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Supreme Court Sign Decision Widens the Limitations on Government Regulation

The decision in Reed v. Town of Gilbert, in which the Supreme Court applied a strict scrutiny test to local sign laws, initially drew little notice but it is already having far reaching implications. Sandwiched between high profile decisions on gay marriage and Obamacare in late June, in the case of Reed v. Town of Gilbert the Supreme Court found a local sign law setting different standards for different types of signs was subject to strict scrutiny, could not be justified and therefore the particular ordinance was unconstitutional. The Court held:

“…the Church’s signs inviting people to attend its worship services are treated differently from signs conveying other types of ideas. On its face, the Sign Code is a content-based regulation of speech….”

In the two months since that decision, it has already spawned several cases that have expanded its application to other areas of regulation.

In Cahaly v. LaRosa, the 4th Circuit Court of Appeals, citing Reed, found that a law regulating political robocalls was unconstitutional. Noting the holding in Reed “abrogates” that Circuit’s prior holdings as to content neutrality, the Court went on to state:

“Applying Reed’s first step, we find that South Carolina’s anti-robocall statute is content based because it makes content distinctions on its face. Reed instructs that ‘[g]overnment regulation of speech is content based if a law applies to particular speech because of the topic discussed or the idea or message expressed.’ 135 S.Ct. at 2227. Here, the anti-robocall statute applies to calls with a consumer or political message but does not reach calls made for any other purpose…. The asserted government interest here is to protect residential privacy and tranquility from unwanted and intrusive robocalls. Assuming that interest is compelling, we hold that the government has failed to prove that the anti-robocall statute is narrowly tailored to serve it. Plausible less restrictive alternatives include time-of-day limitations, mandatory disclosure of the caller’s identity, or do-not-call lists.”

The 7th Circuit, in Norton v. City of Springfield, Illinois, on rehearing, reversed its prior holding that an anti-panhandling law was constitutional. The law in question drew a distinction between soliciting for funds where the request was for immediate payment and oral or written solicitation for funds at a later date. The Court had originally justified the law as being less of an imposition on people when the request was for a “deferred” payment. In granting a rehearing, in light of the decision in Reed. the Court reversed its prior decision, finding the law unconstitutional and stating:

“The Town of Gilbert, Arizona, justified its sign ordinance in part by contending, as Springfield also does, that the ordinance is neutral with respect to ideas and viewpoints. The majority in Reed found that insufficient… Our observation, 768 F.3d at 717, that Springfield has attempted to write a narrowly tailored ordinance now pertains to the justification stage of the analysis rather than the classification stage. But Springfield has not contended that its ordinance is justified, if it indeed represents content discrimination. As we said at the outset, the parties have agreed that the ordinance stands or falls on the answer to the question whether it is a form of content discrimination. Reed requires a positive answer.”

In addition, at least one Federal District Court has applied Reed in order to hold another law unconstitutional. In Rideout v. Gardner, the Federal District Court of New Hampshire found a law prohibiting digital or photographic copying and disclosure of a completed ballot was unconstitutional. There the Plaintiff took a picture of his completed ballot and posted it on Twitter. The Court noted that the same test as was applied in Reed would apply in this case.

“In the present case, as in Reed, the law under review is content based on its face because it restricts speech on the basis of its subject matter. The only digital or photographic images that are barred by RSA 659:35, I are images of marked ballots that are intended to disclose how a voter has voted. Images of unmarked ballots and facsimile ballots may be shared with others without restriction. In fact, the law does not restrict any person from sharing any other kinds of images with anyone. In short, the law is plainly a content-based restriction on speech because it requires regulators to examine the content of the speech to determine whether it includes impermissible subject matter. Accordingly, like the sign code at issue in Reed, the law under review here is subject to strict scrutiny even though it does not discriminate based on viewpoint and regardless of whether the legislature acted with good intentions when it adopted the law.”

The Court held that the law failed the strict scrutiny test as “neither the legislative history nor the evidentiary record compiled by the Secretary in defense of this action provide any support for the view that the state has an actual or imminent problem with images of completed ballots being used to facilitate either vote buying or voter coercion.”

In her concurring opinion in Reed, Justice Kagan took exception to the potential broad application of the opinion of Justice Thomas, noting in part that it would likely result in the Court ultimately becoming the “Supreme Board of Sign Review”. It appears she may have underestimated the breath of the application that will be made of the strict scrutiny interpretation applied by the Court.

-Steven Silverberg