This Monday, the Supreme Court heard oral argument in the case of Reed v. Town of Gilbert, Arizona, an important free speech case. Garrett Epps, a prominent law professor and contributor to the Atlantic, is deeply concerned that the Court will decide it in a way that leads to increased protection for speech that he does not like. Those who believe that the First Amendment should not be trumped by the subjective preferences of law professors should not fall under Epps' spell.
What is the case about? The Town of Gilbert, Ariz., has a sign code that categorizes temporary signs and restricts their size, duration and location. Under the sign code, the Good News Community Church's temporary signs promoting church services are subject to far greater restrictions than temporary signs promoting political, ideological and various other messages. That is, the sign code facially discriminates on the basis of the content of the messages communicated by the signs, effectively enabling government officials to act as censors.
The Supreme Court has held that content-based restrictions on speech are presumptively unconstitutional, and must be subjected to the strictest scrutiny. But lower courts, including the Ninth Circuit in this case, have held that laws that facially discriminate based on content are not necessarily content-based -- not only when evaluating sign codes, but also when evaluating a vast range of restrictions on other forms of noncommercial speech, such as occupational-speech licensing, panhandling bans and noise ordinances. In this case, the Ninth Circuit held that the sign code was "content-neutral" because of the Town of Gilbert's assurances that it had no intention to discriminate. The Institute for Justice filed an amicus brief, urging the Court to clarify that facially content-based statutes should not be given a pass because of the supposedly good intentions of officials.
Professor Epps disagrees. He argues that the Ninth Circuit was correct, and no amount of "obscure and powerful verbal formulas" should mislead people into thinking otherwise. The Oxford English Dictionary, he notes, defines "content" as "the things contained or treated of in a writing or document." He then calls upon the Court to clarify that the regulation of mere "marketing" should not be presumptively unconstitutional.
This is an odd conclusion, given the definition of "content" upon which Epps relies. A message relating to a church meeting is a "thing" "treated of in a writing or document," and it is a different "thing" than, say, a message relating to politics. The Town of Gilbert places these things in different categories: "Political signs" may stay up longer than, and be larger than, "qualifying event signs" that announce meetings of a "religious, charitable, community service, education, or other similar non-profit organization." The categories are thus, by Epps' own definition, content-based.
Fortunately, the Supreme Court seemed to recognize on Monday that Epps' argument is specious. As Justice Kagan pointed out, the reason the town treated political signs and ideological signs better than other signs was that it believed the former signs had higher value under the First Amendment. When the Town of Gilbert's attorney, David Savrin, tried to distinguish between regulating signs based on their function from regulating them on the basis of their content, Justice Scalia pointedly asked whether function does not, in fact, depend on content. When Savrin equivocated, answering that function does, "in a literal sense," depend on content, Justice Scalia pounced: "Oh, I see. What sense are we talking here? Poetic?"
What is at stake here? Simply put, would-be-censors are scared that they will not be able to exclude speech that they do not like from the marketplace of ideas. As Epps explains in the concluding paragraph of his article, a world in which speech about products and services is consistently treated like, well, speech, does not align with his preferences: "A world in which regulation of 'marketing' is presumptively unconstitutional might look different, and worse, than the one we live in now."
Epps' piece is, in essence, an anticipatory charge of judicial activism. If the Court rules that the Town of Gilbert's sign code is a content-based speech restriction, he will accuse the Court of linguistic distortion that will unleash what he refers to as "powerful forces... targeting all regulation of advertising." But it is Epps who is guilty of distortion. Statutes that distinguish between messages about different things and treat them differently are indeed content-based restrictions on speech, and the Court must clarify this in order to ensure that all speakers receive the full protections they are due.