Academic journal article Boston College Law Review

REED V. TOWN OF GILBERT: RELAX, EVERYBODY

Academic journal article Boston College Law Review

REED V. TOWN OF GILBERT: RELAX, EVERYBODY

Article excerpt

INTRODUCTION

In 2015, in Reed v Town of Gilbert, the U.S. Supreme Court reaffirmed that, for purposes of First Amendment review, a court should deem a speechrestrictive law content-based, and thus presumptively unconstitutional, if the law "'on its face' draws distinctions based on the message a speaker conveys Z'1 In doing so, the Court rejected prior interpretations of its cases that had held governments could make facial references to a particular type or category of content in their laws so long as those laws were not referring to that content in order to express disagreement with or disapproval of it.

The Court's opinion in Reed thus ratified a "First Amendment Two-Step" with an order of decision should be familiar to administrative law students. Step One is a facial inquiry, and Step Two is a purpose inquiry. At Step One, if a law's text makes any reference to content, then "that is the end of the matter," to import a Chevron term, at least with respect to determining whether scrutiny is strict.2 If a reviewing court answers Step One in the affirmative, then it may not inquire into Step Two: whether the regulation in question is adopted, as the lower court in Reed had held, "because of disagreement with the message it conveys."3 Reed's Step Two, however, does apply to facially content-neutral laws; a reviewing court can also subject those laws to strict scrutiny if the government adopted the law under review because of disagreement with the message expressed by the speech the law infringes upon-or, in the words of the Court, "when the purpose and justification for the [content-neutral] law are content based."4 Accordingly, and contrary to how the lower courts previously understood and applied content discrimination doctrine, government purpose in First Amendment law is a one-way ratchet that moves only toward strict scrutiny. Even a benign (or at least non-content-related) purpose cannot save a law that refers to content from the most rigorous constitutional standard of review.

Much wringing of hands and gnashing of teeth followed Reed- including, and for starters, by the three justices who concurred in the case. Justice Samuel Alito felt compelled to list no fewer than nine hypothetical sign regulations that he claimed would survive the Court's Step One-some of which quite obviously did in fact make facial references to content and would therefore likely fail, or at least have to survive strict scrutiny, under the majority's test.5 Justice Stephen Breyer, consistent with his prior opinions in First Amendment cases, called for a more nuanced approach than the "content based = strict scrutiny" formula, pointing to a range of content-based restrictions on speech for which the application of strict scrutiny would not be appropriate, such as securities regulation and drug-labeling requirements.6 Finally, Justice Elena Kagan, who, like Justice Breyer, only concurred in the judgment, sounded the alarm.

In Justice Kagan's view, the majority's First Amendment Two-Step would not only threaten the ability of any government to regulate private signage but also a host of other non-censorial laws that refer to content. The content inquiry, in Justice Kagan's view, should follow its "intended function"-to determine whether a law's reference to expressive subject matter might be attributable to the government's "favor[ing] or disfavor[ing] certain viewpoints."7 To Justice Kagan, the majority's adoption of a First Amendment TwoStep that bifurcates consideration of the law's face from its purpose draws too bright a line. It forecloses the possibility that some references to content should not draw strict scrutiny where the government's purposes for doing so are benign. Following Justice Kagan's lead, commentators in the national media characterized Reed as a "transform[ation] [of] the First Amendment" that would apply "exceptional skepticism" to "countless laws" that refer to content.8 Other legal analysts and academics have similarly characterized Reed as a First Amendment game-changer, calling it the "harbinger of the sign code apocalypse,"9 and a "groundbreaking" decision,10 one whose holding reached "more broadly than necessary," which will cause "unintended consequences" in not just signage codes but in a wide range of areas historically considered fair game for governmental regulation. …

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