we wants to be kept in the information loop. i think that is a very interesting idea. without objection, i would say that all members without five legislative days to submit written questions to the witness. we wish the witness to respond as quickly as possible. we appreciate your attendance here today. we want to thank mr. davis, and all of the employees, some of whom are here today. you have a tremendous group of dedicated and -- individuals. we appreciate their service as well. without objection, the hearing is adjourned.

[indiscernible] >> this week on newsmakers, the supreme court issued its ruling on the affordable care act. senator bill cassidy, who is also a medical doctor, talked about the health care law, and other health care issues. he also talks about energy, climate change, and politics. >> c-span gives you the best access to congress. live coverage of the u.s. house

and news conferences. bringing you events that shape public policy. every morning, washington journal is live with policymakers, and journalists and your comments. c-span, created by america's cable companies, and brought to you as a public service. >> on thursday, the supreme court ruled unanimously that the town of gilbert, arizona justices sided with the good news community church. this is an hour. >> we believe your argument this morning.

>> the church's science can only be 1/5 of that size. and only placed in the dark of night. while the church's signs are only allowed upper 14 hours, other signs with directional content are allowed up for much longer. home signs are allowed to be up the entire weekend. the homeowners associations of signs are allowed to be up for 30 days. >> do you want whatever is the most favorable rule? is that what you want? do you except there could be some limits.

>> we're seeing the same as the favorable signs. it is not allowed on the right of way. political signs are allowed on the right-of-way. the treatment we are seeking is equal treatment. >> the same treatment as political signs? >> that is right. they are not allowed on the right-of-way. >> are you seeking unlimited placement? in fact, >> the town here is able to regulate how many signs go up. they do it across the board.

we don't want to do treat signs differently based on their content. >> your argument does not turn on the fact that it is the church's sign. >> that is right. the church's sign adds additional components to it. for example, the town but the church assigned on a category called a directional sign. the church assigned has features -- religious features on it. it has ideological speech. >> can i ask about the category for political signs? all of the time, this court says that political speech is the most valued kind of speech. it gives special first amendment protection. in a way is in the same kind of category based on understanding of political speech?

this court has very frequent the articulated up. >> i think this court has also said that religious speech also handles that category. the problem is, what the town does here is valuing speech. it is saying that political speech is more valuable than an invitation to church. i think this court has made it clear -- >> that was the significance of my prior question. they're really saying political speech is more valuable. in other words, i thought you indicated that your argument did not depend on that. >> it does not depend on that. i was milley alluding -- >> not you think political speech is more important than directions to the soccer game?

>> a be to some people's eyes. but should the government be deciding that? your speech is not valuable, we could completely and it. >> let's take a sign that in all other ways is equal. except it says no signs on residential properties except properties that are being sold. it is valued the homeowners right to sell its property. would that be contrary to the first amendment? if not, why is that value any different? >> i think it would be. the court case also dealt with a similar circumstance. it banned all residential signs except -- it banned "for sale"

signs. you have homeowners rights that also comes in the play in addition -- >> what if it relates to a one-time band? for example, a yard sale? if the state, and the city allow election-related signs to be put up, and anyone who has the archuleta equal right? i think -- has equal right? >> think of but any signs that they want. it triggers no problem under the first amendment. the government is free to put up all the sides it would like. commercial speech is also in a differ category we are talking about is nonpermanent signs that are put up in the right-of-way that can be regulated. >> do you think directional

signs is a different category? >> the direction is part of the invitation to come and worship. the directional part of it is in addition to the ideological speech. although it appears to be a different category, it is important to the speech of the church to invite the community can. what is interesting, if the church says we are moving to a senior living center, that is considered to be a directional sign. it is intended to invite someone to your service. that would be banned. >> i guess you see the concern. if the nafta would person wants to celebrate -- if an affluent person wants to celebrate a birthday. >> one of the issues is, if the

government has decided its interest, which is what drives this if those have already been deemed to be less important than speech, then i think speech should be allowed. >> happy birthday uncle fred can have as many signs is a political campaign? what about historical markers? like the birthplace of james madison? it is private. >> if it is allowing private speech we would engage in the problem of evaluating that. we think that marker is more important than someone else's speech. >> under your view, happy birthday uncle fred and save your soul, and the purpose of james madison can all be up for

