- The Washington Times - Thursday, June 18, 2015

In separate free-speech rulings Thursday, the Supreme Court ruled against an Arizona town’s sign code, which was used to punish a small, local church, but in favor of Texas officials who refused to issue a license plate bearing a Confederate flag.

The justices didn’t fully agree with each other on the rulings, which reversed decisions by, respectively, the 9th U.S. Circuit Court of Appeals and the 5th U.S. Circuit Court of Appeals.

In the eight-year-long Arizona church sign case, Reed v. Town of Gilbert, Justice Clarence Thomas concluded that the town’s signage code was “content based,” which meant the code had to meet the highest constitutional test.

The Good News Community Church’s small, temporary roadside signs inviting people to its services “are treated differently from other signs conveying other types of ideas,” Justice Thomas said in the majority opinion joined by Chief Justice John G. Roberts Jr., and Justices Antonin Scalia, Anthony M. Kennedy, Samuel A. Alito Jr., and Sonia Sotomayor.

Thus, the sign code is a “content-based regulation of speech,” and town officials’ arguments for their sign code — aesthetics and traffic control — cannot prevail over the loss of free-speech rights of the church, he wrote.

Justices Stephen G. Breyer, Ruth Bader Ginsburg and Elena Kagan agreed with the judgment — Justice Kagan said the town’s defense of its rules limiting the church signs to 12 hours of exposure didn’t even pass “the laugh test” — but wrote or joined two concurring opinions to outline their discomfort with the potential breadth of the majority opinion.

Gilbert Town Attorney Michael Hamblin said Thursday that the town believed it had set reasonable restrictions on signs, since its code had been upheld twice by the 9th Circuit.

“While today’s opinion reverses those decisions, we are hopeful it will provide some much-needed legal clarity to this area of law,” Mr. Hamblin said, according to The Arizona Republic. He added that the town will “make the necessary adjustments.”

Alliance Defending Freedom senior counsel David Cortman, who represented Pastor Clyde Reed and Good News Community Church, said the unanimous ruling was a “victory for everyone’s freedom of speech.”

In Texas, the Sons of Confederate Veterans (SCV) was smarting from the Supreme Court’s 5-4 ruling that said the state did not have to comply with the group’s request to have a vanity license plate made honoring their group.

The Texas Department of Motor Vehicles Board declined the SCV request because public comments showed many people were offended by the Confederate flag and its associations with rebellion and racism.

The 5th Circuit ruled in favor of the SCV, saying the license plates were constitutionally protected private speech. However, the majority opinion in Walker v. SCV Texas division, written by Justice Breyer and joined by Justices Thomas, Ginsburg, Kagan and Sotomayor, said the plates were government speech.

Just as Texas cannot require SCV to convey a state ideological message, “SCV cannot force Texas to include a Confederate battle flag on its specialty license plates,” Justice Breyer wrote.

Justice Alito wrote a dissent, joined by the three other justices, saying the majority ruling set a “dangerous” precedent. When the “private speech” on state license plates — which are “little mobile billboards” — is treated only as government speech, it loses all its protections, in violation of the First Amendment, Justice Alito wrote.

Texas Attorney General Ken Paxton hailed the decision, noting that motorists have “many other ways” to express their views on their vehicles.

Charles Kelly Barrow, commander in chief of the SCV, said the group’s 30,000 members were “profoundly disappointed” by the ruling.

Separately, the high court also ruled unanimously in McFadden v. United States, saying the jury wasn’t properly instructed in the case where Stephen McFadden was convicted of selling “bath salts,” a controlled subject. The ruling vacated the 4th U.S. Circuit Court of Appeal’s ruling and remanded the case to the lower court to determine whether the error in the jury instruction was harmless.

And in another unanimous ruling, the justice said a child’s words to a teacher about possible abuse is admissable evidence regardless of whether the child testifies in court. The case in question was a domestic-violence case against the boy’s father regarding his mother, and the decision is expected to make it easier to prosecute such abuse cases.

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