Government Can't Censor Content - Even If It's 'For Your Own Good' by Evan Bernick

Will a recent Supreme Court decision unleash more speech than Americans can handle?

In a recent New York Times article, reporter Adam Liptak (rightly) refers to Reed v. Town of Gilbert as “the sleeper case of the last Supreme Court term.” Liptak spoke with Robert Post, First Amendment scholar and dean of Yale Law School, and Floyd Abrams, constitutional lawyer and free-speech advocate.

In Reed, the Court invalidated a town sign code that treated signs promoting church services more harshly than signs promoting other messages, and made plain that such content-based restrictions on speech must undergo strict judicial scrutiny.

Abrams praised the decision; Dean Post, according to Liptak, predicted that it will “endanger[] all sorts of laws,” “roll consumer protection back to the 19th century,” and “destabilize First Amendment law.”

Those, like Abrams, who believe that “the First Amendment is about liberty” and that “we all lose by reading it narrowly” should welcome the ruling in Reed and pay no heed to Post’s parade of horribles.

Reed resolved an ambiguity that had confused lower courts for decades and rendered many Americans’ freedom to speak uncertain in important areas. In so doing, Reed honored the broad mandate of the First Amendment, which prohibits any law “abridging the freedom of speech,” making no exception for certain messages, ideas, or subject matters — regardless of whether the government promises that curbing speech is for our own good.

How did we get to Reed? The first major case to focus on content-based speech restrictions was Police Department of Chicago v. Mosley (1972), which concerned a Chicago ordinance that barred picketing within 150 feet of schools during the school day — except for picketing related to labor disputes.

The Court invalidated the ordinance because the government provided no credible evidence that labor picketing was less likely to be disruptive than other forms of picketing.

To selectively proscribe speech on the basis of its subject matter, said the Court, is to “completely undercut the ‘profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide open.’”

Subsequent cases would make clear that intent to censor is not essential to a determination that a restriction on speech is content-based; if the government had to inspect the content of speech to determine how it could be regulated, that was sufficient to trigger strict scrutiny.

But the nature of the Court’s content-based jurisprudence became muddled as it began to review First Amendment challenges to local zoning rules concerning adult businesses. These zoning rules clearly regulated speech based on its subject matter — they only applied to businesses whose expression was sexually explicit.

However, in City of Renton v. Playtime Theaters, Inc. (1986), the Court concluded that an ordinance targeting theaters that specialize in sexually explicit films was content-neutral and, thus, not subject to strict scrutiny, because it was “justified without reference to the content of the regulated speech” — specifically, because “the Renton ordinance is aimed not at the content of the films… but rather at the secondary effects of such theaters on the surrounding community.”

Renton was hotly debated by First Amendment scholars at the time, and scholar Laurence Tribe expressed concern that the newly-minted secondary effects doctrine would “undermine the very foundation of the content-based/content neutral distinction.”

In Ward v. Rock Against Racism (1989), Tribe’s concern was validated. Ward involved a content-neutral rule that required the use of city-provided sound equipment at concerts in Central Park, regardless of what was being performed.

Drawing upon Renton, the Court stated that the “[t]he principal inquiry in determining content neutrality… is whether the government has adopted a regulation of speech because of disagreement with the message it conveys.”

Some lower courts understood Ward to stand for the proposition that facially discriminatory laws — that is, laws that identify regulated speech based on its content — could be treated as content-neutral for purposes of the First Amendment, so long as the courts believed that those laws were enacted for public-spirited reasons.

But since government officials always profess benign intentions, proving censorial intent proved difficult. The result: the proliferation of speech restrictions, including licensing schemes restricting occupational speech (such as that of tour guides, interior designers, and veterinarians), panhandling bans, and noise ordinances that exempt certain noises from regulation depending on either their message or who is speaking.

Reed v. Town of Gilbert was a perfect example of this trend. In the decision below in Reed, the Ninth Circuit Court of Appeals determined that Gilbert’s sign code was “content-neutral” because of the town’s assurances that it had no intention to discriminate.

To combat this censorial trend, when the Supreme Court granted certiorari inReed, the Institute for Justice filed an amicus brief urging the Court to clarify that strict scrutiny applies:

If a law expressly requires the government to look at the content of speech in determining whether or not it is subject to regulation, or
When a law’s purpose is to censor messages with certain subject matters or viewpoints.

And thankfully, to the benefit of speakers across the country, the Supreme Court did exactly that.

Writing for the Court, Justice Thomas explained,

A law that is content based on its face is subject to strict scrutiny regardless of the government’s benign motive, content-neutral justification, or lack of ‘animus’ toward the ideas contained in the regulated speech.

The Court easily concluded that the sign code at issue classified signs on the basis of their content because whether or not the restrictions applied to any given sign “depend[ed] entirely on the communicative content of the sign.”

Having done so, the Court went on to perform the kind of truth-seeking judicial engagement that is required to ensure that the government does not act as a censor, insisting that the government demonstrate, with reliable evidence, that it was pursuing a compelling interest through means narrowly tailored to that end.

The town failed to carry its burden. Although the town claimed that the sign code “preserv[ed] the Town’s aesthetic appeal” and protected “traffic safety,” the town “allow[ed] unlimited numbers of other types of signs that create the same problem[s]” and did not demonstrate that “directional signs pose a greater threat to safety than do ideological or political signs.”

Even assuming that the town’s stated interests were compelling, the Court concluded that the sign code was insufficiently narrowly tailored to pass constitutional muster.

Which brings us to the present where, as Liptak observes, Reed is already having an impact.

In the wake of Reed, the Seventh Circuit Court of Appeals revisited an ordinance barring panhandling in the “downtown historic district” of Springfield, Illinois.

Last year, the Seventh Circuit had upheld the ordinance as content-neutral, even though an officer enforcing the ordinance would have to listen to the content of the speaker’s message in order to determine whether the ordinance had been violated. (A request for a charitable donation might be impermissible, but a request for a commercial transaction would not.)

Following Reed, the Seventh Circuit accepted a petition for rehearing and a unanimous panel invalidated the Springfield ordinance. Judge Easterbrook, writing for the panel, recognized the broad scope of Reed’s holding: “Any law distinguishing one kind of speech from another by reference to its meaning now requires a compelling justification.”

Although Reed reaffirmed the Court’s historical (and highly critical) view of content-based regulation, not everyone sees the ruling as cause for celebration. But Dean Post’s specific criticisms are unwarranted.

Although Post argues that the decision could undermine restrictions on misleading advertising and professional malpractice, such laws have coexisted with the First Amendment for over 200 years, and there is no reason to believe that the Court’s decision will change that. Nor will Reed destabilize our First Amendment law; it stabilizes that law by providing much-needed guidance to lower courts.

Dean Post’s real complaint is that, for over a quarter century, the Court has gradually shifted away from his preferred theory of the First Amendment — one that would allow the government to privilege certain favored categories of speech — towards a more libertarian view, which leaves such judgments about the value of speech to the free choices of Americans. Reed v. Town of Gilbert is simply the most recent step in that evolution, and it is nothing to be afraid of.

In Reed, the Court affirmed that the government is not free to pick and choose what topics it would prefer Americans speak about or what information they can be trusted with, even if the government earnestly professes that it has our best interests at heart. Reed will help to ensure that speech remains uninhibited, robust, and wide open.

A version of this article first appeared at the Huffington Post.

Evan Bernick