Constitutional Law Flashcards
(10 cards)
Summary
Review of a sign regulation to determine whether it violates the free speech protections of the First Amendment (as applied to the states through the Fourteenth Amendment’s due process clause) has two layers of analysis. First, a court asks whether the regulation is content-based or content-neutral. A content-based regulation is subject to strict scrutiny, while a content-neutral regulation is subject to intermediate scrutiny under the time, place, and manner test. Under the Supreme Court’s prevailing approach, there are credible arguments for both characterizations of the ordinance. On the one hand, the ordinance could be treated as content-neutral because it focuses on the type of sign—flashing lights or changing displays—and not the content of the message displayed on the sign. On the other hand, the ordinance could be treated as content-based because one must look at a sign’s message—does it display time or temperature—to apply the ordinance.
Second, the ordinance would likely be held unconstitutional under strict scrutiny. While City may have a compelling interest in promoting traffic safety, the ordinance is not likely to be narrowly tailored because it is both under- and over-inclusive to this purpose. It is under-inclusive because it allows changeable signs that display temperature and time, and it is over-inclusive because it applies to areas of City where the speed limit is under 30 miles per hour.
Third, a content-neutral sign regulation is reviewed under the time, place, and manner test enunciated by the Supreme Court: the regulation must be narrowly tailored to serve the government’s legitimate, content-neutral interests but need not be the least restrictive or least intrusive means of doing so. The law must also leave open ample alternative channels of communication. Here, traffic safety and aesthetic concerns are both substantial, content-neutral government interests. Also, a law limited to signs with flashing lights and changing displays is narrowly tailored to serve those interests and leaves open ample alternative channels of communication.
The ordinance can credibly be characterized as either a content-neutral or a content-based regulation of speech. It could be characterized as content-neutral because its application depends on the type of sign rather than on the content of the speech or the viewpoint being expressed. Alternatively, it could be characterized as content-based because the exceptions for signs displaying time and temperature requires the decision maker to know the content of the sign’s message to apply the ordinance.
Whether a municipal sign ordinance violates the First Amendment’s guarantee of freedom of speech depends heavily on whether the ordinance is content-based or content-neutral. A law is content-based if it “applies to particular speech because of the topic discussed or the idea or message expressed.” Reed v. Town of Gilbert, 576 U.S. 155, 163 (2015); (federal law prohibiting robocalls to cell phones was content-based because of exemption for calls made to collect debts owed to or guaranteed by the federal government); Barr, 140 S.Ct. at 2364 (Gorsuch, J., concurring in the judgment in part) (same). The City ordinance treats time and temperature signs differently from all other signs, which could be viewed as a distinction based on the content of the sign. Reed stated that any ordinance which is content-based on its face is subject to strict scrutiny irrespective of the “innocent motives” of the regulation. 576 U.S. at 167. Reed could be read to support the argument that any distinction or exemption in a law, however small, based on content means that the statute is content-based and thus subject to strict scrutiny.
Alternatively, an argument can be made to distinguish Reed. There, the Court struck down a municipal sign regulation that generally prohibited outdoor signs without a permit, while exempting 23 categories of signs from the requirement. Focusing on three such exemptions, the Court found the regulation content-based on its face. The three exemptions allowed posting of “ideological,” “political,” and “temporary directional” signs, while subjecting each to detailed restrictions relating to size, location, and duration of placement. The Reed ordinance thus delved deeply into the contents of the signs and imposed an intricate scheme of differential treatment based on content.
How is Reed distinguished
Reed might be distinguished on the ground that the City ordinance imposes a scheme banning a well-defined category of highly visually distracting electronic signs, with one narrow exception for time and temperature displays. Three justices in concurrence opined that this type of general “manner” prohibition (albeit without the exception in this question) should not be treated as content-based. See Reed, 576 U.S. at 174 (Alito, J., concurring) (“Rules distinguishing between signs with fixed messages and electronic signs with messages that change” should not be treated as content based); see also Barr, 140 S.Ct. at 2344 (plurality opinion of Kavanaugh, J.) (federal law prohibiting robocalls has long-standing exemption for “calls made for emergency purposes” that has never been challenged under the First Amendment). In addition, the ordinance’s narrow exception for time and temperature signs comports with older cases that are still good law. In City of Ladue v. Gilleo, 512 U.S. 43 (1994), the Court suggested that exceptions to a general sign regulation that are justified on non-content-related grounds do not trigger strict scrutiny. And in Members of City Council of Los Angeles v. Taxpayers for Vincent, 466 U.S. 789 (1984), the Court applied intermediate scrutiny to uphold a municipal ordinance against posting signs on public structures, finding the ordinance content-neutral notwithstanding an exception for historic landmark signs.
If the ordinance is content based, it will likely fail strict scrutiny because it is not narrowly tailored to City’s asserted compelling interest (promoting traffic safety).
If the ordinance is deemed content-based, it will likely fail strict scrutiny under Reed. It would be City’s burden to show that the ordinance is narrowly tailored to further a compelling government interest. The legislative record shows that the ordinance is justified to promote traffic safety. The Court has not yet embraced traffic safety as a compelling governmental interest but has only assumed it to be so. More importantly, the Court tolerates little under-inclusiveness or over-inclusiveness when applying strict scrutiny. Here, the statute is under-inclusive because of the exception: why should any flashing or changing electronic signs be permitted if they distract drivers? The statute may also be over-inclusive: if the rationale for exempting time and temperature signs is their unobtrusiveness, why not also exempt other unobtrusive signs? In addition, the ordinance is over-inclusive because it applies to areas of City where the speed limit is less than 30 miles per hour, even though City’s evidence does not support doing so.
