June 18, 2015
In its opinion issued today in Reed v. Town of Gilbert, the Supreme Court handed a solid victory to Pastor Jack Reed and Good News Community Church, unanimously holding that the town’s regulation of signs to church meetings violated the Free Speech protections of the First Amendment.
A Gilbert, Arizona sign ordinance had discriminated against certain signs based on the content of the signs—whether they were political, ideological, and directional. Directional signs were placed under more severe restrictions than the other types.
Good News Community Church and its pastor, Clyde Reed, needed to announce the times and locations of their services, but because their announcement signs (which directed individuals to a public school where services were being held) were considered directional, the church was severely hampered in speaking its message. Pastor Reed and Good News Community Church filed suit after unsuccessfully seeking an accommodation from the town. The lower courts ruled against them, so they took their case to the Supreme Court. Family Research Council filed an amicus brief with the Court siding with Pastor Reed and his church to make the case for a robust interpretation of our First Amendment rights.
Writing for the Court, Justice Thomas held that Gilbert’s sign code engaged in content discrimination and thus had to meet strict scrutiny, which it failed to do.
“Government regulation of speech is content based if a law applies to particular speech because of the topic discussed or the idea or message expressed,” Justice Thomas wrote. If regulation is content based, it must meet strict scrutiny, meaning the government must have a compelling interest behind its regulation and the regulation must be done in the least restrictive way possible.
The Court noted that “[t]his commonsense meaning of the phrase “content based” requires a court to consider whether a regulation of speech “on its face” draws distinctions based on the message a speaker conveys… . Some facial distinctions based on a message are obvious, defining regulated speech by particular subject matter, and others are more subtle, defining regulated speech by its function or purpose. Both are distinctions drawn based on the message a speaker conveys, and, therefore, are subject to strict scrutiny.”
In this case, “[t]he restrictions in the Sign Code that apply to any given sign thus depend entirely on the communicative content of the sign. If a sign informs its reader of the time and place a book club will discuss John Locke’s Two Treatises of Government, that sign will be treated differently from a sign expressing the view that one should vote for one of Locke’s followers in an upcoming election, and both signs will be treated differently from a sign expressing an ideological view rooted in Locke’s theory of government.”
Here, “the Church’s signs inviting people to attend its worship services are treated differently from signs conveying other types of ideas. On its face, the Sign Code is a content-based regulation of speech.”
In essence, Gilbert treated directional signs differently than others. It thus regulated signs based on their content. “We thus have no need to consider the government’s justifications or purposes for enacting the Code to determine whether it is subject to strict scrutiny.”
Justice Thomas continued by noting the Ninth Circuit’s reasoning to the contrary was unpersuasive. Content based regulation occurs if it is present on the face of the regulation, regardless of the government’s motive. “In other words, an innocuous justification cannot transform a facially content-based law into one that is content neutral,” and the Court rejected any reliance on Ward v. Rock Against Racism for the notion that government purpose is relevant when a law is content based on its face: “[W]e have repeatedly ‘rejected the argument that discriminatory … treatment is suspect under the First Amendment only when the legislature intends to suppress certain ideas.’ … We do so again today.”
Of note, the Ninth Circuit opinion which the Court so clearly rejected here relied on Hill v. Colorado for similarly dubious reasoning. This rejection confirms our observation about Hill in our amicus brief:
“[T]he Hill majority was wrong to treat ‘protest, education, [and] counseling,’ the activities forbidden by the Colorado statute in Hill, merely as modes of speech rather than as distinct subjects of messages… . [T]hat the Hill majority’s analysis would lead a federal court of appeals to conclude that the Gilbert ordinance—an ordinance that on its face differentiates expression by content and imposes different restrictions based solely on content—is somehow content-neutral is one more reason … to overrule Hill.”
Indeed, as Justice Thomas realizes, “[i]nnocent motives do not eliminate the danger of censorship presented by a facially content-based statute, as future government officials may one day wield such statutes to suppress disfavored speech. That is why the First Amendment expressly targets the operation of the laws—i.e., the ‘abridg[ement] of speech’—rather than merely the motives of those who enacted them.” He presciently quotes Justice Scalia’s dissent in Hill: “[t]he vice of content-based legislation … is not that it is always used for invidious, thought-control purposes, but that it lends itself to use for those purposes.”
The Court then analyzed the sign code under strict scrutiny, and found that the code’s differential treatment of certain signs based on how it characterized their content did not serve any compelling interest in a narrowly tailored way. The town offered two reasons for its regulation—“aesthetics” and “traffic safety”—neither of which persuaded the Court. “Aesthetics” did not serve as a sufficient reason to draw the distinctions as the code drew them, the Court said. Neither is “traffic safety” advanced by limiting certain content more than others. As the Court noted, local governments can further legitimate interests in traffic and pedestrian safety, among other interests, through content neutral restrictions which are narrowly tailored. The Town of Gilbert’s did not meet that standard.
Justice Alito wrote a concurring opinion in Reed, joined by Justices Kennedy and Sotomayor, outlining simple ways that municipalities can still regulate signs consistent with this opinion.
Justice Breyer also wrote a concurring opinion, cautioning against using content as an “automatic … trigger” for strict scrutiny, and argued for more “judicial sensitivity” to the First Amendment’s objectives. He opined that because speech is so often regulated by the government, the ruling in this case will result in “judicial management” of all sorts of government activity.
However, while Justice Breyer makes an attempt to articulate an alternative standard, it is convoluted and confusing:
“The better approach is to generally treat content discrimination as a strong reason weighing against the constitutionality of a rule where a traditional public forum, or where viewpoint discrimination, is threatened, but elsewhere treat it as a rule of thumb, finding it a helpful, but not determinative legal tool, in an appropriate case, to determine the strength of a justification. I would use content discrimination as a supplement to a more basic analysis, which, tracking most of our First Amendment cases, asks whether the regulation at issue works harm to First Amendment interests that is disproportionate in light of the relevant regulatory objectives. Answering this question requires examining the seriousness of the harm to speech, the importance of the countervailing objectives, the extent to which the law will achieve those objectives, and whether there are other, less restrictive ways of doing so.”
Unfortunately, such a vague standard would likely invite more judicial management (at least leaving more discretion in the hands of judges) then the majority’s clear rule here. In addition, “substituting judicial judgment for that of administrators” is precisely what we need the separation of powers for. In this case, “administrators” saw their clearly content based regulation as permissible, and needed the Supreme Court to articulate the correct standard—which it did.
Justice Kagan also concurred, joined by Justices Ginsburg and Breyer, and argued that the majority’s rule would capture all types of regulation within its net which is not necessary, and instead the “content-regulation doctrine” should be administered “with a dose of common sense, so as to leave standing laws that in no way implicate its intended function.”
While there likely are a number of regulations which may be implicated by the majority’s ruling, it is better to resolve doubts in the ruling in favor of individual rights, if nowhere more than when the First Amendment is at issue. Regardless, the problem remains: who gets to say what common sense is?
Does Justice Kagan have a point that the town’s regulation here could have been failed on tailoring alone, instead of being declared invalid under a rigid holding which she believes we “will regret” down the road after seeing how intrusively it requires courts to review sign codes? Perhaps so. But at this juncture it’s better to have clear constitutional guidelines laid out by the Court. Finally, the regulations which hypothetically concern the concurring Justices may not devolve into litigation, thus minimizing this ruling’s actual effect.
In sum, the ruling today is a Free Speech victory, and should be celebrated by all adherents to a strong First Amendment and individual rights.