Genevieve Lakier (University of Chicago Law School) has posted Reed v. Town of Gilbert, Arizona, and the Rise of the Anti-Classificatory First Amendment (Supreme Court Review, Forthcoming) on SSRN. Here is the abstract:
The distinction between content-based and content-neutral regulations of speech is one of the most important in First Amendment law. Despite its importance, however, the Court has had trouble defining what it means for a law to be content-based. Instead, for over thirty years, the Court has vacillated between two definitions. In one line of cases, the Court has insisted that laws are content-based whenever they make content distinctions on their face. In another line of cases, the Court has instead insisted that laws are content-based only when they cannot be justified by a content-neutral purpose. The result has been the creation of a very complicated, often incoherent, body of law.
Two terms ago, in Reed v. Town of Gilbert, Arizona, the Court attempted to bring some clarity to this messy area of First Amendment jurisprudence when it held that laws that employ content distinctions are always content-based, regardless of the purposes they serve. The decision gives lower courts what they have long been missing: clear guidance on what to do when faced with an allegedly discriminatory speech regulation. But it also makes it considerably harder to defend laws that make facial content distinctions against constitutional challenge than was true in the past. Reed thus represents a significant, deregulatory shift in First Amendment doctrine.
This Article explores this shift and its normative implications. It does so by means of an analogy to the Court’s equal protection jurisprudence, and specifically its case law dealing with race discrimination. As the Article demonstrates, the shift that Reed enacts in First Amendment law resembles in many respects the shift that occurred several decades ago in equal protection law, when the Court squarely embraced what scholars have described as an anti-classificatory test of race discrimination and insisted that all laws that employ racial distinctions are presumptively invalid, no matter the purposes the government invokes to justify them. Reed similarly insists that all laws that employ content distinctions are presumptively invalid, no matter the purposes the government invokes to justify them. It announces what we might call an anti-classificatory test of content discrimination.
The Article argues that, whatever the merits of an anti-classificatory approach in the equal protection context, such an approach is singularly inappropriate in First Amendment cases, at least those dealing with non-viewpoint based laws. This is because laws that make content distinctions play a pervasive, even important, role in the regulation of both public and private life. A rule that treats as presumptively unconstitutional all facially content-based laws therefore threatens to invalidate many entirely constitutional laws. It imposes significant costs on the regulatory power of the government—costs that can only be justified if there is no less costly means of protecting speakers against discriminatory state actions. As this Article shows, there are in fact less costly alternatives to the test of content-based lawmaking that Reed announced.