ey are a dark conduit and all the ramifications it has for our democracy and country. thank you so much for being here. back in january the supreme court heard oral argument in a case that pits a church against the town of gilbert in arizona. at issue is the extent that local governments can regulate where and how long signs are posted. good news community church and its pastor are challenging the town of gilbert arizona's different rules for political ideological and directional signs as a violation of the first amendment. >> we will hear arguments first this morning in case 13502, reid versus town of gilbert.

>> the town's code discriminates on its face by trading certain signs differently, based solely on what they say. for example, political signs may be 32 square feet, unlimited in number, and placed in the right-of-way of the entire town for five months before the election. the church's signs can only be one fifth of that size, only placed in the dark of nights the night before the church service. while the church signs with directional content are only allowed up for 14 hours other signs are allowed up for much longer. builders directional signs to home sales events are awloud up the entire weekend, homeowner's association events signs are allowed to be up for 30 days. >> what are you seeking? do you want -- whatever is the

most favorable rule say for ideological signs, is that what you want? or do you accept that it could be some limit on event sign ss? some reasonable time limit? >> we're seeking the same which in this case would be both ideological and political signs. >> ideological isn't time limited. >> but it's not allowed on the right-of-way, that's a major factor in this case political signs are allowed on the right-of-way. the treatment we're seeking is merely equal treatment under the first amendment. >> the same treatment as political signs then? >> political signs that are allowed up in the right-of-way, that's right. >> ideological signs interestingly enough are based in their own content category they're not allowed on the right-of-way, they're allowed up for an unlimited periods of time. >> are you seeking unlimited placement? >> we are not. we're seeking the same placement

that other temporary signs get. the town has freedom to regulate the amount of time the signs go up, all our argument is, is that they do it across the board and not treat signs differently based on their content. >> your argument does not turn on the fact that it's a church's sign. your argument would be the same if this was a temporary sign about where a soccer game is going to be? >> that's correct. the town puts the church's sign into a category called directional signs yet the church's sign has religious speech on it directional speech ideological speech but that's correct. it's equal treatment for that type of sign. >> can i ask about the category for political signs which is the most favorable? all the time this court says political speech is the most important speech. it gets special first amendment

protection, in a way, why aren't -- isn't the locality here basically adopting the same kind of category based understanding of political speech and its special rule and first amendment analysis that this court has articulated. >> i think this court has said for example that the religious speech also handles that category under the first amendment. the problem is, what the town does here, it's valuing speech, it's one of the problems. it's saying that political speech in this case is more valuable than an invitation to church. and so i think this court has made clear that -- >> i'm sorry, that was the significance of my prior question. what they're really saying is that political speech is more valuable than speech about where the soccer game is. i thought you indicated that your argument did not depend on the fact that the sign was a sign for the church? >> well, that's right.

it doesn't depend on that fact, i was merely referring to the facts of this case i apologize. >> don't you think political speech is more valuable than directions to the soccer game? >> maybe in some people's eyes. should the government be deciding what speech is more valuable than others? that's what it did in this case. it's said that in fact your speech is not valuable and we could completely ban it i think one of the -- >> well, let's take a sign that in all other ways is equal, except that it says no signs on residential property except properties that are being sold. so it's valued the homeowner's right to sell its property. would that be contrary to the first amendment? and if not, why is that value any different than valuing political speech. >> i think it would be. this court's case dealt with a similar circumstance, where in

that city, it banned all residential signs except for -- it banned for sale signs and allowed some residential signs there were exceptions. this court said exactly that, that the town shouldn't value different types of speeches, especially on private property, when you have homeowner's rights that also comes into play, in addition to speeches. >> what if it's commercial and it relates to a one-time event. >> look for an example a yard sale. if the state and the city allow election related signs to be put up in the right-of-way, then anybody who has a yard sale has an equal right? >> well i think commercial speech under this court's jurs prudence can be treated differently. that's one of the important things. the category here is narrow. government speech they can put up whatever signs it would like. we hear a lot in the other briefs about warning signs and other types of signs. the government is free to put up all the signs it would like without triggering this problem.

