ACCEPTED
03-14-00375-CV
5734354
THIRD COURT OF APPEALS
PARENTI LAW PLLC
AUSTIN, TEXAS
6/18/2015 2:57:55 PM
JEFFREY D. KYLE
CLERK
MARK PARENTI MEREDITH PARENTI
Tel: 281-224-8589 Tel: 281-224-5848
mark@parentilaw.com meredith@parentilaw.com
RECEIVED IN
licensed in Texas licensed3rd
in COURT
Texas & OF
NewAPPEALS
York
AUSTIN, TEXAS
June 18, 2015 6/18/2015 2:57:55 PM
JEFFREY D. KYLE
Clerk
Hon. Jeffrey D. Kyle
Clerk of the Court
Third Court of Appeals
P.O. Box 12547
Austin, Texas 78711
Re: AusPro Enterprises, LP v. Tex. Dep’t of Transp., No. 03-14-00375-CV.
Dear Mr. Kyle:
As directed by the Court in its April 29, 2015 Memorandum Opinion, I write to
notify the Court that today the Supreme Court of the United States issued its decision
in Reed v. Town of Gilbert, Case No. 13-502. A copy of the opinion is attached.
Appellant requests that the Court reinstate this case, which it abated pending
the release of the Supreme Court’s opinion in Reed. In accordance with this Court’s
Memorandum Opinion, Appellant will submit a supplemental brief within thirty days of
the case being reinstated on this Court’s docket.
Respectfully submitted,
Meredith B. Parenti
Counsel for Appellant AusPro Enterprises, LP
Enclosure
cc: Douglas Geyser
___________________________________________________________________________________________
7500 SAN FELIPE, SUITE 600, HOUSTON, TEXAS 77063 MAIL TO: P.O. BOX 19152, HOUSTON, TEXAS 77224
www.parentilaw.com FAX: 281-605-5677
(Slip Opinion) OCTOBER TERM, 2014 1
Syllabus
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.
SUPREME COURT OF THE UNITED STATES
Syllabus
REED ET AL. v. TOWN OF GILBERT, ARIZONA, ET AL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE NINTH CIRCUIT
No. 13–502. Argued January 12, 2015—Decided June 18, 2015
Gilbert, Arizona (Town), has a comprehensive code (Sign Code or Code)
that prohibits the display of outdoor signs without a permit, but ex-
empts 23 categories of signs, including three relevant here. “Ideolog-
ical Signs,” defined as signs “communicating a message or ideas” that
do not fit in any other Sign Code category, may be up to 20 square
feet and have no placement or time restrictions. “Political Signs,” de-
fined as signs “designed to influence the outcome of an election,” may
be up to 32 square feet and may only be displayed during an election
season. “Temporary Directional Signs,” defined as signs directing the
public to a church or other “qualifying event,” have even greater re-
strictions: No more than four of the signs, limited to six square feet,
may be on a single property at any time, and signs may be displayed
no more than 12 hours before the “qualifying event” and 1 hour after.
Petitioners, Good News Community Church (Church) and its pas-
tor, Clyde Reed, whose Sunday church services are held at various
temporary locations in and near the Town, posted signs early each
Saturday bearing the Church name and the time and location of the
next service and did not remove the signs until around midday Sun-
day. The Church was cited for exceeding the time limits for display-
ing temporary directional signs and for failing to include an event
date on the signs. Unable to reach an accommodation with the Town,
petitioners filed suit, claiming that the Code abridged their freedom
of speech. The District Court denied their motion for a preliminary
injunction, and the Ninth Circuit affirmed, ultimately concluding
that the Code’s sign categories were content neutral, and that the
Code satisfied the intermediate scrutiny accorded to content-neutral
regulations of speech.
Held: The Sign Code’s provisions are content-based regulations of
2 REED v. TOWN OF GILBERT
Syllabus
speech that do not survive strict scrutiny. Pp. 6–17.
(a) Because content-based laws target speech based on its commu-
nicative content, they are presumptively unconstitutional and may be
justified only if the government proves that they are narrowly tai-
lored to serve compelling state interests. E.g., R. A. V. v. St. Paul,
505 U. S. 377, 395. Speech regulation is content based if a law ap-
plies to particular speech because of the topic discussed or the idea or
message expressed. E.g., Sorrell v. IMS Health, Inc., 564 U. S. ___,
___–___. And courts are required to consider whether a regulation of
speech “on its face” draws distinctions based on the message a speak-
er conveys. Id., at ___. Whether laws define regulated speech by par-
ticular subject matter or by its function or purpose, they are subject
to strict scrutiny. The same is true for laws that, though facially con-
tent neutral, cannot be “ ‘justified without reference to the content of
the regulated speech,’ ” or were adopted by the government “because
of disagreement with the message” conveyed. Ward v. Rock Against
Racism, 491 U. S. 781, 791. Pp. 6–7.
(b) The Sign Code is content based on its face. It defines the cate-
gories of temporary, political, and ideological signs on the basis of
their messages and then subjects each category to different re-
strictions. The restrictions applied thus depend entirely on the sign’s
communicative content. Because the Code, on its face, is a content-
based regulation of speech, there is no need to consider the govern-
ment’s justifications or purposes for enacting the Code to determine
whether it is subject to strict scrutiny. Pp. 7.
(c) None of the Ninth Circuit’s theories for its contrary holding is
persuasive. Its conclusion that the Town’s regulation was not based
on a disagreement with the message conveyed skips the crucial first
step in the content-neutrality analysis: determining whether the law
is content neutral on its face. A law that is content based on its face
is subject to strict scrutiny regardless of the government’s benign mo-
tive, content-neutral justification, or lack of “animus toward the ideas
contained” in the regulated speech. Cincinnati v. Discovery Network,
Inc., 507 U. S. 410, 429. Thus, an innocuous justification cannot
transform a facially content-based law into one that is content neu-
tral. A court must evaluate each question—whether a law is content
based on its face and whether the purpose and justification for the
law are content based—before concluding that a law is content neu-
tral. Ward does not require otherwise, for its framework applies only
to a content-neutral statute.
The Ninth Circuit’s conclusion that the Sign Code does not single
out any idea or viewpoint for discrimination conflates two distinct but
related limitations that the First Amendment places on government
regulation of speech. Government discrimination among viewpoints
Cite as: 576 U. S. ____ (2015) 3
Syllabus
is a “more blatant” and “egregious form of content discrimination,”
Rosenberger v. Rector and Visitors of Univ. of Va., 515 U. S. 819, 829,
but “[t]he First Amendment’s hostility to content-based regulation
[also] extends . . . to prohibition of public discussion of an entire top-
ic,” Consolidated Edison Co. of N. Y. v. Public Serv. Comm’n of N. Y.,
447 U. S. 530, 537. The Sign Code, a paradigmatic example of con-
tent-based discrimination, singles out specific subject matter for dif-
ferential treatment, even if it does not target viewpoints within that
subject matter.
The Ninth Circuit also erred in concluding that the Sign Code was
not content based because it made only speaker-based and event-
based distinctions. The Code’s categories are not speaker-based—the
restrictions for political, ideological, and temporary event signs apply
equally no matter who sponsors them. And even if the sign catego-
ries were speaker based, that would not automatically render the law
content neutral. Rather, “laws favoring some speakers over others
demand strict scrutiny when the legislature’s speaker preference re-
flects a content preference.” Turner Broadcasting System, Inc. v.
FCC, 512 U. S. 622, 658. This same analysis applies to event-based
distinctions. Pp. 8–14.
