Supreme Court on What Counts as a Content-Based Speech Restriction

In its First Amendment cases, the Supreme Court has dealt with content-based speech restrictions in a different way than content-neutral. This is despite the fact that the Supreme Court has been deciding First Amendment cases for 50 years. A content-based restriction must, in general, fit into a First Amendment exception, such as for true threats and for defamation, or pass the extremely demanding “strict scrutiny”. But a relatively modest content-neutral restriction—such as a restriction on sound amplification, or a limit on the number of people who can picket in a particular place—is generally constitutional if it passes the considerably less demanding “intermediate scrutiny” test. Even though content-neutral, harsher restrictions are more difficult to justify.

It is crucial that you know what content-based restrictions are and what content-neutral. This is often obvious: Any restrictions that are based on speech views (e.g. modest limitations on racism or anti-government expressions or similar) will be content-based. Also subject matter restrictions can be applied, like ones that limit picketing but allow labor union picketing to continue, or that make political signs more important than others. Also, there are limitations on the use of certain words, such as vulgarities, and restrictions on the way the speaker communicates facts, such as the names of victims of rape or the author of a leaflet. However, sometimes it is not so clear.

The Court issued two rulings in mid-2010s in two cases that appeared to be quite broad in defining content discrimination.

  • The “on its face”, distinguishes distinctions that are based on “communicative contents” of the messages a speaker sends. Reed v. Town of Gilbert (2015).
  • “require[s]”Enforcement Authorities” will examine the content of any message sent to find out if a violation occurred. McCullen v. Coakley (2014).

Today’s world is different. City of Austin v. Reagan National AdvertisingA 5-4 Court majority (Justice Sotomayor joined by Chief Justice Roberts, Justices Kagan and Justices Breyer) reduced the broad definition of content-discrimination. However, it is likely to be a little.

This case was about a city ordinance which limited signs that were “off-premises”, defined as sign[s]Advertisement of a business or person or activity or goods or products or services that are not situated on the spot where the sign has been installed. Signs that point to other locations than that location were not allowed. It didn’t apply to only. Commercial Advertising, subject to different First Amendment rules but also includes advertising for political, religious and ideological activities.

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It was clear that the sign’s “communicative contents” were what distinguished it. Authorities had to examine the content to decide if a sign should be covered. It also rested, I expect, on a judgment that on-premises speech was generally more valuable to speakers and to readers than off-premises speech—presumably because seeing a sign promoting a particular on-premises activity is more likely to be useful to people looking for that activity (e.g., looking for a coffee shop or a gas station, or more specifically looking for the name of a particular business or organization that they are trying to visit).

However, the ordinance didn’t limit itself to any view, subject matter, words or facts. This is an extract from the reason why the majority adopted the ordinance.

[T]These provisions do not discriminate against any particular topic. A sign’s substantive message itself is irrelevant to the application of the provisions; there are no content-discriminatory classifications for political messages, ideological messages, or directional messages concerning specific events [the categories held to be content-based in Reed]All, even those supported by nonprofit and religious organisations.

The City’s ordinances are more focused on where signs are located. Signs only have meaning if they inform the location of the signs. This distinction between on-/off premises is similar to normal time, place and manner restrictions. ReedThis type of location-based regulation does not need to be subjected to strict scrutiny. Cf. Cf. Frisby, v. Schultz (1988) (sustaining an ordinance that prohibited “only picketing focused on, and taking place in front of, a particular residence” as content neutral)….

[We reject]This is the view AnyExamination of expression or speech inherently raises First Amendment concerns. It is not regulations that discriminate on the basis of “the topic or the message discussed”, that are content-based. The sign code provisions challenged here do not discriminate on those bases….

Justices Thomas and Gorsuch as well as Barrett dissented on the content discrimination issue. Justice Alito also dissented. (Justice Alito affirmed part of a different procedural issue.

Austin has found a “categor”[y]Different types of information are used to determine the purpose of sign designs. [and]Then subject[ed that]You can choose from different restriction categories. A sign that conveys a message about off-premises activities is restricted, while one that conveys a message about on-premises activities is not….

