After Justice Scalia’s death, it seems everything is up for grabs: gun rights, reproductive rights, voting rights, environmental protection, labor unions, campaign finance. In every major area where the late Justice provided a crucial fifth vote, a new Justice may shift the Supreme Court majority and, in turn, the law for decades to come.
But perhaps not everything has changed. Specifically, not five, but six Justices have supported the Court’s invocation of the First Amendment’s protection of free speech to strike down commercial regulation,1 meaning that even without Justice Scalia, the commercialization of the First Amendment may continue apace.2
This Note focuses on understanding the doctrinal implications of Reed v. Town of Gilbert,3 the Court’s most recent invocation of the First Amendment’s expansive deregulatory potential. In Reed, by articulating a broad standard for deeming a regulation to be content based, a six-Justice majority risked subjecting numerous reasonable regulations to strict scrutiny when faced with a First Amendment challenge.4 In its immediate wake, many feared that Reed had quietly reshaped free speech doctrine in the image of economic libertarianism.5
This Note maps the synapse between cases and doctrine in attempting to understand the extent of Reed’s reach and its potential impact on First Amendment doctrine. It argues that no, Reed is not a free speech test for all seasons.6 Rather than applying to all free speech cases, Reed only applies to certain regulations of noncommercial speech and can be distinguished up, down, and sideways in other contexts.7 Reed does not displace existing commercial speech doctrine, nor does it apply to general regulations of economic conduct. By analyzing numerous cases decided in the aftermath of Reed, this Note argues that lower courts have (for the most part) already begun the process of narrowing Reed from below.8
As a result, Reed may have an unexpected impact on the structure of First Amendment doctrine. Rather than cementing the centrality of the division between content-based and content-neutral regulations, Reed may have instead diminished the distinction’s importance.9 By elevating a simple rule of content analysis above its underlying purpose of ferreting out impermissible government regulation of speech, Reed exposed the flaws of strict content analysis as an organizing principle for free speech doctrine. Lower courts can best protect core First Amendment values, and might encourage the Supreme Court to do the same, by refusing to let the content-based tail wag the First Amendment dog.
I. Reed and the Content Distinction
Current First Amendment free speech doctrine is, in a word, doctrinal. It aggressively subdivides the known world into endless categories and describes distinctive rules and tests to evaluate the constitutionality of regulations that fall within those categories.10
The core division at the heart of current free speech doctrine separates regulations that are content based from those that are content neutral.11 Regulations that distinguish speech on the basis of its content are subject to strict scrutiny, whereas those that are neutral with respect to the content of the regulated speech are evaluated under a less searching, intermediate scrutiny standard of review.12 As Professor Leslie Kendrick puts it: “Given that almost all laws fail strict scrutiny and almost all laws pass intermediate scrutiny, the pivotal point in the doctrinal structure is the content analysis.”13
The content distinction is intended, many scholars argue, to guide courts in identifying regulations “improperly motivated . . . by hostility to targeted speech.”14 While there may be other justifications for the content distinction, “it is difficult to formulate it in a way that is not concerned with why the government is regulating.”15 Independent of the legislature’s subjective intent, the content distinction serves to identify objectively heightened risk that the government’s actions violated the First Amendment. The content distinction thus provides courts with a ready guide for a first-order determination of whether the regulation of the speech in question risks impermissible government intervention in the marketplace of ideas.
In practice, however, the content distinction is quite messy and only roughly tracks the division between permissible and impermissible regulation.16 As a first cut of possible speech regulations, requiring all content-based regulations to be subjected to strict scrutiny results in problems of both over- and underinclusion. Overinclusion in that certain content-based regulations pose no risk of official interference with the channels of democracy or the search for truth. And underinclusion in that content-neutral regulations of the time, place, and manner of expression still have the potential to “devastate expressive content.”17
As a result of the awkward fit between the content distinction and the real-world contours of desirable speech regulation, courts have developed a series of categorical exceptions, reducing the level of scrutiny for certain types of content-based regulations of speech — such as regulations of commercial speech.18 Some scholars, Justice Breyer chief among them, have advocated for replacing the current structure of rigid tiers of scrutiny and fixed categorical exceptions with a case-by-case ad hoc balancing approach.19
In addition to the clunkyness of the content distinction itself, there is also the practical problem of how to decide which regulations fall on which side of the line. How are courts to define the difference between regulations that are content based and those that are content neutral? It has been hard to say.20 But in Reed, a majority of the Supreme Court seemed to adopt a clear statement of the distinction that broadly deems regulations to be content based.