the same length of time. >>same size. >> otherwise would have a problem with content-based dissemination. >> what about permanent signs? >> it would apply, but in a different category. hours would not affect permanent signs. if you had a permanent sign, the answer is no. >> in the permanent sign category they all have to have the same -- >> most of the permanent signs are commercial signs. this is what is made clear. if you have billboards and other signs that do about noncommercial speech -- commercial speech, then they must allow other kinds of speech. >> what would happen if the church has this, 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, so it wants to put up a temporary sign. do they have to be treated the same? >> i think they would. if we're talking about the category of what goes on public property, what goes on the right-of-way. on their own property is a different question. but here the town has already decided the allow an unlimited number of political signs up to 32 square feet for nearly the entire year. there are four elections in arizona. so with this time limit of five months, you have political signs in an unlimited number. and those signs affect the safety and aesthetic interest the same way as the church's sign does, the same way as an invitation -- >> how do you create your

temporary category without reading the sign? and sos there is some force -- and so there is some force to the counterargument that what is being willinglated here is not the -- regulated here is not the content, but the funk of the sign. -- but the function of the sign. so how do you get around that argument? >> because -- >> you've already created a category that requires you to read the sign. >> i don't think it does. and the reason the way the temporary sign is defined here is merely a sign that's boast intended and constructed -- both intended and constructed not to be permanent. that's why we think that category is content neutral. as long as it's a temporary sign, it doesn't matter what the sign says. there can be duration requirements, size requirements,

location requirements, that the government -- >> so your point is if it's stuck in the ground with a little stake, then it can be treated one way, but if it's in concrete -- >> that's right. >> but seems to me you're trying to find, i don't know, a difficult way to deal with an issue that could be readily addressed just by seeing if the sign is for a limited event. in other words, what if somebody every time -- you know, the stake in the ground basically could last for three weeks. so every three weeks they come along and stick the stake back in the ground. you're saying the only way they can distinguish is by look at whether it has a stake in the ground or whether it's in concrete, and yet it seems to me that doesn't help, that doesn't answer the city's legitimate concern. >> but i think what's important here is that the city, the town's already agreed that an

election is an event. and so we have an election that's an event, but yet that single event sign can be up for five months, and yet we have an event where that single event can only be up overnight. it's already made that determination when it allows this type of signs for what i think is a comparable use, a single event to a single event. 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 as we do here, at least equal to the same time. >> well, i mean, to say that an election is a single event in the same way as a football game a cookout, 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 -- a political campaign is a dynamic that goes on for some weeks that the signs initiate a discussion. i can see you can say the religious sign does or at least should initiate the same discussion on issues that are certainly of the same importance if not more -- >> certainly. >> but it seems to me you're forcing us into making a very wooden distinction in a proliferation of signs for birthday parties, for every conceivable event that could be up for five months. >> but i think the problem is there already is that here because we have an unlimited number of political signs. if the streets are already littered, which they are, then how serious is the town's

interest to reduce clutter? and i think that's the problem. for example, many different ways. you can only have one sign per block, five signs total. it could only be a certain size. but it's hard to take the interest seriously of reduce thing clutter when it allowed political signs to clutter the entire town in an unlimited number for the entire year. the church's signs and event signs are not the problem. what we have here is carte blanche authority for political signs to clutter the landscape unlimited in number for the spire year, and yet the concern is for maybe a but more signs that may be placed. >> and the town say that signs relating to a one-time event, an election or anything else that occurs on a particular date have to be taken down within a period of time after that event, and if it can say that, isn't that content based the way you define that cop sent? >> i don't believe it is, and, in fact, the washington, d.c. municipal regulations have that same code, and it's one we could recommend, 13605, and what it says is all temporary signs should be treated the same period. 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 done 30 days after the event. i think -- our opinion is the reason that's content neutral is whenever something is over, if your store is closed, the event is done, then the sign can be removed. but the important part is every sign can be up for that amount of time even if the event is over -- >> i thought the way you distinguish between temporary signs and permanent signs is based on the nature of the sign, not what it says. so that gets you over the problem justice sotomayor mentioned about having to read the sign. but if there's a rule that the sign has to be down within a certain period of time, i don't see how you get around reading the sign. >> well, what you would be reading would be the date, and the code requires the date to be placed on the sign both for when the sign is placed and for, you know, for what the event is.