Application
The ordinance’s under- and over-inclusiveness will likely cause the ordinance to fail strict scrutiny, unless City could make one of two showings. First, City could argue that the time and temperature exception is so de minimis that it does not create an under-inclusiveness problem under strict scrutiny. Second, City could demonstrate that the safety risk posed by electronic time and temperature signs is significantly less than the risk posed by all other types of content. Absent those showings, the ordinance is unlikely to survive strict scrutiny.
If the ordinance is content neutral, it will likely survive intermediate scrutiny under the Court’s time, place, and manner test. The ordinance is narrowly tailored to City’s substantial interests (aesthetic preservation and traffic safety), and the ordinance leaves open ample alternative channels of communication.
If the ordinance is content neutral, then the Court’s time, place, and manner test will be applied. Under that test, a speech regulation is constitutional if the government is promoting a substantial government interest and the regulation is narrowly tailored to achieve that interest and leaves open ample alternative channels of communication. In this case, the first requirement is easily met. The Court has held that both aesthetic preservation and traffic safety are substantial government interests under the time, place, and manner test. Vincent, 466 U.S. at 805 (“It is well settled that the state may legitimately exercise its police powers to advance esthetic values.”).
Application
The narrow tailoring element requires additional discussion. On its face, the City ordinance might appear to be both over- and under-inclusive for both government purposes. For traffic safety, it might be argued that the ordinance is over-inclusive because it applies not only alongside roads with a speed limit of 30 miles per hour or higher (where the safety risk associated with the covered signs is greatest) but also in residential neighborhoods with a speed limit less than 30 miles per hour, where the safety impact is smaller. It may also be under-inclusive for safety purposes because it allows some flashing signs that may pose the same safety risk. For aesthetic preservation, the law might appear to be under-inclusive because it allows time and temperature displays, and there does not appear to be any finding that such signs are more aesthetically pleasing. The question is whether these arguments as to over-inclusiveness and under-inclusiveness should result in the conclusion that the ordinance is not narrowly tailored.
Narrowly tailored
The Court clarified the scope of the “narrowly tailored” element for time, place, and manner analysis in Ward v. Rock Against Racism, 491 U.S. 781 (1989):
[T]he requirement of narrow tailoring is satisfied “so long as the . . . regulation promotes a substantial government interest that would be achieved less effectively absent the regulation.” . . . To be sure, this standard does not mean that a time, place, or manner regulation may burden substantially more speech than is necessary to further the government’s legitimate interests. Government may not regulate expression in such a manner that a substantial portion of the burden on speech does not serve to advance its goals. So long as the means chosen are not substantially broader than necessary to achieve the government’s interest, however, the regulation will not be invalid simply because a court concludes that the government’s interest could be adequately served by some less-speech-restrictive alternative. “The validity of [time, place, or manner] regulations does not turn on a judge’s agreement with the responsible decisionmaker concerning the most appropriate method for promoting significant government interests” or the degree to which those interests should be promoted.
Ward, 491 U.S. at 799–800 (internal citations omitted). The ordinance should survive intermediate scrutiny under this test. Given the evidence that all signs with flashing lights and changing displays pose some additional risk to traffic safety, the government’s interest would be achieved less effectively if the law were limited to certain roadways. Similarly, a court should defer to City’s judgment that banning signs with flashing lights and changing displays serves its aesthetic purpose, even with the exemptions for time and temperature displays. Vincent, 466 U.S. at 810 (ban on posting signs on public property, which had narrow exemptions, was adequately tailored to the government’s aesthetic interest). Consequently, the ordinance should be upheld as narrowly tailored to City’s stated interests
Alternative means of communication
Last, the ordinance likely allows ample alternative means for communicating a speaker’s message. In City of Ladue, the Court addressed an ordinance that prohibited all residential yard signs except “‘residence identification’ signs, ‘for sale’ signs, and signs warning of safety hazards.” 512 U.S. at 45. There, the Court noted that residential yard signs were a venerable mode of communication, and that a blanket ban on that mode did not leave open adequate alternative channels for homeowners to cheaply and effectively communicate. Id. at 56 (“we are not persuaded that adequate substitutes exist for the important medium of speech that Ladue has closed off.”). Here, landowners may still communicate the same message through a similar means: an illuminated sign. The ordinance merely prohibits such signs from flashing or changing the display. Also, the ordinance does not limit the number of signs on a person’s property, and so a landowner may engage in the same quantity of speech. See Ward, 491 U.S. at 802 (noting that the challenged regulation “has no effect on the quantity or content of that expression”). Consequently, the ordinance likely leaves open ample alternative channels of speech.
Note
[NOTE: The strict scrutiny test and the intermediate scrutiny test define the phrase “narrowly tailored” differently, and so graders should ensure that an examinee applies the proper definition of the term for each test. Under the strict scrutiny test, “narrowly tailored” means that the challenged law is the least speech-restrictive means for achieving the government’s interest, and very little over- or under-inclusiveness is allowed. This version of “narrowly tailored” is very difficult for the government to satisfy. Under the intermediate scrutiny test, “narrowly tailored” merely means that the challenged law would achieve the government’s interests less effectively if it were less over- or under-inclusive, and the Court defers to the government’s judgment on this issue. This version of “narrowly tailored” is easier for the government to satisfy. An examinee’s answer should properly define and describe the legal significance of these two definitions of “narrowly tailored.”]
