June 23, 2015

The U.S. Supreme Court decided an important First Amendment case on June 18, 2015.  In Reed v. Town of Gilbert, Arizona, the Court struck down a town’s Sign Code as unconstitutional because the Code divided signs into different categories based on the types of messages the signs conveyed, and then subjected the different categories of signs to different restrictions without sufficient justification.

This case is significant because it clarifies and reinforces the process of determining whether a restriction on speech is “Content-Based” or “Content-Neutral.”  If a regulation is Content-Based, it will probably be held unconstitutional because it is very difficult to meet the judicial standard (“strict scrutiny”) for justifying a Content-Based restriction on speech.  On the other hand, if a regulation is Content-Neutral, it is subject to a judicial standard (“intermediate scrutiny”) that is much easier to pass.

In this case, the Supreme Court reversed the judgment of the Ninth Circuit Court which had held that the Sign Code was a valid Content-Neutral regulation of speech.  The Ninth Circuit had reasoned that the Sign Code was Content-Neutral because even though the Sign Code made distinctions based on the content of the signs, the Town’s purposes and motives in enacting the regulations were unrelated to the content of the speech being regulated.

The Supreme Court explained that if a law restricting speech appears on its face to apply to “particular speech because of the topic discussed or the idea or message expressed” then it is Content-Based regardless of the purposes or motives of the government.  (A law restricting speech may also be determined to be Content-Based even if on its face it appears Content-Neutral if the purpose and justification of the law demonstrate an improper motive on the part of the government to suppress disfavored speech.)  Since the Sign Code was Content-Based on its face, the Ninth Circuit should have applied the “strict scrutiny” test without considering the government’s justifications or purposes for enacting the Code.

Under the “strict scrutiny” test, the government must prove that its regulation is necessary to further a compelling government interest and that the regulation is narrowly tailored to achieve that interest.  The Supreme Court held that the Gilbert Sign Code failed that test.

Attorney Richard “Jake” Jackson has been serving the legal needs of the Central Florida community since 1985.  Office in historic downtown DeLand, Florida.Telephone (386) 738-1111.

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