In Reed, the Supreme Court invalidated the Sign Code21 enacted by the Town of Gilbert, Arizona, as a content-based regulation of speech.22 The Sign Code singled out different types of signs for special treatment, specifying requirements for their size and the locations and times at which they could be displayed.23 A small church challenged the Sign Code as a violation of freedom of speech under the First Amendment.24
Writing for the Court, Justice Thomas held that the Sign Code’s distinctions among different types of signs were content based and did not satisfy strict scrutiny.25 In finding the Sign Code to be content based, the Court announced a broad new standard. It held that “[g]overnment regulation of speech is content based if a law applies to particular speech because of the topic discussed or the idea or message expressed.”26 “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.”27 Facially content-based regulations are automatically “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.”28 Even where a regulation does not address content on its face, it will be considered content based if it cannot be “justified without reference to the content of the regulated speech.”29 The majority in Reed held that the Town of Gilbert’s Sign Code was content based on its face and thus subject to strict scrutiny, which it failed — epically.30
Attempting to mitigate the apparent breadth of the majority’s holding, Justice Alito, concurring,31 listed a number of different regulations that he believed would still be content neutral under Reed’s new rule.32 Justice Alito’s concurrence, however, did not offer a theoretical basis for distinguishing its protected categories from the reach of the majority’s standard.33
Three Justices flatly disagreed with the majority’s reasoning. Justice Kagan, joined by Justices Ginsburg and Breyer, admitted that the Sign Code did not pass First Amendment muster but criticized the breadth of the Court’s holding, arguing that strict scrutiny should be applied to content-based regulations of speech only where there is a “realistic possibility that official suppression of ideas is afoot.”34 The majority would require courts to “strike down . . . democratically enacted local laws even though no one — certainly not the majority — has ever explained why the vindication of First Amendment values requires that result.”35 In a separate opinion, Justice Breyer argued against a rigid approach requiring strict scrutiny for content-based regulations, as “[r]egulatory programs almost always require content discrimination. And to hold that such content discrimination triggers strict scrutiny is to write a recipe for judicial management of ordinary government regulatory activity.”36
The majority’s articulation of the standard for deeming a regulation content based is notable for two main reasons. First, it divorces the content distinction from its intended purpose of ferreting out impermissible government motive.37 Even where government motive is completely benign, the Court affirmed that content-based regulations are nonetheless suspect and should be subjected to strict scrutiny.38 Second, it defines the category of content-based regulations in language sufficiently broad to cover nearly all regulations. Finding a regulation to be content based whenever it cannot be “justified without reference to the content of the regulated speech”39 could be read to include any regulation that even incidentally distinguishes between activities or industries.
After Reed, commentators echoed Justice Breyer’s concerns and cautioned that the majority and its formalist, absolutist approach to content neutrality had transformed First Amendment doctrine, with effects reaching far beyond the case’s immediate context.40 Crafty litigants immediately made First Amendment arguments challenging all sorts of government regulation under Reed: other municipal sign codes,41 antipanhandling regulations,42 commercial speech regulations,43 and regulations of general commercial conduct.44
But, as the next Part argues, despite numerous post-Reed challenges to diverse government regulations, lower courts have generally resisted Reed’s deregulatory potential.