but i think -- >> so if somebody puts up a sign for a yard sale two days up for the yard sale, that can stay up for 48 days after the yard sale? it has 50 days or whatever the period of time is? >> yes, according to the code. but what's interesting, that time period can be anything the town deciphers. 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, you can 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 am key brief that's been filed on behalf of the town by the national league of cities. on page 10 and 14, it lists

dozens -- >> [inaudible] >> page 10 on behalf to the -- on behalf of the national league of cities, and the reason i point that out is we don't believe this would tie the hands of the towns because there are dozens and dozens of ways to regulate signs on a content-neutral -- >> what page is this? >> this is page 10 on the national league of cities amickey brief. spacing, placement criteria, ground sign, projx signs. and my point is if you look through their brief, there are innumerable ways for the court -- excuse me, for the town to regulate signs. there's no reason to look at the content of the sign. and 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 a political sign, it's going to clutter the roadways the same way. so the way to deal with clutter is an easy rule and, in fact even the town can see that the content-based test this court has used and that the majority of the circuits now use in the sign context -- the 2nd, the 8th and the 11th, applied this test to to sign codes. and they say it's actually easier for the towns -- >> what about the vast lawyers of the country where there's scenery? and people want to keep the scenery the same? and they don't want signs at all? but they don't want to say no signs because someone wants to put up a sign that says jer -- geronimo is buried 50 feet away from here. they say, ok, we'll make an exception for that, does that mean they have to make an

exception for everything, and pretty soon the entire state of wyoming is filled with clutter? >> i wouldn't say everything but they could say, for example -- >> no, no, it's not a content-neutral category. what it is is it is a category that says if you want to say geronimo is buried here, you can. because that will bring people to look at the grave. and that's it. we don't want anything else. we're trying to keep the place looking nice. that's not a city. cities are filled with clutter anyway. at least most parts. but that's -- so what is -- i'm trying to drive at what is your definition of content neutral? which is something that i wonder. >> uh-huh. >> since i think the entire u.s. code is filled with content distinctions. all of crime is filled with content distinctions. all of regulation has content distinctions. so what is it precisely in respect to the content neutral rule that is consistent with the u.s. code and is consistent with the example, be any, that i gave? -- if any, that i gave?

>> the definition we would propose is the same one this court has used since the mosley case about what is content based, and that is the restriction or the regulation looks at the subject matter -- >> try criminal code and solicitation where if you solicit for certain things, you commit serious crimes, and if you solicit for certain other things, they're less serious and so forth. we all know that. how does your definition apply there or how does it apply -- i'm confused. i understand the words -- >> right. >> but i just have never been able to understand how they apply in -- [inaudible] >> only limited here to free speech questions, not criminal

laws -- >> 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. >> the u.s. code. >> i do. >> what i want and am hoping for is enlightenment. [laughter] >> if it's a conduct-related offense, we don't get into free speech. i believe this court's cases say, for example, there are cases where there are criminal laws, this, in fact, is a criminal law if you continue to put up your signs, you could actually get signed and jail time -- get fined and jail time. i think there are many ways for the local i the regulate those signs. for example, if it doesn't want many signs, it can say one person can put up temporary sign or permanent sign or whatever have you. but to say, for example, you can put up a private sign because you think one location is interesting, what if another person has a location they want people to come visit? should the government be able to say we think your location is important, but your location is not? and our response is the government can put up that sign if it wants to make that choice about historical landmarks or directional types of signs. i'd like to leave the remainder

of time for rebuttal, if i may. >> thank you, mr. cortman. mr. pagan? >> thank you, mr. chief justice, and may it please the court, we agree with petitioners that respondent's ordnance here is unconstitutional, but we think that the context-specific, intermediate speech should apply in exceptions to a sign ordnance where those exceptions are based on the same longstanding traditional rationales that justify the sign ordnance as a