(d) The Sign Code’s content-based restrictions do not survive strict
scrutiny because the Town has not demonstrated that the Code’s dif-
ferentiation between temporary directional signs and other types of
signs furthers a compelling governmental interest and is narrowly
tailored to that end. See Arizona Free Enterprise Club’s Freedom
Club PAC v. Bennett, 564 U. S. ___, ___. Assuming that the Town
has a compelling interest in preserving its aesthetic appeal and traf-
fic safety, the Code’s distinctions are highly underinclusive. The
Town cannot claim that placing strict limits on temporary directional
signs is necessary to beautify the Town when other types of signs
create the same problem. See Discovery Network, supra, at 425. Nor
has it shown that temporary directional signs pose a greater threat to
public safety than ideological or political signs. Pp. 14–15.
(e) This decision will not prevent governments from enacting effec-
tive sign laws. The Town has ample content-neutral options availa-
ble to resolve problems with safety and aesthetics, including regulat-
ing size, building materials, lighting, moving parts, and portability.
And the Town may be able to forbid postings on public property, so
long as it does so in an evenhanded, content-neutral manner. See
Members of City Council of Los Angeles v. Taxpayers for Vincent, 466
U. S. 789, 817. An ordinance narrowly tailored to the challenges of
protecting the safety of pedestrians, drivers, and passengers—e.g.,
warning signs marking hazards on private property or signs directing
traffic—might also survive strict scrutiny. Pp. 16–17.
4 REED v. TOWN OF GILBERT
Syllabus
707 F. 3d 1057, reversed and remanded.
THOMAS, J., delivered the opinion of the Court, in which ROBERTS,
C. J., and SCALIA, KENNEDY, ALITO, and SOTOMAYOR, JJ., joined. ALITO,
J., filed a concurring opinion, in which KENNEDY and SOTOMAYOR, JJ.,
joined. BREYER, J., filed an opinion concurring in the judgment. KA-
GAN, J., filed an opinion concurring in the judgment, in which GINSBURG
and BREYER, JJ., joined
Cite as: 576 U. S. ____ (2015) 1
Opinion of the Court
NOTICE: This opinion is subject to formal revision before publication in the
preliminary print of the United States Reports. Readers are requested to
notify the Reporter of Decisions, Supreme Court of the United States, Wash-
ington, D. C. 20543, of any typographical or other formal errors, in order
that corrections may be made before the preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES
_________________
No. 13–502
_________________
CLYDE REED, ET AL
., PETITIONERS v. TOWN OF
.
GILBERT, ARIZONA, ET AL
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE NINTH CIRCUIT
[June 18, 2015]
JUSTICE THOMAS delivered the opinion of the Court.
The town of Gilbert, Arizona (or Town), has adopted a
comprehensive code governing the manner in which people
may display outdoor signs. Gilbert, Ariz., Land Develop-
ment Code (Sign Code or Code), ch. 1, §4.402 (2005).1 The
Sign Code identifies various categories of signs based on
the type of information they convey, then subjects each
category to different restrictions. One of the categories is
“Temporary Directional Signs Relating to a Qualifying
Event,” loosely defined as signs directing the public to a
meeting of a nonprofit group. §4.402(P). The Code imposes
more stringent restrictions on these signs than it does
on signs conveying other messages. We hold that these
provisions are content-based regulations of speech that
cannot survive strict scrutiny.
——————
1 The Town’s Sign Code is available online at http://www.gilbertaz.gov/
departments / development - service / planning - development / land -
development-code (as visited June 16, 2015, and available in Clerk of
Court’s case file).
2 REED v. TOWN OF GILBERT
Opinion of the Court
I
A
The Sign Code prohibits the display of outdoor signs
anywhere within the Town without a permit, but it then
exempts 23 categories of signs from that requirement.
These exemptions include everything from bazaar signs to
flying banners. Three categories of exempt signs are
particularly relevant here.
The first is “Ideological Sign[s].” This category includes
any “sign communicating a message or ideas for noncom-
mercial purposes that is not a Construction Sign, Direc-
tional Sign, Temporary Directional Sign Relating to a
Qualifying Event, Political Sign, Garage Sale Sign, or a
sign owned or required by a governmental agency.” Sign
Code, Glossary of General Terms (Glossary), p. 23 (em-
phasis deleted). Of the three categories discussed here,
the Code treats ideological signs most favorably, allowing
them to be up to 20 square feet in area and to be placed in
all “zoning districts” without time limits. §4.402(J).
The second category is “Political Sign[s].” This includes
any “temporary sign designed to influence the outcome of
an election called by a public body.” Glossary 23.2 The
Code treats these signs less favorably than ideological
signs. The Code allows the placement of political signs up
to 16 square feet on residential property and up to 32
square feet on nonresidential property, undeveloped mu-
nicipal property, and “rights-of-way.” §4.402(I).3 These
signs may be displayed up to 60 days before a primary
election and up to 15 days following a general election.
Ibid.
——————
2 A “Temporary Sign” is a “sign not permanently attached to the
ground, a wall or a building, and not designed or intended for perma-
nent display.” Glossary 25.
3 The Code defines “Right-of-Way” as a “strip of publicly owned land
occupied by or planned for a street, utilities, landscaping, sidewalks,
trails, and similar facilities.” Id., at 18.
Cite as: 576 U. S. ____ (2015) 3
Opinion of the Court
The third category is “Temporary Directional Signs
Relating to a Qualifying Event.” This includes any “Tem-
porary Sign intended to direct pedestrians, motorists, and
other passersby to a ‘qualifying event.’ ” Glossary 25
(emphasis deleted). A “qualifying event” is defined as any
“assembly, gathering, activity, or meeting sponsored,
arranged, or promoted by a religious, charitable, commu-
nity service, educational, or other similar non-profit organ-
ization.” Ibid. The Code treats temporary directional
signs even less favorably than political signs.4 Temporary
directional signs may be no larger than six square feet.
§4.402(P). They may be placed on private property or on a
public right-of-way, but no more than four signs may be
placed on a single property at any time. Ibid. And, they
may be displayed no more than 12 hours before the “quali-
fying event” and no more than 1 hour afterward. Ibid.
B
Petitioners Good News Community Church (Church)
and its pastor, Clyde Reed, wish to advertise the time and
location of their Sunday church services. The Church is a
small, cash-strapped entity that owns no building, so it
holds its services at elementary schools or other locations
in or near the Town. In order to inform the public about
its services, which are held in a variety of different loca-
——————
4 The Sign Code has been amended twice during the pendency of this
case. When litigation began in 2007, the Code defined the signs at
issue as “Religious Assembly Temporary Direction Signs.” App. 75.
The Code entirely prohibited placement of those signs in the public
right-of-way, and it forbade posting them in any location for more than
two hours before the religious assembly or more than one hour after-
ward. Id., at 75–76. In 2008, the Town redefined the category as
“Temporary Directional Signs Related to a Qualifying Event,” and it
expanded the time limit to 12 hours before and 1 hour after the “quali-
fying event.” Ibid. In 2011, the Town amended the Code to authorize
placement of temporary directional signs in the public right-of-way.
Id., at 89.
4 REED v. TOWN OF GILBERT
Opinion of the Court
tions, the Church began placing 15 to 20 temporary signs
around the Town, frequently in the public right-of-way
abutting the street. The signs typically displayed the
Church’s name, along with the time and location of the
upcoming service. Church members would post the signs
early in the day on Saturday and then remove them
around midday on Sunday. The display of these signs
requires little money and manpower, and thus has proved
to be an economical and effective way for the Church to let
the community know where its services are being held
each week.
This practice caught the attention of the Town’s Sign
Code compliance manager, who twice cited the Church for
violating the Code. The first citation noted that the
Church exceeded the time limits for displaying its tempo-
rary directional signs. The second citation referred to the
same problem, along with the Church’s failure to include
the date of the event on the signs. Town officials even
confiscated one of the Church’s signs, which Reed had to
retrieve from the municipal offices.