II. Reading Reed: Dimensions of Distinction
If interpreted at full breadth, Reed could provide a grant for transforming First Amendment doctrine and limiting government power to enforce reasonable regulations. Its broad test for what counts as a content-based regulation of speech risks destabilizing vast swaths of the regulatory state by requiring more regulations to stand up to strict scrutiny when faced with a First Amendment challenge.
But it need not be this way. Reed itself does not necessitate such a broad interpretation. Reed can be distinguished up, down, and sideways. Down, by deeming a regulation to cover conduct rather than speech, thereby subjecting it to rational basis review. Sideways, by pushing Reed aside in evaluating challenges to regulations of commercial speech — and preserving the Central Hudson45 standard of intermediate scrutiny. And up, by finding the regulation to be content neutral or by diluting the standard of strict scrutiny.46 This Part addresses each of these dimensions of distinction in turn.47 It marshals lower-court decisions addressing Reed48 to suggest that lower courts’ interpretations of Reed have narrowed the case’s reach in a manner consistent with the majority opinion’s text.
Seeing in Reed a valuable ally in the fight against regulation, creative First Amendment advocates have challenged general economic regulations as impermissible content-based restrictions on speech. Reed thus risks becoming the strongest and shiniest arrow in the quiver of those seeking to Lochnerize the First Amendment.49 But unlike regulations of speech, which at least raise the specter of government censorship and thus risk impinging protected First Amendment values, general regulations of economic behavior do not and should not raise First Amendment concerns.50
On its face, Reed should not apply to regulations of conduct. Reed did not address a regulation of conduct, nor does the text of the majority opinion suggest that it should apply to such regulations. In Reed, the Town of Gilbert’s Sign Code distinguished between different types of signs — a canonical First Amendment medium — on the basis of the language they contained.51 The speech/conduct distinction was not at issue in Reed, and while the decision might be interpreted to reflect increasing skepticism from the Court over regulations of speech, it says nothing about extending the First Amendment to cover regulations of conduct.
Two conflicting cases interpreting Reed from the Second and Eleventh Circuits illustrate the importance of the threshold determination of whether a regulation governs speech or conduct. The cases address First Amendment challenges to state laws prohibiting merchants from charging higher prices to customers paying with credit cards than to those paying with cash. These two cases illuminate Reed’s potential reach and also how courts have distinguished the decision down by refusing to apply it to regulations of conduct with only tenuous connections to speech.
In Expressions Hair Design v. Schneiderman,52 the Second Circuit held that Reed did not apply in a challenge to New York’s antisurcharge regulation, as it was a regulation of conduct, not speech.53 The court noted explicitly that Reed did not impact the threshold speech v. conduct determination, as it only applied to regulations of speech54 and that the law at issue only addressed whether a merchant could charge customers more for using credit cards.55 The court treated the law as a regulation of prices, and in particular the relationship between prices, rather than as a regulation of the seller’s speech in describing its prices. Judge Livingston explained: “Plaintiffs’ chief error . . . is their bewildering persistence in equating the actual imposition of a credit-card surcharge . . . with the words that speakers of English have chosen to describe that pricing scheme (i.e., the term ‘credit-card surcharge’).”56 Distinguishing between the regulatory burden itself and its relationship to the speech allegedly infringed helps illuminate the distinction between conduct and speech.
In Dana’s Railroad Supply v. Florida,57 the Eleventh Circuit reached a contrary conclusion, treating a similar regulation as a restriction on speech and finding that the regulation did not satisfy heightened scrutiny.58 The Eleventh Circuit focused on the fact that the challenged Florida statute prohibited the imposition of a surcharge on customers paying by credit card while permitting a discount for those paying by cash.59 The court argued that the distinction drawn by the regulation was purely semantic, making it a regulation of speech rather than conduct, and suggested that the regulation was “muddled by less savory notes of plain old-fashioned speech suppression.”60 However, in doing so, the court disregarded the fact that the actual regulation prohibited treating different customers differently based on their choice of payment method; it did not restrict vendors from describing any particular price as either a “surcharge” or a “discount.”61 The Eleventh Circuit’s elision repeats what Judge Livingston described as the plaintiff’s chief error in the analogous Second Circuit case — that is, equating a substantive regulatory impact with the words people choose to describe it.
