In a ruling that could have a substantial positive impact on free expression on college campuses, the Supreme Court ruled last week in Reed v. Town of Gilbert, Arizona that category-based speech regulations are tantamount to content-based regulations and are therefore presumptively unconstitutional.
The case arose from a controversy related to a town’s sign ordinance that applied different provisions depending upon the category of sign. Under the statute, “Political Signs” were treated differently from “Ideological Signs,” which were treated differently from “Temporary Directional Signs.” Each category had its own rules regarding where signs could be placed, how big signs could be, what information had to be included on signs, and how long signs could be displayed.
The town argued that because its ordinance did not discriminate based on viewpoint, it should not be considered an unconstitutional content-based restriction (i.e., a restriction based on the subject matter of the speech in question). The U.S. Court of Appeals for the Ninth Circuit agreed with the town, holding that category-based speech restrictions that are not based on animus toward a particular viewpoint are not content-based restrictions and therefore do not require strict scrutiny, “which requires the Government to prove that the restriction furthers a compelling interest and is narrowly tailored to achieve that interest.” Reed v. Town of Gilbert, Arizona, No. 13-502 (June 18, 2015), at 14.
The Supreme Court overruled the Ninth Circuit’s decision, holding instead that category-based distinctions are necessarily content-based. Justice Clarence Thomas penned the majority opinion, writing that a content-based restriction need not be viewpoint-based in order to require strict scrutiny:
Some facial distinctions based on a message are obvious, defining regulated speech by particular subject matter, and others are more subtle, defining regulated speech by its function or purpose. Both are distinctions drawn based on the message a speaker conveys, and, therefore, are subject to strict scrutiny.
In other words, viewpoint-based restrictions—limitations on speech based on the viewpoint espoused—are not necessarily the same as content-based restrictions, which limit speech based on its topic, and both categories require strict scrutiny.
Because category-based restrictions are content-based, the Court said, such restrictions should be presumed unconstitutional, and government entities seeking to institute these regulations must justify them by showing that they are “narrowly tailored to serve compelling state interests.” The question of whether the restrictions are based on ill will is immaterial:
Innocent motives do not eliminate the danger of censorship presented by a facially content-based statute, as future government officials may one day wield such statutes to suppress disfavored speech. That is why the First Amendment expressly targets the operation of the laws—i.e., the “abridg[ement] of speech”—rather than merely the motives of those who enacted them.
Although this holding may not seem immediately applicable to the college setting, this decision confirms that state entities—including public institutions of higher education—generally cannot make speech regulations based on arbitrary categories such as “ideological speech,” “religious speech,” “political speech,” and so forth. The holding also reaffirms the Supreme Court’s 1995 ruling in Rosenberger v. Rector and Visitors of the University of Virginia, which held that a university policy categorically excluding religious student organizations from funding was an unconstitutional content-based restriction on speech.
This adds fuel to the argument that public universities cannot ban political speech via email, as the University of Oklahoma tried to do before the 2008 election. It means public colleges cannot categorically exclude religious, political, or another category of speakers from their public forums. It reaffirms that those institutions cannot treat religious, political, or other categories of student groups differently, as Northern Virginia Community College did in 2012, as Dixie State University did in 2013, and as Northern Illinois University did in 2010.
By clearly rejecting the argument that category-based speech restrictions are somehow not content-based, the Supreme Court may have just taken away a popular justification for the restriction of speech on campus.
Lindsie Trego is a FIRE legal intern.