Reed contacted the Sign Code Compliance Department
in an attempt to reach an accommodation. His efforts
proved unsuccessful. The Town’s Code compliance man-
ager informed the Church that there would be “no leni-
ency under the Code” and promised to punish any future
violations.
Shortly thereafter, petitioners filed a complaint in the
United States District Court for the District of Arizona,
arguing that the Sign Code abridged their freedom of
speech in violation of the First and Fourteenth Amend-
ments. The District Court denied the petitioners’ motion
for a preliminary injunction. The Court of Appeals for the
Ninth Circuit affirmed, holding that the Sign Code’s provi-
sion regulating temporary directional signs did not regu-
late speech on the basis of content. 587 F. 3d 966, 979
(2009). It reasoned that, even though an enforcement
Cite as: 576 U. S. ____ (2015) 5
Opinion of the Court
officer would have to read the sign to determine what
provisions of the Sign Code applied to it, the “ ‘kind
of
cursory examination’ ” that would be necessary for an
officer to classify it as a temporary directional sign was
“not akin to an officer synthesizing the expressive content
of the sign.” Id., at 978. It then remanded for the District
Court to determine in the first instance whether the Sign
Code’s distinctions among temporary directional signs,
political signs, and ideological signs nevertheless consti-
tuted a content-based regulation of speech.
On remand, the District Court granted summary judg-
ment in favor of the Town. The Court of Appeals again
affirmed, holding that the Code’s sign categories were
content neutral. The court concluded that “the distinc-
tions between Temporary Directional Signs, Ideological
Signs, and Political Signs . . . are based on objective fac-
tors relevant to Gilbert’s creation of the specific exemption
from the permit requirement and do not otherwise consider
the substance of the sign.” 707 F. 3d 1057, 1069 (CA9
2013). Relying on this Court’s decision in Hill v. Colorado,
530 U. S. 703 (2000), the Court of Appeals concluded that
the Sign Code is content neutral. 707 F. 3d, at 1071–1072.
As the court explained, “Gilbert did not adopt its regula-
tion of speech because it disagreed with the message
conveyed” and its “interests in regulat[ing] temporary
signs are unrelated to the content of the sign.” Ibid. Accord-
ingly, the court believed that the Code was “content-
neutral as that term [has been] defined by the Supreme
Court.” Id., at 1071. In light of that determination, it
applied a lower level of scrutiny to the Sign Code and
concluded that the law did not violate the First Amend-
ment. Id., at 1073–1076.
We granted certiorari, 573 U. S. ___ (2014), and now
reverse.
6 REED v. TOWN OF GILBERT
Opinion of the Court
II
A
The First Amendment, applicable to the States through
the Fourteenth Amendment, prohibits the enactment of
laws “abridging the freedom of speech.” U. S. Const.,
Amdt. 1. Under that Clause, a government, including a
municipal government vested with state authority, “has no
power to restrict expression because of its message, its
ideas, its subject matter, or its content.” Police Dept. of
Chicago v. Mosley, 408 U. S. 92, 95 (1972). Content-based
laws—those that target speech based on its communica-
tive content—are presumptively unconstitutional and may
be justified only if the government proves that they are
narrowly tailored to serve compelling state interests.
R. A. V. v. St. Paul, 505 U. S. 377, 395 (1992); Simon &
Schuster, Inc. v. Members of N. Y. State Crime Victims
Bd., 502 U. S. 105, 115, 118 (1991).
Government regulation of speech is content based if a
law applies to particular speech because of the topic dis-
cussed or the idea or message expressed. E.g., Sorrell v.
IMS Health, Inc., 564 U. S. ___, ___–___ (2011) (slip op., at
8–9); Carey v. Brown, 447 U. S. 455, 462 (1980); Mosley,
supra, at 95. This commonsense meaning of the phrase
“content based” requires a court to consider whether a
regulation of speech “on its face” draws distinctions based
on the message a speaker conveys. Sorrell, supra, at ___
(slip op., at 8). Some facial distinctions based on a mes-
sage are obvious, defining regulated speech by particular
subject matter, and others are more subtle, defining regu-
lated speech by its function or purpose. Both are distinc-
tions drawn based on the message a speaker conveys, and,
therefore, are subject to strict scrutiny.
Our precedents have also recognized a separate and
additional category of laws that, though facially content
neutral, will be considered content-based regulations of
speech: laws that cannot be “ ‘justified without reference to
Cite as: 576 U. S. ____ (2015) 7
Opinion of the Court
the content of the regulated speech,’ ” or that were adopted
by the government “because of disagreement with the
message [the speech] conveys,” Ward v. Rock Against
Racism, 491 U. S. 781, 791 (1989). Those laws, like those
that are content based on their face, must also satisfy
strict scrutiny.
B
The Town’s Sign Code is content based on its face. It
defines “Temporary Directional Signs” on the basis of
whether a sign conveys the message of directing the public
to church or some other “qualifying event.” Glossary 25.
It defines “Political Signs” on the basis of whether a sign’s
message is “designed to influence the outcome of an elec-
tion.” Id., at 24. And it defines “Ideological Signs” on the
basis of whether a sign “communicat[es] a message or
ideas” that do not fit within the Code’s other categories.
Id., at 23. It then subjects each of these categories to
different restrictions.
The restrictions in the Sign Code that apply to any
given sign thus depend entirely on the communicative
content of the sign. If a sign informs its reader of the time
and place a book club will discuss John Locke’s Two Trea-
tises of Government, that sign will be treated differently
from a sign expressing the view that one should vote for
one of Locke’s followers in an upcoming election, and both
signs will be treated differently from a sign expressing an
ideological view rooted in Locke’s theory of government.
More to the point, the Church’s signs inviting people to
attend its worship services are treated differently from
signs conveying other types of ideas. On its face, the Sign
Code is a content-based regulation of speech. We thus
have no need to consider the government’s justifications or
purposes for enacting the Code to determine whether it is
subject to strict scrutiny.
8 REED v. TOWN OF GILBERT
Opinion of the Court
C
In reaching the contrary conclusion, the Court of Ap-
peals offered several theories to explain why the Town’s
Sign Code should be deemed content neutral. None is
persuasive.
1
The Court of Appeals first determined that the Sign
Code was content neutral because the Town “did not adopt
its regulation of speech [based on] disagree[ment] with the
message conveyed,” and its justifications for regulating
temporary directional signs were “unrelated to the content
of the sign.” 707 F. 3d, at 1071–1072. In its brief to this
Court, the United States similarly contends 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.’ ” Brief for United
States as Amicus Curiae 20, 24 (quoting Ward, supra, at
791; emphasis deleted).
But this analysis skips the crucial first step in the
content-neutrality analysis: determining whether the law
is content neutral on its face. A law that is content based
on its face is subject to strict scrutiny regardless of the
government’s benign motive, content-neutral justification,
or lack of “animus toward the ideas contained” in the
regulated speech. Cincinnati v. Discovery Network, Inc.,
507 U. S. 410, 429 (1993). We have thus made clear that
“ ‘[i]llicit legislative intent is not the sine qua non of a
violation of the First Amendment,’ ” and a party opposing
the government “need adduce ‘no evidence of an improper
censorial motive.’ ” Simon & Schuster, supra, at 117.
Although “a content-based purpose may be sufficient in
certain circumstances to show that a regulation is content
based, it is not necessary.” Turner Broadcasting System,
Inc. v. FCC, 512 U. S. 622, 642 (1994). In other words, an
Cite as: 576 U. S. ____ (2015) 9
Opinion of the Court
innocuous justification cannot transform a facially content-
based law into one that is content neutral.
