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Feb. 5 — The U.S. Supreme Court handed down a “watershed” free speech decision last term that “brought the First Amendment back to its roots,” Robert Frommer, a free-speech attorney at the Institute for Justice in Arlington, Va., told Bloomberg BNA Feb. 5.
While the court's 2014 term will likely be remembered for its high-profile decisions on same-sex marriage, the death penalty and Obamacare, the court's decision in Reed v. Town of Gilbert, 83 U.S.L.W. 4444, 2015 BL 193925 (U.S. June 18, 2015) is also making waves.
There, the justices struck down an Arizona town's overly restrictive sign ordinance, which treated a community church's signs less favorably than political signs.
But Reed has already seeped into other First Amendment areas, Frommer said. It's been used to strike down laws against robocalls, panhandling and even “ballot selfies.”
And Reed's reach could extend even further. The U.S. Court of Appeals for the Eleventh Circuit's “docs and glocks” case presents an opportunity to invalidate long-held distinctions between commercial and non-commercial speech.
In Reed, the Supreme Court said that content-based restrictions on speech are subject to strict scrutiny.
The court went on to define content-based restrictions as those that apply to “particular speech because of the topic discussed or the idea or message expressed.”
That means that if the government has to look at the content of the speech to see if it is regulated, it has to meet the demanding strict scrutiny test, Frommer said.
Although the Supreme Court called that a “commonsense” understanding of the phrase “content based,” Frommer said some lower courts had strayed away from that definition.
For example, in deciding Reed before the Supreme Court agreed to weigh in, the Ninth Circuit said that “the fact that an enforcement official had to read a sign did not mean that a ordinance is content-based,” in Reed v. Town of Gilbert, 707 F.3d 1057 (9th Cir. 2013).
Instead, it said the government's intention was the primary consideration—namely, whether the government intended to target specific speech because it disagreed with the speaker or the message.
Reed has predictably had an effect on local sign ordinances like those at issue in that case.
For example, prior to Reed, the Fourth Circuit upheld Norfolk, Va.'s sign ordinance that distinguished between government or religious emblems, and other kinds of speech, in Cent. Radio Co. v. City of Norfolk, 776 F.3d 229 (4th Cir. 2015).
After being kicked back to the Fourth Circuit following the Supreme Court's decision in Reed, the Fourth Circuit acknowledged that Reed “conflicted with, and therefore abrogated, our Circuit's previous formulation for analyzing content neutrality.”
Doing an about-face, the Fourth Circuit struck down the city's sign ordinance in light of Reed, in Cent. Radio Co. v. City of Norfolk, 2016 BL 24569 (4th Cir. Jan. 29, 2016).
Frommer and the Institute for Justice represented the local business challenging the sign ordinance in that case. They also filed an amicus brief in Reed, in support of the law's challengers.
The Institute for Justice has sent letters to dozens of major cities—like San Francisco, Baltimore and Philadelphia—informing them that their sign ordinances may no longer be constitutional, Frommer said.
He added that many more cities' sign codes are likely illegal following Reed.
Lisa Soronen of the State and Local Legal Center, Washington, who filed an amicus brief in Reed in support of the city, agreed that many local sign ordinances are likely unconstitutional following Reed.
The question is whether those local jurisdictions will do anything about it, she told Bloomberg BNA.
It takes a lot of effort to revise these sign ordinances, Soronen said. And it's not clear that anyone really cares that much to undertake that effort, she said.
But Reed has crept beyond sign laws into other areas of free speech jurisprudence.
The first indication that Reed would have a broader impact than just calling into question existing sign regulations was the fact that the Supreme Court held several cases in abeyance while it considered Reed, Soronen said.
Immediately following the Reed decision, the Supreme Court summarily vacated three cases pending before the high court, and sent them back for further consideration, according to research conducted by Bloomberg BNA.
One included a challenge to an anti-panhandling law, Thayer v. City of Worcester, 2015 BL 206250 (U.S. June 29, 2015).
On remand, the anti-panhandling law was struck down, in Thayer v. City of Worcester, 2015 BL 369466 (D. Mass. 2015).
“Simply put, Reed mandates a finding that [the law] is content based because it targets anyone seeking to engage in a specific type of speech, i.e., solicitation of donations,” the lower court said.
Reed has been used most frequently against laws prohibiting panhandling, Soronen said.
There is even a petition for certiorari pending before the Supreme Court on that very issue, City of Springfield v. Norton, petition for cert. filed, 84 U.S.L.W. 3339 (U.S. Dec. 1, 2015) (No. 15-727).
The high court will consider whether to take the case at its next conference, Feb. 19. But Frommer doesn't think that's likely.
There were all kinds of ways that the court could have decided Reed narrowly, Frommer said. But instead it issued a sweeping opinion, he said.
The court knew what it was doing in Reed, and it isn't likely to turn back now, Frommer said.
But Frommer said Reed has been applied in some other interesting ways.
It was used to strike down South Carolina's anti-robocall statute in Cahaly v. LaRosa, 796 F.3d 399 (4th Cir. 2015).
Moreover, it could potentially be used to abolish distinctions between commercial and non-commercial speech.
In the “docs and glocks” case—challenging a law that prohibits doctors from asking their patients about gun ownership—the plaintiffs argued that Reed requires a tougher look at the law because non-commercial speech was generally subject to less demanding scrutiny than commercial speech.
The Eleventh Circuit refused to address that “difficult question,” finding that the law passed muster under either intermediate or strict scrutiny, in Wollschlaeger v. Governor of Fla., 2015 BL 408755 (11th Cir. 2015) .
The Eleventh Circuit recently agreed to hear that case en banc, and therefore could address Reed's impact on commercial speech.
Reed has already been applied in a way that Frommer said he never would have predicted: to ballot selfies.
In August, a district court struck down a New Hampshire law that made it illegal to take a picture of election ballots, in Rideout v. Gardner, No. 14-cv-489-PB, (D.N.H. Aug. 11, 2015).
Following Reed, the court there said the law was “plainly” content based because it restricted speech—here, taking a picture and sharing it on social media—based on the content of the speech, that is, whether it was a completed ballot.
The law was unconstitutional, the court said, because it couldn't withstand strict scrutiny.
Frommer said he's been working on getting the Supreme Court to adopt Reed's definition of content-based restrictions for several years.
Now that it has, we can expect to see its implications, including some unexpected ones, for years to come.
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