The case involved an Austin ordinance that classified signs differently depending on whether they had some connection to the site where they were located — that is, “on-premise” or “off-premise” signs. That distinction prompted two outdoor advertising companies (Reagan National Advertising of Austin and the Lamar Advantage Outdoor Co. Austin) to challenge the law on First Amendment grounds when their permits to digitize some of their off-premises billboard signs were denied. The case thus involved a First Amendment content-discrimination issue and whether strict scrutiny analysis should apply.
Many thought that City of Austin, Texas v. Reagan National Advertising of Austin could be the big First Amendment case of the term, what with its potential to expand the content-based doctrine as applied in Reed v. Town of Gilbert (2015) and maybe even further broaden commercial speech rights in the process.
Among others, amicus briefs in support of the respondents were filed by the Cato Institute (Eugene Volokh, counsel of record), Alliance Defending Freedom, Institute for Free Speech, and the Pacific Legal Foundation. Though some of those briefs were relied upon by Justice Clarence Thomas, he wrote in dissent.
→ That said, Professor Laurence Tribe agreed with the spirit of the Thomas dissent as evidenced by a tweet he released commenting on the case: “SCOTUS made a total mess of 1st Am law. Only the 3 dissenters, pointing to the agreement of scholars as far apart as Michael McConnell and me on the key legal point, came close to offering coherent guidance.”
→ That said, here is how Professor Geoffrey Stone weighed in on the matter: “The ‘reasoning’ of the Justices in this case reveals (not surprisingly) the chaos created by the Court’s decision in Reed v. Town of Gilbert. By eviscerating the distinction between viewpoint-based and content-based restrictions, Reed rendered this central facet of First Amendment jurisprudence unworkable and incoherent.”
The majority was by Justice Sonya Sotomayor (with Chief Justice Roberts and Justices Kagan, Breyer, and Kavanaugh joining).
Excerpts from Justice Sotomayor’s majority opinion
- Re: Strict scrutiny: “The question presented is whether, under this Court’s precedents interpreting the Free Speech Clause of the First Amendment, the City’s [advertsing sign] regulation is subject to strict scrutiny. We hold that it is not.”
- Re: Content discrimination: “Unlike the regulations at issue in Reed, the City’s off-premises distinction requires an examination of speech only in service of drawing neutral, location-based lines. It is agnostic as to content. Thus, absent a content-based purpose or justification, the City’s distinction is content-neutral and does not warrant the application of strict scrutiny.”
- Reed distinguished: “In this case, enforcing the City’s challenged sign code provisions requires reading a billboard to determine whether it directs readers to the property on which it stands or to some other, offsite location. Unlike the sign code at issue in Reed, however, the City’s provisions at issue here do not single out any topic or subject matter for differential treatment. A sign’s substantive message itself is irrelevant to the application of the provisions; there are no content-discriminatory classifications for political messages, ideological messages, or directional messages concerning specific events, including those sponsored by religious and non-profit organizations. Rather, the City’s provisions distinguish based on location.”
- Content-based examination: “[We reject] the view that any examination of speech or expression inherently triggers heightened First Amendment concern. Rather, it is regulations that discriminate based on ‘the topic discussed or the idea or message expressed’ that are content-based.”
- Subject-matter classification vs function or purpose classification: “[A] regulation of speech cannot escape classification as facially content-based simply by swapping an obvious subject-matter distinction for a ‘function or purpose’ proxy that achieves the same result. That does not mean that any classification that considers function or purpose is always content-based. Such a reading of ‘function or purpose’ would contravene numerous precedents, including many of those discussed above. Reed did not purport to cast doubt on these cases.”
- Impermissible purpose analysis: “This Court’s determination that the City’s ordinance is facially content-neutral does not end the First Amendment inquiry. If there is evidence that an impermissible purpose or justification underpins a facially content-neutral restriction, for instance, that restriction may be content-based. See Reed, 576 U. S., at 164. Moreover, to survive intermediate scrutiny, a restriction on speech or expression must be ‘narrowly tailored to serve a significant governmental interest.’ Ward v. Rock Against Racism, 491 U. S. 781, 791 (1989). The parties dispute whether the City can satisfy these requirements . . . Because the Court of Appeals did not address these issues, the Court leaves them for remand and expresses no view on the matters.”
