying Event Signs come out on top
as the total number of Qualifying Event Signs allowed
is greater; Qualifying Event Signs may be placed during
week-days as well as weekends; the size allowed for
Qualifying Events Signs is greater; and although the
Qualifying Events Signs may not be placed in
rights-of-way, they are not restricted to a two-mile
radius from the event. Of “paramount importance” to
the court was the fact that no permit is required to
display a Qualifying Events Sign, in contrast to the
permit required for the W eekend Directional Signs.

Id. at 981–82 (footnote omitted).
14 REED V . TOWN OF GILBERT , ARIZONA

discriminate on the basis of content.” Second, citing its
preliminary injunction order, the district court reiterated that
the Sign Code was narrowly tailored to serve significant
government interests. Third, the court embraced as a non-
preliminary finding its determination that noncommercial
speech is more favorably treated than commercial speech.

Addressing the remanded issue, the district court thought
that the different treatments of various forms of
noncommercial speech were “akin to the regulation at issue
in G.K. Ltd.” The district court reasoned:

Both Political Signs and Qualifying Event
Signs relate, in substance, to events – an
election or a specified event fitting the
definition in the Sign Code. In the case of
Political Signs, the event is of widespread
interest and takes place at a fixed, regular
interval. A Qualified Event might take place
once, or it might take place several times a
week, depending on the type of event. A
Qualifying Event Sign could invoke so-called
“core” speech, but Political Signs are always
core speech. . . . To distinguish between a
Political Sign and a Qualifying Event Sign, an
officer need only skim the sign to determine
the speaker (e.g. is a non-profit speaking?)
and the event at issue (e.g. does this relate to
an election or a Qualifying Event?). In G.K.
Ltd., the court concluded that speaker – and –
event based exemptions did not render a sign
regulation content-based because the
municipality was distinguishing on the basis
of the speaker’s identity and whether a
 REED V . TOWN OF GILBERT , ARIZONA 15

triggering event had occurred, not on the basis
of the sign’s content.

....

Ideological Signs are not tied to a specific
event, the way Political and Qualifying Event
Signs are, so they are not subject to an event-
based time restriction under the Sign Code.
This accounts for the different “time”
restriction for Ideological Signs. As for place,
namely whether a particular type of sign can
be placed in the right-of-way, Gilbert argues
that it has made a municipal decision to limit
the overall number of signs in the right-of-
way, and it does not discriminate at all among
Ideological Signs. . . . Nonetheless, the Court
finds that the Sign Code does not distinguish
on the basis of the message of the sign
because, other than signs relating to events –
whether those events are elections or bake
sales – the Sign Code treats all messages on
equal footing. Because Ideological Signs do
not relate to an event, they are distinguishable
from Qualifying Event Signs. To determine
whether a sign is an Ideological Sign or a
Qualifying Event Sign, an officer does not
need to read the content: he or she need only
look to see whether the sign concerns an
event.

After determining that the Sign Code did not discriminate
among types of noncommercial speech, the district court
rejected Good News’ argument that the Sign Code was
16 REED V . TOWN OF GILBERT , ARIZONA

impermissibly vague and overbroad. Citing United States v.
Williams, 553 U.S. 285, 304 (2008), the district court
commented that the “[v]agueness doctrine is an outgrowth not
of the First Amendment, but of the Due Process Clause of the
Fifth Amendment,” and that a statute is void if it does not
“provide a person of ordinary intelligence fair notice of what
is prohibited, or is so standardless that it authorizes or
encourages seriously discriminatory enforcement. The district
court determined that the deterrent effect of the Sign Code
was “insubstantial and remote” as the “ordinance provides
plenty of guidance for people of ordinary intelligence to
determine what conduct is permitted and prohibited, and does
not foster arbitrary, capricious, or discriminatory
enforcement.”6

E. Gilbert’s Motion to Dismiss

Good News filed this appeal from the district court’s
entry of summary judgment in favor of Gilbert. However, in
October 2011, while the appeal was pending, Gilbert made
two amendments to its Sign Code: (1) it allowed placement
of Temporary Directional Signs within the public right-of-
way; and (2) it limited the Temporary Directional Sign
exemption to events held within the Town of Gilbert.7 Based

6
T he district court discounted Good News’ reliance on Gilbert’s
officials’ responses in depositions to hypothetical situations concerning
signs that had both political and ideological information because the
officials said that they had never seen such a sign.

7
Section § 4.402(P)(4) and (5) now read, with the added language in
capitals and the omitted language cross-out, as follows:

4. Location. Temporary Directional Signs Relating to
a Qualifying Event may be located off-site and shall be
 REED V . TOWN OF GILBERT , ARIZONA 17

on the amended Sign Code, Gilbert filed a motion to dismiss
this appeal, arguing that because Good News held its services
outside of Gilbert, it does not qualify for the Temporary
Directional Sign exemption, and lacks standing to pursue this
appeal.

The motion to dismiss presents a situation analogous to
that before the Supreme Court in Northeastern Florida
Chapter of Associated General Contractors of America v.
City of Jacksonville, 508 U.S. 656 (1993). In Northeastern
Florida, the plaintiffs challenged a city ordinance providing
preferential treatment to certain minority owned businesses
for city contracts. Id. at 658. The district court granted the
plaintiffs summary judgment, holding that the ordinance was
unconstitutional, but the Eleventh Circuit vacated that order
finding that the plaintiffs lacked standing. Id. at 660. Shortly
after the Supreme Court granted certiorari, the city repealed
the questioned ordinance and replaced it with new ordinance
that provided for a more narrow minority preference. Id. at

placed at grade level. Signs MAY BE PLACED IN
THE RIGHT-OF-W AY OR, W ITH PERMISSION OF
THE PRIVATE PROPERTY OW NER, ON PRIVATE
PROPERTYshall be placed only with the permission of
the owner of the property on which they are placed.
SIGNS SHALL RELATE ONLY TO EVENTS
OCCURRING W ITHIN THE TOW N.

5. Prohibited Locations. Temporary Directional Signs
Relating to a Qualifying Event shall not be located:

a. In the public right of way.

b.a. On fences, boulders, planters, other signs, vehicles,
utility facilities or any structure.
18 REED V . TOWN OF GILBERT , ARIZONA

660–61. The city then filed a motion to dismiss the case as
moot.

Justice Thomas, writing for the Court, held that the case
was not moot. He relied on the Court’s “well settled rule” set
forth in City of Mesquite v. Aladdin’s Castle, Inc., 455 U.S.
283, 289 (1982), that “a defendant’s voluntary cessation of a
challenged practice does not deprive a federal court of its
power to determine the legality of the practice.”
Northeastern Florida, 508 U.S. at 662. Justice Thomas
wrote:

There is no mere risk that Jacksonville will
repeat its allegedly wrongful conduct; it has
already done so. Nor does it matter that the
new ordinance differs in certain respects from
the old one. City of Mesquite does not stand
for the proposition that it is only the
possibility that the selfsame statute will be
enacted that prevents a case from being moot;
if that were the rule, a defendant could moot
a case by repealing the challenged statute and
replacing it with one that differs only in some
insignificant respect.

