Imagine three kinds of statutes: The first limits only signs displaying political messaging. The second restricts only signs directing passersby to nearby events. And the third regulates only signs advertising off-premises activities. When the Supreme Court decided Reed v. Town of Gilbert1 several Terms ago, it suggested that all three posed serious threats to First Amendment interests and therefore warranted “strict” judicial review.2 A law is “presum[ed] unconstitutional,” Reed announced, if it regulates speech “based on the message a speaker conveys.”3 That sweeping rule, taken at face value, surely applies to all three of the statutes listed above — as well as many other, perhaps “entirely reasonable” laws.4 But one of these statutes, the Supreme Court held last Term in City of Austin v. Reagan National Advertising of Austin, LLC,5 is not like the others; the third — a location-based sign restriction — just doesn’t belong.6 City of Austin made two important contributions to constitutional free speech law: It clarified that Reed does not go as far as many had feared. And it provided lower courts with some direction for how to think about Reed going forward. But serious concerns about Reed’s breadth remain — concerns that will continue to trouble and divide courts as they figure out how exactly to apply Reed.
Content-based restrictions on speech must overcome “strict” judicial scrutiny.7 Much therefore rides on whether a speech regulation is “content based” or “content neutral.”8 Yet the Supreme Court, for decades, failed to consistently distinguish one from the other.9 Instead, it wavered between two different standards: In some cases, the Court would treat any law that drew subject matter distinctions as content based.10 In others, it would insist that only regulations lacking a content-neutral purpose were content based.11 It was only a few Terms ago, in Reed v. Town of Gilbert,12 that the Court settled on a purportedly “clear and firm rule”13: a restriction on speech is content based, no matter its purpose, if its text draws distinctions “based on the message a speaker conveys.”14 So an ordinance that treats different subject matters differently — that treats, for instance, “ideological” signs more favorably than “political” signs and “temporary directional” signs least favorably of them all — is content based and subject to strict scrutiny.15
Reed appeared to initiate “a drastic change” in free speech law,16 prompting fresh challenges to speech regulations that had long been considered permissible under the First Amendment.17 Location-based limits on signage, such as those challenged in City of Austin, are one such example. Like most jurisdictions, the City of Austin regulates outdoor advertising.18 By ordinance, Austin had imposed restrictions on the use of “off-premises” signs — signs that advertise a business, person, product, or service “not located on the site where the sign is installed.”19 Specifically, in order to minimize visual blight and promote traffic safety, Austin’s sign code prohibited the construction of new off-premises signs and the digitization of old off-premises signs.20
In 2017, two years after the Court had decided Reed, Reagan National Advertising of Austin, a local outdoor-advertising agency, applied to install digital sign faces on various off-premises billboards.21 When Austin denied the applications, the agency brought a First Amendment challenge against the city’s sign code, asserting that, under Reed, the ordinance’s on/off premises distinction was a content-based restriction of speech subject to strict scrutiny.22
The Western District of Texas disagreed. Judge Pitman rejected Reagan National’s theory that a sign regulation is content based simply because its enforcement requires the government to read what the sign says.23 Such a broad rule, he explained, “would apply strict scrutiny to all regulations for signs with written text,” even “stop signs.”24 Instead, Judge Pitman embraced a more modest interpretation of Reed: a regulation of speech is not content based if it does not restrict “discussion of any specific topics, ideas[,] or viewpoints.”25 And because Austin’s ordinance regulated signs based on location, not on the message conveyed, it was not content based on its face.26
The Fifth Circuit reversed and remanded.27 Writing for a unanimous panel, Judge Elrod28 held that the challenged ordinance was content based under Reed because its application “depend[ed] on the content” of the sign’s message.29 To determine whether a sign was “off-premises,” an Austin official would have to read it and ask: Does this sign advertise a business, product, or service located elsewhere?30 “This,” Judge Elrod concluded, “is an ‘obvious content-based inquiry,’ and it ‘does not evade strict scrutiny’ simply because a location is involved.”31