Excerpts from Justice Stephen Breyer’s concurrence
- Reed “was wrong”: “I write separately because I continue to believe that the Court’s reasoning in Reed was wrong.”
- Strict scrutiny rejected: “I would reject Reed’s approach, which too rigidly ties content discrimination to strict scrutiny (and, consequently, to ‘almost certain legal condemnation’). Instead, I would treat content discrimination as a rule of thumb to be applied with what Justice Kagan has called ‘a dose of common sense.'”
- Balancing test: “I would leave for the courts below to weigh these harms and interests, and any alternatives, in the first instance, without a strong presumption of unconstitutionality.”
Excerpts from Justice Alito’s opinion concurring in the judgment in part and dissenting in part
- Agreeing with the majority: “I agree with the majority that we must reverse the decision of the Court of Appeals holding that the provisions of the Austin City Code regulating on- and off-premises signs are facially unconstitutional.”
- Disagreeing with the majority: “[The majority opinion goes too far] and holds flatly that ‘[t]he sign code provisions challenged here do not discriminate’ on the basis of ‘the topic discussed or the idea or message expressed,’ and that categorical statement is incorrect. The provisions defining on- and off-premises signs clearly discriminate on those grounds, and at least as applied in some situations, strict scrutiny should be required.”
Excerpts from Justice Clarence Thomas’ dissent (in which Justices Gorsuch and Barret joined)
- Content discrimination: “Like the town of Gilbert in Reed, Austin has identified a ‘categor[y] of signs based on the type of information they convey, [and] then subject[ed that] category to different restrictions.’ 576 U. S., at 159. A sign that conveys a message about off-premises activities is restricted, while one that conveys a message about on-premises activities is not.”
- Location matters for content discrimination purposes: “This conclusion is not undermined because the off-premises sign restriction depends in part on a content-neutral element: the location of the sign. Much like in Reed, that an Austin official applying the sign code must know where the sign does not negate the fact that he must also know what the sign says. Take, for instance, a sign outside a Catholic bookstore. If the sign says, ‘Visit the Holy Land,’ it is likely an off-premises sign because it conveys a message directing people elsewhere (unless the name of the bookstore is ‘Holy Land Books’). But if the sign instead says, ‘Buy More Books,’ it is likely a permissible on-premises sign (unless the sign also contains the address of another bookstore across town).”
- The majority’s rejection of Reed’s bright-line rule: “[T]he majority implicitly rewrites Reed’s bright-line rule for content-based restrictions. In the majority’s view, the off-premises restriction is not content-based because it does not target a specific ‘topic or subject matter.’ The upshot of the majority’s reasoning appears to be that a regulation based on a sufficiently general or broad category of communicative content is not actually content-based.”
- The majority’s reliance on Hill v. Colorado is dangerous: “[T]here is only one case that could possibly validate the majority’s aberrant analysis: Hill v. Colorado. That Hill is the majority’s only support underscores the danger that today’s decision poses to the First Amendment.”
→ The matter was remanded for consideration of whether the outdoor sign ordinance could survive intermediate scrutiny.
Matthew Shafer on NYT v. Sullivan, Chief Justice Rehnquist, and a forgotten SCOTUS session
- Matthew Shafer, “New York Times v. Sullivan and the Forgotten Session of the US Supreme Court,” Lessons in History (April 21)
A forgotten session of the US Supreme Court shows a Chief Justice at odds with conservative calls to overrule a landmark precedent.
New York Times v. Sullivan, the US Supreme Court’s defining First Amendment opinion of the twentieth century, is under constant attack. Once viewed as occupying the same rarified air as Brown v. Board of Education, Sullivan has become the target of the conservative political and legal establishment that wants it overruled.
A recent but largely forgotten special session of the Supreme Court held in the May 1998, however, reveals a conservative defense of Sullivan. It reveals that, towards the end of his career, the longtime critic of Sullivan, Chief Justice William Rehnquist, defended Sullivan and its democracy-enriching effects.
Volokh on proposed California anti-gun advertising measure
- Eugene Volokh, “California Bill Aimed at Gun Advertising That Supposedly Targets Children,” The Volokh Conspiracy (April 26)
The bill, AB 2571, is discussed here; the discussion is of a proposed narrower version of the bill (the official, broader, draft is here). I just testified this morning against the bill; I was limited to two minutes, so the oral testimony had to hit just the main points (I expect to put together some more detailed written testimony later):
I think even the bill as proposed to be amended would be unconstitutional, for three reasons.
