The Yale Law Journal


The "Supreme Board of Sign Review": Reed and Its Aftermath

14 Mar 2016

First Amendment jurisprudence is fickle. Sometimes it is transformed in prominent, widely known cases, like Citizens United. At other times, it is quieter, lesser known cases that revolutionize the doctrine. One of last summer’s cases, Reed v. Town of Gilbert, falls squarely into the latter category. The Supreme Court’s redefinition of content discrimination in Reed has led to rapid changes in how courts across the country are evaluating First Amendment challenges. Many courts have read the ruling as requiring them to strike down various state and local laws. Other courts have attempted to sidestep the implications of Reed by applying different First Amendment doctrines to evaluate the challenges that come before them. This divergence in the approaches taken by courts in First Amendment cases illuminates the complexity that results when courts try to apply Reed’s expanded content discrimination doctrine to real-world cases.

I. reed v. town of gilbert

In Reed v. Town of Gilbert, the Court applied strict scrutiny and struck down an Arizona sign ordinance as a content-based regulation of speech.1 The challenged ordinance prohibited the display of outdoor signs without a permit, exempting twenty-three categories of signs, including “Ideological Sign[s],” “Political Sign[s],” and “Temporary Directional Sign[s].”2 The petitioners, a local church and its pastor, posted signs each Saturday bearing the church’s name and the time and location of the next day’s service and did not remove the signs until midday Sunday.3 The church’s practice violated the regulation that Temporary Directional Signs be displayed no more than twelve hours before the “qualifying event” and for no more than one hour afterward.4 After being cited for violating the ordinance,5 petitioners sued the Town of Gilbert, claiming that the sign code abridged their right to free speech.6

Reversing the lower court,7 the Supreme Court declared that government regulation of speech is content-based if the regulation “applies to particular speech because of the topic discussed or the idea or message expressed.”8 Under this two-pronged definition, a law can be content-based either because it distinguishes speech by “topic discussed” (meaning that the law is facially content-based), or because the government’s justification or purpose for the law depends on the underlying “idea or message expressed” (meaning that the law may be facially content-neutral but is implicitly content-based).9

This approach marked a departure from the existing conception of content discrimination. Until Reed, courts had focused on the second prong—impermissible government justification or purpose—as the primary basis for finding content discrimination.10 But under Reed, impermissible motive is no longer a prerequisite for finding content discrimination: “A law [can be] content based on its face . . . regardless of the government’s benign motive, content-neutral justification, or lack of ‘animus toward the ideas contained’ in the regulated speech.”11 Reed marked the first time that the Court articulated this broader two-pronged definition of content discrimination.

As a result, content discrimination now encompasses not only viewpoint-based regulations but also subject matter-based regulations,12 and all such regulations must survive strict scrutiny to be upheld.13 Strict scrutiny requires a regulation to be narrowly tailored to further a compelling government interest.14 Unsurprisingly, the challenged sign ordinance in Reed failed to meet the strict scrutiny standard.15 As Justice Kagan noted in her concurrence, “it is the ‘rare case[] in which a speech restriction withstands strict scrutiny.’”16 Echoing Justice Kagan, Justice Breyer pointed out that strict scrutiny “lead[s] to almost certain legal condemnation.”17 However, the Reed Court reasoned that its new definition of content discrimination and broadened application of strict scrutiny will ensure that subject matter-based legislation that is not initially intended for “‘invidious, thought-control purposes’” cannot subsequently be used to favor certain viewpoints over others.18

In her opinion concurring in the judgment, Justice Kagan described the potentially wide-ranging effects of the majority opinion. As a consequence of subject matter-based regulation into the sphere of content discrimination, and due to the difficulty (and rarity) of meeting the strict scrutiny standard, “entirely reasonable”19 laws will begin to be struck down.20 As Justice Breyer explained, “[r]egulatory programs almost always require content discrimination,” and Reed’s strong presumption against their constitutionality could have the effect of invalidating government regulation in almost every legal arena—from securities regulation to prescription drug labeling practices.21 Justice Kagan emphasized that the Town of Gilbert’s ordinance could have been struck down for lacking “any sensible basis” for its distinctions—failing “even the laugh test”—and that the Court did not need to apply strict scrutiny and precariously broaden the scope of content-based regulation.22

In a separate concurrence, Justice Alito countered Justice Kagan’s concerns by stating that the majority’s opinion did not leave “municipalities . . . powerless to enact and enforce reasonable sign regulations.”23 Justice Alito listed examples of sign regulations that would not be content-based, such as rules regulating “the size of signs,” specifying “the locations in which signs may be placed,” distinguishing “between on-premises and off-premises signs,” and “imposing time restrictions on signs advertising a one-time event.”24 In a footnote, Justice Kagan disputed Justice Alito’s characterization of Reed’s limited scope. She argued that Justice Alito’s examples of valid sign regulations included ordinances that the majority would consider to be content-based under its definition. For instance, “signs advertising a one-time event,” would “single[] out specific subject matter for differential treatment” and “defin[e] regulated speech by particular subject matter.”25

The consequences of the Court’s decision have been twofold. On the one hand, as Justices Breyer and Kagan predicted, lower courts have read Reed to invalidate a wide range of democratically enacted state statutes and local regulations. At the same time, some courts have started to bypass the stringency of strict scrutiny by applying less rigid standards of review under First Amendment doctrines other than content discrimination.