The Supreme Court reversed and remanded.32 A majority of the Court, speaking through Justice Sotomayor,33 held that Austin’s on/off premises distinction was content neutral on its face.34 Justice Sotomayor began with the history of outdoor-advertising regulation in the United States. “American jurisdictions,” she explained, “have regulated outdoor advertisements for well over a century.”35 And, “[a]s part of this regulatory tradition,” governments “have long distinguished” between signs that promote things located elsewhere and those that promote things located onsite.36 The Court’s own free speech precedents, she noted, have permitted this regulatory practice.37 And, more broadly, they teach that not all restrictions that “require an examination of speech” are content based.38 The Court, for example, has held that location-based regulations on solicitation — speech “requesting or seeking to obtain something”39 — are not content based even though, “[t]o identify whether speech entails solicitation, one must read or hear it first.”40
Reed did not disturb these traditions.41 It did not, Justice Sotomayor urged, hold that a sign-code provision is content based simply because “it requires reading the sign at issue.”42 Such a broad interpretation “would upend settled understandings of the law” — of “history, experience, and precedent” — while reaching a “bizarre result.”43 Rather, she instructed, Reed stood for the much narrower view that a regulation of speech is facially content based if it “applies to particular speech because of the topic discussed or the idea or message expressed”44 — that is, when it “single[s] out specific subject matter for differential treatment.”45
So, on this view of Reed, Austin’s sign code is not a facially content-based restriction. Much like an “ordinary time, place, or manner restriction,”46 Justice Sotomayor reasoned, the challenged ordinance “distinguish[es] based on location,” not on topic or subject matter: “A given sign is treated differently based solely on whether it is located on the same premises as the thing being discussed . . . .”47 And to the extent that the “distinction requires an examination of speech,” it does so “only in service of drawing neutral, location-based lines.”48
Justice Breyer concurred.49 He agreed that Reed controlled the outcome of the case, but insisted that Reed had been wrongly decided.50 Some restrictions on speech, he acknowledged, threaten democratic values by “driv[ing] certain ideas or viewpoints from the marketplace [of ideas].”51 “But not all laws that distinguish between speech based on its content” do so.52 And categorically applying strict scrutiny whenever a regulation targets speech because of its content, as Reed requires, “can sometimes disserve the very First Amendment interests it was designed to protect.”53
Indeed, Justice Breyer continued, countless federal, state, and local regulations — think laws requiring tax disclosures, prescription-drug labeling, or workplace-safety warnings — “turn, often necessarily, on the content of speech.”54 But if “courts must strictly scrutinize [these] regulations simply because they refer to particular content,” then Reed’s formal rule comes with undue costs.55 Courts will have to “strike down ‘entirely reasonable’ regulations,”56 “dilute” the strict scrutiny standard to avoid doing so,57 or “develop a matrix” of subrules and exceptions to sort reasonable content-based regulations from unreasonable ones.58
Justice Alito concurred in the judgment in part and dissented in part.59 He disagreed with the majority as to whether Austin’s ordinance was content based.60 Under Austin’s sign code, he reasoned, a coffee-shop owner can post a storefront sign promoting a new drink inside, but not one advertising free COVID-19 tests at a nearby pharmacy or urging attendance at a local city council meeting.61 Such disparate treatment is “discrimination on the basis of topic or subject matter.”62 Justice Alito nevertheless agreed with the majority that Austin’s ordinance was not facially unconstitutional. A plaintiff challenging a law on its face, he explained, must show that at least “a substantial number” of the law’s applications would violate the Constitution.63 But because applications of Austin’s sign code would count as regulations of commercial speech, which are analyzed under a much more lenient standard of review, Austin’s ordinance would likely survive a facial challenge.64
Justice Thomas,65 who had written for the Court in Reed,66 dissented.67 Under Austin’s sign code, he explained, “[a] sign that conveys a message about off-premises activities is restricted, while one that conveys a message about on-premises activities is not.”68 The ordinance thus singles out for regulation a “categor[y] of signs based on the type of information they convey.”69 And, per Reed’s “commonsense” test, such disparate treatment is content based and triggers strict scrutiny.70
