Under the First Amendment, whether a law is considered content-neutral or content-based is of great importance. That’s because a content-based law is subject to strict scrutiny and is therefore much more likely to be declared unconstitutional. The central importance of this issue recently prompted the Knight Institute to weigh in on a case now before the Supreme Court, City of Austin v. Reagan National Advertising of Austin, Inc. The Institute’s amicus brief argues that an earlier Supreme Court decision has caused confusion about the proper test for determining whether a law is content-based and thus subject to strict scrutiny. The filing proposes an alternative approach that would more accurately identify laws that should be subject to strict scrutiny. We spoke with Institute Senior Staff Attorney Scott Wilkens about the amicus brief and the issues behind it.
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Let’s start with the City of Austin case. What’s the regulation at issue here?
It may be a bit surprising for the Supreme Court to deal with a case involving a city sign ordinance, but the City of Austin case actually raises a very important First Amendment issue with far-reaching implications. The Austin city ordinance makes a distinction between what it calls on-premises signs—meaning that the sign is located at the place that it’s advertising, such as a restaurant—and off-premises signs. It says that on-premises signs can be digitized, but off-premise signs can’t be. That might sound rather mundane, but the law raises the question of how you distinguish laws that are content-based from laws that are content-neutral. The answer to that question is important because content-based laws are subject to the highest level of judicial scrutiny and are therefore much more likely to be held unconstitutional. The key question before the Supreme Court in City of Austin is whether Austin’s law distinguishing between on-premises and off-premises signs is content-based and thus subject to strict scrutiny.
Could you say more about the implications for First Amendment law?
First Amendment doctrine tries to identify the laws that pose the greatest threat to freedom of speech and subject those laws to the highest level of judicial scrutiny. The primary way that First Amendment doctrine does this is by distinguishing content-based laws from content-neutral ones. In general, content-based laws discriminate against speech based on viewpoint or subject matter. For good reason, the First Amendment recognizes that these content-based laws are likely to pose a far greater threat to free speech than content-neutral laws.
If a law is content-based, it receives the highest level of judicial scrutiny, called strict scrutiny, but if it is content-neutral, it receives a lower level of scrutiny, called intermediate scrutiny. As a practical matter, that means that content-based laws are much more likely to be unconstitutional than content-neutral laws. So where you draw the line between content-based and content-neutral laws is very important. The City of Austin case squarely raises the question of where to draw the line.
Of particular interest to the Institute is how the line-drawing in this case could impact the government’s ability to protect free speech online.
Of particular interest to the Institute is how the line-drawing in this case could impact the government’s ability to protect free speech online. Many millions of Americans regularly use social media platforms to express themselves. The government has an important role to play in ensuring that their free speech rights are protected through privacy, transparency, and other laws. The Supreme Court’s line-drawing in this case could greatly enhance or diminish the government’s ability to enact these kinds of laws.
Part of what’s at play here is an earlier Supreme Court case, Reed v. Town of Gilbert. How does that case connect to City of Austin?
It just so happens that Reed v. Town of Gilbert is also about a law concerning city signs. In that case, the Supreme Court tried to set out a clear rule for courts to use to separate content-based regulations from content-neutral ones. It’s important to emphasize that the sign ordinance at issue in Reed is quite different from the ordinance at issue in City of Austin. In Reed, the sign ordinance prohibited anyone from displaying an outdoor sign, but the ordinance had all kinds of exceptions, such as for “political signs” (those designed to influence the outcome of an election), “ideological signs” (those that communicate ideas or a message), and “temporary directional signs” (those that direct you to an event like an upcoming church service). The sign ordinance treated each of these types of signs differently in terms of how many signs there could be, how large they could be, and for how long they could be displayed.
The key issue in Reed was whether the law’s differential treatment of these types of signs was content-based or content-neutral. The lower courts said the law did not make distinctions based on content and refused to enjoin the law. When the Supreme Court took the case, it sought to clarify the rule that courts must use to distinguish content-based from content-neutral laws. It wanted to make it easier for courts to figure out which laws should be subject to the most stringent scrutiny.
