One of the hardest distinctions for students of the First Amendment is the one between content-based speech regulation and viewpoint-based regulation. It’s not the students’ fault: The U.S. Supreme Court’s own doctrine has been maddeningly vague about when and why government regulation of speech triggers the “strict scrutiny” of the court that is usually fatal to such regulation. Is the problem that the government is choosing what to regulate based on its content? Or is the real problem that the government wants to favor one viewpoint over others?
In Reed v. Town of Gilbert, decided Thursday, the court made this doctrinal problem unimportant to the point of being obsolete. In an opinion that combined free-speech formalism with free-speech absolutism, Justice Clarence Thomas for a majority of six justices held that a town may not have different rules governing “ideological” signs, electoral signs and temporary directional signs.
Thomas’s logic was that the town’s rules distinguish between these signs on the basis of their content – and therefore trigger strict scrutiny. Because strict scrutiny demands that the town have a compelling interest in the regulation of the speech, and that it adopt means narrowly tailored to that interest, the town’s regulation was struck down. Similar laws all over the U.S. will now have to be rewritten to comply.
Why? In the past, the court had said that laws that classify based on content are worrisome when they reveal a tendency to suppress certain ideas. This concern is closely related to the court’s concern about laws that classify or discriminate based on viewpoint: Such laws seem to favor one perspective or another, thus interfering with the free marketplace of ideas or intervening in citizens’ self- expression.
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What was important, even epochal about Thomas’s opinion is that he said such concerns aren’t determinative. The moment a law formally draws a distinction based on content, the law triggers strict scrutiny (and will almost invariably be struck down).
Thus, Thomas rejected the idea that there was nothing worrisome about the town’s slightly more generous treatment of “ideological” signs compared with election-related signs, and of both compared with temporary signs directing the public to nonprofit civic events. As he explained it, “Innocent motives do not eliminate the danger of censorship presented by a facially content-based statute, as future government officials may one day wield such statutes to suppress disfavored speech.” There might be no censorship or preference implied by the town’s regulation – but the mere act of distinction carried within it the threat of censorship.
As a consequence of the court’s formalist holding, courts (and my students!) will not have to worry very much about the difference between content discrimination and viewpoint discrimination. Essentially every law that discriminates against viewpoint necessarily distinguishes on the basis of content. Thomas said that viewpoint discrimination is just a particularly bad form of content discrimination. It’s as if the category never had to exist in the first place.
Justice Elena Kagan objected. Joined by Justice Stephen Breyer and Ruth Bader Ginsburg (but notably not Sonia Sotomayor), she concurred only in the judgment, writing that this approach took content discrimination analysis too far. In effect, Kagan said, the court had now rendered unconstitutional town signage ordinances all over the country.
Kagan gave the example of a town that bars most signs, but allows a sign saying “George Washington slept here,” presumably because of its historical importance. That’s content discrimination, she pointed out. But could the town seriously maintain that allowing the historical sign was a compelling state interest?
She added the example of signs warning of blind driveways. Would a law allowing only such signs be narrowly tailored, she asked? What about speed humps? Or banning the driveways altogether?
There actually is a doctrinal way out of Kagan’s concerns: labeling historical signs or driveway warnings as government speech. When the government speaks itself, the First Amendment doesn’t apply, so it can pick and choose all it wants based on content and even viewpoint. The trouble, of course, is that the line between government speech and private speech can be disturbingly arbitrary. That much was also clear Thursday in the Texas license plate case, where the four liberals plus Thomas held that Texas could veto a plate bearing the Confederate battle flag because all plates are government speech.
In the sign case, Justice Samuel Alito, joined by Justices Anthony Kennedy and Sotomayor, concurred with Thomas but wrote separately to assure towns that they could still regulate based on neutral factors like sign size, electric lights and so forth.
And Justice Stephen Breyer, the court’s expert on regulation, wrote separately to fret about the future of speech- related rules, such as drug-labeling and securities regulation. These forms of regulation get lower scrutiny because they count as commercial speech, but Breyer is clearly worried that commercial speech doctrine is now in jeopardy.
The big picture conclusion is that the decision was a victory for free-speech absolutism. If you think all speech is valuable, this should make you happy. If you fear that allowing all speech may actually lead to mistaken judgments, you should take note and be concerned. Maybe post a sign saying there should be less of it.
Noah Feldman, a Bloomberg View columnist, is a professor of constitutional and international law at Harvard.
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