In 2015, the Supreme Court decided Reed v. Town of Gilbert, which struck down a city’s local sign code as incompatible with the First Amendment. That sign code treated signs differently based on what type of message they sent: signs sending an ideological message, for example, had fewer restrictions than signs providing directions to an event. The Supreme Court held that the sign code was “content based” and thus subject to strict scrutiny, the highest standard of constitutional review (and the most difficult for a law to survive). The Court explained that a law is content based when it “target[s] speech based on its communicative content,” or, in other words, when it “applies to particular speech because of the topic discussed or the idea or message expressed.” Reed thus instructed lower courts to “consider whether a regulation of speech ‘on its face’ draws distinctions based on the message a speaker conveys.”
Since Reed was decided, many lower courts have condensed this rule down to a simple and straightforward test: the so-called Reed “read-the-sign” rule. If you have to read what a sign says to know whether a law applies to that sign, then the law “applies to particular speech because of the topic discussed or the idea or message expressed.” If that is the case, lower courts reasoned, then Reed’s test has been satisfied and the law must be content based.
Yesterday, however, the Supreme Court rejected that interpretation of Reed. The Court’s new interpretation will result in fewer speech codes being held content based and thus subject to strict scrutiny, though just how much it will change the status quo remains to be seen.
In City of Austin v. Reagan National Advertising, the Court considered an Austin sign code that treats signs differently based on whether they are “on-premises” signs or “off-premises” signs. As the term implies, an “on-premises” sign advertises something in the building to which it is attached (for example, a sign on a restaurant window saying “Try our new sandwich!”). An “off-premises” sign, by contrast, does not advertise something in its own building (for example, a sign in the same restaurant window saying “Choose Peace,” or a sign not attached to a building at all).
The Fifth Circuit, applying Reed, had previously held that this Austin sign code was content based and thus subject to strict scrutiny. The Fifth Circuit explained that to determine whether a sign on a building is on- or off-premises, “one must read the sign” and ask whether it advertises something within that building. As the Fifth Circuit noted, “Austin’s Sign Code treats a sign that says ‘Stop Here!’ differently than a sign that says ‘Stop Over There!’” Under Reed, it seemed that this was enough to trigger strict scrutiny. And the Fifth Circuit held that the law’s justifications could not survive that high standard of review.
But yesterday, a five-justice majority of the Supreme Court reversed the Fifth Circuit, holding that Austin’s sign code is not content based (at least on its face). Justice Sotomayor, joined by Chief Justice Roberts and Justices Breyer, Kagan, and Kavanaugh, rejected the Fifth Circuit’s understanding that “a regulation cannot be content neutral if it requires reading the sign at issue.” This approach, Justice Sotomayor wrote, “is too extreme an interpretation of [the Supreme] Court’s precedent.”
Instead, the majority opinion continues, the “principle the Reed Court articulated is more straightforward.” Laws defining a type of content (such as “ideological” signs or “political” signs) and treating that type of content differently from other speech are content based. But Austin’s sign code, the Court reasoned, “requires an examination of speech only in service of drawing neutral, location-based lines” and is thus “agnostic as to content.” Because Austin’s regulations “do not single out any topic or subject matter for differential treatment,” the Court held that the sign code is facially content neutral.
But yesterday’s decision is not the end of the Austin sign code’s legal saga. The majority opinion concludes by noting that even though the code is not content based on its face, there is still the possibility that “an impermissible purpose or justification underpins” the sign code, which would subject it to strict scrutiny anyway. And there is also the possibility that the law cannot even survive under a more lenient standard of review than strict scrutiny. Since the Fifth Circuit did not consider either of these questions, the Supreme Court sent the case back to the Fifth Circuit to consider them for the first time.
In a separate concurrence, Justice Breyer noted that although he joined the majority’s opinion applying Reed, he continues to believe that Reed itself was wrong. Reiterating his long-held view that “the First Amendment is not the Tax Code,” Breyer urged that the Court should reject bright-line rules (such as the rule that all content-based laws are subject to strict scrutiny) and instead weigh First Amendment interests on a case-by-case basis.
In a partial concurrence and partial dissent, Justice Alito (who did not join any of the majority opinion) argued that the Austin sign code is in fact content based in at least some of its applications. Using the example of potential signs in a coffee shop window, Alito noted that treating a “sign about a new drink” differently from “signs about social and political matters” is content-based “discrimination on the basis of topic or subject matter.”
In dissent, Justice Thomas (the author of Reed), joined by Justices Gorsuch and Barrett, argued that the majority “misinterprets Reed’s clear rule for content-based restrictions and replaces it with an incoherent and malleable standard.” To Justice Thomas, Austin’s sign code should have easily been held content based under Reed because it “discriminates against certain signs based on the message they convey—e.g., whether they promote an on- or off-site event, activity, or service.” Justice Thomas warned that the majority had “transform[ed] Reed’s clear definition of ‘content based regulation’ back into an opaque and malleable ‘term of art.’” He further warned that this would allow too much discretion for judges to weigh their own policy preferences in evaluating future sign codes.
The Supreme Court’s decision in Reagan National Advertising is disappointing. As explained in Cato’s amicus brief, Austin’s sign code has serious discriminatory effects on speech. Institutions with more physical buildings in the city of Austin are allowed to spread their message more easily than institutions with few or no buildings. For example, Austin’s sign code means that religions with more physical buildings in Austin can more easily spread their message than religions with fewer buildings. The same goes for political parties, civic institutions, and other organizations. Austin’s law means that a group’s ability to amplify their message is directly tied to their real estate holdings. Such a law clearly has the potential to warp the marketplace of ideas, and the Court should have subjected it to strict scrutiny on its face.
Nonetheless, there are still some consolations in the Court’s opinion. First, it’s unclear just how often we will see laws where a “read-the-sign” rule will lead to a different outcome than a “defined type of content” rule. The outcome of Reed is still good law, and sign codes that facially single out certain categories of speech are still subject to strict scrutiny. Besides on/off-premises sign codes, there may not be many other types of laws that manage to treat certain messages differently without actually defining a category of content for differential treatment in the text of the law itself.
In addition, it is still possible to challenge facially content-neutral laws as motivated by a content-based intent. For example, if it came to light that a city had enacted an on/off-premises sign code because it wished to favor the religion with the most real estate in the city, such a law would still be subject to strict scrutiny. While discriminatory intent is much harder to prove than facial content distinctions, it still remains an option in the most egregious cases.
Further, a sign code that left too much ambiguity in its definition of permissible speech might be unconstitutional on the basis of vagueness, even if it is not content based. The Supreme Court has explained that when the government implements a speech code, it “must be able to articulate some sensible basis for distinguishing what may come in from what must stay out.” Justice Thomas’s dissent noted some ambiguities in Austin’s definition of on-premises signs and the possibility that such ambiguities “offer enforcement officials ample opportunity to suppress disfavored views.” A challenge to this and other laws based on vagueness remains available, whether or not the laws are facially content based.
Finally, in this and future cases, there is still the possibility that a sign code cannot satisfy even intermediate scrutiny. That standard requires the government to show that a law is “narrowly tailored to serve a significant governmental interest.” Properly applied, that is a high bar for the government to reach. Many of the interests put forward by Austin and other cities to justify an on/off-premises distinction could be achieved with less of a burden on speech, meaning they could fail even intermediate scrutiny.
Whether Austin’s sign code will ultimately survive remains an open question. But the Court’s opinion yesterday unfortunately gives local governments more leeway to discriminate among speech than they have had over the previous seven years.