Tell us more about the content-based and content-neutral regulation of speech, and why it matters for the fate of certain regulations.
It is a critical distinction because content-based laws are much more likely than content-neutral laws to be held unconstitutional. As I already noted, content-based laws are subject to strict scrutiny, while content-neutral laws are subject only to intermediate scrutiny. The difference between strict and intermediate scrutiny is quite stark. When a law is subject to strict scrutiny, the government has to have what’s called a compelling interest in the law, and the law has to be narrowly tailored to serve that interest. That’s quite a high bar, and very few laws have ever passed it. By contrast, when a law is subject to intermediate scrutiny, the government only needs to have an important interest in the law. The law still has to be narrowly tailored to serve that interest, but the narrow-tailoring requirement is less demanding under intermediate scrutiny than it is under strict scrutiny. So both in terms of the degree of the government interest and the degree of narrow tailoring, it is much easier to satisfy intermediate scrutiny than it is strict scrutiny. Circling back to distinguishing between content-neutral and content-based laws, you can see why the test is so important. In most cases, concluding that a law is content-based will doom the law.
So, what test for content-based laws did the Supreme Court establish in Reed?
Reed’s test for content-based laws is a two-step test. The first thing a court has to do is try to determine whether the law at issue is content-based on its face. That is, you look at the words of the law and figure out whether they regulate speech based on the topic discussed, or the idea or message conveyed. You focus just on the words of the statute, not on anything else. If you apply the first step of the test and decide a law is content-based, then you have your answer and you don’t have to go to the second step of the test. But if you decide that a law is content-neutral under the first step, you have to proceed to the second step. In applying the second step, you look at the purposes of the law and try to figure out whether the law reflects a content-discriminatory purpose, or instead whether it can be justified without reference to the content. Once you have determined whether a law is content-based or content-neutral, you know what level of scrutiny to apply.
That seems fairly clear. Why are the lower courts struggling with that?
The difficulty really comes in the first step of the test, when you look at the text of the law in order to figure out whether it’s content-based or content-neutral. Reed isn’t very clear about how the first step of the test should be applied, and courts have interpreted it differently. To use the City of Austin case as an example, the district court applied the first step of Reed and said Austin’s law was content-neutral because, unlike the law in Reed, it did not draw distinctions based on the message a speaker conveys. But the U.S. Court of Appeals for the Fifth Circuit interpreted the first step of the Reed test much more broadly. The court did not ask whether Austin’s sign ordinance drew distinctions between signs based on speakers’ messages. Instead, the court asked whether an Austin city official would have to read the content of a sign in order to apply the law. And because a city official would have to read a sign in order to figure out whether it is on-premises or off-premises, the Fifth Circuit said that Austin’s law was content-based and subject to strict scrutiny.
That the district court and Fifth Circuit interpreted the first step of the Reed test so differently illustrates the difficulties courts have faced in applying Reed. As you can imagine, the Fifth Circuit’s interpretation of Reed would make a very broad range of laws subject to strict scrutiny, and therefore probably unconstitutional. Courts have really struggled against that kind of result. Some courts have sought to interpret Reed narrowly, like the district court did in the City of Austin case. But courts have taken various approaches.
In the Knight Institute amicus brief, you mentioned some examples of laws that would be subject to strict scrutiny under Reed—labor laws that protect workplace-related speech, privacy laws limiting just the dissemination of sensitive personal information. How might those kinds of laws be evaluated under Reed?
If Reed is interpreted broadly, then any law that treats one kind of speech differently from another kind of speech is subject to strict scrutiny. This is true even for laws that do not risk the kind of invidious governmental purpose or effect that the heavy presumption against content discrimination was meant to address. One example is a privacy law that limits only the dissemination of sensitive personal information. That kind of law would be content-based under a broad interpretation of Reed because it distinguishes between the dissemination of sensitive personal information and the dissemination of other types of information. The same would be true of a labor law that protected workplace-related speech. That type of law would also be content-based under Reed because it protects workplace-related speech but not other types of speech.