whole. a wooden application of strict scrutiny in this context would suggest that 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. now, that doesn't make a great deal of practical sense, and that's not an example i just made up. that's essentially the ordnance this court upheld, albeit without addressing this particular issue, in taxpayers for vin sent. on a three -- vincent. on a theoretical level, the normal reasons for deep judicial skepticism of exceptions to a regulation of speech don't apply in the context of that street address exception, exceptions for danger or safety signs or other types of exceptions that track the normal safety and non-proliferation rationales for a sign 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 non-proliferation rationales that underlie the sign regulation as a whole. >> well, i mean, you obviously know the difficulty with that which is how does the government decide when this should be an exception, how does the court decide when there should be and shouldn't be? 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 an exception. rather than starting with saying, well, you don't apply

this scrutiny because there ought to be an exception. >> well, i think the main problem of strict scrutiny is it sends a signal to legislatures that they're on safer ground if they enact a broad and undifferentiated restriction of signs than if they try to tailor it to those types of signs that cause the problems they're trying to prevent. and i think the way the court can manage the situation is to see whether under intermediate scrutiny there really are safety or non-proliferation rationales that track on to whatever exception is being drawn. for example, justice sotomayor's exception of the for sale signs. a town might have an ordnance that limits the number of signs you can have on your lawn to two, two signs of any type. but it might also say we're not going to count for sale signs against your quota of two, and the reason is that for sale signs are only up on a very small percentage of properties, up for a very limited purpose when the property's for sale and they go down once the sale is consummated. >> you want us the sort these ordnances out one by one? >> no -- >> and examine each of these exceptions and say, you know this is ok, and this isn't ok? i don't know that the federal judiciary is numerous must have to do that. [laughter] and a much more simple rule that the other side presents. cope all signs the -- keep all signs the same. if clutter is the problem, they all clutter. and you shouldn't allow or disallow on the basis of the message. >> well, your honor, it's a simple rule, but i think it's an extremely impractical rule that is going to foreclose experimentation and local solutions to local problems. let me give you another example of a town that has some sort of sign restriction, but it doesn't apply that to safety signs like children at play or hidden

driveway ahead. if you're going to apply strict scrutiny to those kinds of exceptions, they're probably not going to pass muster unless it's a really watered-down version of strict scrutiny that i think is unfamiliar to the courts. there's actual a -- >> yeah, but what's the problem? you make, you make your sign limits big enough that those signs will attract attention that's all. >> well, i think towns legitimately should not have to be put to the choice if they want to prevent the proliferation of signs that would cause safety problems -- >> or have the town put up the signs. in which case they can be as big as the town wants. we're just talking about private signs here. >> your honor -- >> you're saying every private individual has to have a big sign, children at play, right? >> well, i don't want to resist too hard that the government can put up any signs it want, but i think the reason we think the government could put up the signs here is not that the government can say it can speak on surgeon topics and private citizens can't, but because of the nature of the signs that are being put up which means some work has to be done hoar by the type of the fact of signs i described are safety signs, now, it turns out there's actually a fairly robust empirical debate about whether children at play signs or hidden driveway ahead signs actually do enhance safety. and courts are going to have to make a one-size-fits-all conclusion about whether the state of the evidence -- which right now is fairly equivocal -- justifies that sort of exception.

>> counsel, i'm not sure your whole approach is not precluded by our decision in mccull log. -- mccullough. there we is said a facially neutral law does not become content based simply because it may disproportion maltly affect certain topics. in other words, when you're dealing with a initially-neutral law is whether the law is justified without reference to the content. so it seems to me that you've got to get over the content neutrality. your argument only applies when it's content newt lal, and yet here we're dealing with a situation where you're saying it's an exception to the content-based rule. >> well, your honor, i think the court can deal with the competing interests in this case more easily not by getting bogged down in the definition of content-based and con innocent-neutral, but by focusing on the bottom line question of whether this is an appropriate case for 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? that intermediate scrutiny is a pretty tough standard in equal protection. >> well, i think there are a couple of flavors both under the constitution at large and under the first amendment in particular. i think here we'd 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 the make between painting your street number and your curb so people can more easily find your house and restrictions on, you know, particular types of speeches that are much more likely to be motivated birdies agreement by that speech. we do think intermediate scrutiny has a fair amount of teeth in the circumstance, and we're putting our money where our mouth is because we think the particular ordnance at issue here fails intermediate