On the surface, the conflict between the Second and Eleventh Circuits is not about the interpretation of Reed at all, but rather about the contours of the speech/conduct distinction. But on closer inspection, the two cases illustrate that after Reed, deeming a regulation to cover speech increases the likelihood that it will be subjected to strict scrutiny (and most likely invalidated) under Reed’s broadened standard. Thanks to Reed, the pre-game has become the game. Courts seeking to preserve the regulatory status quo where it does not raise genuine First Amendment concerns may find a ready escape hatch in the speech/conduct distinction.
Indeed, the Second Circuit is not alone in finding reasonable police-power regulations to be outside of Reed’s reach. In a number of early post-Reed challenges, other courts have similarly distinguished Reed down, finding a challenged regulation to cover conduct rather than speech and thereby avoiding a dispositive determination of whether Reed might require strict scrutiny.62
Even where a regulation addresses speech rather than conduct, Reed probably does not apply if the challenged regulation addresses only commercial speech. Historically, because of the strained relationship between commercial speech and the core values underpinning First Amendment protection, courts have subjected regulations of commercial speech to a standard of intermediate scrutiny rather than the oft-insurmountable barrier of strict scrutiny.63
Some have worried that Reed supplanted existing commercial speech doctrine.64 But Reed’s new rule for determining when a regulation is content based does not apply to the commercial speech context. First, the Supreme Court has already told us that regulations of commercial speech are content based but are categorically deserving of weakened scrutiny, so Reed’s new test for whether a regulation is content based is not relevant.65 Second, Reed itself provided no indication that it intended to upset this area of settled doctrine. Reed never considered regulations of commercial speech explicitly, as the challenged categories in the Town of Gilbert’s Sign Code involved noncommercial expression,66 nor did it address Central Hudson or the Court’s other commercial speech precedents. Lower courts can take the Supreme Court at its word (or rather, its silence) by distinguishing Reed sideways and continuing to evaluate challenges to regulations of commercial speech under intermediate scrutiny.
And that’s precisely what most lower courts considering challenges to commercial speech regulations after Reed have done. In one case, a federal district court found Reed inapposite in a challenge to an ordinance imposing requirements on negotiations between landlords and tenants.67 Stating that Reed “does not concern commercial speech,”68 the court considered the ordinance as a regulation on commercial speech and concluded that it satisfied intermediate scrutiny under Central Hudson.69 Similarly, another federal district court upheld under Central Hudson a statute prohibiting healthcare providers from soliciting people involved in motor vehicle accidents, finding that “[b]ecause the [statute] constrains only commercial speech, the strict scrutiny analysis of Reed is inapposite.”70 Even in contexts closely analogous to the facts of Reed, as in challenges to regulation of commercial signs and billboards, multiple courts have found Reed to be entirely immaterial and have instead applied intermediate scrutiny under Central Hudson.71 Perhaps the strongest statement about Reed’s inapplicability in the commercial speech context comes from the Northern District of California: “The Supreme Court has clearly made a distinction between commercial speech and noncommercial speech, and nothing in its recent opinions, including Reed, even comes close to suggesting that that well-established distinction is no longer valid.”72
A more troubling application of the commercial/noncommercial distinction after Reed came in the trademark context. In In re Tam,73 the Federal Circuit struck down as content based a section of the Lanham Act allowing the Patent and Trademark Office to deny registration to a disparaging mark.74 In doing so, the court tripped over itself to separate the commercial and expressive aspects of trademark registration — a distinction contested hotly in a dissent.75 In re Tam, while confirming the vitality of intermediate scrutiny for commercial speech after Reed, also suggests that courts must avoid classifying commercial speech as noncommercial given the enhanced likelihood that regulation of the latter is now vulnerable to strict scrutiny.76
Reed’s impact will be most strongly felt in challenges to regulations closely analogous to the facts of Reed itself: regulations of noncommercial speech. Reed will likely require future courts to analyze such regulations as content based and subject to strict scrutiny. Since the Court’s decision, most cases with fact patterns closely analogous to Reed’s — challenges to other sign codes or regulations of noncommercial person-to-person communication — have resulted in invalidation of the challenged regulation. However, there remain two paths to distinguishing Reed up: First, and more problematically, by deeming a regulation content based under Reed but finding that it satisfies strict scrutiny. Second, by finding regulations to be content neutral, notwithstanding the feared post-Reed squeeze-out of the zone of content-neutral regulations.