This conclusion cannot be questioned because off-premises sign restrictions are based in part on an element that is content neutral: the place of the sign. Similar to in ReedAustin Officials must have the following information in order to apply for the sign-code WhichHowever, the mere fact of the sign doesn’t negate the need for him to know WhatIt says so. For example, take a sign at a Catholic bookstore. The sign that says “Visit Holy Land” is most likely an off-premises sign. It conveys the message of directing people to another location (unless it’s “Holy Land Books”) However, the sign that says “Buy More Books” is permissible on premises. This applies unless it also includes the address to another nearby bookstore. Let’s suppose that the sign reads, “Go to Confession.” A sign would be interpreted by an official who will need to ask whether confessions are ever received at the location. A sign that a priest has ever heard confessions at the location could be considered acceptable. If the sign does not convey this message, it is considered to be an illegal off-premises communication. Sign code enforcement in these cases “requires” [Austin]To determine if the sign is intended to convey a message, officials must use sign codes. Reed.

Court of Appeals observed that Austin’s “prepared lawyer” struggled to answer “whether” signs with messages like “God Loves You”, “Vote Kathy,” or “Sally makes and sells quilts at 3200 Main Street.” These signs would have to be regulated as off premises signs. Austin’s attorney had experienced similar issues before, and amici presented dozens of political and religious messages that Austin’s rule would make it nearly impossible for him to categorize. This ambiguity gives enforcement officers ample opportunities to suppress views that are not preferred. These ambiguities are a reminder of the importance of enforcement officials being able to suppress disfavored views. Reed“A warning to all”[i]Non-innocent motives don’t eliminate the risk of censorship that a statute based on facial content presents.

Because Reed provided a clear and neutral rule that protected the freedom of speech from governmental caprice and viewpoint discrimination, I would adhere to that precedent….

Also, Justice Alito’s disapproval:

The Court points out that, according to the rules in force at the time petitioner’s requests were denied, signs could be considered off-premises if they “advertise”.[ed]The “person”, among other things, is a “person or activity. Servic[e]It is not on the same site as the sign” or “directly[ed]Persons to other locations than that on the site. Think about what the definition means for signs placed outside a commercial establishment’s front windows, like a coffee shop. The sign that advertises a coffee drink would be considered on-premises. But what if the owner mounted a sign saying something else? “Contribute towards X’s legal defence fund,” or “Free COVID testing at Y pharmacie” or “Attend the City Council meeting to discuss Z.” All of these signs could be considered off-premises signs and thus would not be allowed. Discrimination based on topic or subject is the practice of giving different treatment to signs about new beverages and signs regarding social and political issues.

Justice Breyer authored a separate concurendum arguing in favor of generally more of an balancing approach for free speech questions in which content discrimination is less important. But no Justice else supported that view (which was similar to Justice Stevens’s back in his day).

In practice, however, it is unlikely that the holding will have any effect on the outcome of most cases. Justice Thomas said that the Court might be able to affect whether or not the Court overrules the controversial decision. Colorado v. Hill (2000); Hill had upheld as content-neutral a regulation of speech outside medical facilities when the speech was said “for the purpose of … engaging in oral protest, education, or counseling.” Although there may be more such laws out there, I believe that most of them are very few.

Notably, the majority of respondents didn’t mention either. Hill Oder McCullen v. CoakleyThis is the 2014 case, which supported the requirement[s]”Enforcement Authorities” to “examine the contents of the message to determine if a violation occurred.” Test, even though there is no evidence that the McCullen Majority included four out of five Justices from the Austin Majority (Chief Justice Roberts, Justices Breyer and Sotomayor and Kagan). None of these opinions addressed the cases of “erogenous zonation”, such as City of Renton against Playtime Theatres, Inc. (1986), which treated restrictions on pornographic bookstores and theaters as content-neutral on a “secondary effects” theory, even though those restrictions seem to be clear subject-matter restrictions.