Thursday, June 18, 2015
Reed v. Gilbert is a unanimous--and clearly correct--decision upholding a start-up church's challenge to a crazy-quilt town ordinance that severely limited both the size and duration of the church's roadside signs directing people to its worship services. (The church, which met in a local school, effectively could not put up the signs until late the evening before the service.)
But behind the unanimity in invalidating the ordinance is pretty substantial division on whether to analyze it under strict scrutiny (the majority) or something less (Kagan and Breyer concurrences in the judgment). The division reflects the increasingly evident fact that the Court's "conservatives" interpret free-speech rights more broadly than the "liberals" do. The liberals' concurrences bring up various government regulatory interests that involving prohibiting or requiring speech (securities filings, required signs urging people to wash their hands after leaving a petting zoo, etc.). Looming in the immediate background of this case is the recurring divide over the extent to which free-speech rights might cut into general government regulation.
Justice Kagan raises some reasonable questions about whether strict scrutiny should be automatically triggered just because a sign ordinance makes distinctions based on a sign's content (by, for example, favoring historical-marker signs or highway signs advertising the availability of coffee). The amicus brief filed by the Christian Legal Society and others, written by the St. Thomas Religious Liberty Appellate Clinic, agreed with the majority's analysis here but also offered a narrower potential principle. We argued that laws discriminating against announcements of, and directions to, noncommercial events--as the town's ordinance did here--should trigger strict scrutiny under the distinct First Amendment freedom of assembly. We made use of John Inazu's groundbreaking work on that freedom.
The majority didn't take up our suggestion. But it did say that the town's argument that it could treat signs advertising events less well than other signs (e.g. those supporting political candidates or "ideological messages") was "novel" and unsupportable. So make a mental note: in the future, Reed v. Gilbert might be cited as a case where the Court recognized, if implicitly, that gatherings of people--"assembl[ies]"--enjoy strong, not weak, First Amendment, protection.
(St. Thomas student Michael Blissenbach did fine work helping to draft the CLS et al, amicus brief.)