This past June, the U.S. Supreme Court issued a little-noticed, but major First Amendment decision in Reed v. Town of Gilbert, 135 S. Ct. 2218 (2015). Although the case concerned a municipal sign code, the Court's reasoning calls into question a variety of "content-based," but viewpoint-neutral, laws and regulations. Indeed, Adam Liptak of The New York Times has called Reed "the sleeper case" of the Court's last term.
So what happened? The Town of Gilbert, Arizona adopted a Land Development Code ("Sign Code") that prohibited the display of outdoor signs without a permit. Id. at 2225. However, the Sign Code exempted from that prohibition 23 categories of signs that were identified by the type of information they conveyed. Id. Each category was subject to different regulations, including how big the signs could be, and when and where they could be displayed. Id. at 2224-25.
A small church ran afoul those regulations. The church advertised the time and location of its Sunday worship services (which changed week to week) by placing temporary signs around Gilbert on Saturday mornings. Id. at 2225. The signs were removed by midday Sunday. Id. A Town official cited the church for violating the Sign Code's regulations for "Temporary Directional Signs Relating to a Qualifying Event," which were more stringent than regulations for other categories of signs, such as "Ideological" and "Political" signs. Id. at 2225-26. The church later sued the Town, arguing that the Sign Code violated its freedom of speech under the First Amendment. Id. at 2226.
The Supreme Court sided with the church. The Court held that the Sign Code was "content based on its face" and, therefore, subject to strict scrutiny. Id. at 2227. The Court explained that under the First Amendment, "a government * * * 'has no power to restrict expression because of its message, its ideas, its subject matter, or its content.'" Id. at 2226 (emphasis added) (quoting Police Dept. of Chicago v. Mosley, 408 U.S. 92, 95, 92 S. Ct. 2286 (1972)). "Government regulation of speech is content based if a law applies to a particular speech because of the topic discussed or the idea or message expressed." Reed at 2227. (emphasis added). The Sign Code treated different topics differently by categorizing signs based on the information they conveyed and subjecting those categories to different regulations. Id. The Court further held that the Sign Code did not survive strict scrutiny because the distinctions drawn among categories were "hopelessly underinclusive" for advancing the Town's alleged interests: aesthetic appeal and traffic safety. Id. at 2231-32.
Four months later, lower courts have confirmed that Reed applies to more than just municipal sign codes. Indeed, several viewpoint-neutral restrictions have been either struck down or called into question, including laws concerning:
1. Robocalls, Cahaly v. Larosa, No. 14-1651, 2015 U.S. App. LEXIS 13736 (4th Cir. Aug. 6, 2015) (invalidating a South Carolina anti-robocall statute that applied only to "calls with a consumer or political message");
2. Panhandling, Norton v. City of Springfield, Case No. 13-3581, 2015 U.S. App. LEXIS 13861, at *2 (7th Cir. Aug. 7, 2015) (striking down an ordinance that prohibited an "oral request for an immediate donation of money," but allowed "oral pleas to send money later");
3. Ballot selfies, Rideout v. Gardner, No. 14-cv-489-PB, 2015 U.S. Dist. LEXIS 105194, at *24 (D.N.H. Aug. 11, 2015) (overturning a New Hampshire law barring images of marked ballots showing how a voter had voted because it "require[d] regulators to examine the content of the speech to determine whether it includes impermissible subject matter."); and
4. On-premise signs, Thomas v. Schroer, No. 2:13-cv-02987, 2015 U.S. Dist. LEXIS 119045 (W.D. Tenn. Sept. 8, 2015) (finding a strong likelihood that a Tennessee statute regulating on-premise signs is unconstitutional because "[t]he only way to determine whether a sign is an on-premise sign, is to consider the content of the sign").
So far, however, courts have been reluctant to extend Reed's strict scrutiny to commercial speech regulations, which traditionally have been subject to less-stringent standards of review. See Cent. Hudson Gas & Elec. Corp. v. Public Serv. Comm'n, 447 U.S. 557, 562-563, 100 S. Ct. 2343 (1980) (adopting an intermediate-scrutiny test for restrictions on commercial speech); Zauderer v. Office of Disciplinary Counsel of the Supreme Court of Ohio, 471 U.S. 626, 105 S. Ct. 2265 (1985) (adopting a rational-basis test for compelled disclosure of commercial speech). For example, a New York federal court recently held that an ordinance prohibiting roadside solicitation of employment was content-based under Reed, but subject to intermediate scrutiny under Central Hudson. De La Comunidad Hispana De Locust Valley v. Town of Oyster Bay, No. 10-CV-2262, 2015 U.S. Dist. LEXIS 117926, at *32-34 (E.D.N.Y. Sept. 3, 2015). Similarly, a California federal court recently held that an ordinance that required cell phone retailers to provide customers with a certain notice regarding radiofrequency energy emitted by cell phones was subject to rational-basis scrutiny under Zauderer. CTIA – The Wireless Ass'n v. City of Berkeley, No. C-15-2529, 2015 U.S. Dist. LEXIS 126071, at *38 (N.D. Cal. Sept. 21, 2015).
It remains unclear to what extent courts will take Reed as an invitation to revisit old precedents and strike down content-based restrictions that previously may have survived constitutional scrutiny. Time will tell as more courts grapple with these issues. Don't be surprised, however, if the First Amendment becomes more robust in the coming years.