That is why we have repeatedly considered whether a
law is content neutral on its face before turning to the
law’s justification or purpose. See, e.g., Sorrell, supra, at
___–___ (slip op., at 8–9) (statute was content based “on its
face,” and there was also evidence of an impermissible
legislative motive); United States v. Eichman, 496 U. S.
310, 315 (1990) (“Although the [statute] contains no ex-
plicit content-based limitation on the scope of prohibited
conduct, it is nevertheless clear that the Government’s
asserted interest is related to the suppression of free ex-
pression” (internal quotation marks omitted)); Members of
City Council of Los Angeles v. Taxpayers for Vincent, 466
U. S. 789, 804 (1984) (“The text of the ordinance is neu-
tral,” and “there is not even a hint of bias or censorship in
the City’s enactment or enforcement of this ordinance”);
Clark v. Community for Creative Non-Violence, 468 U. S.
288, 293 (1984) (requiring that a facially content-neutral
ban on camping must be “justified without reference to the
content of the regulated speech”); United States v. O’Brien,
391 U. S. 367, 375, 377 (1968) (noting that the statute “on
its face deals with conduct having no connection with
speech,” but examining whether the “the governmental
interest is unrelated to the suppression of free expres-
sion”). Because strict scrutiny applies either when a law
is content based on its face or when the purpose and justi-
fication for the law are content based, a court must evalu-
ate each question before it concludes that the law is con-
tent neutral and thus subject to a lower level of scrutiny.
The Court of Appeals and the United States misunder-
stand our decision in Ward as suggesting that a govern-
ment’s purpose is relevant even when a law is content
based on its face. That is incorrect. Ward had nothing to
say about facially content-based restrictions because it
involved a facially content-neutral ban on the use, in a
10 REED v. TOWN OF GILBERT
Opinion of the Court
city-owned music venue, of sound amplification systems
not provided by the city. 491 U. S., at 787, and n. 2. In
that context, we looked to governmental motive, including
whether the government had regulated speech “because of
disagreement” with its message, and whether the regula-
tion was “ ‘justified without reference to the content of the
speech.’ ” Id., at 791. But Ward’s framework “applies only
if a statute is content neutral.” Hill, 530 U. S., at 766
(KENNEDY, J., dissenting). Its
rules thus operate “to pro-
tect speech,” not “to restrict it.” Id., at 765.
The First Amendment requires no less. Innocent mo-
tives do not eliminate the danger of censorship presented
by a facially content-based statute, as future government
officials may one day wield such statutes to suppress
disfavored speech. That is why the First Amendment
expressly targets the operation of the laws—i.e., the
“abridg[ement] of speech”—rather than merely the mo-
tives of those who enacted them. U. S. Const., Amdt. 1.
“ ‘The vice of content-based legislation . . . is not that it is
always used for invidious, thought-control purposes, but
that it lends itself to use for those purposes.’ ” Hill, supra,
at 743 (SCALIA, J., dissenting).
For instance, in NAACP v. Button, 371 U. S. 415 (1963),
the Court encountered a State’s attempt to use a statute
prohibiting “ ‘improper solicitation’ ” by attorneys to outlaw
litigation-related speech of the National Association for
the Advancement of Colored People. Id., at 438. Although
Button predated our more recent formulations of strict
scrutiny, the Court rightly rejected the State’s claim that
its interest in the “regulation of professional conduct”
rendered the statute consistent with the First Amend-
ment, observing that “it is no answer . . . to say . . . that
the purpose of these regulations was merely to insure high
professional standards and not to curtail free expression.”
Id., at 438–439. Likewise, one could easily imagine a Sign
Code compliance manager who disliked the Church’s
Cite as: 576 U. S. ____ (2015) 11
Opinion of the Court
substantive teachings deploying the Sign Code to make it
more difficult for the Church to inform the public of the
location of its services. Accordingly, we have repeatedly
“rejected the argument that ‘discriminatory . . . treatment
is suspect under the First Amendment only when the
legislature intends to suppress certain ideas.’ ” Discovery
Network, 507 U. S., at 429. We do so again today.
2
The Court of Appeals next reasoned that the Sign Code
was content neutral because it “does not mention any idea
or viewpoint, let alone single one out for differential
treatment.” 587 F. 3d, at 977. It reasoned that, for the
purpose of the Code provisions, “[i]t makes no difference
which candidate is supported, who sponsors the event, or
what ideological perspective is asserted.” 707 F. 3d, at
1069.
The Town seizes on this reasoning, insisting that “con-
tent based” is a term of art that “should be applied flexi-
bly” with the goal of protecting “viewpoints and ideas from
government censorship or favoritism.” Brief for Respond-
ents 22. In the Town’s view, a sign regulation that “does
not censor or favor particular viewpoints or ideas” cannot
be content based. Ibid. The Sign Code allegedly passes
this test because its treatment of temporary directional
signs does not raise any concerns that the government is
“endorsing or suppressing ‘ideas or viewpoints,’ ” id., at 27,
and the provisions for political signs and ideological signs
“are neutral as to particular ideas or viewpoints” within
those categories. Id., at 37.
This analysis conflates two distinct but related limita-
tions that the First Amendment places on government
regulation of speech. Government discrimination among
viewpoints—or the regulation of speech based on “the
specific motivating ideology or the opinion or perspective
of the speaker”—is a “more blatant” and “egregious form of
12 REED v. TOWN OF GILBERT
Opinion of the Court
content discrimination.” Rosenberger v. Rector and Visi-
tors of Univ. of Va., 515 U. S. 819, 829 (1995). But it is
well established that “[t]he First Amendment’s hostility to
content-based regulation extends not only to restrictions
on particular viewpoints, but also to prohibition of public
discussion of an entire topic.” Consolidated Edison Co. of
N. Y. v. Public Serv. Comm’n of N. Y., 447 U. S. 530, 537
(1980).
Thus, a speech regulation targeted at specific subject
matter is content based even if it does not discriminate
among viewpoints within that subject matter. Ibid. For
example, a law banning the use of sound trucks for politi-
cal speech—and only political speech—would be a content-
based regulation, even if it imposed no limits on the politi-
cal viewpoints that could be expressed. See Discovery
Network, supra, at 428. The Town’s Sign Code likewise
singles out specific subject matter for differential treat-
ment, even if it does not target viewpoints within that
subject matter. Ideological messages are given more
favorable treatment than messages concerning a political
candidate, which are themselves given more favorable
treatment than messages announcing an assembly of like-
minded individuals. That is a paradigmatic example of
content-based discrimination.
3
Finally, the Court of Appeals characterized the Sign
Code’s distinctions as turning on “ ‘the content-neutral
elements of who is speaking through the sign and whether
and when an event is occurring.’ ” 707 F. 3d, at 1069.
That analysis is mistaken on both factual and legal
grounds.
To start, the Sign Code’s distinctions are not speaker
based. The restrictions for political, ideological, and tem-
porary event signs apply equally no matter who sponsors
them. If a local business, for example, sought to put up
Cite as: 576 U. S. ____ (2015) 13
Opinion of the Court
signs advertising the Church’s meetings, those signs
would be subject to the same limitations as such signs
placed by the Church. And if Reed had decided to dis-
play signs in support of a particular candidate, he could
have made those signs far larger—and kept them up for
far longer—than signs inviting people to attend his
church services. If the Code’s distinctions were truly
speaker based, both types of signs would receive the same
treatment.