508 U.S. at 662. The Court concluded that the new ordinance
disadvantaged plaintiffs “in the same fundamental way” and
thus the case was not moot. Id. at 662–63. Justice O’Connor,
while dissenting, commented that:

City of Mesquite stands for the proposition
that the Court has discretion to decide a case
in which the statute under review has been
repealed or amended. The Court appropriately
 REED V . TOWN OF GILBERT , ARIZONA 19

may render judgment where circumstances
demonstrate that the legislature likely will
reinstate the old law – which would make a
declaratory judgment or an order enjoining the
law’s enforcement worthwhile. But such
circumstances undoubtedly are rare.

Id. at 677.

Good News’ case is one of those rare cases. The
amendment of the Sign Code to allow directional signs to be
placed in the public right-of-way moots Good News’
objection to this provision of the Sign Code, but the new
restriction, limiting the Temporary Directional Signs
exemption to events that take place in Gilbert, bars Good
News from erecting any directional signs at all. Thus, a
dismissal for mootness would allow Gilbert to continue to
limit Good News’ speech without further judicial review.
Accordingly, the motion to dismiss is denied.8

II.

Reed limits our consideration of Good News’ challenges
to the Sign Code. Although our opinion in Reed reviewed the

8
The Ninth Circuit cases cited by Gilbert do not support a different
result. In Log Cabin Republicans v. United States, 658 F.3d 1162,
1166–67 (9th Cir. 2011), we noted that when a statutory repeal or
amendment provides a plaintiff with everything it hoped to achieve, the
controversy is moot. Similarly, in Outdoor Media Group, Inc. v. City of
Beaumont, 506 F.3d 895, 901 (9th Cir. 2007), we noted that “[b]ecause
there is no longer any risk that Outdoor Media will be subject to the
challenged ordinance, there exists no live issue upon which the court
could issue prospective relief.” Here, Good News has not obtained the
relief it seeks and continues to be subject to the limiting ordinance.
20 REED V . TOWN OF GILBERT , ARIZONA

denial of a preliminary injunction, our determinations
included conclusions of law. Furthermore, on remand, the
parties agreed to resolve all remaining issues on cross-
motions for summary judgment. There is no indication that
the parties engaged in further discovery, and Good News has
not asserted any evidentiary facts in this appeal that were not
before us in Reed. Thus, our opinion in Reed constitutes law
of the case, see Minidoka Irrigation Dist. v. Dep’t of Interior,
406 F.3d 567, 573 (9th Cir. 2005),9 and is binding on us. See
Santamaria v. Horsley, 110 F.3d 1352, 1355 (1997) (“It is
settled law that one three-judge panel of this court cannot
ordinarily reconsider or overrule the decision of a prior
panel.”).

Reed establishes first that Ҥ 4.402(P) is not a content-
based regulation,” Reed, 587 F.3d at 979, and second that the
Sign Code generally is a reasonable (i.e., not
unconstitutional) time, place and manner restriction. Id. at
980. The single issue remanded, and hence the primary
substantive issue before the district court and now on appeal,
is whether the Sign Code improperly discriminates between
different forms of noncommerical speech.

9
In Minidoka, we recognized that, under the law of the case doctrine, “a
court is ordinarily precluded from reexamining an issue previously
decided by the same court, or a higher court, in the same case.” 406 F.3d
at 573 (citing Old Person v. Brown, 312 F.3d 1036, 1039 (9th Cir. 2002)).
W e noted that “the law of the case doctrine is subject to three exceptions
that may arise when (1) the decision is clearly erroneous and its
enforcement would work a manifest injustice, (2) intervening controlling
authority makes reconsideration appropriate, or (3) substantially different
evidence was adduced at a subsequent trial.” Id. (internal quotation marks
omitted). None of these exceptions apply here. As we subsequently
explain, our opinion in Reed is not “clearly erroneous.” Moreover, there
is no “intervening controlling authority” nor any “substantially different
evidence.”
 REED V . TOWN OF GILBERT , ARIZONA 21

We review de novo the district court’s grant of summary
judgment in favor of Gilbert. G.K. Ltd., 436 F.3d at 1070;
Arakaki v. Hawaii, 314 F.3d 1091, 1094 (9th Cir. 2002) (“We
review a district court’s grant of summary judgment de
novo.”); Lopez v. Smith, 203 F.3d 1122, 1131 (9th Cir. 2000)
(en banc) (“We review de novo a grant of summary
judgment”).

A. The Evolving Standard for Evaluating the
Regulation of Noncommercial Speech

Judicial review of the regulation of noncommercial
speech has evolved over the last 30 years. In 1981, Justice
White, in his plurality opinion in Metromedia, 453 U.S. at
514, stated that while a city “may distinguish between the
relative value of different categories of commercial speech,
the city does not have the same range of choice in the area of
noncommercial speech to evaluate the strength of, or
distinguish between, various communicative interests.”
Seven years later in National Advertising Co. v. City of
Orange, 861 F.2d 246, 249 (9th Cir. 1988), we recognized
that an ordinance would be invalid if it imposed greater
restrictions on noncommercial than on commercial billboards.
We noted that a restriction based on content would be
unconstitutional unless it was narrowly drawn to serve a
compelling interest, but suggested that the city was
nonetheless “not powerless to regulate billboards containing
noncommercial messages.” Id. In Desert Outdoor
Advertising, Inc. v. City of Moreno Valley, 103 F.3d 814, 819
(9th Cir. 1996), we indicated that an ordinance regulating
noncommercial speech would be invalid if it imposed greater
restrictions on noncommercial than commercial billboards or
if it regulated noncommercial billboards “based on their
content.” Regarding Gilbert’s Sign Code, we have already
22 REED V . TOWN OF GILBERT , ARIZONA

held that it does not impose greater restrictions on
noncommercial signs than commercial signs, and thus the
critical issue now before us is whether the Sign Code
improperly regulates noncommercial temporary signs based
on their content.

The definition of “content neutral” has also evolved over
the last couple of decades. In Foti, relying on Desert
Outdoor, we indicated that when an officer must examine the
contents of a sign to determine whether an exemption applies,
the ordinance is content-based. Foti, 146 F.3d at 636.
However, we also noted the Supreme Court’s advice that
“laws that by their terms distinguish favored speech from
disfavored speech on the basis of the ideas or views expressed
are content based,” and that a “speech restriction is content
neutral if it is justified without reference to the content of the
regulated speech.” Id. at 638 (quoting Turner Broad. Sys. v.
F.C.C., 512 U.S. 622, 643 (1994), and Clark v. Cmty. for
Creative, Non-Violence, 468 U.S. 288, 293 (1984)).

