Academic journal article Harvard Law Review

Free Speech Doctrine after Reed V. Town of Gilbert

Academic journal article Harvard Law Review

Free Speech Doctrine after Reed V. Town of Gilbert

Article excerpt

After Justice Scalia's death, it seems everything is up for grabs: gun rights, reproductive rights, voting rights, environmental protection, labor unions, campaign finance. In every major area where the late Justice provided a crucial fifth vote, a new Justice may shift the Supreme Court majority and, in turn, the law for decades to come.

But perhaps not everything has changed. Specifically, not five, but six Justices have supported the Court's invocation of the First Amendment's protection of free speech to strike down commercial regulation, (1) meaning that even without Justice Scalia, the commercialization of the First Amendment may continue apace. (2)

This Note focuses on understanding the doctrinal implications of Reed v. Town of Gilbert, (3) the Court's most recent invocation of the First Amendment's expansive deregulatory potential. In Reed, by articulating a broad standard for deeming a regulation to be content based, a six-Justice majority risked subjecting numerous reasonable regulations to strict scrutiny when faced with a First Amendment challenge. (4) In its immediate wake, many feared that Reed had quietly reshaped free speech doctrine in the image of economic libertarianism. (5)

This Note maps the synapse between cases and doctrine in attempting to understand the extent of Reed's reach and its potential impact on First Amendment doctrine. It argues that no, Reed is not a free speech test for all seasons. (6) Rather than applying to all free speech cases, Reed only applies to certain regulations of noncommercial speech and can be distinguished up, down, and sideways in other contexts. (7) Reed does not displace existing commercial speech doctrine, nor does it apply to general regulations of economic conduct. By analyzing numerous cases decided in the aftermath of Reed, this Note argues that lower courts have (for the most part) already begun the process of narrowing Reed from below. (8)

As a result, Reed may have an unexpected impact on the structure of First Amendment doctrine. Rather than cementing the centrality of the division between content-based and content-neutral regulations, Reed may have instead diminished the distinction's importance. (9) By elevating a simple rule of content analysis above its underlying purpose of ferreting out impermissible government regulation of speech, Reed exposed the flaws of strict content analysis as an organizing principle for free speech doctrine. Lower courts can best protect core First Amendment values, and might encourage the Supreme Court to do the same, by refusing to let the content-based tail wag the First Amendment dog.

I. REED AND THE CONTENT DISTINCTION

A. A Capsule Summary of Free Speech Doctrine

Current First Amendment free speech doctrine is, in a word, doctrinal. It aggressively subdivides the known world into endless categories and describes distinctive rules and tests to evaluate the constitutionality of regulations that fall within those categories. (10)

The core division at the heart of current free speech doctrine separates regulations that are content based from those that are content neutral. (11) Regulations that distinguish speech on the basis of its content are subject to strict scrutiny, whereas those that are neutral with respect to the content of the regulated speech are evaluated under a less searching, intermediate scrutiny standard of review. (12) As Professor Leslie Kendrick puts it: "Given that almost all laws fail strict scrutiny and almost all laws pass intermediate scrutiny, the pivotal point in the doctrinal structure is the content analysis." (13)

The content distinction is intended, many scholars argue, to guide courts in identifying regulations "improperly motivated ... by hostility to targeted speech." (14) While there may be other justifications for the content distinction, "it is difficult to formulate it in a way that is not concerned with why the government is regulating. …

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