the narrow category that we're talking about is temporary signs, not permanent signs that are put up in the right-of-way that can be regulated. >> do you think directional signs is a valid category? >> the reason i don't think it is is because here the direction is part of the invitation to come and worship or come to an event. the directional part of it is in addition to the ideological speech, the invitation to come in and worship it appears to be a different category of directional. it's important to the speech of the church inviting the community in saying come worship with us and here's where we're located. what's interesting about that if the church, for example says, we're meeting now at siegier living center, that's considered to be a directional sign because the definition is a sign that's intended to invite and direct someone to your service. that would then be banned in the right-of-way. >> i guess you see the concern.

if an affluent person wants to celebrate a birthday he can put happy birthday uncle fred in as many places as a political sign and for as long. >> if the government has decided its interest is what drives this. -- if those have already been deemed to be less important than speech, i think speech should be allowed. >> your answer to the question, happy birthday fred for as long. >> that's correct. >> what about the historical marker, james madison. >> it's private. privately owned. >> i think if it's allowing private speech then we engage in the problem of valuing for example, in that case, we think that marker is more important than someone else's speech.

>> again, under your view, happy birthday uncle fred and save your sole and birth place of james madison. >> i think we have a problem with content based discrimination. >> i assume that what you say about -- >> it would, but a different category. our category is temporary signs. ours wouldn't affect permanent signs. if you had a permanent sign, i think within the permanent sign category, the answer is -- >> within the perm nantz sign category, they all have to have the same. >> i believe so. except commercial. this court i think has made clear, if you have billboards and other permanent signs that do allow commercial speech, the municipality must allow

noncommercial speech. >> what would happen if a church always meets in the same place, and it wants to put up a sign that says every sunday this is the place to go and another church moves around -- would it be the same? >> i think if we're talking about what goes on on the private property but on the right-of-way. the town has decided to allow an unlimited number of political signs up to 32 square feet for nearly the entire year there are four elections in arizona, you have political signs in an unlimited number. those signs affect the safety and aesthetics interest the same way the sign does. >> how did you create the temporary category?

what is being related here is not the content but the function of the sign how do you get around that argument? you've already created a category that requires you to read the sign. >> i don't think it does. the way the temporary sign is defined here is a sign that's intended to be constructed and permanent. as long as it's a temporary sign, it doesn't matter what the sign is a permanent sign is duration. they can be duration requirements, size requirements. >> if it's stuck in the ground with a state it can be treated one way. it seems to me you're trying to find a difficult way to deal with an issue that could be readily addressed just for the sign is a limited event.

the stake in the ground could last for three weeks every three weeks they come along and stick the stake back in the ground. you're saying the only way they can distinguish is whether there's a stake in the ground or concrete. it seems to me that doesn't answer the cities legitimate concern. >> i think what's important here. the town is already agreed, the election is an event. we have a sing egg event, that can only be up overnight. it's already made that determination. the other thing i would say is if you allow signs to be up for one single event for five months certainly there should be some way to say if we have a recurring event the signs should be allowed up at least

equal to the same time. >> to say that an election is a single event. in the same way as a football game a cookout and a basketball championship, it's -- it seems to me it's a very difficult thing for this court to have to say it's just not -- political campaign is a dynamic that goes on for some weeks, that the signs initiated discussion you can see what the religious sign does, or should initiate the same discussion of issues, certainly the same importance if not more. it seems to me you're forcing us into making a distinction that could end up allowing any sign, for birthday events for five months. >> if the streets are already

littered and unlimited number of political signs are, how serious is the town's interest to reduce clutter. you can only have one sign per block. it's hard to take the interest seriously of reducing clutter. the church's signs are event signs, are not the problem. what we have here is carte branch authority for political signs to clutter the landscape unlimited number for the entire year, and yet the concern is for a few more signs that can be placed. >> can the town say that signs relating to a one-time event have to be taken down within a period of time after that event? if it can say that, isn't that content based the way you define that contents.

>> i believe it's code 13605, what it says is all temporary signs should be treated the same period. but you have to put your date on the sign for when you put it up every temporary sign can be up for 180 days if it's tied to an event after the event is over, it needs to be down 30 days after the event our opinion is, the reason that's content neutral. the sign could be removed the important part is every sign can be up for the same amount of time, even if it is that event that's over now, that's the way you deal with these -- >> i thought you said the way you distinguish between temporary signs and permanent signs is based on the nature of the sign not what it says, that gets you over the problem just as sotomayor mentioned about having to read the sign. if there's a rule that says the sign has to be down within a

period of time after the date of the event, which is on the sign i don't see how you get around reading the sign. >> what you would be reading is the date and the code requires the date to be placed on the sign both for when the sign is placed, and for what the event is. if somebody puts up a sign for a yard sale, two days before the yard sale, that can stay up for 48 days after the yard sale? >> it has 50 days whatever the period of time is? >> yes, according to the code. >> what's interesting, that time period can be anything the town desires. it doesn't need to be -- and we're not looking for signs all year long, the town can say for example temporary signs can be up for seven days they can be a certain size. like washington, d.c., does, can you only have three signs per block, have to be spaced out. and that's part of our point. and i think one of the things to take a look at is, the brief that's been filed on behalf of the town by the national league of cities.