II. striking down local laws

While the Town of Gilbert’s sign code may not have passed “even the laugh test,”26 other courts have found their hands tied as they strike down otherwise reasonable regulations. Indeed, despite attempts by the majority and concurring opinions to limit the scope of Reed, the sweeping effects of the Court’s decision have manifested in the subsequent months.

Anti-panhandling ordinances are among the local regulations meeting their demise. Before the Supreme Court’s ruling in Reed, the Seventh Circuit, in Norton v. City of Springfield,27 upheld the City of Springfield’s anti-panhandling regulation in the face of a First Amendment challenge. The court ruled that the ordinance was content-neutral because it regulated by subject matter rather than by content or viewpoint.28 The ordinance prohibited “oral request[s] for an immediate donation of money” but allowed signs and oral pleas to send money later.29 According to the majority opinion, the logic of the ordinance’s distinction was that signs and deferred donations would be “less impositional” and less “threatening” than immediate requests.30 Thus, the court upheld the regulation as a valid time, place, or manner restriction, applying a doctrine that has traditionally permitted certain kinds of content-neutral regulations of speech.31

However, after Reed was handed down, the Seventh Circuit granted a rehearing and struck down the anti-panhandling ordinance.32 As the majority explained in the reversal, Reed “abolishe[d] any distinction between content regulation and subject-matter regulation”33 and made it clear that “a speech regulation targeted at specific subject matter is content based even if it does not discriminate among viewpoints within that subject matter.”34 This was true even if the distinctions were originally implemented in order to make the ordinance less speech-restrictive.35 As a result, the Seventh Circuit’s application of time, place, or manner doctrine to uphold the ordinance in its initial review36 was undone by Reed’s content discrimination doctrine. Indeed, Norton augurs the weakening of time, place, or manner regulations—the First Amendment doctrine that until now has allowed local and state governments to balance their interests in public order with First Amendment interests.

In another recent case, a federal district court struck down New Hampshire’s law banning “ballot selfies.”37 Since at least 1979, the state had made it unlawful for voters to show their ballots to someone else with the intention of disclosing how they intended to vote.38 In 2014, the state legislature updated the law to prohibit taking a digital image or photograph of one’s marked ballot and distributing or sharing the image via social media or other means.39 During the course of the litigation over the law’s constitutionality, the state defended the statute as necessary “to prevent vote buying and voter coercion.”40 The state argued that the law was a content-neutral time, place, or manner restriction on speech and therefore not subject to strict scrutiny.41 Applying Reed, the court held that the law was facially content-based because the only digital and photographic images that the law barred were images of marked ballots disclosing how a voter had voted; the law did not prohibit people from sharing other kinds of images.42 Because the law “require[d] regulators to examine the content of the speech to determine whether it include[d] impermissible subject matter,”43 it qualified as subject matter-based discrimination and was subject to the fatal gaze of strict scrutiny. Once again, a government’s contention that a law was a valid time, place, or manner restriction failed in the face of Reed.44

Governments often must balance their interests in protecting free speech with other public interests. In the context of panhandling, the government sought to balance the right to free speech with the desire to regulate solicitations for money in public spaces; in the context of ballot selfies, the government sought to balance the right to free speech with the desire to preserve electoral integrity. But government interests in public order have clearly proven insufficient to preserve state statutes in the face of Reed’s broad proscription on content discrimination. And government attempts to protect private interests have begun to falter in the face of Reed as well.

In Cahaly v. Larosa, a court reviewed the constitutionality of a South Carolina anti-robocall statute that was enacted by the state legislature in 1991.45 The statute placed different restrictions on robocalls depending on whether they were unsolicited and whether they were made for consumer, political, or other purposes.46 The law set up a framework of rules for robocalls and prohibited only unsolicited consumer robocalls and calls that were “of a political nature.”47 Applying Reed, the court found that the law was facially content-based, because it applied to “calls with a consumer or political message” but not to “calls made for any other purposes.”48 Therefore, the statute was subjected to strict scrutiny review and subsequently invalidated.49

The South Carolina law differed from the regulations challenged in Arizona, Illinois, and New Hampshire because the asserted government interest was the “protect[ion] of residential privacy and tranquility,”50 as opposed to an interest in public order (as with anti-panhandling ordinances and sign regulations) or the protection of the political process (as with anti-ballot selfie laws). But strict scrutiny spares few statutes, as Justice Kagan suggested. The Reed Court’s decision to expand the category of content discrimination, coupled with strict scrutiny, implies the invalidation of most, if not all, such laws. In fact, these recent lower court cases highlight that narrowly tailoring a restriction risks unintentional content-based regulation; few state interests, whether in public order or private peace, can shield such a statute from being struck down.