More recently, following these guidelines we have
fashioned a more nuanced standard. In G.K. Ltd., we held
that “[n]either the speaker- nor event-based exemptions
implicate Foti insofar as neither requires law enforcement
officers to read a sign’s message to determine if the sign is
exempted from the ordinance.” 436 F.3d at 1078. The
standard of review set forth is:

The “government may impose reasonable
restrictions on the time, place, or manner of
engaging in protected speech provided that
they are adequately justified without reference
to the content of the regulated speech.” City
of Cincinnati v. Discovery Network, Inc.,
 REED V . TOWN OF GILBERT , ARIZONA 23

507 U.S. 410, 428 (1993) (internal quotation
marks and citation omitted). In addition to
being justified without reference to content,
the restrictions must be “narrowly tailored to
serve a significant governmental interest and
. . . leave open ample alternative channels for
communication of the information.” Ward v.
Rock Against Racism, 491 U.S. 781, 791
(1989) (citing Clark v. Community for
Creative Non-Violence, 468 U.S. 288, 293
(1984)).

436 F.3d at 1071 (parallel citations omitted).

In Reed, applying this standard, we concluded that the
Sign Code “does not single out certain content for differential
treatment, and in enforcing the provision an officer must
merely note the content-neutral elements of who is speaking
through the sign and whether and when an event is
occurring.” 587 F.3d at 979. Nonetheless, this appeal raises
two unanswered questions under the G.K. Ltd. standard: (1)
are the differing restrictions between types of noncommercial
speech “adequately justified without reference to the content
of the regulated speech”; and (2) are they narrowly tailored?
The first issue is the fulcrum of this appeal.

B. The Restrictions on Types of Noncommercial
Speech are not Based on the Content of the
Speech.

The thrust of Good News’ challenge to the Sign Code is
that its different restrictions for different types of
noncommercial speech are inherently content-based and thus
unconstitutional. However, we rejected this general argument
24 REED V . TOWN OF GILBERT , ARIZONA

in Reed when we held that distinctions based on the speaker
or the event are permissible where there is no discrimination
among similar events or speakers. 587 F.3d at 979 (“We
conclude that § 4.402(P) is not a content-based regulation: It
does not single out certain content for differential treatment,
and in enforcing the provision an officer must merely note the
content-neutral elements of who is speaking through the sign
and whether and when an event is occurring.”). Thus, under
Reed, the distinctions between Temporary Directional Signs,
Ideological Signs, and Political Signs are content-neutral.
That is to say, each classification and its restrictions are based
on objective factors relevant to Gilbert’s creation of the
specific exemption from the permit requirement and do not
otherwise consider the substance of the sign. The Political
Signs exemption responds to the need for communication
about elections.10 The Ideological Sign exemption recognizes
that an individual’s right to express his or her opinion is at the
core of the First Amendment. The Temporary Directional
Sign exemption allows the sponsor of an event to put up
temporary directional signs immediately before the event.
Each exemption is based on objective criteria and none draws
distinctions based on the particular content of the sign. It
makes no difference which candidate is supported, who
sponsors the event, or what ideological perspective is
asserted. Accordingly, as the speaker and event
determinations are generally “content neutral,” Gilbert’s
different exemptions for different types of noncommercial
speech are not prohibited by the Constitution.

10
Arizona has enacted legislation that prohibits a city from removing a
political sign from the public right-of-way during a 60-day period before
a primary election. See Ariz. Rev. St. § 16-1019.
 REED V . TOWN OF GILBERT , ARIZONA 25

Our reading of Reed is in accord with our opinion in G.K.
Ltd. There the town ordinance banned most pole signs but
had a grandfather clause for preexisting signs. 436 F.3d at
1072. We determined that “the City’s restriction on
plaintiffs’ pole sign is not a content-based regulation of
plaintiffs’ speech.” Id. We commented:

The pole sign restriction is not a “law[ ] that
by [its] terms distinguish[es] favored speech
from disfavored speech on the basis of the
ideas or views expressed.” Turner Broad.
Sys. v. FCC, 512 U.S. 622, 643 (1994). The
Code restricts all pole signs across the City’s
general commercial zones without creating
exceptions for preferred content. Cf. Foti v.
City of Menlo Park, 146 F.3d 629, 636 (9th
Cir. 1998). The burdens imposed by these
pole sign restrictions are borne equally by all
of the City’s residents. See Turner Broad.
Sys., 512 U.S. at 643. Further, plaintiffs offer
no evidence suggesting illicit motive or bias
on the part of the City or that the City banned
pole signs in general, or their pole sign in
particular, because of a desire to stifle certain
viewpoints. See City Council of Los Angeles
v. Taxpayers for Vincent, 466 U.S. 789, 804
(1984).

Id. at 1071–72 (parallel citations omitted). The plaintiffs in
G.K. Ltd. argued that ordinance’s grandfather clause rendered
it content-based because town officials would have to read
the pole sign to see if it had changed. Id. at 1078. We
rejected this argument, explaining:
26 REED V . TOWN OF GILBERT , ARIZONA

Unlike Foti’s exemptions, the grandfather
clause does not require Lake Oswego officials
to evaluate the substantive message on the
preexisting sign and the clause certainly does
not favor speech “based on the idea
expressed.” Id. at 636 n.7. A grandfather
provision requiring an officer to read a sign’s
message for no other purpose than to
determine if the text or logo has changed,
making the sign now subject to the City’s
regulations, is not content-based. See Hill v.
Colorado, 530 U.S. 703, 721 (2000) (“We
have never held, or suggested, that it is
improper to look at the content of an oral or
written statement in order to determine
whether a rule of law applies to a course of
conduct.”).

Id. at 1079 (parallel citations omitted). Under the controlling
precedent of Reed and G.K. Ltd., Good News has not shown
that the Sign Code imposes a content-based limitation.11

11
Our earlier opinions cited by Good News, City of Orange, 861 F.2d
246, and Desert Outdoor, 103 F.3d 819, are not contrary to this
conclusion. Our opinions have consistently required that the regulation of
noncommercial speech be content-neutral (some times expressed as not
content-based). See City of Orange, 861 F.2d at 249 (holding “only that
the City cannot analyze the content of outdoor noncommercial messages
to determine whether they are allowed, and if so where”); see also Desert
Outdoor, 103 F.3d at 820 (holding that the City’s ordinance “violates the
First Amendment because it regulates noncommercial speech on the basis
of content”). G.K. Ltd. and Reed similarly require that the regulation of
noncommercial speech not be content-based, but, as we have explained,
apply a more nuanced standard for making that determination.
 REED V . TOWN OF GILBERT , ARIZONA 27

C. Supreme Court Precedent Affirms our Definition
of Content Neutral.

As suggested in G.K. Ltd., our approach is in accord with
the Supreme Court’s opinion in Hill v. Colorado, 530 U.S.
703 (2000). In Hill, the plaintiffs challenged “the
constitutionality of a 1993 Colorado statute that regulates
speech-related conduct within 100 feet of the entrance to any
health care facility.” Id. at 707. In holding that the statute
was constitutional, the Supreme Court commented that it had
“never held, or suggested, that it is improper to look at the
content of an oral or written statement in order to determine
whether a rule of law applies to a course of conduct.” Id. at
721. The Court noted that the statute:

places no restrictions on – and clearly does
not prohibit – either a particular viewpoint or
any subject matter that may be discussed by a
speaker. Rather, it simply establishes a minor
place restriction on an extremely broad
category of communications with unwilling
listeners. Instead of drawing distinctions
based on the subject that the approaching
speaker may wish to address, the statute
applies equally to used car salesmen, animal
rights activists, fundraisers, environmentalists,
and missionaries.