Most directly, lower courts post Reed have found sign regulations that treat different types of noncommercial communication differently to be content based and have invalidated them under strict scrutiny.77 Courts have even signaled receptivity to Reed challenges to sign ordinances where they have not been raised.78
At the extreme, one lower court even interpreted Reed so broadly as to run afoul of a clear limitation imposed by Justice Alito’s concurrence. In Thomas v. Schroer,79 the District Court for the Western District of Tennessee found that a sign code distinguishing between off-premises and on-premises signs was content based,80 even though Justice Alito described the off-premises/on-premises distinction as content neutral.81 This decision — though perhaps an outlier82 — illustrates the inconsistency between the Reed majority’s far-ranging reasoning and Justice Alito’s attempt to identify exceptions.83
Such reasoning also imperils the federal Highway Beautification Act,84 which conditions the grant of a state’s federal highway funds on the state’s regulation of outdoor signs near highways.85 The federal government filed an amicus brief in Reed expressing its concern for the future of the Act.86 Though no court has yet squarely considered a First Amendment challenge to the Highway Beautification Act’s sign regulations under Reed, such a challenge now seems inevitable.87
Additionally, courts have generally deemed regulations governing noncommercial person-to-person communications to be content based under Reed.88 For example, multiple courts have invalidated antipanhandling regulations under Reed.89 Even broader second-generation antipanhandling ordinances drafted in the wake of Reed that attempt to satisfy its expanded standard are beginning to face successful First Amendment challenges.90 Similar challenges have been successfully mounted against ordinances prohibiting solicitation in a pedestrian-only historic district,91 prohibiting solicitation of day labor,92 and requiring a license for door-to-door solicitation.93
These cases nicely illustrate how content analysis unmoored from context places regulators in a bind. Rather than limiting the amount of protected speech subject to government regulation, Reed requires legislatures to regulate all speech in order to regulate any speech.94
One path to distinguishing Reed up is for courts to find that a challenged regulation is content based but nonetheless satisfies strict scrutiny. However, this approach risks weakening the protection of speech at the heart of the First Amendment by offering a version of strict scrutiny that is strict in name only.95 A panel of the Eleventh Circuit followed this path in the so-called “Docs vs. Glocks” challenge to a law limiting doctors’ ability to ask about and record patients’ firearm ownership,96 but the decision has been vacated pending rehearing en banc.97
Finally, while Reed expanded the zone of content-based regulations, it did not totally eliminate the possibility that some carefully crafted regulations may yet be deemed content neutral. At least six Justices — the three who concurred in the judgment (Justices Kagan, Breyer, and Ginsburg) along with Justice Alito and the two who joined his concurring opinion (Justices Kennedy and Sotomayor) — are open to finding reasonable sign regulations to be content neutral, even if the reasoning of the Reed majority opinion might suggest otherwise.98
Following Reed, a handful of lower courts have found regulations of speech to be content neutral and have thus evaluated them under intermediate scrutiny.99 In a case that had been GVR-ed (granted, vacated, and remanded) by the Supreme Court after Reed, the Ninth Circuit affirmed that restrictions on the height and size of signs were content neutral.100 Another court deemed a ban on painted wall signs to be content neutral.101 The First Circuit held that an ordinance prohibiting standing, sitting, staying, driving, or parking on median traffic strips was content neutral because it “does not take aim at — or give special favor to — any type of messages conveyed in such a place because of what the message says.”102 Similarly, the District Court for the Northern District of Texas found a regulation that prohibited all pedestrians from soliciting, selling, or distributing materials to occupants of cars stopped at traffic lights to be content neutral.103 And in the Northern District of Illinois, an ordinance prohibiting peddling on public sidewalks adjacent to a stadium was deemed content neutral.104 In two other examples involving firearm regulations, courts have deemed the regulations in question to be content neutral,105 in one case by apparently ignoring Reed’s rule for determining whether a regulation is content based.106 These cases suggest that though Reed increased the likelihood that a regulation will be deemed content based, it did not entirely eliminate the possibility that legislators and regulators may yet craft satisfactory content-neutral regulations.
