Supreme Court to Government: No, 'Good Intentions' Don't Give You a License to Censor Speech

06/18/2015 04:09 pm ET | Updated Jun 18, 2016

Today, the Supreme Court issued a momentous First Amendment decision. In Reed v. Town of Gilbert, Arizona, a unanimous Court invalidated a town sign code that subjected certain signs to harsher restrictions than others, depending upon what messages they conveyed. In doing so, it made plain that such "content-based" restrictions on speech are presumptively unconstitutional and must undergo strict judicial scrutiny.

The facts: The town of Gilbert has a sign code that restricts the size, duration and location of temporary signs. Under the sign code, the Good News Community Church's temporary signs promoting church services are subjected 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.

The First Amendment broadly prohibits the enactment of any law "abridging the freedom of speech." It makes no exception for certain messages, ideas or subject matter, nor does it insulate legislation enacted with supposedly benevolent intentions. The Supreme Court has properly recognized the danger presented by laws that regulate speech based on its communicative content, holding that they are presumptively unconstitutional unless the government demonstrates, with reliable evidence, that they are narrowly tailored to compelling government interests.

But lower courts 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 restrictions on other forms of speech, such as occupational-speech licensing, panhandling bans and noise ordinances. In the decision below, the Ninth Circuit determined that Gilbert's sign code was "content-neutral" because of the town'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 officials (allegedly) mean well.

In Reed, the Court squarely held that strict scrutiny applies either when a law is content-based on its face or if its purpose and justification are content-based -- and courts must inquire into each question. 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 determined that the sign code at issue classified signs on the basis of their content -- the restrictions applied to any given sign "depend entirely on the communicative content of the sign."

Of course, that did not end the analysis. The sign code could have passed constitutional muster if the town had been able to demonstrate that it furthered a compelling government interest and was narrowly tailored to that interest. The town was unable to do so -- and it wasn't even close. The town baldly asserted that the sign code furthered the ends of "preserving the Town's aesthetic appeal" and "traffic safety," despite "allowing unlimited numbers of other types of signs that create the same problem[s]" and without providing any reliable evidence that "directional signs pose a greater threat to safety than do ideological or political signs." The underinclusiveness of the sign code rendered the government's assertions completely implausible.

In rejecting the notion that the statement of a benign end is enough to insulate speech regulations from exacting judicial scrutiny, the Court cited NAACP v. Button (1963), a case involving a state's attempt to use a statute prohibiting "improper solicitation" to curtail the NAACP's advocacy of desegregation. In that case, the Court rejected Alabama's claim that its stated interest in the "regulation of professional conduct" was sufficient for the ordinance to pass muster. The Court articulated a broad principle: "[I]t is no answer... to say... that the purpose of... regulation [is] merely to ensure high professional standards and not to curtail free expression." That principle was affirmed today. The government should never be able to escape the burden of demonstrating the legitimacy of its ends with reliable evidence when it restricts our liberty. In Reed, the Court made clear that such judicial engagement is required to ensure that the government does not act as a censor.