This is the second post in our series looking at Reed v. Town of Gilbert, and will focus on the majority opinion authored by Justice Thomas, and joined by Chief Justice Roberts as well as Justices Alito, Kennedy, Scalia, and Sotomayor. If you haven’t already read it, I suggest going back to read the introduction segment, which provides an overview of the facts of the case.
The First Amendment prohibits laws “abridging the freedom of speech,” requiring strict scrutiny be applied to content-based regulations of speech, as well as laws that “cannot be justified without reference to” speeches’ content. Writing for the majority, Justice Thomas says that by distinguishing between signs based on their intended message (“influence the outcome of an election” or “direct the public to a qualifying event”), the Town’s Sign Code is content based on its face and thus strict scrutiny applies.
To survive strict scrutiny, the government must present a compelling government interest and show that the regulations are narrowly tailored. The Town provided two potential interests: preserving the Town’s aesthetic and traffic safety, but Justice Thomas writes that even assuming for argument’s sake that these are compelling, there is no evidence that the Code’s distinctions between political, ideological, and TD Signs in any way serve these interests. After all TD Signs are “no greater an eyesore” than ideological or political ones, and… if anything, a sharply worded ideological sign seems more likely to distract a driver than a sign directly the public to a nearby church meeting”. The Sign code thus fails under strict scrutiny.
It is worth noting Justice Thomas also rejects the contention by the Ninth Circuit and the brief for the United States that “a sign regulation is content neutral—even if it expressly draws distinctions based on the sign’s communicative content— if those distinctions can be ‘justified without reference to the content of the regulated speech,” stating that when the law is facially content-based, justification or purpose never enters into the analysis.
The Court’s full decision can be found here.