THE CONTENT-DISCRIMINATION PRINCIPLE AND THE IMPACT OF REED V. TOWN OF GILBERT.

• Date: 22 December 2019
• Author: Hudson, David L., Jr.

The content-discrimination principle remains the chief analytical tool used in First Amendment jurisprudence. Under this doctrine, laws are categorized as content-based or content-neutral. Content-based laws are subject to strict scrutiny and content-neutral ones are subject to intermediate scrutiny.

The U.S. Supreme Court ratcheted up the content-discrimination principle in Reed v. Town of Gilbert. Previously, lower courts were divided on whether a law was content-based if the underlying purpose was not to engage in censorship or content-discrimination. In Reed, however, the Court declared that the law's purpose is not the central inquiry. It concluded that if a law draws facial distinctions based on speech then it is content-based.

This Article examines the Court's decision in Reed and then assesses how this doctrine intersects and interacts with two longstanding and controversial doctrines in First Amendment law: (1) the commercial-speech doctrine; and (2) the secondary-effects doctrine. Under both of these doctrines, content-based laws involving commercial speech or adult-oriented, sexual expression are treated as contentneutral. These doctrines are seemingly irreconcilable with Reed.

CONTENTS INTRODUCING THE CONTENT-DISCRIMINATION PRINCIPLE I. REED V. TOWN OF GILBERT (2015) II. IMPACT OF THE REED DECISION A. Political and Noncommercial Speech B. Commercial-Speech Cases C. The Secondary-Effects Doctrine CONCLUSION INTRODUCING THE CONTENT-DISCRIMINATION PRINCIPLE

Perhaps the leading doctrinal concept in First Amendment free-speech jurisprudence is the content-discrimination principle. (1) It has been called "the central inquiry," (2) "a critically important aspect of First Amendment doctrine," (3) "central to contemporary free speech law," (4) "fundamental to free speech doctrine," (5) a "keystone to [the] First Amendment," (6) "the touchstone of First Amendment law," (7) "the most pervasively employed doctrine in the jurisprudence of free expression," (8) and the "Supreme Court's closest approach to articulating a unified First Amendment doctrine." (9)

Justice Thurgood Marshall, often underappreciated for his First Amendment opinions, (10) expressed the principle most eloquently when he wrote in 1972: "[A]bove all else, the First Amendment means that government has no power to restrict expression because of its message, its ideas, its subject matter, or its content." (11) This statement was historic, as it represented the first time that the Court emphatically and explicitly emphasized the need for content neutrality. (12)

Under this now-familiar scheme, laws are considered content-based or content-neutral. A content-based law treats speech or speakers differently because of the message or content of the speech. (13) A contentneutral law applies across the board and does not make such content distinctions. (14) The designation is mightily important, as content-based laws are subject to strict scrutiny, while content-neutral laws are subject to intermediate scrutiny. (15) The distinction is often outcome determinative in free-speech cases, as most content-based laws are struck down and most content-neutral laws are upheld. (16)

The Court expanded the content-discrimination principle in a series of cases after Police Department v. Mosley. (17) In the early 1980s, leading free-speech scholar Geoffrey Stone identified the principle as the Burger Court's "foremost contribution to free expression analysis." (18) The concern over content-discrimination is crucial, as the government may be seeking to favor some forms of speech over others, engage in thought control, or distort the marketplace of ideas. (19) In 1992, the Court broadened the content-discrimination principle's scope by holding that the government could not make impermissible content distinctions in areas of expression traditionally not protected by the First Amendment, such as fighting words. (20) In 1994, Justice Sandra Day O'Connor may not have given the content-discrimination principle a ringing endorsement, but she noted that "no better alternative has yet come to light." (21)

While the division between content-based and content-neutral seems easy to understand, the Supreme Court acknowledged that it is not always a simple task to apply the principle. (22) Critics have charged that the Court has been inconsistent and arbitrary in its application of the content-discrimination principle. (23) Others have criticized the Court for relying too much on the doctrine. (24) Division developed in the lower courts over the application of the content-discrimination principle. Some courts applied the doctrine quite broadly to cover most facial distinctions on the basis of speech, (25) while others focused more on the underlying purpose of the regulation. (26)

