Free Speech Doctrine after Reed V. Town of Gilbert

Harvard Law Review, May 2016 | Go to article overview

Free Speech Doctrine after Reed V. Town of Gilbert


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. …

The rest of this article is only available to active members of Questia

Already a member? Log in now.

Notes for this article

Add a new note
If you are trying to select text to create highlights or citations, remember that you must now click or tap on the first word, and then click or tap on the last word.
One moment ...
Default project is now your active project.
Project items
Notes
Cite this article

Cited article

Style
Citations are available only to our active members.
Buy instant access to cite pages or passages in MLA 8, MLA 7, APA and Chicago citation styles.

(Einhorn, 1992, p. 25)

(Einhorn 25)

(Einhorn 25)

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Note: primary sources have slightly different requirements for citation. Please see these guidelines for more information.

Cited article

Free Speech Doctrine after Reed V. Town of Gilbert
Settings

Settings

Typeface
Text size Smaller Larger Reset View mode
Search within

Search within this article

Look up

Look up a word

  • Dictionary
  • Thesaurus
Please submit a word or phrase above.
Print this page

Print this page

Why can't I print more than one page at a time?

Help
Full screen
Items saved from this article
  • Highlights & Notes
  • Citations
Some of your highlights are legacy items.

Highlights saved before July 30, 2012 will not be displayed on their respective source pages.

You can easily re-create the highlights by opening the book page or article, selecting the text, and clicking “Highlight.”

matching results for page

    Questia reader help

    How to highlight and cite specific passages

    1. Click or tap the first word you want to select.
    2. Click or tap the last word you want to select, and you’ll see everything in between get selected.
    3. You’ll then get a menu of options like creating a highlight or a citation from that passage of text.

    OK, got it!

    Cited passage

    Style
    Citations are available only to our active members.
    Buy instant access to cite pages or passages in MLA 8, MLA 7, APA and Chicago citation styles.

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn, 1992, p. 25).

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn 25)

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn 25)

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences."1

    1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

    Cited passage

    Thanks for trying Questia!

    Please continue trying out our research tools, but please note, full functionality is available only to our active members.

    Your work will be lost once you leave this Web page.

    Buy instant access to save your work.

    Already a member? Log in now.

    Search by... Author
    Show... All Results Primary Sources Peer-reviewed

    Oops!

    An unknown error has occurred. Please click the button below to reload the page. If the problem persists, please try again in a little while.