the reason that's brief is important, it lists dozens and -- page 10 of the brief on behalf of the national league of cities. the reason i point out this brief is we don't believe that the content neutral regulation would tie the hands of the town, because as they say, there are dozens and dozens of ways to regulate signs on a content neutral way for example and this has to do with permanent signs. >> what page is this? >> this is page 10 on the national league of cities. it says you can regulate locational criteria offsite signs, number of signs, spacing. setbacks. all my point is you look through the brief, there are a number of ways for the town to regulate signs, there's no reason to look at the content of the sign, the reason is, the content of the sign affects the

government interest of safety and aesthetics in the same way, if you have, for example, clutter, whether it's the church's sign or the political sign, it's going to clutter the roadways the same way, the way to deal with clutter it's an easy rule and the town can see the content based test that this court has used and that the majority of the circuits now use in the signed context, the first circuit, the second circuit the eighth circuit and 11th apply this test to sign codes. it's easier for the town -- >> the towns -- what about their vast areas of the country where there's scenery? and people want to keep the scenery the same? >> and they don't want signs at all? they don't want to say no signs, because someone wants to put up a sign that says geronimo is buried 50 feet away from here. if they say okay, we'll make an exception for that, does that mean that they have to have an exception for everything? and pretty soon the entire state

of wyoming is just filled with clutter? >> i wouldn't say everything but i would say content neutral categories, each person can -- >> no it's not a content neutral category. it's a category that says if you want to say geronimo is buried here, you can that will bring people to look at the grave that's it, we don't want anything else, we're trying to keep the place looking nice. that's not a city, city is filled with clutter anyway, at least most parts. what is -- i'm trying to drive it. what is your definition of content neutral. which is something i wonder since i think the entire u.s. code is filled with content distinctions. all of regulation has content distinctions. what is it presilsly in respect

to the content neutral rule that is consistent with u.s. code and the example if any that i gave? >> the definition we would propose is the same one used in the moseley case. if the restriction or the regulation looks at the subject matter, looks at -- >> try criminal code in solicitation where if you solicit for certain 24i7ks, you commit serious crimes. you solicit for certain other things, they're less serious and so forth. we all know that, how does your definition apply there? i understand the wordses, i have never been able to understand how they apply in many cases. >> only limited here to free speech questions, not criminal laws, not -- >> no, i'm sorry, there's a free speech question under criminal law. does the first amendment permit

solicitation of drugs to be punished less or more? you understand what i'm driving at? >> i do, but i am hoping for enlightenment. >> if it's a conduct related offense, we don't get into free speech. i believe this court's case is to say there are criminal laws this is in fact is a criminal law if you continue to put up your signs, could you get fined and jail time. the first amendment would apply if it's speech related. in answer to your hypothetical, there are many ways for the locality to locate those signs. if it doesn't want many signs one person can put up temporary sign, but to say you could put up a private sign because you think this one location is interest ing interesting should the zbooft be able to say, we think your location is important, but your location is not?

our response is, the government could put up the sign if it wants to make the choice about hiss doorical landmarks or other types of signs or directional types of sign ss. >> i'd like to reserve the remainder of my time for rebuttal if i may. >> thank you. >> thank you, mr. chief justice, we agree with petitioner's the law is unexceptional. those exceptions are based on the same longstanding traditional rationals that justify the sign ordinance as a hole. a wooden application of scrutiny in this context would suggest it's presumptively unconstitutional, for example

for a town to limit signs on public property, but have an exception if you want to paint your street number on your curb. that doesn't make a great deal of practical sense. it's the ordinance this court upheld without specifically addressing this particular issue in taxpayers for vincent. on a theoretical level the normal reasons for deep judicial skepticism don't apply in the context of that street address perception, danger of safety signs or other types of perceptions that attract the normal safety and nonproliferation rationales for assigned regulation those kinds of exceptions don't create any inference that the government is attempting to favor one viewpoint or another, that it's trying to limit the set of ideas that are going to come into the public marketplace, or that it doesn't truly believe in the safety and nonproliferation rationales that underline the signed regulation as a whole.