In any case, the fact that a distinction is speaker based
does not, as the Court of Appeals seemed to believe, auto-
matically render the distinction content neutral. Because
“[s]peech restrictions based on the identity of the speaker
are all too often simply a means to control content,” Citi-
zens United v. Federal Election Comm’n, 558 U. S. 310,
340 (2010), we have insisted that “laws favoring some
speakers over others demand strict scrutiny when the
legislature’s speaker preference reflects a content prefer-
ence,” Turner, 512 U. S., at 658. Thus, a law limiting the
content of newspapers, but only newspapers, could not
evade strict scrutiny simply because it could be character-
ized as speaker based. Likewise, a content-based law that
restricted the political speech of all corporations would not
become content neutral just because it singled out corpo-
rations as a class of speakers. See Citizens United, supra,
at 340–341. Characterizing a distinction as speaker based
is only the beginning—not the end—of the inquiry.
Nor do the Sign Code’s distinctions hinge on “whether
and when an event is occurring.” The Code does not per-
mit citizens to post signs on any topic whatsoever within a
set period leading up to an election, for example. Instead,
come election time, it requires Town officials to determine
whether a sign is “designed to influence the outcome of an
election” (and thus “political”) or merely “communicating a
message or ideas for noncommercial purposes” (and thus
“ideological”). Glossary 24. That obvious content-based
14 REED v. TOWN OF GILBERT
Opinion of the Court
inquiry does not evade strict scrutiny review simply be-
cause an event (i.e., an election) is involved.
And, just as with speaker-based laws, the fact that a
distinction is event based does not render it content neu-
tral. The Court of Appeals cited no precedent from this
Court supporting its novel theory of an exception from the
content-neutrality requirement for event-based laws. As
we have explained, a speech regulation is content based if
the law applies to particular speech because of the topic
discussed or the idea or message expressed. Supra, at 6.
A regulation that targets a sign because it conveys an idea
about a specific event is no less content based than a
regulation that targets a sign because it conveys some
other idea. Here, the Code singles out signs bearing a
particular message: the time and location of a specific
event. This type of ordinance may seem like a perfectly
rational way to regulate signs, but a clear and firm rule
governing content neutrality is an essential means of
protecting the freedom of speech, even if laws that might
seem “entirely reasonable” will sometimes be “struck down
because of their content-based nature.” City of Ladue v.
Gilleo, 512 U. S. 43, 60 (1994) (O’Connor, J., concurring).
III
Because the Town’s Sign Code imposes content-based
restrictions on speech, those provisions can stand only if
they survive strict scrutiny, “ ‘which requires the Govern-
ment to prove that the restriction furthers a compelling
interest and is narrowly tailored to achieve that interest,’ ”
Arizona Free Enterprise Club’s Freedom Club PAC v.
Bennett, 564 U. S. ___, ___ (2011) (slip op., at 8) (quoting
Citizens United, 558 U. S., at 340). Thus, it is the Town’s
burden to demonstrate that the Code’s differentiation
between temporary directional signs and other types of
signs, such as political signs and ideological signs, furthers
a compelling governmental interest and is narrowly tai-
Cite as: 576 U. S. ____ (2015) 15
Opinion of the Court
lored to that end. See ibid.
The Town cannot do so. It has offered only two govern-
mental interests in support of the distinctions the Sign
Code draws: preserving the Town’s aesthetic appeal and
traffic safety. Assuming for the sake of argument that
those are compelling governmental interests, the Code’s
distinctions fail as hopelessly underinclusive.
Starting with the preservation of aesthetics, temporary
directional signs are “no greater an eyesore,” Discovery
Network, 507 U. S., at 425, than ideological or political
ones. Yet the Code allows unlimited proliferation of larger
ideological signs while strictly limiting the number, size,
and duration of smaller directional ones. The Town can-
not claim that placing strict limits on temporary direc-
tional signs is necessary to beautify the Town while at the
same time allowing unlimited numbers of other types of
signs that create the same problem.
The Town similarly has not shown that limiting tempo-
rary directional signs is necessary to eliminate threats to
traffic safety, but that limiting other types of signs is not.
The Town has offered no reason to believe that directional
signs pose a greater threat to safety than do ideological or
political signs. If anything, a sharply worded ideological
sign seems more likely to distract a driver than a sign
directing the public to a nearby church meeting.
In light of this underinclusiveness, the Town has not
met its burden to prove that its Sign Code is narrowly
tailored to further a compelling government interest.
Because a “ ‘law cannot be regarded as protecting an inter-
est of the highest order, and thus as justifying a re-
striction on truthful speech, when it leaves appreciable
damage to that supposedly vital interest unprohibited,’ ”
Republican Party of Minn. v. White, 536 U. S. 765, 780
(2002), the Sign Code fails strict scrutiny.
16 REED v. TOWN OF GILBERT
Opinion of the Court
IV
Our decision today will not prevent governments from
enacting effective sign laws. The Town asserts that an
“ ‘absolutist’ ” content-neutrality rule would render “virtu-
ally all distinctions in sign laws . . . subject to strict scru-
tiny,” Brief for Respondents 34–35, but that is not the
case. Not “all distinctions” are subject to strict scrutiny,
only content-based ones are. Laws that are content neutral
are instead subject to lesser scrutiny. See Clark, 468
U. S., at 295.
The Town has ample content-neutral options available
to resolve problems with safety and aesthetics. For exam-
ple, its current Code regulates many aspects of signs that
have nothing to do with a sign’s message: size, building
materials, lighting, moving parts, and portability. See,
e.g., §4.402(R). And on public property, the Town may go
a long way toward entirely forbidding the posting of signs,
so long as it does so in an evenhanded, content-neutral
manner. See Taxpayers for Vincent, 466 U. S., at 817
(upholding content-neutral ban against posting signs on
public property). Indeed, some lower courts have long
held that similar content-based sign laws receive strict
scrutiny, but there is no evidence that towns in those
jurisdictions have suffered catastrophic effects. See, e.g.,
Solantic, LLC v. Neptune Beach, 410 F. 3d 1250, 1264–
1269 (CA11 2005) (sign categories similar to the town of
Gilbert’s were content based and subject to strict scru-
tiny); Matthews v. Needham, 764 F. 2d 58, 59–60 (CA1
1985) (law banning political signs but not commercial
signs was content based and subject to strict scrutiny).
We acknowledge that a city might reasonably view the
general regulation of signs as necessary because signs
“take up space and may obstruct views, distract motorists,
displace alternative uses for land, and pose other problems
that legitimately call for regulation.” City of Ladue, 512
U. S., at 48. At the same time, the presence of certain
Cite as: 576 U. S. ____ (2015) 17
Opinion of the Court
signs may be essential, both for vehicles and pedestrians,
to guide traffic or to identify hazards and ensure safety. A
sign ordinance narrowly tailored to the challenges of
protecting the safety of pedestrians, drivers, and passen-
gers—such as warning signs marking hazards on private
property, signs directing traffic, or street numbers associ-
ated with private houses—well might survive strict scru-
tiny. The signs at issue in this case, including political
and ideological signs and signs for events, are far removed
from those purposes. As discussed above, they are facially
content based and are neither justified by traditional
safety concerns nor narrowly tailored.
* * *
We reverse the judgment of the Court of Appeals and
remand the case for proceedings consistent with this
opinion.
It is so ordered.
Cite as: 576 U. S. ____ (2015) 1
ALITO, J., concurring
SUPREME COURT OF THE UNITED STATES
_________________
No. 13–502
_________________
CLYDE REED, ET AL., PETITIONERS v. TOWN OF
GILBERT, ARIZONA, ET AL.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE NINTH CIRCUIT
[June 18, 2015]
JUSTICE ALITO, with whom JUSTICE KENNEDY and
JUSTICE SOTOMAYOR join, concurring.