The majority, Justice Thomas asserted, had reached the opposite result by “recasting facially content-based restrictions as only those that target sufficiently specific categories of communicative content.”71 But Reed drew no such distinction, and any rule that does is both “incoherent and unworkable.”72 For one thing, Justice Thomas explained, “there is no principled way” to determine how specific is “‘specific’ enough.”73 (Why is singling out off-premises advertising “insufficiently specific to qualify as content based under Reed”?74) Worse yet, he continued, the majority’s approach “turns the concept of content neutrality into a ‘vehicl[e] for the implementation of individual judges’ policy preferences.’”75 (Who is to say when a given outcome makes for a “bizarre result”?76) Replacing Reed’s “clear and firm rule”77 with an “arbitrary” and “ad hoc” approach poses a “serious threat” to First Amendment values.78
When City of Austin came before the Court, free speech law under Reed was in a state of disarray. Lower courts, troubled by Reed’s apparent scope, had split on whether to interpret Reed at full breadth — and, if not, when to apply it. But City of Austin did little to address these troubles. The interpretations of City of Austin that are most plausible do little to cabin Reed’s scope, and the interpretations that most narrow Reed’s reach suffer from their own ambiguities. As a result, City of Austin left this core area of constitutional free speech law in largely the same condition it had found it: a confusing doctrinal mess for the lower courts to sort out.
In Reed, the Court attempted to clean up decades of doctrinal confusion by announcing what Justice Thomas described as a “clear and firm rule.”79 But Reed’s test has been anything but — and, as Justice Breyer predicted,80 its apparent breadth is to blame. On its own terms, Reed subjects laws that seem “entirely reasonable” to exacting judicial review.81 Taken to its logical end, Reed would invalidate “perhaps thousands” of speech regulations, including those that pose no plausible threat to First Amendment interests.82 So courts, reluctant to strike down “entirely reasonable” regulations, have opted instead to narrow Reed from below,83 either by diluting the strict scrutiny standard or by devising various ways to distinguish Reed.84 But they’ve done so with little guidance from above. Because the Reed Court likely intended for its rule to apply broadly, the decision says little about when its rule does not.85 The result has been considerable inconsistency and incoherency in this area of constitutional free speech law.86
So, in City of Austin, the Court had a doctrinal decision to make: Either affirm Reed and insist that it be interpreted at face value. Or narrow Reed and explain when it does (and doesn’t) apply. City of Austin tried to do both. As to scope, City of Austin affirmed Reed’s formal test: a speech regulation is content based, the Court maintained, if it “target[s] speech based on its communicative content.”87 But the Court then clarified that Reed did not go as far as many had feared. It held that the Fifth Circuit’s broad interpretation of Reed — that a law is content based so long as its application requires a government official to examine a speaker’s message88 — is wrong.89 Rather, a regulation is facially content based only if its text discriminates on the basis of specific kinds of content — namely, “topic or subject matter.”90
And as to guidance, City of Austin affirmed that history and tradition matter.91 As Justice Sotomayor emphasized, the Court has long approved “location-based” regulations on advertising signs.92 And jurisdictions have, for decades, relied on that endorsement to address the unique safety and aesthetic concerns posed by outdoor advertising.93 Five Justices were not willing to unsettle this “unbroken tradition of on/off premises distinctions.”94 Nor were they inclined to endorse an interpretation of Reed that would call into question a good number of the Court’s long-standing precedents, such as cases permitting regulations of solicitation.95 This aversion to disturbing these regulatory and judicial traditions suggests that lower courts, too, must heed “the teachings of history, experience, and precedent” when applying Reed.96
But even after City of Austin, Reed’s breadth remains a thorny problem. A doctrine that applies strict scrutiny whenever a regulation of speech draws distinctions based on “topic or subject matter” still imperils a wide range of “entirely reasonable” regulatory activity.97 Such scrutiny, as the saying goes, though “‘strict’ in theory,” ends up being quite “fatal in fact.”98 So judges bothered by Reed’s sweeping nature have good reason to remain concerned after City of Austin.