But these privacy and labor laws are unlikely to be instruments for abuse or motivated by a nefarious purpose. That’s because they draw broad subject matter distinctions and apply to diverse groups of speakers. Subjecting these kinds of laws to strict scrutiny makes it very difficult for the government to enact laws that we should want the government to enact—including laws that would serve free speech.
Going back to City of Austin, what is it about the facts in that case that make it right for advocating for a reevaluation or narrowing of Reed?
As I already noted, in City of Austin, the Fifth Circuit interpreted the meaning of content-based very broadly. Indeed, it’s hard to imagine a broader interpretation: A law is content-based if you have to read the content of what’s being regulated in order to apply the law. Under that interpretation, many laws will be subject to strict scrutiny even though they don’t have a nefarious purpose or effect.
The Supreme Court now has before it this sweeping interpretation of the Reed test, one that gives the Court an excellent opportunity to revisit Reed, and either explain what the decision really means or adopt an alternative approach.
The Supreme Court now has before it this sweeping interpretation of the Reed test, one that gives the Court an excellent opportunity to revisit Reed, and either explain what the decision really means or adopt an alternative approach. If the Court is not going to adopt an alternative approach like the one we propose in the amicus brief, the Court should at least clarify that Reed does not mean what the Fifth Circuit thought it meant.
Let’s talk about that alternative approach. What is the test that you argue the Court should adopt when deciding whether to apply strict scrutiny?
The basic idea behind the test we proposed to the Supreme Court is to account for the fact that there are many legitimate reasons for the government to enact regulations that require regulators to look at the content of speech. The privacy and labor laws I mentioned earlier are examples of this, but there are many, many more. To account for this fact, our test would not turn solely on the question of whether a law requires regulators to look at the content of speech in deciding whether to apply strict scrutiny.
Instead, it would ask a set of questions all designed to answer the question of whether the law reflects an effort by the government to suppress speech based on its content or to distort public discourse. So, for example, our proposal would ask whether the law’s content-based distinctions closely line up with its content-neutral justifications; whether the law targets a narrow set of topics or speakers; whether it restricts or, instead, protects the discussion of a particular topic; and whether the law is likely to favor or disfavor particular speakers or viewpoints.
If the answers to these questions suggest that the law has an improper motive or would have an improper effect, then courts would review the law strictly. If not, then courts would analyze it less strictly, giving the government more leeway to act.
How will the leeway that this proposed new standard gives for some degree of content-based discrimination affect the ability of courts to strike down legislation used for more invidious purposes?
The alternative test that we are proposing would enhance, not inhibit, a court’s ability to identify laws that discriminate based on viewpoint or subject matter—the laws that the First Amendment is most concerned about. The very purpose of the test is to enable courts to more accurately identify these laws.
Is there anything else that we haven’t discussed about these cases or these set of issues that might be of note?
I want to emphasize a point I made earlier about why this case matters to the Institute. Although this case is about a general rule for First Amendment cases, it has particular significance for defending free speech in the digital age. Free speech is largely and increasingly happening online, mainly through social media platforms. In this context, it is important that the government be able to enact laws that are necessary to protect free speech online, including laws that increase the transparency of social media platforms and that protect users’ privacy rights. If the test for content-based laws is interpreted too broadly, as the Fifth Circuit did in this case, then the government may be prevented from protecting the free speech of the many millions of Americans who use social media to express themselves.
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Visit our case page for the latest updates and more on City of Austin v. Reagan National Advertising of Austin, Inc.
A. Adam Glenn was a writer/editor at the Knight First Amendment Institute.
Sinclair Cook is a legal extern at the Knight Institute.