United States Supreme Court
For decades, a central inquiry in the analysis of free speech has been whether government regulation is content-based or not. Government regulations of content-based speech generally need to be scrutinized. To be constitutional, they must be narrowly tailored to achieve a compelling governmental objective. By contract, content-neutral regulations only have to undergo interim review, being essentially tied to the achievement of an important government objective.
Therefore, much of the First Amendment litigation focuses on whether a particular law or regulation should be considered content-based or content-neutral. The decision of the Supreme Court of the United States on April 21 in City of Austin National Ad Against Reagan provides important guidance on how to determine whether a law is content-based.
The case involved an Austin, Texas ordinance regulating digital signs on buildings. The city has allowed digital signs for businesses operating on the premises of a building, but has generally prohibited signs for off-premises activities. The city’s sign code defines the term “off-site sign” as “a sign advertising a business, person, activity, goods, products or services not located on the site where the sign is displayed, or that directs people to a location not on this site. The code prohibited the construction of new off-site signs, but allowed existing off-site signs to remain as “non-compliant signs”. The city said its goal was to “protect the aesthetic value of the city and protect public safety.”
The United States Court of Appeals for the 5th Circuit found Austin’s order to be an unconstitutional restriction on free speech. The 5th Circuit explained that the city’s onsite/offsite distinction required a reader to ask “who is the speaker and what is the speaker saying…both hallmarks of a content-based inquiry” . According to his reasoning, “the fact that a government official must read a sign’s message to determine the purpose of the sign is sufficient to ‘make a content-based settlement and ‘subject it to rigorous scrutiny.’
The 5th Circuit justified its decision based on the Supreme Court’s decision in Reed v. City of Gilbert (2015). In Reed, the court invalidated a municipal ordinance that regulated the presence of outdoor signs but had 23 categories of exceptions. For example, under the ordinance, political signs could be quite large and remain in place throughout election season, while event signs had to be small and could only be displayed for a short time. The court unanimously declared it unconstitutional. The court said: “on the face of it, the sign code is a content-based regulation of speech”. The 5th Circuit said Austin’s order was also content-based: the sign was allowed if its message was about on-site businesses, but it was not allowed if the sign was about off-site businesses.
Supreme Court rules Austin settlement content-neutral
In a 6-to-3 decision, the Supreme Court struck down the 5th Circuit and found Austin’s regulations on digital signs to be content-neutral. The court remanded the case for the application of this standard. Judge Sonia Sotomayor wrote the court’s opinion, which pointed out that a government regulation is content-based if it discriminates based on “the subject matter being discussed or the idea or message being expressed.” In other words, a law is content-based if the regulation of speech is subject-based (the topic being discussed) or viewpoint-based (the ideology of the message). If the law applies to all speech, regardless of subject and point of view, then it is content-neutral and should only be subject to interim scrutiny.
The court explicitly distinguished Reed v. City of Gilbert, explaining that what was authorized by the ordinance in this case depended on the subject of the sign. Political messages were treated differently and more favorably than gathering signs for other activities, such as religious worship.
The high court rejected the 5th Circuit’s finding that a bylaw cannot be content-neutral if it requires the sign at issue to be read. Judge Sotomayor wrote: “Contrary to the regulations at issue in Reed, the city’s off-site distinction necessitates a speech review solely in the service of crafting location-based neutral lines. It is content agnostic. The court explained: “The substantive message of a sign itself is not relevant to the application of the provisions; there are no discriminatory content classifications for political messages, ideological messages or directional messages. … On the contrary, the city’s provisions make a distinction based on location: a given sign is treated differently only depending on whether or not it is located on the same premises as the thing in question. The court viewed Austin’s rule as akin to a time, place, or manner restriction on speaking.
The court did not declare Austin’s order unconstitutional, but remanded the case to determine whether it qualified for interim review. It will be interesting to see, on remand, whether the onsite/offsite distinction contributes to aesthetics or public safety. Is a sign for on-premises businesses more likely to be attractive or less likely to be distracting?
Concurring and Dissenting Opinions
Justice Stephen Breyer wrote a concurring opinion in which he acknowledged Reed v. City of Gilbert as binding precedent, but said, “I write separately because I continue to believe that the court’s reasoning in Reed was flawed.” Judge Breyer criticized Reed’s use of strict control. He urged the court to avoid reliance on strict scrutiny and instead use a proportionality analysis, and said it would “weigh the First Amendment harms a regulation imposes against the regulatory goals it imposes.” serves”. He would abide by City of Austin regulations as they cause no “disproportionate harm.”
Judge Samuel Alito concurred in part and dissented in part. He said the challengers had failed to meet their burden for a facial attack on a law: demonstrating “there is no set of circumstances in which the [law] would be valid or would show that the law does not have a clearly legitimate scope. Moreover, according to Justice Alito, the conditions required for a successful overbreadth challenge were not met.
Justice Clarence Thomas, joined by Justices Neil Gorsuch and Amy Coney Barrett, dissented. They argued that under Reed, Austin’s order was content-based. If the ad content was about a business on the premises, the ad was allowed; if the content as for other business, it was not allowed. According to the dissent, this was a content-based limitation that warranted scrutiny. The dissent said the court “misinterprets Reedclear rule for content-based restrictions and replaces it with an inconsistent and malleable standard.
why is it important
Dissent would apply strict rules to any regulations that discriminate between speeches based on the content of the message. Austin’s bylaw does this because advertisements for businesses that are on the premises are permitted, but advertisements for other businesses are not permitted.
The majority defines “content-based” more narrowly. For the court, a law is content-based whether it is an object restriction, centered on the subject of the speech, or a viewpoint restriction, centered on the ideology of the message. If it is neither, the content is neutral and only an intermediate review is used. In this way, perhaps the greatest significance of the case lies in what the court failed to do: it failed to take the broad approach of dissent to conclude that the laws are content-based and should be subject to rigorous scrutiny.
Town of Reed v. Gilbert caused great confusion in the lower courts. City of Austin National Ad Against Reagan provides important clarifications and advice.
Erwin Chemerinsky is Dean of the University of California at Berkeley School of Law. He is an expert in constitutional law, federal practice, civil rights and liberties and appellate litigation. He is the author of several books, including The case against the Supreme Court (Viking, 2014) and Religious Clauses: Arguments for the Separation of Church and State, written with Howard Gillman (Oxford University Press, 2020). His latest book is Presumed Guilty: How the Supreme Court Empowered Police and Overturned Civil Rights (Liveright, 2021).
This column reflects the opinions of the author and not necessarily the views of the ABA Journal or the American Bar Association.