Id. at 723. Similarly, Gilbert’s Sign Code places no
restrictions on the particular viewpoints of any person or
entity that seeks to erect a Temporary Directional Sign and
the exemption applies equally to all.
28 REED V . TOWN OF GILBERT , ARIZONA

Furthermore, in Hill, the Supreme Court explained why
a statute, which only restricted certain types of speech-related
conduct,12 is properly considered content neutral. The Court
reiterates that “[t]he principal inquiry in determining content
neutrality, in speech cases generally and in time, place, or
manner cases in particular, is whether the government has
adopted a regulation of speech because of disagreement with
the message it conveys.” Id. at 719 (quoting Ward, 491 U.S.
at 791). It then offers three reasons for why the statute is
content neutral:

First, it is not a “regulation of speech.”
Rather, it is a regulation of the places where
some speech may occur. Second, it was not
adopted “because of disagreement with the
message it conveys.” . . . Third, the State’s
interests in protecting access and privacy, and
providing the police with clear guidelines, are
unrelated to the content of the demonstrators’

12
Justice Stevens’ opinion for the court begins by stating:

At issue is the constitutionality of a 1993 Colorado
statute that regulates speech-related conduct within 100
feet of the entrance to any health care facility. The
specific section of the statute that is challenged, Colo.
Rev. Stat. § 18-9-122(3) (1999), makes it unlawful
within the regulated areas for any person to “knowingly
approach” within eight feet of another person, without
that person’s consent, “for the purpose of passing a
leaflet or handbill to, displaying a sign to, or engaging
in oral protest, education, or counseling with such other
person . . . .”

530 U.S. at 707.
 REED V . TOWN OF GILBERT , ARIZONA 29

speech. As we have repeatedly explained,
government regulation of expressive activity
is “content neutral” if it is justified without
reference to the content of regulated speech.

530 U.S. at 719–20. The Court further stated that it had
“never held, or suggested, that it is improper to look at the
content of an oral or written statement in order to determine
whether a rule of law applies to a course of conduct.” Id. at
721. The Supreme Court also distinguished its opinion in
Carey v. Brown, 447 U.S. 455 (1980), noting that the
Colorado statute “places no restrictions on – and clearly does
not prohibit – either a particular viewpoint or any subject
matter that may be discussed by a speaker.” Id. at 723.
Finally, in response to Justice Scalia’s concern that content-
based legislation can be used for invidious thought-control
purposes, the Court stated: “[b]ut a statute that restricts
certain categories of speech only lends itself to invidious use
if there is a significant number of communications, raising
the same problem that the statute was enacted to solve, that
fall outside the statute’s scope, while others fall inside.” Id.

Gilbert’s regulation of Temporary Directional Signs is
content-neutral as that term is defined by the Supreme Court
in Hill. Gilbert did not adopt its regulation of speech because
it disagreed with the message conveyed. Rather, it exempted
from the permit requirement all directional signs regardless
of their content.13 The Code is “a regulation of the places

13
An argument can be made that Gilbert’s exemption of temporary signs
from its permit requirements and limitations on such temporary signs may
be construed as disapproval of temporary signs generally. However, this
is not the type of “disagreement with the message” proscribed by the
Supreme Court in Hill, 530 U.S. at 719. Obviously, any legislation
30 REED V . TOWN OF GILBERT , ARIZONA

where some speech may occur,” and was not adopted
“because of any disagreement with the message it conveys.”
Id. at 719. Also, Gilbert’s interests in regulation temporary
signs are unrelated to the content of the sign. Moreover, there
is no danger of the regulation being used for invidious
thought-control purposes as the Sign Code does not purport
to regulate the content of Temporary Directional Signs.
Because Gilbert’s Sign Code places no restrictions on the
particular viewpoints of any person or entity that seeks to
erect a Temporary Directional Sign and the exemption applies
to all, it is content-neutral as that term has been defined by
the Supreme Court.14

regulating speech is based on a view that the speech should not be
unlimited. This does not render the legislation unconstitutional. In Hill,
the Supreme Court explained:

In this case, it is not disputed that the regulation affects
protected speech activity; the question is thus whether
it is a “reasonable restrictio[n] on the time, place, or
manner of protected speech.” Ward, 491 U.S., at 791,
109 S. Ct. 2746. Here, the comprehensiveness of the
statute is a virtue, not a vice, because it is evidence
against there being a discriminatory governmental
motive. As Justice Jackson observed, “there is no more
effective practical guaranty against arbitrary and
unreasonable government than to require that the
principles of law which officials would impose upon a
minority must be imposed generally.” Railway Express
Agency, Inc. v. New York, 336 U.S. 106, 112, 69 S. Ct.
463, 93 L. Ed. 533 (1949) (concurring opinion).

530 U.S. at 731. Here, the limitations on Temporary Directional Signs
apply equally to all organizations, regardless of their wealth or pedigree.

14
Our conclusion is consistent with the perspective of the Sixth Circuit
in Phelps-Roper v. City of Manchester, 697 F.3d 678, 683 (6th Cir. 2012)
(upholding a city regulation of picketing at funerals and burials as a
 REED V . TOWN OF GILBERT , ARIZONA 31

D. Good News has not shown that the Sign Code’s
Different Treatment of Different Types of
Noncommercial Speech is Unconstitutional.

Although it is conceivable, as the dissent posits, that
different exemptions for noncommercial speech might
improperly restrict speech, that concern is not presented here.
First, as explained, the Temporary Directional Sign
exemption is a content neutral. Second, the Temporary
Directional Sign exemption is not in competition with other
exemptions from the permit requirement. This is not a
situation where there are a limited number of billboards or
maximum number of temporary signs that may be placed in
the public right-of-way. Nor does the erection of temporary
directional signs in any way limit any other person’s rights to
erect political, ideological, or other signs. Accordingly, as
long as the Temporary Directional Signs exemption – which
is the exemption that was applied to Good News’ signs and
that Good News challenges – is content neutral and
reasonable in relationship to its purpose – providing direction
to temporary events – its constitutionality is not affected by
the fact that the exemptions for Political Signs or Ideological
Signs are different.

