Reed v. Town of Gilbert: Signs of (Dis)Content?
Reed v. Town of Gilbert, Arizona is a case about signs, and their regulation by a town government. Underlying this seemingly prosaic dispute –which somehow made its way to the United States Supreme Court –is a twisted tale of doctrinal confusion, and, perhaps, collapse. The case raises questions about the very meaning of the most basic principle of modern First Amendment doctrine: the distinction between content-based and content-neutral laws. The lower court decisions in this case, along with numerous other appellate decisions, demonstrate a fundamental confusion among the lower courts about the meaning of the phrase “content based.” This confusion, in turn, has been spawned at least in part by some loose language in various Supreme Court opinions. More fundamentally, however, judicial rulings refusing to categorize laws such as Gilbert’s regulation of signs as content-based –despite obvious doctrinal reasons for doing so –suggest resistance on the part of the lower courts to the Supreme Court’s insistence that all content-based restrictions on protected speech are presumptively unconstitutional. Moreover, I will argue, there are good reasons to question this rule, despite its canonical status.