I join the opinion of the Court but add a few words of
further explanation.
As the Court holds, what we have termed “content-
based” laws must satisfy strict scrutiny. Content-based
laws merit this protection because they present, albeit
sometimes in a subtler form, the same dangers as laws
that regulate speech based on viewpoint. Limiting speech
based on its “topic” or “subject” favors those who do not
want to disturb the status quo. Such regulations may
interfere with democratic self-government and the search
for truth. See Consolidated Edison Co. of N. Y. v. Public
Serv. Comm’n of N. Y., 447 U. S. 530, 537 (1980).
As the Court shows, the regulations at issue in this case
are replete with content-based distinctions, and as a result
they must satisfy strict scrutiny. This does not mean,
however, that municipalities are powerless to enact and
enforce reasonable sign regulations. I will not attempt to
provide anything like a comprehensive list, but here are
some rules that would not be content based:
Rules regulating the size of signs. These rules may
distinguish among signs based on any content-neutral
criteria, including any relevant criteria listed below.
Rules regulating the locations in which signs may be
2 REED v. TOWN OF GILBERT
ALITO, J., concurring
placed. These rules may distinguish between free-
standing signs and those attached to buildings.
Rules distinguishing between lighted and unlighted
signs.
Rules distinguishing between signs with fixed messages
and electronic signs with messages that change.
Rules that distinguish between the placement of signs
on private and public property.
Rules distinguishing between the placement of signs on
commercial and residential property.
Rules distinguishing between on-premises and off-
premises signs.
Rules restricting the total number of signs allowed per
mile of roadway.
Rules imposing time restrictions on signs advertising a
one-time event. Rules of this nature do not discriminate
based on topic or subject and are akin to rules restricting
the times within which oral speech or music is allowed.*
In addition to regulating signs put up by private actors,
government entities may also erect their own signs con-
sistent with the principles that allow governmental
speech. See Pleasant Grove City v. Summum, 555 U. S.
460, 467–469 (2009). They may put up all manner of signs
to promote safety, as well as directional signs and signs
pointing out historic sites and scenic spots.
Properly understood, today’s decision will not prevent
cities from regulating signs in a way that fully protects
public safety and serves legitimate esthetic objectives.
——————
* Of course, content-neutral restrictions on speech are not necessarily
consistent with the First Amendment. Time, place, and manner
restrictions “must be narrowly tailored to serve the government’s
legitimate, content-neutral interests.” Ward v. Rock Against Racism,
491 U. S. 781, 798 (1989). But they need not meet the high standard
imposed on viewpoint- and content-based restrictions.
Cite as: 576 U. S. ____ (2015) 1
BREYER, J., concurring in judgment
SUPREME COURT OF THE UNITED STATES
_________________
No. 13–502
_________________
CLYDE REED, ET AL
., PETITIONERS v. TOWN OF
.
GILBERT, ARIZONA, ET AL
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE NINTH CIRCUIT
[June 18, 2015]
JUSTICE BREYER, concurring in the judgment.
I join JUSTICE KAGAN’s separate opinion. Like JUSTICE
KAGAN I believe that categories alone cannot satisfactorily
resolve the legal problem before us. The First Amendment
requires greater judicial sensitivity both to the Amend-
ment’s expressive objectives and to the public’s legitimate
need for regulation than a simple recitation of categories,
such as “content discrimination” and “strict scrutiny,”
would permit. In my view, the category “content discrimi-
nation” is better considered in many contexts, including
here, as a rule of thumb, rather than as an automatic
“strict scrutiny” trigger, leading to almost certain legal
condemnation.
To use content discrimination to trigger strict scrutiny
sometimes makes perfect sense. There are cases in which
the Court has found content discrimination an unconstitu-
tional method for suppressing a viewpoint. E.g., Rosen-
berger v. Rector and Visitors of Univ. of Va., 515 U. S. 819,
828–829 (1995); see also Boos v. Barry, 485 U. S. 312, 318–
319 (1988) (plurality opinion) (applying strict scrutiny
where the line between subject matter and viewpoint was
not obvious). And there are cases where the Court has
found content discrimination to reveal that rules govern-
ing a traditional public forum are, in fact, not a neutral
way of fairly managing the forum in the interest of all
2 REED v. TOWN OF GILBERT
BREYER, J., concurring in judgment
speakers. Police Dept. of Chicago v. Mosley, 408 U. S. 92,
96 (1972) (“Once a forum is opened up to assembly or
speaking by some groups, government may not prohibit
others from assembling or speaking on the basis of what
they intend to say”). In these types of cases, strict scru-
tiny is often appropriate, and content discrimination has
thus served a useful purpose.
But content discrimination, while helping courts to
identify unconstitutional suppression of expression, can-
not and should not always trigger strict scrutiny. To say
that it is not an automatic “strict scrutiny” trigger is not to
argue against that concept’s use. I readily concede, for
example, that content discrimination, as a conceptual tool,
can sometimes reveal weaknesses in the government’s
rationale for a rule that limits speech. If, for example, a
city looks to litter prevention as the rationale for a prohi-
bition against placing newsracks dispensing free adver-
tisements on public property, why does it exempt other
newsracks causing similar litter? Cf. Cincinnati v. Dis-
covery Network, Inc., 507 U. S. 410 (1993). I also concede
that, whenever government disfavors one kind of speech,
it places that speech at a disadvantage, potentially inter-
fering with the free marketplace of ideas and with an
individual’s ability to express thoughts and ideas that can
help that individual determine the kind of society in which
he wishes to live, help shape that society, and help define
his place within it.
Nonetheless, in these latter instances to use the pres-
ence of content discrimination automatically to trigger
strict scrutiny and thereby call into play a strong pre-
sumption against constitutionality goes too far. That is
because virtually all government activities involve speech,
many of which involve the regulation of speech. Regula-
tory programs almost always require content discrimination.
And to hold that such content discrimination triggers
strict scrutiny is to write a recipe for judicial management
Cite as: 576 U. S. ____ (2015) 3
BREYER, J., concurring in judgment
of ordinary government regulatory activity.
Consider a few examples of speech regulated by gov-
ernment that inevitably involve content discrimination,
but where a strong presumption against constitutionality
has no place. Consider governmental regulation of securi-
ties, e.g., 15 U. S. C. §78l (requirements for content that
must be included in a registration statement); of energy
conservation labeling-practices, e.g., 42 U. S. C. §6294
(requirements for content that must be included on labels
of certain consumer electronics); of prescription drugs, e.g.,
21 U. S. C. §353(b)(4)(A) (requiring a prescription drug
label to bear the symbol “Rx only”); of doctor-patient confi-
dentiality, e.g., 38 U. S. C. §7332 (requiring confidentiality
of certain medical records, but allowing a physician to
disclose that the patient has HIV to the patient’s spouse or
sexual partner); of income tax statements, e.g., 26 U. S. C.
§6039F (requiring taxpayers to furnish information about
foreign gifts received if the aggregate amount exceeds
$10,000); of commercial airplane briefings, e.g., 14 CFR
§136.7 (2015) (requiring pilots to ensure that each passen-
ger has been briefed on flight procedures, such as seatbelt
fastening); of signs at petting zoos, e.g., N. Y. Gen. Bus.
Law Ann. §399–ff(3) (West Cum. Supp. 2015) (requiring
petting zoos to post a sign at every exit “ ‘strongly recom-
mend[ing] that persons wash their hands upon exiting the
petting zoo area’ ”); and so on.
Nor can the majority avoid the application of strict
scrutiny to all sorts of justifiable governmental regulations
by relying on this Court’s many subcategories and excep-
tions to the rule. The Court has said, for example, that we
should apply less strict standards to “commercial speech.”
