New York Times

WASHINGTON — An Arizona town ordinance that places strict limits on some religious signs appeared to be in trouble on Monday at theSupreme Court.

A church and its pastor challenged on First Amendment grounds the ordinance in Gilbert, Ariz., that has differing restrictions on political, ideological and directional signs.

The case, Reed v. Town of Gilbert, No. 13-502, presented the Supreme Court with an opportunity to clarify a tangled area of its jurisprudence of free speech. The tenor of the argument, however, suggested that the justices would agree on the result but not the rationale, and would produce a modest or fractured decision.

Most of the justices seemed uncomfortable with the ordinance, which makes distinctions based on the messages conveyed by various kinds of temporary signs.

Political signs, concerning candidates and elections, are permitted to be as large as 32 square feet, are allowed to stay in place for months, and are generally unlimited in number. Ideological signs, about issues more generally, are not permitted to be larger than 20 square feet, are allowed to stay in place indefinitely and are unlimited in number.

But signs announcing church services and similar events are limited to six square feet, may be displayed only just before and after an event, and must be limited to four per property.

Philip W. Savrin, a lawyer for the town, said the church could qualify for the more permissive standards governing ideological signs so long as it did not offer directions to its services.

Several justices seemed to find that distinction absurd.

“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’?” Justice Samuel A. Alito Jr. asked. “Or 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 you drive by here tomorrow morning at a certain time, you will see an arrow.’ ”

Justice Stephen G. Breyer, who is not a First Amendment firebrand, asked Mr. Savrin whether he really meant to say that ideological messages were fine unless they were accompanied by directions like “three blocks right and two blocks left.”

“That’s what this argument is about?” Justice Breyer asked.

Mr. Savrin said, “That is what it comes down to.”

That answer seemed to destroy the prospects for an important First Amendment ruling.

“Well, my goodness,” Justice Breyer said. “It does sound as if the town is being a little unreasonable, doesn’t it?”

Justice Elena Kagan tried to test the limits of the town’s position, asking how it justified better treatment for ideological messages than for other ones.

Mr. Savrin might have been expected to say that promoting safety or aesthetics warranted the differing treatment. Instead, he said the ideological signs were more valuable and thus more worthy of First Amendment protection.

Justice Kagan suggested that Mr. Savrin had given the wrong answer. “O.K.,” she said. “So that is a content-based rationale. And, you know, on one theory, you lose regardless of what the standard of review is.”

That theory was described by Justice Kagan herself when she was a law professor, in a 1996 article published in The University of Chicago Law Review.

The church’s lawyer, David A. Cortman, also faced skeptical questioning when he suggested that the government might draw no distinctions among noncommercial messages. Some justices appeared concerned that such a categorical approach would have unacceptable consequences.

Justice Anthony M. Kennedy asked whether the town could regulate signs that said, “Happy birthday, Uncle Fred.”

Mr. Cortman gave a complicated answer, and Justice Kennedy summarized it.

“Your answer to the question,” he said, “is ‘Happy birthday, Uncle Fred’ can have as many signs and for as long as the political campaign.”

Mr. Cortman agreed. “I think that is right,” he said.

Justice Antonin Scalia voiced support for that absolutist position, which would do away with all distinctions among noncommercial signs.

“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,’ and then what? Then directional speech or whatever else?”

“I don’t want to do that,” the justice said.

But Justice Kennedy seemed prepared to allow officials to draw at least some lines, just not the ones used by the authorities in Gilbert. Religious signs are important, he told Mr. Cortman. “But it seems to me you are forcing us into making a very wooden distinction that could result in a proliferation of signs for birthday parties or for every conceivable event,” Justice Kennedy said.

That did not seem to concern Justice Scalia.

“There is as much a First Amendment right to give somebody directions,” he said, “as there is to speak about being green or whatever else.”