This is the third post in our series looking at Reed v. Town of Gilbert. If you haven’t already read them, please refer back to the Introduction and Part 1 for the factual background and majority opinion. This will focus on the implications of the decision, particularly as seen through the Justice Alito’s concurring opinion (joined by Justices Kennedy and Sotomayor).
Turning back briefly to the majority opinion, Justice Thomas closes by addressing the Town’s contention that his ruling will subject virtually all sign laws to strict scrutiny. Specifically he says content-neutral regulations such as “size, building materials, lighting, moving parts, and portability” are still subject to lesser scrutiny, as are laws banning signs entirely on public property. Furthermore, traffic safety signs may be regulated under narrowly tailored laws that can survive strict scrutiny. Only content-based restrictions, like those discriminating between ideological, political, and event signs, must be strictly justified. Despite this attempt at assurance, it is still easy to imagine a scenario in which this ruling has the effect the Town is concerned about, and that viewed is shared by a majority of the Justices as well. With that in mind, Justice Alito wrote a one-page concurring opinion concerned entirely with more accurately defining the scope of the majority’s decision.
Acknowledging that the court’s decision to apply strict scrutiny to content-based regulations, as defined in the majority opinion, is the proper decision, Justice Alito goes on to enumerate some examples of what would not be considered content-based. These include rules regulating: the size of signs, if based on content neutral criteria; the location of signs, including free-standing and those attached to buildings; lighted v. unlighted signs; fixed messages v. changing electronic messages; signs on private v. public property; signs of residential v. commercial property; on-premises and off-premises signs; the number of signs per mile of roadway, etc. Though explicitly described as an incomplete list, it does give meaningful (if not binding) guidance to lower courts as they look to apply this seemingly sweeping decision in the future.
The Court’s full decision can be found here.