Law is not magic, even though some think it is one in the same. Why? Both involve odd and powerful verbal formulas that can change everything. But magic (which is not real) allows us to disappear, fly and even change into different animals. Law, when it works, does so only by changing the way people think. While law can make our thoughts clearer, it can also spread or deepen confusion.
The Supreme Court is trying to clear up confusion regarding advertising in the case of Reed v. Town of Gilbert. Last month during oral arguments, the justices voiced displeasure with city sign laws that favor some messages over others, but many justices worried that too much freedom of speech could enhance highway clutter. In a case full of religious and political issues, the justices did not appear to like any of their options. At issue was a city law from Gilbert, Ariz., that restricts signs advertising upcoming events far more than political or ideological signs. While political signs can be 32 square feet and remain up for five months, the town limits directional signs to 6 square feet and 13 hours. That’s bad news for Good News Community Church, which relies on the signs to attract a few dozen worshipers. “It is saying that political speech in this case is more valuable than an invitation to church,” said David Cortman, the church’s lawyer. The justices clearly didn’t approve of the town’s rating system, which Justice Stephen Breyer termed “a little unreasonable.” But the church’s solution — that all non-commercial signs get equal treatment — didn’t go over well, either. Chief Justice John Roberts said it would put upcoming election on the same side as directions to a children’s soccer game. Justice Anthony Kennedy said a sign reading “Happy Birthday, Uncle Fred” would be treated the same as one noting the birthplace of James Madison. And a compromise solution recommended by the Obama administration — intended to protect aesthetic restrictions for highway beautification — didn’t fare much better. Justice Antonin Scalia said it would force courts to referee too many disputes. The implications of the case are serious: What types of speech can be restricted without violating the First Amendment? The court appeared unlikely to uphold Gilbert’s code, as two lower federal courts have done. Scalia quipped that the town could be viewed as giving political signs the best deal “because we are politicians.” But its ruling, expected in the spring, is likely to justify some types of municipal restrictions based on aesthetics, safety and the signs’ intended purpose. Allowing only a “wooden distinction,” Kennedy said, could result in five-month-long ads for birthday parties. “Under your view,” Kennedy told Cortman, “‘Happy birthday, Uncle Fred’ and ‘Save your soul’ and ‘Birthplace of James Madison’ can all be up for the same length of time, same size.” While that might not matter so much in already-cluttered cities, Breyer warned that it could set a dangerous precedent for the nation’s scenic byways. Identifying the burial site of Geronimo, he said, should not lead to a situation in which “the entire state of Wyoming is just filled with clutter.” If that seemed extreme, Justice Samuel Alito noted equally problematic issues with the town’s code, which imposes the 13-hour time restrictions only on signs that include detailed directions. He said event sponsors could get around the restriction by posting even more signs. “Maybe they put up on the first sign, ‘Come to our 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,'” Alito said.
It will be interesting to see where the court comes down on this issue which could affect advertising across the board. Many say the highways are a lot less distracting than they were back in the 60’s and not full with clutter. But what will happen after the Justices hand down their decision. We shall wait and see.