The cases cited by the dissent do question distinctions
among different categories of non-commercial speech, but
none concerned instances in which the types of non-
commercial speech were unrelated, and all of the cases have
been refined by more recent Supreme Court opinions. In
Police Department of Chicago v. Mosley, 408 U.S. 92, 96
(1972), the Supreme Court struck down an ordinance as

legitimate time, place, and manner regulation consistent with the First
Amendment).
32 REED V . TOWN OF GILBERT , ARIZONA

unconstitutional because it sought to distinguish between
peaceful labor picketing and other peaceful picketing.
Similarly, in Carey, 447 U.S. 455 (1980), the Supreme Court
struck down an ordinance that sought to distinguish between
picketing at a residence from picketing at a place of
employment. In Metromedia, 453 U.S. 490, the Court, in a
fractured opinion, considered an ordinance that differentiated
between commercial and non-commercial billboards, but also
suggested that the city had less leeway to distinguish between
types of non-commercial speech than between types of
commercial speech. Id. at 514–15. These cases concerned
related and competing forms of speech.15 Id. at 514–15. In
contrast, Gilbert’s Temporary Directional Signs exemption
neither restricts nor competes with a person’s or entity’s
ability to take advantage of the exemptions for political,
ideological, or other types of temporary signs.

Critically, as noted, over the last thirty years, the Supreme
Court has refined the concerns set forth in Justice White’s
plurality opinion in Metromedia. Most notably, in Hill, the
Supreme Court upheld a statute that clearly distinguished
between types of noncommercial speech. The statute
prohibited the noncommercial speech of “approaching” an
individual “for the purpose of passing a leaflet or handbill to,
displaying a sign to, or engaging in oral protest, education or
counseling with such other person.” 530 U.S. at 707. No
other form of noncommercial speech was regulated.
Nonetheless, the Supreme Court upheld the ordinance.

15
Similarly, our opinion in National Advertising, 861 F.2d 246, and
Desert Outdoor Advertising, 103 F.3d 814, held that cities could not
impose greater restrictions on non-commercial billboards than commercial
billboards and could not regulate non-commercial billboards based on
content.
 REED V . TOWN OF GILBERT , ARIZONA 33

Similarly, in Ward, the Supreme Court stated that a
“regulation that serves purposes unrelated to the content of
expression is deemed neutral, even if it has an incidental
effect on some speakers or messages but not others.”
491 U.S. at 791. Thus, the Sign Code’s different provisions
for Political, Ideological and Temporary Directional Signs is
not in itself unconstitutional.

Although Good News voices some objections to the size,
location, and duration limitations on its signs, Good News
does not assert that the restrictions actually interfere with the
purpose of the signs: providing directions to Good News’
services. Moreover, courts have generally deferred to
municipal decisions concerning the actual limitations on the
sizes and shapes of signs. See Ward, 491 U.S. at 800 (“So
long as the means chosen are not substantially broader than
necessary to achieve the government’s interest, however, the
regulation will not be invalid simply because a court
concludes that the government’s interest could be adequately
served by some less-speech-restrictive alternative.”); Foti,
146 F.3d at 641 (noting that the “restrictions on the size and
number of picket signs are reasonable legislative judgments
in light of the City’s concerns for traffic safety”); City of
Orange, 861 F.2d at 249 (“Under Metromedia, the City’s
interests in traffic safety and aesthetics are sufficient to
justify continued content-neutral regulation of the
noncommunicative aspects of billboards, such as size,
spacing and design.”).
34 REED V . TOWN OF GILBERT , ARIZONA

E. The Temporary Directional Signs Exemption is
Narrowly Tailored to Serve Significant
Governmental Interests

The Supreme Court has explained that “[c]ontent-neutral
regulations do not pose the same inherent dangers to free
expression that content-based regulations do, and thus are
subject to a less rigorous analysis, which affords the
Government latitude in designing a regulatory solution.”
Turner Broadcasting System, Inc. v. F.C.C., 520 U.S. 180,
213 (1997) (internal quotation marks and citation omitted).16
Nonetheless, a content-neutral, reasonable time, place and
manner restriction must also be narrowly tailored to serve a
significant governmental interest and leave open ample
alternative channels of communication. G.K. Ltd., 436 F.3d
at 1071.17

There is no real question that Gilbert’s interests in safety
and aesthetics are significant. See One World One Family
Now v. City & Cnty. of Honolulu, 76 F.3d 1009, 1013 (9th

16
The Court further stated, citing Ward, 491 U.S. at 799, and Turner
Broadcasting System, Inc. v. FCC, 512 U.S. 622, 662 (1994), that “[u]nder
intermediate scrutiny, the Government may employ the means of its
choosing so long as the . . . regulation promotes a substantial
governmental interest that would be achieved less effectively absent the
regulation, and does not burden substantially more speech than is
necessary to further that interest.” (internal quotation marks omitted).

17
To the extent that our opinion in Seattle Affiliate of Oct. 22nd
Coalition to Stop Police Brutality v. City of Seattle, 550 F.3d 788, 791 (9th
Cir. 2008), further requires that an ordinance not delegate overly broad
discretion to a government official, this condition is satisfied. A person
does not need any approval to erect a temporary sign. Rather, Gilbert will
only seek the removal of a sign if its size or duration violates the Sign
Code’s relatively clear time, place, and manner limitations.
 REED V . TOWN OF GILBERT , ARIZONA 35

Cir. 1996) (holding that cities have substantial interests in
protecting the aesthetic appearance of their communities and
in assuring the safe and convenient circulation on their
streets); see also Metromedia, 453 U.S. at 507–08 (“Nor can
there be substantial doubt that the twin goals that the
ordinance seeks to further – traffic safety and the appearance
of the city – are substantial governmental goals.”). Good
News argues only that such interests are not “sufficiently
compelling to satisfy a content-based sign code,” but we find
that the Sign Code does not impose any content-based
restriction.

Good News contends that the Sign Code is not narrowly
tailored because all temporary signs placed within the public
right-of-way implicate safety and aesthetic concerns, but
Temporary Directional Signs are more severely limited than
Political and Ideological Signs.

Political and Ideological Signs may infringe on Gilbert’s
interests to a greater extent than Temporary Directional
Signs, but for a number of reasons this is permissible. First,
unlike political, ideological and religious speech which are
clearly entitled to First Amendment protection, there does not
appear to be a constitutional right to an exemption for
Temporary Directional Signs. If Good News has no
constitutional right to erect Temporary Directional Signs,
how can it suffer a cognizable harm when Gilbert creates an
exemption facilitating the display of such signs?

Second, each exemption reflects a balance between
Gilbert’s interests and the constitutional interests of the type
of sign covered. With the recent amendment to the Sign
Code, there are no longer any differences as to where
temporary signs may be located. The differences as to
36 REED V . TOWN OF GILBERT , ARIZONA

duration are based on the natures of the types of speech
involved. Thus, under Arizona law political signs are
allowed for an extended period of time before an election.
Ideological signs, not being tied to any event, have no time
limit. However, the purpose of a Temporary Directional Sign
inherently contemplates a limit on duration.