[1.] It would cover fully protected political speech, not just commercial advertising. A gun magazine publisher, for instance — or a gun advocacy group that publishes a magazine — would likely be covered as a “firearm industry member,” because it was formed to advocate for use or ownership of guns, might endorse specific products in product reviews, and might carry advertising for guns. That publisher or advocacy group would be forbidden from using cartoon characters even in its fully protected political advertising urging gun ownership.
[2.] Even as to commercial advertising, the law is unconstitutionally vague: It covers any ads that are “attractive to minors,” even if they are equally attractive to legal adult buyers. And the specific examples don’t resolve the vagueness problem: They are only listed as examples, prefixed with the phrase “including, but not limited to.”
[3.] And the law also covers constitutionally protected commercial advertising, such as the use of caricatures of minors or cartoon characters in ads that are clearly targeted at adults who lawfully buy guns that their children could use for legal hunting or target shooting. Indeed, California law expressly allows parents to have their children use guns this way under parental supervision. Parents may well wish to buy guns for their children to use for these purposes.
- Robert Corn-Revere, ‘Punishing Disney for opposing Florida’s “Don’t Say Gay” law poses serious First Amendment problems’ (reposted on First Amendment Watch)
- Ken Paulson, “Florida’s war on Disney violates First Amendment,” The Free Speech Center (April 26)
- Eugene Volokh, “Prof. Michael Dorf (Cornell) on Florida’s Repeal of Disney’s Special Government District,” The Volokh Conspiracy (April 25)
- Michael Dorf, “Don’t Say Mickey: Crony Capitalism and the First Amendment,” Dorf on Law (April 25)
- Ian Millhiser, “Ron DeSantis’s attack on Disney obviously violates the First Amendment,” Vox (April 23)
- Ake La Lacy, “DeSantis’s Attacks on Disney May Violate First Amendment,” The Intercept (April 23)
- Emily Mahoney & Bianca Padro Ocasio, “Florida’s Disney district crackdown may violate First Amendment, legal experts say,” Tampa Bay Times (April 23)
FIRE calls on Florida public colleges to push back against unconstitutional ‘Stop WOKE Act’ provisions — and, if necessary, to ignore them
This press statement from the Foundation for Individual Rights in Education (FIRE):
With Florida Gov. Ron DeSantis’ enactment of House Bill 7 into law today, the Foundation for Individual Rights in Education is calling on administrators at Florida’s public universities and colleges to stand up for the First Amendment rights of their students and faculty.
Today, FIRE sent letters to nearly 40 public universities and colleges impacted by HB7, nicknamed the “Stop WOKE Act.” The bill will restrict the freedom of individual faculty members and students to discuss certain aspects of race and gender in the state’s public universities and colleges.
“HB7 demands that university administrators dictate to faculty whether and how they can discuss issues, like race and gender, that dominate debate on and off campus,” said FIRE attorney Adam Steinbaugh. “Florida faculty have the constitutional right to speak freely in the classroom and deserve to know that they are not alone if they decide to push back against this legislation.”
The bill, passed by the state legislature on March 10, specifically targets discussion in both K-12 and higher education that “espouses,” “promotes,” or “advances” prohibited concepts. The bill, formally titled“Individual Freedom,” is described by Gov. DeSantis as targeting “critical race theory” and preventing students — including those at universities and colleges — from having to “engage with discriminatory content” or “rhetoric.” The Florida House of Representatives staff’s analysis of HB 7 explains that it prohibits “instruction” or any “required activity that espouses, promotes, advances, inculcates, or compels” someone to “believe” prohibited concepts. That stretches far beyond a constitutional prohibition on compelled speech.
As FIRE’s letters emphasize, HB 7 violates the First Amendment because it prohibits faculty from espousing certain opinions, and the bill’s text may reach discussion on pedagogically relevant topics such as systemic racism, the gender pay gap, affirmative action, or reparations for slavery. The enactment of HB 7 will lead to a chilling effect on faculty speech, with professors becoming more inclined to self-censor due to uncertainty about whether a discussion topic falls under the scope of the bill. The signing of this bill would not only interfere with faculty members’ academic freedom, but also with students’ right to receive information unfettered by a “pall of orthodoxy.”