scrutiny. but it would give enough room to draw in particular the kinds of distinctions that are drawn in the highway beatification act which allows certain types of signs that do enhance safety and's tet thissics -- aesthetics but generally doesn't allow the grounds on the sides of freeways to become a breeding ground for signs which would decrease driver safety and -- [inaudible conversations] >> i'm sorry. >> do you think that a library could say big books are prefer or bl to little books and it so happens that big books are coffee books and little books tend to be mostly political, so we're going to put all the political books in the basement and all the the big books on the main floor or? is that a distinct that the first amendment permits? >> i think a court might be reasonably, fairly skeptical of that kind of distinction, but i think signs, your honor, present particular first amendment problems that the court had to grapple with and didn't quite resolve in metro media and city of ldoux. one distinct problem with signs is that it's very difficult for

legislatures to tailor sign regulations and describe types of signs that it doesn't think it needs to regulate to advance its interests, thereby allowing more speech without describing those types of signs in a manner that could be viewed as content based. and that's what makes sign regulation very difficult and why we think some sort of context-specific rule in this circumstance would be appropriate. >> i don't see why. i mean, you say it, 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. >> well, i think -- >> what do you say about signs i assume applies to noise as well, right? if the city has a noise ordnance, 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, your honor.

i think that one key here is that the types of exceptions we're talking about, the only types we think should be subject to intermediate scrutiny track the safety and non-proliferation rationales for the sign ordnance as a whole. if the city is advancing a distinction based on the fact that they this think political or ideological speech is more valuable than, say, religious speech, we think that would be subject to strict scrutiny. thank you. >> thank you, counsel. mr. saab run? >> mr. chief justice and may it please the court, the problem with applying strict scrutiny in this case or this type of case is that it will have, we believe, the opposite effect. it will limit speech because towns, cities will enact one-size-fits-all in order to do that as counsel indicated, there needs to be limitations on the number of signs, on the duration of signs. the signs would have to be all large enough to accommodate the largest message that needs to be communicated. and in order to pass strict scrutiny, the legislatures in these towns and cities across this country would be inclined

to ban all signs except those that the first amendment absolutely allows. >> you can make that argument in all kinds of contexts. i don't know where it gets you. suppose the question is whether we're going to -- whether the town is going to allow anybody to speak in a park. and the town, the town council says, well, you know, we would like to have people be able to speak on subjects that we like, i 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 in lots of other contexts where i don't think the distinct could be justified. wouldn't that -- isn't that right? >> i think there's a difference justice alito, in signs as opposed to speech because signs do can take up physical -- 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 or directional sign provision is limited to in signs that are intended to guide travelers along a route from point a to point b. if they have express i content on -- 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. >> so if 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, but the message is we welcome you to attend our service, that's ideological? >> that is ideological. that would not be a directional sign, because it is not

directing travelers along a route. >> but it says also -- [inaudible] >> the way that this code has been interpreted, justice ginsburg, is that would not be a directional sign because it's not saying turn right, turn left, go straight a few miles. it's not giving directions about how to get there. so i believe that that type of sign would be permitted in under this ordnance as a ideological sign and would not be limited to the terms of the temporary direction -- >> mr. savrin, could i ask what your justification is for these especially generous provisions on ideological signs? putting aside the level of scrutiny, 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 seasons for purposes of applying strict scrutiny, that the distinction is permissible here without relation to the content or in terms of favoring or cent corpsing surgeon viewpoints -- censoring certain viewpoints or ideas.

>> and your trying to reduce our rules against discriminating on the basis of content to a rule against a viewpoint discrimination. >> not just view -- >> i mean, ideological signs, that is a content category. and there's as much a first amendment right to give somebody directions as there is to speak about, about being green or whatever else. is there no first amendment right to give somebody be directions? >> justice scalia, we would say that the -- they perform different functions, certainly -- >> they sure do, but is there a first amendment right for these other messages or not? >> i think they would have a right to speak, and i think that they do have that right to speak and that intermediate scrutiny applies to regulations about how speech can be communicated as opposed what can be communicated. >> but you do say in your brief that the first amendment does not require directional signs,