And even if Reed is not as broad as critics initially feared, City of Austin offers little clarity on when it actually applies. Instead, City of Austin’s effort to distinguish Reed raises as many difficult doctrinal questions as it resolves. The Court in City of Austin maintained that laws discriminating between “political,” “ideological,” and “directional” messages are meaningfully different from laws disfavoring “off-premises” advertising.99 But it didn’t clearly explain why. Despite the Court’s suggestion otherwise, the difference cannot simply be that the sign code in Reed treated certain “topic[s] or subject matter[s]” less favorably than others.100 After all, Austin’s ordinance too singled out specific topics — off-premises people, products, services, and businesses — for differential treatment.
This ambiguity leaves lower courts with at least a few plausible directions to take City of Austin’s treatment of Reed. For one, courts might interpret City of Austin to mean, narrowly, that a subject matter distinction does not automatically trigger strict scrutiny if the distinction bears a close relation to noncontent aspects of the regulated speech, such as where it takes place. So a subject matter distinction that disfavors off-premises advertising, and does so only to demarcate “neutral, location-based lines,” evades strict scrutiny.101 But this interpretation does little to limit Reed’s reach; it is hard to think of other noncontent features of speech that a subject matter distinction could plausibly track.102
Alternatively, courts might take City of Austin to mean, more expansively, that speech restrictions drawing broad subject matter distinctions are not content based. As the Court suggested, off-premises advertising, like solicitation, is speech that encompasses a wide range of topics.103 It subsumes all of the categories of speech differentiated under the ordinance in Reed — political, ideological, and temporary directional messaging — and more. Under Austin’s ordinance, a sign in a coffee-shop window may not advertise free COVID-19 testing at a nearby pharmacy. But it also can’t direct patrons to church services across the street or provide directions to the charity organization next door. In other words, Austin’s sign code, much like a law prohibiting solicitation, “applie[d] evenhandedly to all who wish[ed]” to advertise off-site things.104
The problem is that this principle will be hard to apply going forward. A breadth-based theory of content neutrality would require courts to differentiate sufficiently broad subject matters from narrower ones.105 That is no simple task; how broad is broad enough? Why, for instance, is political speech, which too subsumes a wide range of more-specific topics (tax policy, abortion, gun control, and the like), insufficiently broad? It is already hard for courts to distinguish viewpoint from subject matter;106 asking them also to differentiate between various subject matters on the basis of breadth may prove even more difficult.
Nor does City of Austin’s reliance on history and common practice offer much additional guidance. It’s certainly true that many regulations of speech — such as those found in securities,107 antitrust,108 and evidence109 law — have long fallen “well beyond the First Amendment’s borders.”110 For these laws, the Court’s explicit reluctance to disturb long-standing policy and judicial practice is welcome news. But it’s still unclear whether these regulations really are safe from Reed’s reach. City of Austin did not specify the weight that lower courts should accord long-standing regulatory traditions. Nor did it explain whether such traditions could shield from strict scrutiny laws that clearly discriminate on the basis of topic or subject matter. And because politics and culture, not necessarily doctrinal coherence, have shaped the historical development of the First Amendment,111 courts may have trouble explaining why, for instance, a notice requirement regarding workplace safety survives Reed but a disclosure requirement as to abortion services does not.112
In Reed and City of Austin, the Court revisited a question that has long perplexed courts: What do we do about laws that single out specific subject matter for special treatment? Both decisions, however, left this “keystone of First Amendment law”113 in a continued state of disarray. One cannot help but wonder how much longer this doctrinal uncertainty will continue before the Court will have to settle on a definite path: Either recognize that Reed, interpreted at full breadth, is unworkable — and that First Amendment purposes are “better served” when designations like “content based” are treated “as rules of thumb,” “not as bright-line rules.”114 Or accept Reed for what it plainly says — despite all the untoward consequences that will come with it.115