FIRE’s letters encourage Florida institutions to interpret the legislation as narrowly as possible and, if necessary — where enforcement would be unconstitutional — to ignore it.
“Universities should not have to choose between respecting their faculty’s First Amendment rights and running afoul of government actors,” said Joe Cohn, FIRE’s legislative and policy director. “Institutions will need to show courage to challenge this landmine of a bill that threatens to harm academic freedom.”
Along with the letter to Florida institutions, FIRE is also reaching out to faculty members, urging them to get in touch with us if their ability to discuss their areas of expertise is limited by HB 7 or by their university administration’s implementation of the bill.
“History, and even our current discourse, is populated with ‘discriminatory,’ ugly, or offensive views,” said Steinbaugh. “But college students are, by and large, adults who are perfectly capable of ‘engaging’ with views they don’t agree with — that’s how students learn to think.”
Book discussion: ‘The Mind of the Censor’ with Corn-Revere, Abram, Strossen, & Franks
In late 2021, Cambridge University Press published Robert Corn-Revere’s book, The Mind of the Censor and the Eye of the Beholder: The First Amendment and the Censor’s Dilemma. In the author’s own words, the purpose of his timely book is “to understand something about the nature of free speech by exploring the mind of the censor.”
On Thursday, April 7, 2022, the ABA Forum on Communications Law and Communications Lawyer hosted a book discussion with the author and other First Amendment luminaries. Specifically, Floyd Abrams, Mary Anne Franks, and Nadine Strossen provided insightful commentary. Joseph A. Tomain moderated. We hope you enjoy this lively discussion on the perennial issue of censorship and freedom of expression.
Forthcoming book on LGBTQ teachers’ rights & a forgotten, but important, case
- Margaret Nash & Karen Graves, “Mad River, Marjorie Rowland, and the Quest for LGBTQ Teachers’ Rights” (Rutgers University Press, Aug. 12, 2022)
Mad River, Marjorie Rowland, and the Quest for LGBTQ Teachers’ Rights addresses an important legal case that set the stage for today’s LGBTQ civil rights–a case that almost no one has heard of.
Marjorie Rowland v. Mad River School District involved an Ohio guidance counselor fired in 1974 for being bisexual. Rowland’s case made it to the U.S. Supreme Court, but the justices declined to consider it. In a spectacular published dissent, Justice Brennan laid out arguments for why the First and Fourteenth Amendments apply to bisexuals, gays, and lesbians. That dissent has been the foundation for LGBTQ civil rights advances since.
In the first in-depth treatment of this foundational legal case, authors Margaret A. Nash and Karen L. Graves tell the story of that case and of Marjorie Rowland, the pioneer who fought for employment rights for LGBTQ educators and who paid a heavy price for that fight. It brings the story of LGBTQ educators’ rights to the present, including commentary on Bostock v. Clayton County, the 2020 Supreme Court case that struck down employment discrimination against LGBT workers.
Forthcoming scholarly article on compelled speech analysis
- David S. Han, “Compelled Speech and Doctrinal Fluidity,” Indiana Law Journal (2022)
Even within the messy and complicated confines of First Amendment jurisprudence, compelled speech doctrine stands out in its complexity and conceptual murkiness—a state of affairs that has only been exacerbated by the Supreme Court’s decisions in NIFLA v. Becerra and Janus v. American Federation of State, County, and Municipal Employees. This Essay observes that as the Court’s compelled speech jurisprudence has grown increasingly complex, it has also manifested a troubling degree of fluidity, where the doctrinal framework has grown so incoherent, imprecise, and unstable that it can be readily shaped by courts to plausibly justify a wide range of disparate results. After examining some recent examples of this doctrinal fluidity and identifying its origins, the Essay observes that a true fix to this problem—the development of a fully coherent and stable compelled speech doctrine—is highly unlikely to emerge under the current state of affairs, given the intractable nature of the sources of this fluidity and the Court’s case-by-case, winner-take-all culture of constitutional adjudication.