>> you know the difficulty with that. how does the government decide when there should be an exception. i understood the whole point of the strict scrutiny for content based restrictions is to find out which are the types of speech or the particular types of regulation that should be given in exception? rather than starting with, you don't apply this scrutiny there ought to be an exception? >> the main problem in this context, it sendses a signal to legislatures that they're on safer ground if they enact a broad and undifferentiated restriction on signs than if they try to taylor it only to those types of signs that cause the problems they're trying to prevent i think the way the court can manage the situation is to see whether under intermediate scrutiny there are safety or nonproliferation rationales.

to use justice sotomayor's example of the signs. they may have an ordinance that limits the number of signs you can have on your lawn to two. we're not going to count for sale signs against your quote ta of two. they're only up on a small percentage of properties at any given period of time. they go down once the sale is consummated. >> you sorted these ordinances out one by one. examine each of these exceptions, say, you know this is okay, and this isn't okay? >> i don't know that the federal judiciary is numerous enough to do that. and it's a much more simple rule that the other side presents. keep all signs the same, if clutter is the problem, they all clutter, you shouldn't allow or zs allow on the basis of the message.

>> it's a simple rule, but an extremely impractical rule let me give you another example of a town that has some sort of sign restriction. it doesn't apply that to children at play or hidden drive way ahead. if you're going to apply strict scrutiny to those kinds of exceptions, they're probably not going to pass muster unless there's a watered down restriction to the courts. >> that's the problem, you make your sign wlimts big enough that throws signs will attract attention. that's all. >> i think towns legitimately should not have to be put to the choice if they want to prevent the proliferation of signs. it would present safety problems. >> they can be as big as the town wants. we're talking about private signs here. you're saying every private

individual has to have a big sign, children at play, right? >> i don't want to resist the idea that the government can put up any signs it wants but the reason we think the government could put up the signs here is not to think the government can speak on certain topics and private citizens can't. but because of the nature signs are being put up some work has to be done here. it turns out there's a robust empirical debate about whether children at play signs or hidden drive way ahead signs actually do enhance safety. courts are going to have to make a one size fits all -- >> i'm not sure your whole approach is not precluded by our decision. a neutral law does not become content based simply because it

may disproportionately affect certain topics. and we said the question in such a case, in other words when you're dealing with a neutral law is whether the law is justified without reference to the content. so it seems to me that you have to get over the content neutrality. your argument only applies when it's content neutral. there's an exception to the content based rule. >> your honor, i think the court deal with the competing interests in this case more easily. by focusing more on the bottom line question of whether this is an appropriate case for the application of strict scrutiny or intermediate scrutiny. >> when you use those labels in the context of the first amendment, do they mean the same thing that they mean in equal protection? >> intermediate scrutiny is a

pretty tough standard. >> well, i think there are a couple of flavors of intermediate scrutiny, both under the constitution at large and the first amendment in particular. i think here we would be urging something more like a reasonable fit test which we think would give municipalities enough room to draw the kinds of distinctions that i think they reasonably should be able to make. so people can more easily find your house, and restrictions on particular types of speech that are much more likely to be motivated by disagreement with that speech. we do think that intermediate scrutiny has a fair amount of teeth in the circumstance, and we're putting our money where our mouth is, we think the particular ordinance at issue here fails intermediate scrutiny. it would give municipalities enough room to draw these kinds of distinctions, the kinds of distinctions that are drawn in the highway bought fiction act.

generally doesn't allow the ground on the sides of freeways to become a breeding ground for signs which would decrease driver safety and decrease -- >> do you think that a library could say big books are preferable to little books? and it so happens that big books are coffee books and little books tend to be political. we're going to put all the big books on the main floor? is that a distinction that the first amendment permits? >> i think the court may be reasonably skeptical of that kind of distinction signs present particular first amendment problems that the court had to grapple with one

distinct problem with signs is that it's very difficult for legislatures to taylor sign regulations and describe types of signs that it doesn't think it needs to regulate to advance its interests, there by allowing more speech. without describing those types of signs -- that's what makes sign regulation very difficult and some sort of context specific rule in this circumstance would be appropriate. >> i don't see why you say, but why is it true? just make whatever the sign requirement is big enough that any private signs that need to get people's attention will get people's attention. >> and what do you say about signs, i assume applies to noise as well, right? if the city has a noise ordinance, it can distinguish between noises for various purposes a political sound truck before an election can be given a higher allowance.