III. Reed’s Impact on First Amendment Doctrinal Architecture
At the level of doctrinal architecture, rather than revolutionizing free speech doctrine, Reed has instead been absorbed into the doctrine’s fragmentary status quo. By further exposing the warts of content analysis as an organizing heuristic, Reed may have pushed courts to develop new ways to avoid the strict scrutiny it seems to demand. This Part claims that this may be a desirable outcome, and advocates against courts treating Reed as a warrant for deregulation through First Amendment litigation.
The content distinction has traditionally been seen as a proxy for identifying impermissible government restrictions on speech. But in Reed, the majority disavowed the connection between enhanced scrutiny for content-based regulations and concern for impermissible government suppression of speech. Where the application of a law “depend[s] entirely on the communicative content” of covered speech, it will be deemed content based and subject to strict scrutiny.107 This approach gave no heed to the possibility of purely benign government motives and the absence of any indication of state suppression of protected speech.108 That is, Reed goes far beyond just affecting viewpoint-based regulations of speech — like a regulation that treats pro-life and pro-choice signs differently. Such regulations ought to be invalidated for impairing the ability of a particular perspective to compete in the marketplace of ideas. Reed also mandates equal treatment for positions that don’t compete against each other in any meaningful way — say, a regulation that treats signs backing a pro-life position differently from signs advertising free coffee.109
After Reed, any law that draws content-based distinctions may be suspect, including numerous regulations that are entirely unproblematic from the perspective of concern for suppression of democracy-enhancing speech. Whether or not the content distinction was an effective proxy for identifying impermissible regulations of speech in the first place (and most believe that it was not110), courts might no longer have the flexibility to treat its invocation as anything other than outcome determinative. This is especially troubling given that strict scrutiny review of every local regulation will both cripple the ability of local governments to run smoothly111 and expend limited judicial resources on active antidemocratic deregulation.112
With Reed, the Court risked imposing a unitary standard of strict scrutiny for nearly all regulations of speech — and regulations of conduct that litigants could convince a court to treat as regulations of speech.113 In doing so, the Court elevated its concern for rule-bound doctrine over sensitivity to facts on the ground and the purposes underlying enhanced First Amendment protection.114 Using Reed to extend the full protection of the First Amendment to challenge regulation of commercial speech or, even more drastically, general economic regulation, would result in a wholesale restructuring of well-settled free speech doctrine without any accompanying justification.115
This doctrinal devolution is concerning given the likely beneficiaries of expanded free speech protection. The modern First Amendment has two faces: it is (too rarely) a great shield protecting civil rights and “free[ing] men from the bondage of irrational fears”116 and (too often) a gilded sword advancing moneyed interests against reasonable government regulation.117 By divorcing content from context and not differentiating between civil and economic rights, a content-blind approach to First Amendment protection further increases the cost and difficulty of regulation without any corresponding reduction of impermissible government suppression of protected speech. To be clear, a narrow interpretation of Reed protects the First Amendment where underlying policy justifies its application, but prevents its weaponization as a libertarian lance against reasonable regulation.
