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Good intentions do not give government a license to silence speech

Paul Avelar

Paul Avelar

The U.S. Supreme Court’s decision in Reed v. Town of Gilbert, handed down just last week, was a unanimous victory for free speech.

But that Reed was an overwhelming win has led some to downplay its importance. For example, Kory Langhofer and Thomas Basile, in “Reed v. Gilbert: A failure of prosecutorial discretion” write that Reed is not “fundamentally about free speech” but rather represents a “cautionary tale about government overreach and the role of prosecutorial discretion.” And they further say that “the real lesson is that courts are an imperfect substitute for prosecutorial discretion.”

Reed is a cautionary tale about government overreach. But more importantly, it is a clarification of one of the key issues of First Amendment law: The distinction between content-based and content-neutral regulations of speech.

The distinction is critical because content-based regulations lend themselves to invidious, thought-control purposes in a way that content-neutral regulations do not. It is dangerous to allow the government to pick and choose what speech it thinks is important or worth hearing or seeing, regardless of its motives. This is why government must satisfy a higher burden — strict scrutiny — when trying to justify content-based regulation.

Traditionally, a law was content-based if officials had to read the message to determine how it was regulated. Gilbert’s law was plainly content based. If a sign said “Vote for Reed” it was treated one way. If it said “Visit Reed’s Church,” it was treated much worse.

Both Gilbert and federal judges should have immediately recognized this was content-based regulation. But courts had eroded free speech protections over the years by upholding content-based laws based on the assertion of good faith by government officials. As government officials learned they could get away with censorship so long as they did not admit to it, there was an explosion of speech regulation.

Here, Gilbert said its law — which treated signs differently based solely on their content — was not a content-based law because Gilbert did not have a bad reason for making content-based distinctions. Its reason: Some nebulous safety and aesthetics concerns. The district and 9th Circuit courts agreed.

But, as the Supreme Court explained, “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.”

Reed will go a long way to resolving the constitutionality of speech regulations in many areas beyond sign codes. In State v. Boehler, for example, our Court of Appeals recognized a split of authority over whether laws banning panhandling but not other kinds of speech are content based. After Reed, clearly they are. Similarly, courts have split on noise ordinances that ban certain loud noises, like music, but exempted others, like ice cream trucks (or vice versa). And, in an issue of increasing importance, a number of courts are now reviewing laws that restrict or mandate the content of speech based on whether the speaker has an occupational license (or not).

Reed also reinforces the courts’ power and duty to protect constitutional rights when the political branches go awry. Yes, the political branches must independently exercise discretion and carefully consider constitutional rights when enacting and enforcing laws. Too often, however, the political branches lose sight of First Amendment and other rights when they pursue “good policy.” As Reed demonstrates, constitutional limits on government power are meaningless unless judges enforce them.

— Paul Avelar is an attorney  with the Institute for Justice and litigates  to protect free speech and other constitutional rights.The Institute for  Justice filed an amicus brief in support of Rev. Clyde Reed in Reed v. Town of Gilbert.

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