and i don't know, a street evangelist given a lower allowance? >> i don't think that would be permissible permissible, your honor. the types of exceptions we're talking about, the only types we think should be subject to intermediate scrutiny are ones that attract the sign ordinance as a whole. if the city is advancing political speech or ideological speeches, we think that would be subject to scrutiny. >> mr. chief justice may it please the court. >> the problem with this case, we believe it will have the opposite effect. it will limit speech because towns, cities will enact one size fits all, in order to do that, as petitioner's council

indicated. there need to be limitations on the number of signs, duration of signs. they would have to be large enough to accommodate the largest message that needs to be communicated. and in order to pass strict scrutiny, the legislatures in these cities and towns would be inclined to ban all signs except those that the first amendment absolutely allows. >> you can make that argument in all kinds of context. i don't know where it gets you. suppose the question is whether the town is going to allow anybody to speak in a park. and the town council says, we would like to have people be able to speak on subjects that we like. but there's some subjects we really don't like, we don't want people to speak on those so we have the choice, we allow everybody to speak or we allow nobody to speak. you can make exactly that same argument and lots of other

contexts, where i don't think the distinction could be justified. isn't that right? >> i think there's a difference justice alito in signs as opposed to speech. because signs do take up physical space. they displace other uses of land. and they perform different functions. one thing that we would like to emphasize in this case is that the temporary directional sign provision is limited to guide travelers along a route from point a to point b, if they have expressive content on them, then they are no longer a directional sign, but are then an expressive sign and there's a different provision that applies for that. >> the sign here said we welcome you to attend our church service. and then it says on the bottom,

meeting place and it specifies the meeting place. the message is, we welcome you to attend our service. that's ideological? >> that would not be a directional sign, it's not directing travelers along a route. >> it says also welcome you to attend a church service, it will be held at -- so it's giving the direction, but it's also expressing the message that everyone is welcome to come worship. >> i believe the way that this code has been interpreted is that that would not be a directional sign, it's not saying turn right turn left, go straight a few miles. it's not giving directions about how to get there. i believe that type of sign would be permitted in -- under this ordinance as an ideological sign or not be limited to the terms of the temporary -- >> could i ask what your

justification is for these specially generous positions on the ideological signs? why do you have these very generous rules for ideological signs as compared to others? >> well, specifically on the ideological signs is to protect the first amendment right of anyone to speak on any topic at any time. the difference in the -- >> so you're not even purporting to have a content neutral justification for this? you're essentially saying, yes, we generally dislike clutter, but we're willing to make exceptions for clutter for speech that we think has special first amendment significance? >> that would not be our position. it's not content based in a constitutional sense for purposes of applying strict scrutiny, that the distinction is permissible here, without relation to the content or in terms of favoring or censoring

certain viewpoints or ideas. >> viewpoint discrimination is quite different from content discrimination. and you're trying to reduce our rules against discriminating on the basis of content to a rule against viewpoint discrimination discrimination. >> i mean, ideological signs that is a content skat goree. there's as much right to give someone directions as there is to speak about being green or whatever else. is there no first amendment right to give somebody directions? >> we would say that the -- they perform different functions. and certainly -- >> they sure do. is there a first amendment right for these other messages or not? >> i think they would have a right to speak. and i think they do have that right to speak, and intermediate scrutiny applies to regulations

about how speech can be communicated as opposed to what can be communicated. >> you did say in your brief that the first amendment does not require directional signs? so they could be banned all together? >> i think if it's narrowly tailored and meets the scrutiny test in a particular jurisdiction -- >> that's a lot of words. i'm giving you an example. the law says no directional signs. that's the law. is that -- does that offend the first amendment? >> i think that -- when you say the first amendment, i think you would have to apply the scrutiny analysis and our position is that it could survive that analysis. if i could return to justice kagan's question about the interests that are served. it's different. a directional sign there needs

to be more than, in order to direct travelers along a route, so that justifies a -- perhaps a smaller size there's no contention in the record in fact the court of appeals found that the function as intended. as far as the duration is concerned, there's no travelers going to an event that is not presently occurring, in fact, the town of gilbert expanded the time frame from two hours to 12 hours, and i -- our question is, whether or not that's something that implicates first amendment jurisprudence. >> suppose we're talking about the context of signs. let's look to the push. of forbidding -- for any prohibition. i guess it has to do with safety or bought fiction. >> yes. >> first question would be, is there some category that you don't allow to put up signs.