The Reed decision thus brings to the surface the underlying problems with the content distinction as a governing superstructure for free speech doctrine.118 As a threshold matter, if the Court is concerned with government officials using content-based regulations as a vehicle for ideologically discriminatory treatment,119 that discriminatory treatment should be challenged outright; it should not be assumed that it flows necessarily from reasonable line-drawing in statutory text. And to the extent that a concern for equality motivates the shift to a liberal identification of content-based regulations,120 the Court’s all-or-nothing approach to regulation — requiring the state to regulate everything in order to regulate anything — treads even more harshly on competing First Amendment values.121
Mercifully, then, Reed is not the end of the story. As discussed above, lower courts have resisted Reed’s potential to require a unitary standard of strict scrutiny and upend settled First Amendment doctrine. To the extent that lower court reception of Reed is beginning to define a doctrinal equilibrium, Reed’s impact has been narrow.
Lower court cases have shown that adopting a narrow interpretation of Reed may prove difficult in certain areas. In challenges to sign codes and antipanhandling regulations, for example, courts have generally found Reed to apply and have struck down many such regulations.122 But for other challenges brought under Reed to broader police power regulations, Reed seems to be readily distinguishable up, down, and sideways. Up, by finding that Reed applies, but nonetheless deeming the regulation content neutral, or else applying a diluted strict-scrutiny analysis.123 Down, by finding that the challenged law regulates not speech, but instead conduct, and thus subjecting it to rationality review.124 And sideways, by finding that preexisting doctrine continues to allow weakened First Amendment review in certain predetermined doctrinal categories, like commercial speech.125
These limits can also guide legislators and regulators seeking to draft statutes and regulations that will be protected from First Amendment challenges in Reed’s wake. First, regulations that can be characterized as governing conduct rather than speech ought to say as much explicitly. Second, regulations of speech that can be focused only on commercial speech will likely be protected as outside Reed’s reach. Finally, where noncommercial speech must be regulated, legislators should attempt to do so without reference to the content of the regulated speech, perhaps taking Justice Alito’s concurrence in Reed as a starting point.126
Reed thus appears to have further fragmented First Amendment doctrine, not unified it. Doctrinal pathology in First Amendment law may necessitate the preservation of a hyper-categorical approach, rather than the adoption of ad hoc balancing throughout. But by interpreting Reed narrowly, lower courts can better align First Amendment doctrine with the values it is meant to protect.
This divergence between Reed’s apparent doctrine and lower-court dispositions in turn complicates the values of stability and predictability that are meant to justify a rigid, categorical approach in the first place.127 While pushing toward a unitary standard of strict scrutiny ought to simplify the doctrine, resistance from the lower courts seems to suggest that Reed has instead induced more doctrinal gymnastics in order to stick the same landing.
This resistance will likely frustrate Court-focused doctrinalists. But given that it is consistent with Reed’s language (if not its deregulatory spirit), it may be a feature rather than a bug of our judicial system. Narrowing from below helps “domesticate potentially transformative rulings” and also “mitigate[s] the risk that bad facts or one-offs make permanently bad law.”128 Where lower courts find Supreme Court doctrine out of step with equity or common sense, narrow interpretation helps resist disruptive results and signals to the Court that it ought to revisit the issue.129 When the Court does revisit Reed, it might recognize the degree to which the First Amendment has been captured by the logic and lobby of economic libertarianism, and might consider whether it is desirable for the judiciary to be in the business of policing politically accountable regulation of commercial activity.
For First Amendment doctrine, Reed may have the perverse effect of diminishing the centrality of the content distinction. It may instead enhance the fact sensitivity of courts considering First Amendment challenges. By making clear the folly of elevating the content distinction over legitimate concerns about government suppression of speech for which it is meant to be a proxy, Reed may have sown the seeds of its own demise. Rather than erecting a doctrinal master concept, Reed may have reduced the category of content-based regulations to a mere collection of similar fact patterns, with little claim to legitimacy as a general analytic tool. It profits the Court nothing to give its soul for the whole world . . . but to deem more regulations content based?130