III. charting routes around reed

While portending the sweeping effects of Reed, Justice Kagan suggested that one route for courts to avoid the mass invalidation of democratically enacted statutes would be to “water down strict scrutiny to something unrecognizable.”51 The danger of this approach is that it would weaken First Amendment protection in cases in which strict scrutiny should apply with full force, as Justice Breyer noted.52 Courts have attempted to avoid this outcome by applying less stringent standards of review under other First Amendment doctrines, such as secondary effects and commercial speech, to uphold regulations in cases where Reed might call for invalidation.

Endeavoring to keep regulations alive, some courts have turned to the secondary effects doctrine. This was the case in a recent First Amendment challenge to the International Traffic in Arms Regulation (ITAR), which regulates the disclosure of “technical data” relating to “defense articles.”53 The plaintiffs, who had posted “technical information regarding a number of gun-related items” on the Internet, were found to have violated the ITAR and challenged its constitutionality.54 Under the Reed framework, the ITAR is subject matter-based regulation, since it regulates speech concerning a specific “topic discussed” (whether it relates to “defense articles”), and therefore should be subject to strict scrutiny. However, the court bypassed Reed and applied the secondary effects doctrine, which finds regulations to be content-neutral “where the regulations are aimed not at suppressing a message, but at other ‘secondary effects.’”55 Although the secondary effects doctrine evolved from a distinct line of cases involving contentious social issues, such as City of Renton v. Playtime Theatres, Inc.56 (which involved the zoning of adult theatres) and McCullen v. Coakley57 (which involved buffer zones around abortion clinics), the court applied the logic of secondary effects to the case at hand.58 The court held that the ITAR did not regulate the disclosure of technical data based on the “message that [the data] is communicating.”59 Rather, the court focused on the fact that the regulation was “intended to satisfy a number of foreign policy, and national defense goals.”60 The court concluded that the regulation is content-neutral and therefore subject to intermediate scrutiny, which it survives.61 Thus, the court ignored the facially content-based nature of the ITAR and analyzed only the government’s purpose for the law, as was common before Reed. In so doing, the court drew a clear exception for the national security-related regulation and extended the application of the secondary effects doctrine, allowing the law to survive.

Commercial speech doctrine is proving to be a similar byway for courts. In Contest Promotions v. San Francisco, a national company challenged the City of San Francisco’s sign code.62 As a part of its business model, the company leased signage space from stores and used the space to promote its contests to passersby, who were invited to go into the stores and enter the company’s contests.63 The City’s code banned the use of off-site signage while permitting on-site signage, defining the latter as signs “which direct[] attention to . . . the primary business . . . which is sold, offered or conducted . . . on the premises upon which such sign is located.”64 The company challenged the prohibition of its off-site signage by arguing that the City’s code abridged the company’s right to commercial speech.65 After analyzing the speech restriction under the commercial speech framework—which is much less stringent than strict scrutiny—the court found that the City’s code could be upheld as a constitutional regulation of commercial speech.66 By bypassing the content discrimination analysis, the court avoided Reed’s imposition of strict scrutiny and upheld the city’s sign code.

In sharp contrast to this ruling, a federal district court in Tennessee recently struck down a state law that distinguished between on-site and off-site signs as a content-based regulation that could not withstand strict scrutiny.67 Applying Reed, the court reasoned that the regulation was facially content-based because the only way to determine whether a sign was on-site was by determining whether the content of the sign was sufficiently closely related to the activities conducted on the property where the sign was located.68 Thus, the court in Tennessee took the tack that the court in California had avoided by classifying the San Francisco sign code as a regulation of commercial speech. The two courts approached factually similar cases with different First Amendment reasoning—one applying Reed and one avoiding Reed—and arrived at opposite outcomes. Rulings such as these bring the doctrinal incoherence resulting from Reed into stark relief.


While it remains to be seen if these holdings withstand appellate review, these rulings suggest the various avenues available to courts that are faced with challenges to democratically enacted regulations. These regulations seek to balance First Amendment interests with other government interests, but in so doing, often run up against the categorical rule of Reed. The development of the different First Amendment doctrines and the extent to which they are balanced with or overruled by Reed will determine the scope of content discrimination—and the First Amendment—in future cases. Indeed, advocates supporting regulations that are challenged under Reed may increasingly turn to these other First Amendment doctrines as ways to avoid the heavy hand of Reed. Thus, it remains to be seen whether Justice Kagan’s prediction that Reed could transform the Court into a veritable “Supreme Board of Sign Review”69 turns out to be true.

Urja Mittal is a member of the Yale Law School J.D. Class of 2017. Many thanks to Dean Robert Post and Amanda Shanor for insightful guidance and to Michael Clemente, Joseph Masterman, Joshua Revesz, and the editors of the Yale Law Journal for thoughtful editing.

Preferred Citation: Urja Mittal, The “Supreme Board of Sign Review”: Reed and Its Aftermath, 125 Yale L.J. F. 359 (2016),