In Reed v. Town of Gilbert, the road to content discrimination was paved with good intentions
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They say God works in mysterious ways. Pastor Clyde Reed and his Good News Presbyterian Church would surely agree, now that the Supreme Court has used their case about signs inviting people to their church services to help patch up the crumbling foundations of free-speech law.
For years, lower courts eroded bedrock First Amendment principles by upholding facially unconstitutional laws based on protestations of good will by government officials. The Ninth Circuit’s opinion upholding the sign code of the town of Gilbert, Ariz., was just the latest example of this trend. The Supreme Court’s opinion in Reed v. Town of Gilbert signals a welcome end to it.
The town of Gilbert’s sign code imposes strict limits on the size, location, number, and duration of the church’s signs. It does not impose the same restrictions on political, ideological, and homeowners’ association signs.
First and foremost, Reed makes clear that the First Amendment is primarily concerned with the way a law operates, not the motives of those who enacted it:
A law that is content based on its face is subject to strict scrutiny regardless of the government’s benign motive, content-neutral justification, or lack of animus toward the ideas contained in the regulated speech.
Legislators need not pass regulations with bad motives to violate the First Amendment. Discriminatory treatment is enough. This removes from free-speech plaintiffs’ backs the practically insurmountable burden — imposed by some lower courts — of showing discriminatory intent on the part of legislatures.
After Reed, there is no question that strict scrutiny applies when a law regulates speech based on the topic discussed or the idea or message expressed. That is the only sensible meaning of “content based.” But for decades lower courts minted increasingly problematic definitions based on Ward v. Rock Against Racism’s teaching that regulations applicable “because of” government’s disagreement with a message are impermissibly content-based.
No more. The Supreme Court explicitly held in Reed what should have been apparent from the start: Ward’s motive-based analysis applies only to facially content-neutral laws. Inquiring into legislative motives is a secondary hurdle that courts examine only after a law passes the facial-content-neutrality test. As Reed explains, there is no alchemy in Ward that would “transform a facially content-based law into one that is content neutral.”
The desire to relegate strict scrutiny to viewpoint discrimination is another serious danger to free speech that Reed eliminates. Less drastic forms of content-based discrimination may not be as malignant, but they are still inherently suspect under the First Amendment because they allow government to sway the marketplace of ideas. Reed forestalls recent efforts to conflate viewpoint discrimination with content-based discrimination and apply a novel intermediate standard to the latter: “A speech regulation targeted at specific subject matter is content based even if it does not discriminate among viewpoints within that subject matter.” Post-Reed, the longstanding ban on government’s restricting speech “because of its message, its ideas, its subject matter, or its content” gains a new lease on life.
Few would have thought that a dispute about church-service directional signs could resuscitate free-speech law, but that’s what it did. Reed provides a clear and firm rule that ensures such obstacles to free expression will not stand. Its wide-ranging effects will result in less government meddling in speech and greater individual freedom for us all. And that is something we all have reason to commend.
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