Central Hudson Gas & Elec. Corp. v. Public Service
Comm’n of N. Y., 447 U. S. 557, 562–563 (1980). But
I have great concern that many justifiable instances
of “content-based” regulation are noncommercial. And,
worse than that, the Court has applied the heightened
4 REED v. TOWN OF GILBERT
BREYER, J., concurring in judgment
“strict scrutiny” standard even in cases where the less
stringent “commercial speech” standard was appropriate.
See Sorrell v. IMS Health Inc., 564 U. S. ___, ___ (2011)
(BREYER, J., dissenting) (slip op., at ___ ).
The Court has
also said that “government speech” escapes First Amend-
ment strictures. See Rust v. Sullivan, 500 U. S. 173, 193–
194 (1991). But regulated speech is typically private
speech, not government speech. Further, the Court has
said that, “[w]hen the basis for the content discrimination
consists entirely of the very reason the entire class of
speech at issue is proscribable, no significant danger of
idea or viewpoint discrimination exists.” R. A. V. v.
St. Paul, 505 U. S. 377, 388 (1992). But this exception
accounts for only a few of the instances in which content
discrimination is readily justifiable.
I recognize that the Court could escape the problem by
watering down the force of the presumption against con-
stitutionality that “strict scrutiny” normally carries with
it. But, in my view, doing so will weaken the First
Amendment’s protection in instances where “strict scru-
tiny” should apply in full force.
The better approach is to generally treat content dis-
crimination as a strong reason weighing against the con-
stitutionality of a rule where a traditional public forum, or
where viewpoint discrimination, is threatened, but else-
where treat it as a rule of thumb, finding it a helpful, but
not determinative legal tool, in an appropriate case, to
determine the strength of a justification. I would use
content discrimination as a supplement to a more basic
analysis, which, tracking most of our First Amendment
cases, asks whether the regulation at issue works harm to
First Amendment interests that is disproportionate in
light of the relevant regulatory objectives. Answering this
question requires examining the seriousness of the harm
to speech, the importance of the countervailing objectives,
the extent to which the law will achieve those objectives,
Cite as: 576 U. S. ____ (2015) 5
BREYER, J., concurring in judgment
and whether there are other, less restrictive ways of doing
so. See, e.g., United States v. Alvarez, 567 U. S. ___, ___–
___ (2012) (BREYER, J.,
concurring in judgment) (slip op.,
at 1–3); Nixon v. Shrink Missouri Government PAC, 528
U. S. 377, 400–403 (2000) (BREYER, J., concurring). Ad-
mittedly, this approach does not have the simplicity of a
mechanical use of categories. But it does permit the gov-
ernment to regulate speech in numerous instances where
the voters have authorized the government to regulate
and where courts should hesitate to substitute judicial
judgment for that of administrators.
Here, regulation of signage along the roadside, for pur-
poses of safety and beautification is at issue. There is no
traditional public forum nor do I find any general effort to
censor a particular viewpoint. Consequently, the specific
regulation at issue does not warrant “strict scrutiny.”
Nonetheless, for the reasons that JUSTICE KAGAN sets
forth, I believe that the Town of Gilbert’s regulatory rules
violate the First Amendment. I consequently concur in
the Court’s judgment only.
Cite as: 576 U. S. ____ (2015) 1
KAGAN, J., concurring in judgment
SUPREME COURT OF THE UNITED STATES
_________________
No. 13–502
_________________
CLYDE REED, ET AL
., PETITIONERS v. TOWN OF
GILBERT, ARIZONA, ET AL
.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE NINTH CIRCUIT
[June 18, 2015]
JUSTICE KAGAN, with whom JUSTICE GINSBURG and
JUSTICE BREYER join, concurring in the judgment.
Countless cities and towns across America have adopted
ordinances regulating the posting of signs, while exempt-
ing certain categories of signs based on their subject mat-
ter. For example, some municipalities generally prohibit
illuminated signs in residential neighborhoods, but lift
that ban for signs that identify the address of a home or
the name of its owner or occupant. See, e.g., City of Truth
or Consequences, N. M., Code of Ordinances, ch. 16, Art.
XIII, §§11–13–2.3, 11–13–2.9(H)(4) (2014). In other mu-
nicipalities, safety signs such as “Blind Pedestrian Cross-
ing” and “Hidden Driveway” can be posted without a
permit, even as other permanent signs require one. See,
e.g., Code of Athens-Clarke County, Ga., Pt. III, §7–4–7(1)
(1993). Elsewhere, historic site markers—for example,
“George Washington Slept Here”—are also exempt from
general regulations. See, e.g., Dover, Del., Code of Ordi-
nances, Pt. II, App. B, Art. 5, §4.5(F) (2012). And simi-
larly, the federal Highway Beautification Act limits signs
along interstate highways unless, for instance, they direct
travelers to “scenic and historical attractions” or advertise
free coffee. See 23 U. S. C. §§131(b), (c)(1), (c)(5).
Given the Court’s analysis, many sign ordinances of that
kind are now in jeopardy. See ante, at 14 (acknowledging
2 REED v. TOWN OF GILBERT
KAGAN, J., concurring in judgment
that “entirely reasonable” sign laws “will sometimes be
struck down” under its approach (internal quotation
marks omitted)). Says the majority: When laws “single[ ]
out specific subject matter,” they are “facially content
based”; and when they are facially content based, they are
automatically subject to strict scrutiny. Ante, at 12, 16–
17. And although the majority holds out hope that some
sign laws with subject-matter exemptions “might survive”
that stringent review, ante, at 17, the likelihood is that
most will be struck down. After all, it is the “rare case[] in
which a speech restriction withstands strict scrutiny.”
Williams-Yulee v. Florida Bar, 575 U. S. ___, ___ (2015)
(slip op., at 9). To clear that high bar, the government
must show that a content-based distinction “is necessary
to serve a compelling state interest and is narrowly drawn
to achieve that end.” Arkansas Writers’ Project, Inc. v.
Ragland, 481 U. S. 221, 231 (1987). So on the majority’s
view, courts would have to determine that a town has a
compelling interest in informing passersby where George
Washington slept. And likewise, courts would have to find
that a town has no other way to prevent hidden-driveway
mishaps than by specially treating hidden-driveway signs.
(Well-placed speed bumps? Lower speed limits? Or how
about just a ban on hidden driveways?) The conse-
quence—unless courts water down strict scrutiny to some-
thing unrecognizable—is that our communities will find
themselves in an unenviable bind: They will have to either
repeal the exemptions that allow for helpful signs on
streets and sidewalks, or else lift their sign restrictions
altogether and resign themselves to the resulting clutter.*
——————
* Even in trying (commendably) to limit today’s decision, JUSTICE
ALITO’s concurrence highlights its far-reaching effects. According to
JUSTICE ALITO, the majority does not subject to strict scrutiny regula-
tions of “signs advertising a one-time event.” Ante, at 2 (ALITO, J.,
concurring). But of course it does. On the majority’s view, a law with
an exception for such signs “singles out specific subject matter for
Cite as: 576 U. S. ____ (2015) 3
KAGAN, J., concurring in judgment
Although the majority insists that applying strict scru-
tiny to all such ordinances is “essential” to protecting First
Amendment freedoms, ante, at 14, I find it challenging to
understand why that is so. This Court’s decisions articu-
late two important and related reasons for subjecting
content-based speech regulations to the most exacting
standard of review. The first is “to preserve an uninhib-
ited marketplace of ideas in which truth will ultimately
prevail.” McCullen v. Coakley, 573 U. S. ___, ___–___
(2014) (slip op., at 8–9) (internal quotation marks omit-
ted). The second is to ensure that the government has not
regulated speech “based on hostility—or favoritism—
towards the underlying message expressed.” R. A. V. v.
