June 18, 2015

Supreme Court victory for free speech: Reed v. Town of Gilbert

By Deborah J. La Fetra Senior Attorney

The Supreme Court today unanimously reversed the Ninth Circuit in Reed v. Town of Gilbert, holding that the town’s Sign Code contained content-based regulations of speech that do not survive strict scrutiny. The Sign Code categorizes temporary signs and then restricts their size, duration, location, and other characteristics depending on the category into which each sign is placed. Depending on whether the town categorizes signs as Political, Ideological, promoting a “Qualifying Event,” or conveying messages from “Homeowners Associations,” or about Real Estate, the Sign Code imposes vastly different size, duration, number, location, and other requirements within each content-based category.

The Ninth Circuit made its first error by skipping the initial step in the analysis: looking to the text to see if it imposes restrictions based on the content of the speech. It compounded the error by resting its decision on the asserted motivations of the town council. Ultimately, the Court held that “Trust me” is not a legitimate government justification for a First Amendment violation. The Court firmly rejected the Ninth Circuit’s holding that a government’s subjective motivation, or as the Court phrased it, “an innocuous justification,” could save an otherwise unconstitutional content-based restriction on speech.

Agreeing with PLF’s amicus brief, today’s ruling furthers individual liberty by striking down a government’s unjustified censorship of protected speech even where the government asserts benign motives. As the majority opinion authored by Justice Thomas explained,
“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. That is why the First Amendment expressly targets the operation of the laws—i.e., the “abridg[ement] of speech”—rather than merely the motives of those who enacted them.  U. S. Const., Amdt. 1. “‘The vice of content-based legislation . . . is not that it is always used for invidious, thought-control purposes, but that it lends itself to use for those purposes.’”

By taking the town’s self-serving assertions of pure motives out of the equation, the Court properly looked to the text of the law itself—the text that most clearly represents the public policy chosen by the government—to determine whether it imposed content-based restrictions on speech.

Justice Thomas delivered the opinion of the court. Justice Alito concurred, joined by Justices Kennedy and Sotomayor; Justice Breyer concurred in the judgment; and Justice Kagan concurred in the judgment, joined by Justices Ginsburg and Breyer.

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