Although the case is outside the RLUIPA realm or even specific to religious-based speech, the Supreme Court’s decision last week in Reed v. Gilbert will undoubtedly impact RLUIPA Defense readers. We previously reported on the January 12 oral argument (here) and the Court’s grant of certiorari (here).

Why is Reed v. Gilbert important for municipalities? Putting aside SCOTUSblog’s observance that after Reed and Walker v. Texas Division, Sons of Confederate Veterans (post coming soon) “the meaning of the First Amendment, in general, became somewhat more confusing,” Reed has clearly changed how courts will view content neutrality. Further, Reed makes clear that view-point neutral regulation is not synonymous with content-neutral regulation.

Our previous posts provide a more complete overview of the facts of the case. Briefly, Good News Community Church (Good News) claimed that Gilbert’s sign ordinance made impermissible content-based distinctions between “Temporary Directional Signs, Ideological Signs, and Political Signs.”   Good News, which holds services at different locations from week to week, used signs directing congregants to each week’s chosen location. Gilbert categorized such signs as “Temporary Directional.” The Ninth Circuit disagreed with Good News, finding that the sign restrictions, including the distinctions among them, were content-neutral for purposes of free speech:

[T]he distinction between Temporary Directional Signs, Ideological Signs, and Political Signs are content-neutral. That is to say, each classification and its restrictions are based on objective factors relevant to Gilbert’s creation of the specific exemption from the permit requirement and do not otherwise consider the substance of the sign. . . . It makes no difference which candidate is supported, who sponsors the event, or what ideological perspective is asserted. Accordingly, as the speaker and event determinations are generally “content-neutral,” Gilbert’s different exemptions for different types of noncommercial speech are not prohibited by the Constitution.

The Supreme Court disagreed. The Court’s majority opinion, authored by Justice Thomas, started with the well-recognized principle: “Content-based laws—those that target speech based on its communicative content—are presumptively unconstitutional and maybe justified only if the government proves that they are narrowly tailored to serve compelling state interests.”

The Court found that the ordinance is “content based on its face.” According to the Court, the ordinance regulates based on the message conveyed: Temporary Directional signs convey a message directing the public; Political Signs are designed to influence the outcome of an election; and Ideological Signs communicate a message or idea. By regulating the message, Gilbert regulated the “communicative content of the sign,” making the ordinance content based and subject to strict scrutiny review. Even though the ordinance may have a content-neutral justification, “[i]nnocent motives do not eliminate the danger of censorship presented by a facially content-based statute, as future government officials may one day wield such statutes to suppress disfavored speech.”

The Court went on to conclude that Gilbert’s purported reasons for the regulation, preserving the Town’s aesthetic appeal and traffic safety, were not adequate justifications to pass strict scrutiny review. Assuming these interests were “compelling,” the Court found the ordinance “hopelessly underinclusive” because the same restrictions were not placed on other types of signs. Thus, Gilbert failed to show that its ordinance was “narrowly tailored to further a compelling government interest.”

The Court concluded the majority opinion by noting that its decision does not limit a municipality’s ability to regulate signage, so long as the regulation is content neutral. For instance, “size, building materials, lighting, moving parts, and portability” may be regulated without reference to a sign’s message. Further, “on public property, the Town may go a long way toward entirely forbidding the posting of signs, so long as it does so in an evenhanded, content-neutral manner.”

Although the decision was unanimous, the Justices filed three separate concurring opinions. Justice Alito, joined by Justices Kennedy and Sotomayor added “a few words of further explanation.” Justice Alito stressed that municipalities are not powerless to enact sign regulation, and provided a non-inclusive list of content neutral criteria:

• Rules regulating the locations in which signs may be placed;
• Rules distinguishing between lighted and unlighted signs;
• Rules distinguishing between signs with fixed messages and electronic signs with messages that change;
• Rules that distinguish between the placement of signs on private and public property;
• Rules distinguishing between the placement of signs on commercial and residential property;
• Rules distinguishing between on-premises and off-premises signs;
• Rules restricting the total number of signs allowed per mile of roadway; and
• Rules imposing time restrictions on signs advertising a one-time event.

Justice Breyer provided a separate opinion urging that content-based discrimination “cannot and should not always trigger strict scrutiny.” (emphasis in original) Justice Breyer recognized that “[r]egulatory programs almost always require content discrimination” and provided several examples of content-based regulation where “a strong presumption against constitutionality has no place.”

Finally, Justice Kagan, joined by Justices Ginsburg and Breyer, provided a third concurrence. Justice Kagan, like Justice Breyer, questioned the reasonableness of applying strict scrutiny review to all types of content-based regulation:

“We can administer our content-regulation doctrine with a dose of common sense, so as to leave standing laws that in no way implicate its intended function.”

Concurring only in the judgment, Justice Kagan prophesized that courts will now be required to invalidate numerous “entirely reasonable” sign ordinances, making the Court “a veritable Supreme Board of Sign Review.”