St. Paul, 505 U. S. 377, 386 (1992). Yet the subject-matter
exemptions included in many sign ordinances do not im-
plicate those concerns. Allowing residents, say, to install a
light bulb over “name and address” signs but no others
does not distort the marketplace of ideas. Nor does that
different treatment give rise to an inference of impermis-
sible government motive.
We apply strict scrutiny to facially content-based regu-
lations of speech, in keeping with the rationales just de-
scribed, when there is any “realistic possibility that official
suppression of ideas is afoot.” Davenport v. Washington
Ed. Assn., 551 U. S. 177, 189 (2007) (quoting R. A. V., 505
U. S., at 390). That is always the case when the regula-
tion facially differentiates on the basis of viewpoint. See
Rosenberger v. Rector and Visitors of Univ. of Va., 515
U. S. 819, 829 (1995). It is also the case (except in non-
public or limited public forums) when a law restricts “dis-
cussion of an entire topic” in public debate. Consolidated
——————
differential treatment” and “defin[es] regulated speech by particular
subject matter.” Ante, at 6, 12 (majority opinion). Indeed, the precise
reason the majority applies strict scrutiny here is that “the Code
singles out signs bearing a particular message: the time and location of
a specific event.” Ante, at 14.
4 REED v. TOWN OF GILBERT
KAGAN, J., concurring in judgment
Edison Co. of N. Y. v. Public Serv. Comm’n of N. Y., 447
U. S. 530, 537, 539–540 (1980) (invalidating a limitation
on speech about nuclear power). We have stated that “[i]f
the marketplace of ideas is to remain free and open, gov-
ernments must not be allowed to choose ‘which issues are
worth discussing or debating.’ ” Id., at 537–538 (quoting
Police Dept. of Chicago v. Mosley, 408 U. S. 92, 96 (1972)).
And we have recognized that such subject-matter re-
strictions, even though viewpoint-neutral on their face,
may “suggest[ ] an attempt to give one side of a debatable
public question an advantage in expressing its views to
the people.” First Nat. Bank of Boston v. Bellotti, 435
U. S. 765, 785 (1978); accord, ante, at 1 (ALITO, J., concur-
ring) (limiting all speech on one topic “favors those who do
not want to disturb the status quo”). Subject-matter
regulation, in other words, may have the intent or effect of
favoring some ideas over others. When that is realistically
possible—when the restriction “raises the specter that the
Government may effectively drive certain ideas or view-
points from the marketplace”—we insist that the law pass
the most demanding constitutional test. R. A. V., 505
U. S., at 387 (quoting Simon & Schuster, Inc. v. Members
of N. Y. State Crime Victims Bd., 502 U. S. 105, 116
(1991)).
But when that is not realistically possible, we may do
well to relax our guard so that “entirely reasonable” laws
imperiled by strict scrutiny can survive. Ante, at 14. This
point is by no means new. Our concern with content-
based regulation arises from the fear that the government
will skew the public’s debate of ideas—so when “that risk
is inconsequential, . . . strict scrutiny is unwarranted.”
Davenport, 551 U. S., at 188; see R. A. V., 505 U. S., at 388
(approving certain content-based distinctions when there
is “no significant danger of idea or viewpoint discrimina-
tion”). To do its intended work, of course, the category of
content-based regulation triggering strict scrutiny must
Cite as: 576 U. S. ____ (2015) 5
KAGAN, J., concurring in judgment
sweep more broadly than the actual harm; that category
exists to create a buffer zone guaranteeing that the gov-
ernment cannot favor or disfavor certain viewpoints. But
that buffer zone need not extend forever. We can adminis-
ter our content-regulation doctrine with a dose of common
sense, so as to leave standing laws that in no way impli-
cate its intended function.
And indeed we have done just that: Our cases have been
far less rigid than the majority admits in applying strict
scrutiny to facially content-based laws—including in cases
just like this one. See Davenport, 551 U. S., at 188 (noting
that “we have identified numerous situations in which
[the] risk” attached to content-based laws is “attenuated”).
In Members of City Council of Los Angeles v. Taxpayers for
Vincent, 466 U. S. 789 (1984), the Court declined to apply
strict scrutiny to a municipal ordinance that exempted
address numbers and markers commemorating “historical,
cultural, or artistic event[s]” from a generally applicable
limit on sidewalk signs. Id., at 792, n. 1 (listing exemp-
tions); see id., at 804–810 (upholding ordinance under
intermediate scrutiny). After all, we explained, the law’s
enactment and enforcement revealed “not even a hint of
bias or censorship.” Id., at 804; see also Renton v. Play-
time Theatres, Inc., 475 U. S. 41, 48 (1986) (applying
intermediate scrutiny to a zoning law that facially distin-
guished among movie theaters based on content because it
was “designed to prevent crime, protect the city’s retail
trade, [and] maintain property values . . . , not to suppress
the expression of unpopular views”). And another decision
involving a similar law provides an alternative model. In
City of Ladue v. Gilleo, 512 U. S. 43 (1994), the Court
assumed arguendo that a sign ordinance’s exceptions for
address signs, safety signs, and for-sale signs in residen-
tial areas did not trigger strict scrutiny. See id., at 46–47,
and n. 6 (listing exemptions); id., at 53 (noting this as-
sumption). We did not need to, and so did not, decide the
6 REED v. TOWN OF GILBERT
KAGAN, J., concurring in judgment
level-of-scrutiny question because the law’s breadth made
it unconstitutional under any standard.
The majority could easily have taken Ladue’s tack here.
The Town of Gilbert’s defense of its sign ordinance—most
notably, the law’s distinctions between directional signs
and others—does not pass strict scrutiny, or intermediate
scrutiny, or even the laugh test. See ante, at 14–15 (dis-
cussing those distinctions). The Town, for example, pro-
vides no reason at all for prohibiting more than four direc-
tional signs on a property while placing no limits on the
number of other types of signs. See Gilbert, Ariz., Land
Development Code, ch. I, §§4.402(J), (P)(2) (2014). Simi-
larly, the Town offers no coherent justification for restrict-
ing the size of directional signs to 6 square feet while
allowing other signs to reach 20 square feet. See
§§4.402(J), (P)(1). The best the Town could come up with
at oral argument was that directional signs “need to be
smaller because they need to guide travelers along a
route.” Tr. of Oral Arg. 40. Why exactly a smaller sign
better helps travelers get to where they are going is left a
mystery. The absence of any sensible basis for these and
other distinctions dooms the Town’s ordinance under even
the intermediate scrutiny that the Court typically applies
to “time, place, or manner” speech regulations. Accordingly,
there is no need to decide in this case whether strict scru-
tiny applies to every sign ordinance in every town across
this country containing a subject-matter exemption.
I suspect this Court and others will regret the majority’s
insistence today on answering that question in the affirm-
ative. As the years go by, courts will discover that thou-
sands of towns have such ordinances, many of them “en-
tirely reasonable.” Ante, at 14. And as the challenges to
them mount, courts will have to invalidate one after the
other. (This Court may soon find itself a veritable Su-
preme Board of Sign Review.) And courts will strike down
those democratically enacted local laws even though no
Cite as: 576 U. S. ____ (2015) 7
KAGAN, J., concurring in judgment
one—certainly not the majority—has ever explained why
the vindication of First Amendment values requires that
result. Because I see no reason why such an easy case
calls for us to cast a constitutional pall on reasonable
regulations quite unlike the law before us, I concur only in
the judgment.
Auspro Enterprises, LP v. Texas Department of Transportation
Combined Opinion