Third, as noted, the exemptions are not in competition.
The exemptions are not competing for limited space and the
erection of one type of temporary sign does not preclude the
placement of another. Accordingly, each exemption may be
evaluated on its own merits.

Fourth, there is no showing that the restrictions on
Temporary Directional Signs interfere with their purpose:
directing interested individuals to temporary events. Good
News does not allege that the public cannot see its signs or
that the size limit is too small to allow it to adequately
provide directions.

Finally, as also noted, courts generally defer to a city’s
determinations of size and duration. See Ward, 491 U.S. at
800; Foti,146 F.3d at 641. Here, the restrictions on
Temporary Directional Signs are reasonable. There are no
limits on the number of events that a person or entity may
hold, and no limit on the number of signs that may be erected
(other than no more than four on any single piece of
property). Also, the 12-hour limitation seems reasonable as
a person is unlikely to seek directions to an event more than
12 hours before the event.

We conclude that these considerations refute Good News’
arguments that to be narrowly tailored restrictions on types of
noncommercial speech must be uniform or vary only to the
 REED V . TOWN OF GILBERT , ARIZONA 37

extent that the type of speech affects a town’s interests. Our
opinions in G.K. Ltd. and Reed support, if not compel, our
conclusion. In G.K. Ltd., we held a total ban on changed pole
signs was narrowly tailored because pole signs could
reasonably be perceived as aesthetically harmful and
distracting to travelers, even though this is also true of
unchanged pole signs. See 436 F.3d at 1074. In Reed, we
determined that “[t]he restrictions on time, place and manner
imposed by on the display of [signs] would indeed appear to
‘actually advance’ the aesthetic and safety interests by
limiting the size duration and proliferation of signs.”
587 F.3d at 980. Our determination in Reed that the Sign
Code is narrowly tailored, if not controlling, remains sound.

In sum, (a) Gilbert was not required to create an
exemption for Temporary Directional Signs, (b) the
restrictions on directional signs are rationally related to the
purpose of the directional signs, and (c) the restrictions are
reasonably designed to promote Gilbert’s interests in
aesthetics and safety. True, the number of temporary signs
might be substantially reduced if there were not exemptions
for political and ideological signs, but those signs raise
different legal rights and interests that Gilbert has to respect.
Moreover, there need only be a reasonable fit between the
Gilbert’s interest and the regulations. See Hill, 530 U.S. at
726 (stating that “when a content-neutral regulation does not
entirely foreclose any means of communication, it may
satisfy the tailoring requirement even though it is not the least
restrictive or least intrusive means of serving the statutory
goal”); see also Bd. of Trustees of State Univ. of N.Y. v. Fox,
492 U.S. 469, 480 (1989) (“What our decisions require is a
‘fit’ between the legislature’s ends and the means chosen to
accomplish those ends – a fit that is not necessarily perfect,
but reasonable; that represents not necessarily the single best
38 REED V . TOWN OF GILBERT , ARIZONA

disposition but one whose scope is in proportion to the
interest served.”) (internal quotation marks and citation
omitted). At least between elections, the Sign Code may well
limit the number of temporary signs in Gilbert without
unreasonably limiting anyone’s speech, and thus the Sign
Code serves significant governmental interests.

Finally, the Sign Code leaves open ample alternate means
of communication. Assuming that Good News events are
eligible for the exemption, it may erect as many temporary
signs as it wants twelve hours before each scheduled event.
The Sign Code does not regulate any of the many other ways
in which Good News can “go and make disciples of all
nations.” Indeed, there is no suggestion that Good News’
tenets require that it or its members erect temporary
directional signs. Thus, the Sign Code’s restrictions do not
require that the members of Good News violate any cardinal
principle of their faith, see Sherbert v. Verner, 374 U.S. 398,
406 (1963), and do not limit the many other ways the
members may advertise their services and attract individuals.

F. Good News’ Other Challenges do not Merit Relief

1. To prevail on its claims of violation of its members’
right to the free exercise of religion under the Constitution
and under Arizona’s Free Exercise of Religion Act, Ariz.
Rev. St. § 41-1493, Good News must show that “the
government action substantially burdens the exercise of
religious beliefs.” State v. Hardesty, 222 Ariz. 363, 366
(Ariz. 2009). Good News’ free exercise claim fails because
the Sign Code’s restrictions on the size and duration of
Temporary Directional Signs is a generally applicable law,
and it does not substantially interfere with any of Good
News’ tenets. The Supreme Court has held that religion may
 REED V . TOWN OF GILBERT , ARIZONA 39

not exempt a person from complying with neutral laws. See
Employment Div., Dep’t of Human Res. of Or. v. Smith,
494 U.S. 872, 878–79 (1990) (holding that “the right of free
exercise does not relieve an individual of the obligation to
comply with a valid and neutral law of general applicability
on the ground that the law proscribes (or prescribes) conduct
that his religion prescribes (or proscribes).” (internal
quotation marks and citation omitted)). Furthermore, while
Good News’ members may be obligated to spread their
message and advertise their events, there is no suggestion that
Good News’ tenets require that they do so in any particular
way. Accordingly, we agree with the district court that the
Sign Code’s restrictions on Temporary Directional Signs do
not constitute a substantial burden on Good News’ free
exercise rights.

2. We also agree with the district court that the Sign
Code is not vague or overbroad. The Supreme Court noted in
Ward, 491 U.S. at 794, that “perfect clarity and precise
guidance have never been required even of regulations that
restrict express activity.” Good News’ claim of vagueness is
based on an alleged lack of definitions for signs that arguably
meet the requirements of more than one temporary sign
exemption. However, Gilbert officials claim that they have
yet to see such a sign and Good News does not argue that its
signs meet the requirements of more than one exemption.18

18
M oreover, the procedures for enforcing the Sign Code respect the
rights of a speaker. If an official noted a temporary sign that fits within
two exemptions, he or she would check with the city manager and Gilbert
would presumably accord the sign the broader exemption. Thus, a
political sign with directions would be allowed the duration limit for
political signs. Similarly, a religious sign that also included directions
might qualify as an ideological sign. Good News has never asserted that
its temporary directional signs should be treated as ideological signs.
40 REED V . TOWN OF GILBERT , ARIZONA

In addition, in Reed, 587 F.3d at 974, we held that Good
News’ mounted only an as-applied challenge to the Sign
Code. This is law of the case, and is not really challenged by
Good News.