so they could be banned altogether. >> i think it's narrowly tailored, at least the intermediate scrutiny test in a jurisdiction -- >> well, that doesn't have words. i'll give you an example. the law says no directional signs. that's the law. does that -- is -- does that offend the first amendment? >> i think that, well, instead of offend the first amendment, i think our position would be that it could survive that analysis. if i could return to justice kagan's question about the interest that is served, it's different. a directional sign, there needs to be more of them 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 they function as intended. as far as the duration, 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 our question request is whether or not -- our question is whether or not that's something that implicates first amendment jurisprudence -- >> well, you say on suppose we're talking about the context of signs. you say, well, let's look to the purpose of forbidding any prohibition, and i guess it has to do with safety or beatification. >> yes. >> first question would be is there some category that you don't allow to put up signs? answer, no. everybody can put up signs. so what about applying strict scrutiny to that if you're going to distinguish 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 'em up, but you have content, all kinds of distinctions how, how long, etc.

now, in respect to that maybe you should have more leeway. leeway depending upon the purpose of the sign. so if, for example, it's about an open air knew misl pal movie -- municipal movie, you could put up signs about movies. i don't know, you maybe have more leeway there. but still they're saying you'd flunk even that test here because there isn't really a very good reason at all in this case for making the sign smaller or for putting it there for such a short time. now, how do you react? so there are three parts. one, very tough if you're going to say you can't put it up at all. sometimes called strict scrutiny.

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, the second. >> ok. well, with respect to the first one, the interest most of the times in sign ordnance regulations as you have indicated is aesthetics and -- [inaudible] with respect to aesthetics, don't believe that that would meet the definition of a compelling interest so that it's automatically presumptively and conclusively 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 political signs, that the directional signs to not need to be larger and also that there are more of them. and so if there are more of them, the trade-off is -- at least the legislature this in could be -- in this town has decided that they need to be smaller because they need to guide travelers along a route. >> and political signs are there almost all year -- >> yeah -- or. >> on the rights-of-way when you talk about clutter? what if 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 politicianings.

[laughter] and we're on the city council. >> i have two responses to that, justice scalia. the first one is that there is a statute in arizona that this ordnance complies with in terms of the placement, the duration and the size of the political signs. so the town doesn't have any leeway in that because it needs to comply with the statute. >> does the state statute have the same size and duration? the state statute says you have to rely on political signs, but does it specify the size and the duration? >> yes, justice ginsburg, it does. >> so you're saying that the town ordnance just mirrors the state? >> yes, yes, it does. >> and do you have that state law? >> i do. it's section 16-1019. >> so your defense to a first amendment complaint is, what the state made me do it?

[laughter] >> well, our defense -- well, 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. >> well -- >> if you believe that neither the state, nor the city is entitled to say politics is really important. as opposed to music. >> the other conversation 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, at court, is the extent to which a government can select subject matter for what is a nontraditional public forum. so there are issues as well that would need to be developed a little further before any application of intermediate scrutiny we say could be

continued. if the, if the court were to find problems with the ninth circuit's application of intermediate scrutiny, i think there'd still be some issues that would need to be developed on the public forum. >> you said -- [inaudible] not a traditional public forum? >> that is, certainly, gilbert's position. it was something that was argumented 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 with, we have not

developed that, and 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 whether or not strict scrutiny applies. >> how do you justify the differing treatments of petitioner's sign on the one hand and the weekend builder event signs and homeowner association signs? homeowner association signs can be 80 square feet, and the petitioner's sign can be 6 square feet. >> the homeowners' signs are not really directional signs because they can only be within the residential community. they are not directing travelers off site in a generic sense to a location. there's also a permanent requirement -- permit

requirement, and the other thing is that the 80 square feet is that's total sign area. of 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, your honor. >> suppose petitioners want to put up a sign that says we're having a church service at 10:00 on sunday morning. under your cold when can they -- under your code when can they put that up and when do they have to take it down? >> 10 p.m., and they have to take it down, i believe it's an hour afterwards. >> of so they can put it up after dark on saturday, and then they have to take it down within an hour after, when, the commencement of the service?