The U.S. Supreme Court reiterated the importance of the content-discrimination principle in Reed v. Town of Gilbert, a case involving a challenge to an Arizona ordinance that made many distinctions between types of signs. (27) The Court reasoned that a law can be content-based even if the government does not have an explicit purpose to favor certain speech or disfavor certain ideas. (28) Some view the Court's decision in Reed as a significant change, or as something that might cause a "sea change" in the law. (29) A recent federal district court decision referred to it as a "watershed First Amendment case." (30) A leading legal journalist called Reed the "sleeper" case of the Court's term and one that would have "far-reaching consequences." (31)

This Article addresses the impact of Reed v. Town of Gilbert in the lower courts. Part I provides an overview of the Court's decision, including its several concurrences that seek to limit or take issue with the majority's approach to content-discrimination. Part II addresses and assesses the decision's impact in several areas, including cases involving political speech, the commercial-speech doctrine, and the secondary-effects doctrine. Finally, Part III comments on the future of the content-discrimination principle.

1. REED V. TOWN OF GILBERT (2015)

   The Supreme Court reaffirmed and expanded the importance of the content-discrimination principle in Reed v. Town of Gilbert. (32) The case involved a challenge to an Arizona city's sign ordinance that made distinctions between various types of signs, including ideological, political, and temporary directional signs. (33) Ideological signs were treated most favorably under the ordinance. They could be twenty feet in diameter and could be placed in any city-zoned area. (34) Political signs could be sixteen feet wide on residential property and thirty-two feet wide on nonresidential property. (35) Political signs also had durational limits; they could be placed only sixty days before an election and could stay up to fifteen days after. (36) Meanwhile, temporary directional signs were subject to many more restrictions. There could be no more than four signs on a property, they could be placed only twelve hours before a qualifying event, and they had to be taken down no later than one hour after an event. (37)

   Clyde Reed, pastor of the Good News Church, wanted to post signs informing the public about church services, which were held at different locations. (38) Reed argued that twelve hours in advance was not enough time to inform the public about each service (each church service was a qualifying event for a temporary directional sign). He claimed that he could not post the signs far enough in advance to be useful without running afoul of the ordinance's enforcers. (39) Ultimately, he sued in federal court. (40) Both the federal district court and the U.S. Court of Appeals for the Ninth Circuit denied injunctive relief and deemed the town's sign ordinance to be content-neutral. (41) The Ninth Circuit reasoned that the ordinance did not consider the content of the signs' messages and that there was no purpose to discriminate against speech. (42)

   On appeal, the U.S. Supreme Court unanimously reversed that judgment; but it was not unanimous in its reasoning. (43) In his majority opinion, Justice Clarence Thomas reasoned that laws are content-based on their face if they either draw distinctions based on the speaker's message or define speech based on its function or purpose. (44) He also noted that laws are content-based if the government adopts the law because of a disagreement with the speech's message. (45) He explained that "an innocuous justification cannot transform a facially content-based law into one that is content neutral." (46)

   Justice Thomas reasoned that the town's sign ordinance was content-based on its face because it drew distinctions based on the "communicative content of the sign." (47) He rejected the idea that the sign ordinance was content-neutral because town leaders did not adopt the ordinance based on disagreement with any message. (48) According to Justice Thomas, the Ninth Circuit erred by skipping over a "crucial first step": determining whether the ordinance was content-based on its face. (49) He explained that courts must first determine whether a law is facially content-based or content-neutral before examining the justification or purpose behind the law. (50) Thus, the first step of a Reed analysis is facially examining a statute, regulation, ordinance, or policy to determine if it is content-based.

   Justices Samuel Alito, Stephen Breyer, and Elena Kagan authored concurring opinions. (51) Justice Alito explained that the Court's decision did not sound the death knell for all sign regulation. (52) He specifically listed a series of types of laws that would pass muster after the Court's decision, including ordinances regulating the size of signs, whether signs are lighted or unlighted, signs with fixed messages and electronic messages, and rules distinguishing between on-premise and off-premise signs. (53)

   Justice Breyer viewed current First Amendment jurisprudence as too focused...