3. Good News’ assertion that the Sign Code violates its
right to equal protection of law is basically a revision of its
argument that Gilbert cannot treat different types of
noncommercial speech differently. Clothed in the garb of
equal protection the argument still is not persuasive. The
Sign Code does not make any distinctions based on religion.
Rather, the Temporary Directional Signs exemption is
available to all noncommercial entities. Because we conclude
that the Sign Code is not unconstitutional just because it
differentiates between types of noncommercial signs, Good
News’ equal protection argument depends on it establishing
a cognizable class of noncommercial entities wishing to erect
temporary directional signs to their events whose interests
may be compared to some other class. Good News has failed
to identify such entities.

G. Any Challenge Good News May Advance to the
Amended Sign Code Should Be Initially Litigated
in the District Court

Although the amendment to the Sign Code does not moot
this appeal, we need not, and do not, determine the merits of
the amendment. Unlike the situation before the Supreme
Court in Northeastern Florida, 508 U.S. 656, here the
amendment arguably increases rather than decreases the
barriers to Good News erecting temporary directional signs.
Also, unlike the holding in Northeastern Florida, we have
determined that Good News has not shown that the other
restrictions imposed by the Sign Code violate its
 REED V . TOWN OF GILBERT , ARIZONA 41

constitutional rights. However, the added restriction to the
Sign Code – that Temporary Directional Signs are only
exempt from the permit requirement if they concern events
that take place within the Town of Gilbert – is different in
nature from the time, place, and manner restrictions that
Good News previously challenged. Moreover, even if we
assume that Good News will challenge the new restriction,
we do not know what constitutional and legal arguments
Good News will present in challenging the restriction, or
what defenses Gilbert will proffer. Accordingly, any
challenge Good News may have to the amendment limiting
the Temporary Directional Sign exemption to events in the
Town of Gilbert should be raised in the first instance in the
district court. As we affirm the district court’s grant of
summary judgment for Gilbert, we leave it to the district
court to determine whether Good News may seek to amend
its existing complaint or should file a new complaint.

III

In Reed, 587 F.3d 966, and G.K. Ltd., 436 F.3d 1064, we
held that distinctions based on the speaker or the event are
permissible where there is no discrimination among similar
events or speakers. In Hill, 530 U.S. at 703, the Supreme
Court indicated that not all types of noncommercial speech
need be treated the same. See also Ward, 491 U.S. 791
(noting that a “regulation that serves purposes unrelated to the
content of expression is deemed neutral, even if it has an
incidental effect on some speakers or messages but not
others.”). Applying this case law to the Town of Gilbert’s
Sign Code’s treatment of different types of noncommercial
speech, we conclude that the treatment is content-neutral.
42 REED V . TOWN OF GILBERT , ARIZONA

That is to say, each exemption allowing for the erection of
temporary signs and its restrictions are based on objective
factors relevant to the creation of the specific exemption and
do not otherwise consider the substance of a sign. We further
conclude that the exemptions are narrowly tailored because
they serve significant governmental interests and leave open
ample alternative channels of communication. We also
conclude that the Sign Code does not violate Good News’ (or
its members’) right to the free exercise of religion or right to
equal protection of law, and is not unconstitutionally vague
or overbroad. The district court’s grant of summary judgment
in favor of the Town of Gilbert is AFFIRMED.

WATFORD, Circuit Judge, dissenting:

I agree with the majority that the post-judgment
amendments to the Town of Gilbert’s sign ordinance do not
render this appeal moot. But I disagree with the majority’s
conclusion that the sign ordinance is constitutional.

When this case first came before us, we evaluated
§ 4.402(P) of Gilbert’s sign ordinance in isolation. See Reed
v. Town of Gilbert, 587 F.3d 966, 976–79 (9th Cir. 2009)
(Reed I). That provision specifies the restrictions applicable
to “temporary directional signs relating to a qualifying
event,” such as the signs plaintiff Good News Community
Church seeks to display inviting people to attend its Sunday
morning services.1 We held that, with respect to the

1
“Temporary directional signs relating to a qualifying event” are defined
as signs “intended to direct pedestrians, motorists, and other passersby to
a ‘qualifying event.’ A ‘qualifying event’ is any assembly, gathering,
 REED V . TOWN OF GILBERT , ARIZONA 43

temporary directional signs it covers, § 4.402(P) is content-
neutral. Id. at 979. We reached that conclusion because,
considered on its own, § 4.402(P) “does not single out certain
content for differential treatment, and in enforcing the
provision an officer must merely note the content-neutral
elements of who is speaking through the sign and whether an
event is occurring.” Id.

What we did not decide in Reed I is whether § 4.402(P) is
impermissibly content-based when viewed in relation to the
other provisions of Gilbert’s sign ordinance. In particular, we
noted that the district court had not addressed plaintiffs’
argument that “the ordinance unfairly discriminates among
forms of noncommercial speech,” id. at 971, by granting
more favorable treatment to signs that Gilbert categorizes as
“political” and “ideological.” Id. at 983. We therefore
remanded the case for resolution of plaintiffs’ “First
Amendment and Equal Protection claims that the Sign Code
is unconstitutional in favoring some noncommercial speech
over other noncommercial speech.” Id.

The Fourteenth Amendment’s Equal Protection Clause
and the First Amendment’s Free Speech Clause prohibit the
government from favoring certain categories of non-
commercial speech over others based solely on the content of
the message being conveyed. See Carey v. Brown, 447 U.S.
455, 459–61 (1980); Police Dep’t of Chicago v. Mosley,
408 U.S. 92, 96 (1972). When regulating speech in a public
forum, the government may draw distinctions among
different categories of non-commercial speech only if those

activity, or meeting sponsored, arranged, or promoted by a religious,
charitable, community service, educational, or other similar non-profit
organization.”
44 REED V . TOWN OF GILBERT , ARIZONA

distinctions are justified by some non-communicative aspect
of the speech involved. See Carey, 447 U.S. at 465; Mosley,
408 U.S. at 100. For example, a State may not exempt labor
picketing from a general ban on picketing in front of homes
(enacted to protect residential privacy), unless it can show
that labor picketing is inherently less disruptive of residential
privacy than picketing on other subjects. Carey, 447 U.S. at
465. The reason is simple: Within the realm of non-
commercial speech, the government may not decide that
speech on certain subjects is more (or less) valuable—and
therefore more (or less) deserving of First Amendment
protection—than speech on other subjects. Id. at 466; see
Mosley, 408 U.S. at 96.