>> it's the end of the event. >> the end -- >> the end of the event. >> do you think that really gives them an opportunity to invite people -- >> 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 in 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 its purpose for having on the 12 hours before, because if they want to invite members of the public to the services, they can and do have many other opportunities and alternatives including signage, including the ideological sign that they can use. >> so they could put up a, quote-unquote, ideological sign that says come to our service on sunday morning but no arrow, and then they put up another sign that says this is the arrow? or maybe they put up on the first sign come to our service on sunday morning. we can't the tell you now where it will be, because the town won't let us -- [laughter] but if you come, if you drive by here tomorrow morning -- [laughter] at a certain time you will see an arrow? >> the sign could say, your honor, where it is taking place. but if it is intending to guide travelers to that location, then it would need to comply with the

provisions. and -- >> what is the guidance? i'm looking at the -- [inaudible] sign on page 3 of the brief. it just has an arrow. it says the name of the elementary school, and then it has looks like a telephone number and an arrow. the arrow is the direction? >> yes, your honor. >> this is not as you described earlier turn left on main street, turn right on front street. >> it is the same function as -- it is the same function as that. >> what is this about, this argument? i mean, you agree they can put up a big sign, can they put up a big sign, ideological sign saying come to the church service next tuesday, 4th and 8th streets, three blocks and right and two blocks left, all right?

are 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. [laughter] on that it does sound as if the town's being unreasonable, doesn't it? >> well, we would say that the sign has what this court has termed an incidental effect on the expression of the petitioners that, certainly, they can have the ideological sign, the information they want to include. >> suppose we said this, that we're, in fact, the argument is of in this nature, in fact you can have a big sign and have everything on it except an arrow, and the purpose of the sign is, in fact, to tell people both what's happening and where, that there is no good under any test reason for requiring to have this little dinghy thing. >> your honor, our response to that, your honor, is that the directional signs in order to work need to guyed travelers along -- 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.

it can be a mile away, it can be two miles away. is so having just one sign perhaps under the court's hypothetical, it seems rather silly. but if you're thinking about having a whole bunch of these signs over a long distance, then i think -- >> does good news church have a number of signs? just as illustration, how many signs do they have? >> i believe the number's 15 but i'm not 100% sure about that, your honor. i know that they have quite a few. >> you see that car when you -- can you see that sign at all when you pass -- >> i'm sorry, your honor? >> you see the sign at all when you pass in a moving car? >> yes. in fact, the test found that it functioned as intended, and there's no indication that it did not. so there's -- it seems to me

that those are the kind of decisions as far as size duration are ones that should be 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 ordnances 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. but i think the problem, if there is one that gilbert has gotten into, is that it allows a lot of speech that other ordnances might not in 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 clulter and there shouldn't be a lot of these signs because, why? >> because directional signs can -- >> no, no, no. i just asked you for the exemption for ideological signs, the especially generous provision for ideological signs. why do can ideological signs get such generous treatment? >> because to protect the first amendment right to speak. >> ok. so that is a content-based rationale. and that, 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? >> yes. >> yeah. the purpose of that is it is content neutral in terms of anything can be on that sign. >> no. 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. and there would be an argument there, i think. but 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 is, guards against the abridgment of speech. and having a rigid content definition to be the on/off switch for whether strict

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 you can allow that, but ideological speech comes in a close second -- [laughter] and then what? then directional speech or whatever else? >> well -- >> 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 subject that it would be subject to strict scrutiny. we believe of that would be improper, we think that it would be against the jurisprudence -- >> it's content-based in a constitutional sense as opposed to content-based in a nonconstitutional sense. >> whether it puts the finger on a scale of ideas or viewpoints. whether the substance of it -- >> that's viewpoint, that's not content-based. you want to eliminate

content-based as the criterium and make it -- >> no, your honor, that is not what we're advocating. we're advocating that if an ordnance does not -- if an ordnance addresses the function of a 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? >> it depends -- >> doesn't its function depend

upon its content? >> in a literal sense, yes. >> oh, i see. what sense are we talking here? >> well, both poetic -- [laughter] we think 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 in and of itself justifies strict scrutiny. thanks, your honor. >> thank you, counsel. mr. cortman, 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 wasn't 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 ordnance that abides by that. and the simple way to do that is 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.