>> no. everybody can put up signs. so what about applying strict scrutiny to that. if you're going to extinguish on the basis of what the sign says, you have to have an awfully good reason. if your decision is you can't put one up at all. >> you put them up. you have all kind of distinctions how how long et cetera. now, with respect to that maybe you should have more leeway. leeway depending on the purpose of the sign so if for example it's about an open air municipal movie, you can say put up signs about movies. you could have more leeway there. you flunk even that test here, because there isn't really a

good reason at all in this case for making the sign smaller, or for putting it there for such a short time. how do you react? there are three parts very tough if you say you can't put it up at all. sometimes strict. two, somewhat more lenient if it gets up but you're trying to distinguish among how and under what circumstances, how long. and then three do you even satisfy that one? that's called time, place and manner. >> yes well with respect to the first one, the interest most of the times in sign ordinance regulations, as you indicated is aesthetics and safety, with respect to aesthetics don't believe that that would meet the definition of a compelling interest so that it's

automatically presumptively and inclusively unconstitutional if the strict scrutiny is applied and there's no compelling interest. with respect to the interests at stake here, we again believe that directional signs are functionally different from an ideological sign or even a political sign. that the directional signs do not need to be larger, and also that there are more of them. if there are more of them, the tradeoff is at least the legislature in this town has decided the trade off is, they need to be smaller. they need to guide travelers along the root. >> political signs are there almost all year, on the rights of way. you talk about clutter. what did somebody doesn't like politics? he says politics is spinach, i want ideology. i would like ideological signs

on the right-of-way. you say, i'm sorry, you're wrong, we think politics is more important, because we're politicians. and we're on the city council. >> i have two responses to that justice scalia. there is a statute in arizona that this ordinance complies with, in terms of the placement the duration and the size of the political signs. the town doesn't have any leeway in that, because it needs to comply with the statute. >> is the state statute of the same size and duration the state statute says you have to allow political signs does it specify the size and duration. >> yes it does. you're saying the town ordinance just mirrors the state? >> yes, it does. and do you have that state law? >> i do it's section 16-10-19.

>> your defense to a first amendment complaint is what? the state made me do it? >> well our defense -- in part yes, because we need to comply with the statute, and it doesn't make sense that as a result, all signs need to be -- meet those provisions for purposes of preserving beauty reducing clutter, so on and so forth. >> it makes a lot of sense if you believe in the first amendment. if you believe that neither the state nor city is entitled to say politics is really important. as opposed to music. >> the other consideration here justice scalia is that we're talking about public property. and one of the issues that has not been developed certainly in the record in this court, is the extent to which the

government can select subject matter for what is a nontraditional public forum. so there are issues as well, that would need to be developed further before any application of scrutiny. we say could be continued on -- if the court were to find problems in the ninth circuit's scrutiny. and i think there would still be some issues on location that would need to be developed on the public forum. >> you say there's three -- it's not a traditional public forum? >> that is the -- certainly gilbert's position. it was something that was argued in the ninth circuit the ninth circuit did not resolve that issue. but i believe that would be a question of arizona law. but again we have not developed that. that issue has not been developed in this -- at this -- in this court and i think the

reason is, because the issue in this court is weather or not strict scrutiny applies. >> how do you justify the differing treatments of petitioner's sign on the one hand. and weekend builder event signs and the homeowner association signs. homeowner association signs can be 80 square feet. and the petitioner's sign can be six square feet. >> the homeowner's signs are not really directional signs because they can only be within the residential community. they're not directing travelers off site in a generic sense to a location. there's also a permit requirement, and the other thing is about the 80 square feet that's total sign area, that's not one sign, that's the total sign area you can have. >> has anyone ever been denied one of those permits? >> i don't know the answer to that question.