This Essay therefore argues for a shift in the Supreme Court’s approach to compelled speech doctrine—one that eschews formal complexity in favor of more open-ended, analytically transparent approaches. This proposal is, in essence, a second-best solution. If it is unrealistic to expect that an elegant, fully unified, and consistent doctrinal framework will emerge anytime soon, the Court should, at the very least, avoid obscuring its decisions behind complex and malleable formal doctrines and instead analyze cases in a manner that lays bare the fundamental intuitions and value judgments actually driving its decisions. A useful point of comparison might be to common law courts’ approach to negligence doctrine—an approach that is anchored in a simple, open-ended analysis that forces courts to bring to the fore the fundamental values underlying the doctrine. Such an approach would at least allow courts—and society at large—to discuss and debate these fundamental values openly rather than through a nebulous doctrinal façade that may ultimately serve merely to obscure the contested judgments and intuitions actually driving the results.”
‘So to Speak’ podcast on academic freedom
What is academic freedom? And who polices its boundaries?
Our guests for this program argue that the popular conception of academic freedom has become too closely connected with the concept of free speech.
Penn State Professor Michael Bérubé and Portland State Professor Jennifer Ruth are the authors of “It’s Not Free Speech: Race, Democracy, and the Future of Academic Freedom.”
- Eugene Volokh, “Public Records Law vs. First Amendment Rights of University Animal Experiment Review Committee,” The Volokh Conspiracy (April 26)
- New Civil Liberties Alliance, “Prominent 1st Amendment Scholars, Investors and Think Tanks Support NCLA’s SCOTUS Cert Petition,” Yahoo Finance (April 25)
- Edward McKinley, “Texas library censorship violates First Amendment, federal lawsuit says,” Houston Chronicle (April 25)
- Scott Jaschik, “Federal Appeals Court Slams University Speech Policies,” Inside Higher Ed (April 25)
- “Supreme Court won’t revive ban on secret filming at slaughterhouses,” Associated Press (April 25)
- Jeremiah Poff, “Federal appeals court rules UCF speech policies ‘likely violate’ First Amendment,” Washington Examiner (April 22)
- “Suit claims city trying to limit Confederate-statue protests,” Associated Press (April 22)
- Ron Miraldi, “Playbook of a dictator: Weighing the risks and rewards of the truth in Russia,” lohud (April 20)
- Eugene Volokh, “Satanic Temple Loses Libel Lawsuit,” The Volokh Conspiracy (April 13)
2021-2022 SCOTUS term: Free expression & related cases
- Houston Community College System v. Wilson (First Amendment claim denied)
- City of Austin, Texas v. Reagan National Advertising of Texas Inc. (First Amendment claim denied)
- City of Austin, Texas v. Reagan National Advertising of Texas Inc.
- Federal Election Commission v. Ted Cruz for Senate
- Shurtleff v. Boston
- Kennedy v. Bremerton School District
- 303 Creative LLC v. Elenis
- Romeril v. Securities and Exchange Commission
- Marshall v. Supreme Court of the State of New Mexico
- Smith v. United States
- Lundergan v. United States
- Edgar et al. v. Haines
- Clear Channel Outdoor, LLC v. Raymond
- American Society of Journalists v. Bonta
- Arlene’s Flowers Inc. v. Washington (petition for rehearing)
- Kelly v. Animal Legal Defense Fund
- Green v. Pierce County
- Burns v. Town of Palm Beach
- Gilbert v. United States
- Roberson v. United States
- Woods v. Alaska State Employee Association
- Lamoureux v. Montana
- Asociación de Periodistas de Puerto Rico v. Commonwealth of Puerto Rico
- John K. MacIver Institute for Public Policy, Inc., et al. v. Evers
- Project Veritas Action Fund v. Rollins
- Troesch v. Chicago Teachers Union, et al.
- Dignity Health v. Minton
- Pace v. Baker-White
- Tah v. Global Witness Publishing, Inc.
- American Civil Liberties Union v. U.S.
- Frasier v. Evans (First Amendment and qualified immunity)
- Louisiana v. Hill
- Baisley v. International Association of Machinists and Aerospace Worker
- Crowe v. Oregon State Bar
- Boardman v. Inslee
- Pasadena Republican Club v. Western Justice Center, et al.
- FAN 336.1: “Robert Corn-Revere, ‘Punishing Disney for opposing Florida’s “Don’t Say Gay” law poses serious First Amendment problems’” (reposted on First Amendment Watch)