There is no subject in the law that confounds local government more than the issue of free speech. Naturally local government officials respond to citizen complaints like why aggressive panhandlers can seemingly threaten citizens with aggressive solicitation tactics (particular tourists). They also demand solutions to why citizens have to run a gauntlet of opposition in order to access an abortion clinic so they can exercise their constitutional right to an abortion. Drafting laws that survive a free speech challenge is a legal nightmare for even the most skilled municipal attorney and things are not getting any better.
Recently, the Federal Child Protection and Obscenity Enforcement Act of 1988 (think child pornography) was found to be unconstitutional because it violated the right of free speech based upon the application of a 2015 United States Supreme Court decision in Reed v. Town of Gilbert, (Gilbert). In addition, an ordinance regulating aggressive solicitation practices and removal of citizen comments on a Police Department Facebook page were found to be a violation of the citizens right of free speech based upon the free speech analysis established by the Supreme Court in Gilbert.
What is going on? By now it is pretty clear that the 2015 decision by the United States Supreme Court in Gilbert upended pre-2015 thinking about free speech as related to city sign ordinances, aggressive panhandling, child pornography and a host of other laws. A New York Times article in August 2015, called Reed v. Town of Gilbert, the sleeper case of the 2014–2015 Supreme Court term. The Dean of Yale Law School is quoted in the Times article that the:
“…decision was so bold and so sweeping that the Supreme Court could not have thought through its consequences.” “The decision’s logic, he said, endangered all sorts of laws, including ones that regulate misleading advertising and professional malpractice.”
“Effectively,” he said, “this would roll consumer protection back to the 19th century.”
Town of Gilbert
The ordinance in Gilbert treated temporary directional signs differently from political signs or ideological signs. In order to apply the sign ordinance it was necessary to look at the message on the sign to determine whether or not the sign was a Temporary Directional Sign, a Political Sign, or an Ideological Sign. The Supreme Court explained: “… speech regulation is content based if the law applies to particular speech because of the topic discussed or the idea or message expressed.” Clearly it was necessary to look at the message on the sign to determine how it was regulated, making it content based. To add insult to injury, Justice Kagan, commented that the ordinance in Gilbert did not even pass the “laugh test.” Ouch! This is very hard to explain to your City Council.
If restrictions on speech are content based they can only survive if they pass strict scrutiny, which requires a compelling interest to justify the law and that it be narrowly tailored to achieve that interest. Very few laws can survive “strict scrutiny” and are almost always found to be unconstitutional. The corollary is that if speech is not regulated based upon its content, it just has to pass the “intermediate scrutiny” test, which requires only a rational basis for the law. Speech subject to intermediate scrutiny is almost always found to be constitutional. Obviously the focus of any free speech inquiry is whether or not the ordinance is content based because once that is determined everything else falls into place.
FN 1 This point is succinctly made in footnote number 12 in a Note in 129 Harvard Law Review 1981, May 10, 2016. The recent Harvard Law Review Note contains an excellent discussion of how to legally analyze free speech cases after Reed v. Town of Gilbert.
This deluge of recent opinions highlight the need to conduct an inventory of city ordinances to determine if they violate the free speech clause of the First Amendment. It is better to do this now rather than waiting until you are sued based upon a clear violation of free speech under the new standards established by the United States Supreme Court in Gilbert. A similar warning was discussed in my review of the Gilbert case in the Missouri Municipal Attorneys Newsletter in June of 2015. As predicted the Gilbert case has ramifications well beyond sign ordinances making it necessary to rethink how to draft all sorts of ordinances, which impact speech.
Howard Wright ©2016
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