>> suppose the petitioner's want to put up a sign that says we're having a church service at 10:00 on sunday morning under your code, when can they put that up? and when do they have to take it down? >> they can put it up 12 hours before, so that would be 10:00 p.m., and they need to take it down i believe it's an hour afterwards. >> they can put it up after dark on saturday, and they have to take it down within an hour of the commencement of the service? >> the end of the event. >> do you think that really gives them an opportunity to invite people to come to their service? >> the purpose of the signs is not supposed to be invitational. it's supposed to be directional. if the event was occurring at 10:00 at night or 6:00 in the evening, it could be up during the day. if the event occurs all weekend long, it could be up all weekend long. it's tied to the event. so in that sense it absolutely

serves it's purpose for having the 12 hours before, if they want to invite members of the public to the service, they can and do have many other opportunities and alternatives including science, including the ideological sign that they can use. >> they could put up an ideological sign that says, come to our service on sunday morning, but no arrow? and they they put up another sign that says this is the arrow? or they put up the first sign cam to ash service on sunday morning, we can't tell you now where it will be because the town won't let us, but if you drive by here tomorrow morning at a certain time you will see an arrow. >> the sign could say, your honor, where it is taking place but if it's intending to guide travelers to that location, then it would need to comply with the

provisions, and -- >> what is the guidance? i'm look inging at the signs on 3 -- it just has an arrow, and it says the name of the elementary school and then it has -- it looks like a telephone number and an arrow. the arrow is the direction? >> this doesn't. >> this is not as you described earlier turn left on main street turn right on front street. >> it is the same function as that. we would say -- >> what is this about, this argument? i mean, you agree, they could put up a big sign, can they put up a big sign saying, come to the church service, next tuesday, 4th and h streets, three blocks right and two blocks left? or are you saying they can't say three blocks right and two blocks left? that's what this argument is about? >> that's what it comes down to.

>> my goodness. why -- i mean, on that, it does sound as if the town's being a little unreasonable, doesn't the it? >> well, we would say that the sign has an -- this court has termed an incidental effect on the expression of the petitioners that certainly they can have the ideological sign. suppose we said this. the argument of this nature where, in fact, there are -- you can have a big sign and have everything on it and the purpose of the sign is, in fact, to tell people both what's happening and where there is no good under any test. >> your honor, our response to that, your honor, is the directional signs in order to work need to guide travelers along a route so there's going to be a whole lot of these signs

in order for them to function as intended. thinking about having a whole bunch of these signs over a long distance then i think then -- >> does the good news church have a number of signs? just this illustration, how many signs do they have? >> i believe the number's 15, but i'm not 100% sure by that, your honor. i know that they have quite a few. >> can you see that car -- can you see that sign at all when you pass? >> i'm sorry, your honor? >> can you see the sign at all when you pass in a moving car? >> yes. in fact, the court of appeals has found that it functions as intended, and there's no indication that it did not.

so it seems to me that those are the kind of decisions as far as size, duration are ones that should be the fodder of legislative deliberation. and as long as it meets the intermediate scrutiny test, it should -- >> whatever that is. whatever that is. right? >> well the intermediate scrutiny test, i think is if it's narrowly tailored and also if there are alternative modes of communication. but i think that applying strict scrutiny to these types of regulations will result in sign ordinances being struck down uniformly, just about and the only speech that will be allowed will be speech that is constitutionally required. everything else will not be. i think the problem, if there is one, that gilbert had gotten into is that it allows a lot of speech that a lot of other ordinances might not and a lot of different formats. >> just, again, if i could

understand, let's even assume that intermediate scrutiny applies and just focusing on this special provision for ideological speech which allows very large signs to stay up as long as possible. and you would say we're making that exception if you will, to the general rule that there shouldn't be clutter and there shouldn't be a lot of these signs because why? >> because directional signs -- >> no no no. i just asked you for the exemption for ideological signs for the specially generous provision for ideological signs. why do ideological signs get such generous treatment? >> because to protect the first amendment right to speak. >> okay. so that is a content-based rationale. and, you know on one theory, you lose regardless of what the standard of review is. >> if the -- >> you're not justifying it on the grounds of safety or on the grounds of clutter.

