Posted By Deborah Goonan
Acording to Evan Bernick, Assistant Director at Institute for Justice, this week the Supreme Court reaffirmed First Amendment rights, ending 2 1/2 decades of confusion and conflicting opinions over how far the government can go with restrictions, without censoring speech and violtating Constitutional rights.
The case involved The Good News Community Church and the town of Gilbert, Arizona. (Reed Vs. the Town of Gilbert, AZ) Like many local governments, Gilbert has a sign code that restricts time, manner and placement of signs. However, in this case, Gilbert’s restrictions for political signs were more lax, while restrictions for signs directing congregants to the Church were subject to greater restriction. Mr. Reed filed suit against Gilbert on behalf of his church. However, a lower court ruled in favor of the town, stating that government officials harbored no intent to bar free speech, but instead had good intentions based upon preserving the aesthetic appeal of its public spaces.
Well, don’t we know all about Good Intentions and where that road often leads?
Institute for Justice (IJ) submitted an Amicus (Friend of the Court) brief on behalf of the plaintiff, asking the Supreme court to clarify, once and for all, that the government cannot “pick and choose” different levels of restrtiction or regulation of speech, based upon content.
As stated in IJ’s summary:
Amici’s experiences show how some lower courts’ exclusive focus on legislative purpose has gravely weakened First Amendment protections for a wide class of would-be speakers. Just as the problems caused by this exclusive focus have been manifestly broad, so too should be this Court’s response. Rather than treating this case narrowly as one concerned only with “signs,” the Court should take this opportunity to declare, in broad doctrinal terms, that a speech restriction is content-based if either its purpose is to suppress the communicative impact of one’s speech or it requires officials to inspect a message’s subject to decide how it should be regulated. By making clear that there are two tests to determine if a law is content-based, and that lower courts should apply them both whenever they analyze a speech restriction, this Court can ensure that the government cannot insulate itself from heightened scrutiny while picking and choosing what messages may be shared.
The Supreme Court agreed. Courts must now consider the nature of both content-based and subject-based restrictions when determining effect on free speech.
Combine this landmark decision with the recent NJ Supreme Court decision in Dublirer vs. Linwood Ave. Owners, Inc., a Cooperative Association, and perhaps this brings us one step closer to applying Reed to Association-Governed Communities (Homeowners’ Associations) across the country.
Read more here, where fellow wonks can also follow the link to court documents and IJ’s Amicus Brief: