Mirror of Justice

A blog dedicated to the development of Catholic legal theory.
Affiliated with the Program on Church, State & Society at Notre Dame Law School.

Tuesday, September 23, 2014

Church Signs, Content Discrimination, and Freedom of Assembly: Amicus Brief from CLS and the St. Thomas Religious Liberty Clinic

The Supreme Court this term is hearing Reed v. Town of Gilbert, a church's challenge to a town ordinance that imposes widely varying size and duration requirements on temporary signs with different messages and subject matters. "Political signs" (those supporting candidates or ballot measures) and "ideological signs" (those that simply communicate a noncommercial message) can be much larger and stay up much longer than "temporary directional signs for qualifying events," which announce an event (other than a political one!) and give directions to it. Officials classified Good News Church's signs for its weekly Sunday worship services (held in rented public-school rooms) into this last category. The signs thus could not be placed until 12 hours before the services and had to be removed within one hour afterward.

The UST Law Religious Liberty Appellate Clinic, which I direct, wrote an amicus brief for the Christian Legal Society and several other groups supporting the church's challenge. We argue that the sign ordinance is content-based (discriminating based on the subject matter of the signs) and thus subject to strict scrutiny; we support the plaintiffs' argument that the content-discrimination category applies here even if the town was not shown to be motivated by disagreement with the message of disfavored signs.

We also argue that the disfavored treatment of signs that announce and give information about a noncommercial event conflicts not only with freedom of speech, but with the distinct First Amendment right of freedom of assembly.  This may call to mind for readers John Inazu's important recent book, Liberty's Refuge: The Forgotten Freedom of Assembly, and we rely significantly on the book in this section. We think that the denigration of the value of event announcements in this ordinance really frames nicely John's point that assembly should not be reduced merely to speech (or the other doctrine, lacking an explicit textual pedigree, of "intimate or expressive association"). Here's a bit from that section of the brief:

The Court of Appeals’ holding that speech announcing events has little or no constitutional protection is gravely detrimental to the distinct First Amendment right of freedom of assembly. Because the people have the right not just to speak, but “peaceably to assemble,” U.S. Const. amend. I, messages announcing events and directing people to them cannot be relegated to inferior constitutional status. Substantial restrictions on meeting announcements and directions can severely hamper the practical ability of groups to assemble...

This Court has made clear that the “right of peaceable assembly is a right cognate to those of free speech and free press and is equally fundamental.” De Jonge v. Oregon, 299 U.S. 353, 364 (1937).... Accordingly, the interpretation of free speech principles must give weight to the distinct but related right of assembly.

The press release from CLS is here. Thanks to clinic student (3L) Michael Blissenbach, who did a fine job in contributing to the drafting of the brief. And of course thanks to Kim Colby of CLS, who as many readers may know is one of the nation's very best religious liberty lawyers.


Berg, Thomas | Permalink