you're saying this is a special kind of speech that we think there ought to be more of. >> with respect to the ideological sign? >> yeah. >> yeah the purpose of that is it is content neutral in terms of anything can be on that sign. >> no, so that goes back to what justice scalia said. it's viewpoint neutral, but, you know, it's content based. and maybe you're just saying that we've run amok on this content-based distinction. there would be an argument there. i mean, it is content-based to say what's ideology and what's not. >> and i would agree that that's what we're arguing, your honor. what we're saying is that the first amendment guards against the abridgement of speech. and having a rigid content definition to be the on/off switch for whether constrict scrutiny or intermediate scrutiny applies is not workable does not achieve common-sense results.

it handicaps the legislatures and their ability to be flexible. >> maybe you think that, but the guy who doesn't like politics and likes ideology doesn't think that. >> well -- >> so we're supposed to sit here and say oh, political speech is the most valuable, and then you can allow that. but ideological speech comes in a close second. and then what? then directional speech or whatever else? i don't want to do that. i don't think you should want any governmental official even a judge to do stuff like that. >> your honor, i think for purposes of ruling in this case, i think the question is whether or not the temporary directional sign is subject to -- is content based in a constitutional sense such that it would be subject to strict scrutiny. we believe that that would be improper. we think that it would be

against the jurisprudence. >> content based in a constitutional sense as opposed to content based in a nonconstitutional sense. >> whether it puts the finger on the scale of ideas or viewpoints. whether the substance of it -- >> that's viewpoint. it's not content based. >> well, whether it favors or censors -- >> you want to eliminate content base as the criteria and make it viewpoint based? >> no your honor, that is not what we're advocating. what we're advocating is that if an ordinance does not -- if an ordinance addresses the function of the sign as opposed to the particular ideas or even the subject matter then it would not be content based for purposes of -- >> is there a difference between the function of the sign and the content of the sign? >> yes, your honor. >> i frankly can't grasp that. what is it? doesn't its function depend upon

its content? >> in a little old sense yes. >> what sense are we talking here? poetic? >> no. we think that there needs to be a nuance as the federal government has indicated so that it guides -- the content test is a guide for courts to determine which level of scrutiny applies. and at some level if content is the on/off switch, then such distinctions as temporary and permanent, commercial and noncommercial, even on site and off site are going to be content, and we don't believe that that in and of itself justifies strict scrutiny. thank you, your honor. >> thank you mr. counsel. mr. corbin, you have four minutes remaining. >> thank you, mr. chief justice. just a few quick points in response, if i may. clarification point on the state statute. first of all, when this case began, the state statute was not in effect, and political signs

were actually allowed up for longer than the period of time when the state statute was enacted, it actually lessened that time. so it's not the state's doing that the town decided to allow political signs in its right-of-way. but even with the state statute if the state has decided that its interest in free speech and political signs outweighs the interest in safety and aesthetics, then the town should basically adopt an ordinance that abides about i that ss by that and that's to treat it as a constitutional floor. if the state has decided that we're going to allow political signs up for that period of time, and by the way, the statute doesn't mention other signs, so it's not a restriction like this town code is. all it says is is we've deemed it important enough for political signs to be up for 60 days -- >> just dismissive for political. >> that's correct. the response by the town is okay, if that's the case and the state has decided that political signs outweigh our interest in

safety and aesthetics the way we deal with that is treating other similar signs the same. i think a couple other points the noise ordinance is a perfect example, whether it's the side case or the covax case, this ordinance would be akin to allowing, for example, political speech to be much louder in decibels and for longer periods of time. and someone on the street corner inviting someone to church must be quieter for less periods of time. and quickly if i may address the safety and beatification interests. they are certainly important interests. but as this court said several times in kerry versus brown, example, and discovery network the distinctions the content-based distinctions in the code bear no relationship to the government interest. the distinctions don't advance those interests. and as to being underinclusive, i think it's similar to what this court found in discovery network. when there the town wanted to prohibit 62 news racks and then allow 1500 to 2,000 news racks

to remain this court said that was underinclusive and would fail just on that. here the town is allowing an unlimited number of political signs, but then prohibiting just a few other signs. thank you. >> thank you, counsel. the case is submitted. >> you're watching a special presentation of american history tv in primetime. c-span3 features 48 hours of american history tv every weekend beginning saturdays at 8:00 a.m. eastern. the korean war veterans digital memorial is an online archive of the memories and experiences of the soldiers who fought what is sometimes called the forgotten war. along with digital images of the photographs and artifacts donated by veterans, the archive includes a collection of oral history interviews that provide eyewitness accounts of the korean war. up next a brief conversation from 2013 about the korean war veterans digital memorial with its president.