The Supreme Court relied on this general principle to
strike down a municipal sign ordinance in Metromedia, Inc.
v. City of San Diego, 453 U.S. 490 (1981). A plurality of the
Court invalidated San Diego’s ordinance banning most non-
commercial billboards on the ground that the ordinance
impermissibly granted exemptions for billboards bearing non-
commercial speech on favored subjects, such as political
campaign messages. Id. at 514 (plurality opinion). The
plurality held that, although cities “may distinguish between
the relative value of different categories of commercial
speech,” they do not have the same freedom in the realm of
non-commercial speech “to evaluate the strength of, or
distinguish between, various communicative interests.” Id.
(citing Carey, 447 U.S. at 462; Mosley, 408 U.S. at 96). San
Diego could not identify any non-communicative aspect of
the speech at issue to justify the distinctions it had drawn. It
failed to show, for example, that the non-commercial
billboards it banned had any greater effect on the city’s
asserted interests in promoting traffic safety and aesthetics
than the non-commercial billboards it permitted. See id. at
 REED V . TOWN OF GILBERT , ARIZONA 45

513; see also Desert Outdoor Adver., Inc. v. City of Moreno
Valley, 103 F.3d 814, 820 (9th Cir. 1996) (applying
Metromedia plurality’s holding); Nat’l Adver. Co. v. City of
Orange, 861 F.2d 246, 248–49 (9th Cir. 1988) (same).

Contrary to the majority’s suggestion, Hill v. Colorado,
530 U.S. 703 (2000), did not modify or refine the core
principle underlying Mosley, Carey, and Metromedia. The
statute at issue in Hill prohibited, within certain designated
areas, approaching within eight feet of another for the
purpose of engaging in oral protest, education, or counseling.
Id. at 707. The Court held that the statute was content-neutral
because it regulated a particular mode of communication—
approaching within eight feet of another to engage in oral
protest, education, or counseling—without regard to the
subject of the speaker’s message. Id. at 720–24. As the
Court stressed, “Instead of drawing distinctions based on the
subject that the approaching speaker may wish to address, the
statute applies equally to used car salesmen, animal rights
activists, fundraisers, environmentalists, and missionaries.”
Id. at 723. (As explained below, the ordinance at issue in this
case does draw distinctions based on the subject the speaker
wishes to address.) Thus, rather than distinguishing among
different categories of non-commercial speech based on the
message being conveyed, the Colorado statute prohibited all
non-commercial speech expressed through a particular mode
of communication—a fact that rendered Carey “easily
distinguishable.” Id.

Gilbert’s sign ordinance violates the First and Fourteenth
Amendments by drawing content-based distinctions among
different categories of non-commercial speech. The most
glaring illustration is the ordinance’s favorable treatment of
“political” and “ideological” signs relative to the treatment
46 REED V . TOWN OF GILBERT , ARIZONA

accorded the non-commercial signs plaintiffs seek to display.
Under the ordinance, plaintiffs’ temporary directional signs
may not exceed six square feet in size and may not be
displayed more than 12 hours before or one hour after the
relevant event—here, Sunday morning church services.
(Given the 9:00 a.m. start time of Good News’s church
services, this durational restriction limits the display of
plaintiffs’ signs to periods when it is virtually always dark.)
In contrast, “political” signs—defined as “[a] temporary sign
which supports candidates for office or urges action on any
other matter on the ballot of primary, general and special
elections relating to any national, state or local
election”—may be up to 32 square feet in size and may be
displayed any time prior to an election and removed within 10
days after the election. “Ideological” signs—defined as “a
sign communicating a message or ideas for non-commercial
purposes” that is not a construction, directional, political, or
garage sale sign—may be up to 20 square feet in size and are
not subject to any durational limits at all.2

Gilbert’s sign ordinance plainly favors certain categories
of non-commercial speech (political and ideological signs)
over others (signs promoting events sponsored by non-profit
organizations) based solely on the content of the message
being conveyed. These are not content-neutral “speaker” and

2
Until recently, Gilbert’s sign ordinance contained an even more
blatantly discriminatory distinction: Political and ideological signs could
be displayed in the public right of way but “temporary directional signs
relating to a qualifying event” could not. After the parties filed their briefs
in this court, Gilbert removed this restriction but replaced it with an
equally suspect one. Under the amended ordinance, “temporary
directional signs relating to a qualifying event” may not be displayed
anywhere in Gilbert unless the “qualifying event” takes place within the
town’s borders.
 REED V . TOWN OF GILBERT , ARIZONA 47

“event” based distinctions, like those we approved in G.K.
Ltd. Travel v. City of Lake Oswego, 436 F.3d 1064, 1076–78
(9th Cir. 2006), and in Reed I, 587 F.3d at 977–78, when we
reviewed § 4.402(P) standing alone. Determining whether a
particular sign will be regulated as a “political” sign as
opposed to an “ideological” sign or a “temporary directional
sign relating to a qualifying event” turns entirely on the
content of the message displayed on the sign. Cf. G.K. Ltd.,
436 F.3d at 1078 (speaker and event based distinctions were
content-neutral because they applied “without regard for the
actual substance of the message” and “regardless of
content”).

The content-based distinctions Gilbert has drawn are
impermissible unless it can identify some non-communicative
aspect of the signs at issue to justify this differential
treatment. See Metromedia, 453 U.S. at 513; Carey, 447 U.S.
at 465; Mosley, 408 U.S. at 100. Gilbert has merely offered,
as support for the sign ordinance as a whole, its interest in
enhancing traffic safety and aesthetics. Traffic safety and
aesthetics are certainly important interests. But to sustain the
distinctions it has drawn, Gilbert must explain why (for
example) a 20-square-foot sign displayed indefinitely at a
particular location poses an acceptable threat to traffic safety
and aesthetics if it bears an ideological message, but would
pose an unacceptable threat if the sign’s message instead
invited people to attend Sunday church services.

Gilbert has not offered any such explanation, and I doubt
it could come up with one if it tried. What we are left with,
then, is Gilbert’s apparent 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
48 REED V . TOWN OF GILBERT , ARIZONA

organizations. That is precisely the value judgment that the
First and Fourteenth Amendments forbid Gilbert to make.
See Metromedia, 453 U.S. at 514; Carey, 447 U.S. at 466;
Mosley, 408 U.S. at 96.

Nothing we said in Reed I is inconsistent with this
conclusion. There we held only that § 4.402(P), viewed in
isolation, is a valid content-neutral time, place, and manner
regulation. Reed I, 587 F.3d at 979–82. We did not decide,
and instead remanded for the district court to decide, whether
Gilbert’s sign ordinance draws content-based distinctions by
“favoring some noncommercial speech over other
noncommercial speech.” Id. at 983. In doing so, we
mentioned as potentially relevant National Advertising Co. v.
City of Orange, 861 F.2d 246 (9th Cir. 1988), where (we
noted in Reed I) we invalidated a municipal sign ordinance
that “made content-based distinctions among categories of
noncommercial speech.” Reed I, 587 F.3d at 982. Thus,
when we said in Reed I that § 4.402(P) “does not single out
certain content for differential treatment,” id. at 979, we
obviously did not decide whether the sign ordinance as a
whole singles out certain content for differential treatment.
Otherwise, our remand to the district court would have been
entirely unnecessary.

For the reasons given above, I would hold that the
regulatory distinctions Gilbert has drawn among different
categories of non-commercial speech are unconstitutional,
and I would remand for the district court to determine
whether those provisions of Gilbert’s sign ordinance are
severable. I respectfully dissent from the majority’s contrary
holding.