Master Supreme Court held that a town’s sign code drawing subject-matter distinctions was content-based and failed strict scrutiny under the First Amendment. with this comprehensive case brief.
Reed v. Town of Gilbert is a foundational modern First Amendment case that crystallizes the rule that subject-matter distinctions in speech regulations are content-based on their face and thus presumptively unconstitutional unless the government can satisfy strict scrutiny. The Supreme Court unanimously invalidated a municipal sign code that applied different size, location, and duration rules to signs depending on whether they were political, ideological, or temporary directional signs relating to events. The Court rejected the argument that benign governmental motives or administrative justifications could convert a facially content-based scheme into a content-neutral one.
For law students, Reed is indispensable because it reframed content-neutrality analysis in clear, formal terms: if enforcement depends on the message’s topic or purpose, strict scrutiny applies—regardless of the government’s intent. Reed’s rule has far-reaching effects beyond sign ordinances, influencing challenges to panhandling bans, solicitation rules, and other subject-matter-based restrictions. Although subsequent cases have refined its reach, Reed remains the leading authority on when strict scrutiny is triggered by content discrimination.
576 U.S. 155 (2015)
The Town of Gilbert, Arizona, maintained a comprehensive sign code that categorized signs and imposed differing restrictions based on their subject matter. Three categories were pivotal: (1) "Ideological Signs," which could be up to 20 square feet with no time limits; (2) "Political Signs," which could be larger and displayed near election periods; and (3) "Temporary Directional Signs Relating to a Qualifying Event," capped at six square feet and restricted to brief windows (e.g., only hours before and shortly after the event). Good News Community Church, led by Pastor Clyde Reed, lacked a permanent facility and placed small temporary signs around town each weekend directing the public to Sunday services. Gilbert cited the church multiple times for violating the stringent rules governing temporary directional signs (e.g., exceeding time limits, lacking date and time, or placement issues). The church sued, arguing the code was a content-based regulation of speech that violated the First Amendment. The district court and Ninth Circuit upheld the code as content-neutral, applying intermediate scrutiny. The Supreme Court granted certiorari.
Is a municipal sign code that imposes different restrictions based on the subject matter or function of the sign content-based on its face such that it must satisfy strict scrutiny under the First Amendment?
A law is content-based if it applies to particular speech because of the topic discussed, the idea, or the message expressed—on its face—regardless of the government’s benign motive, content-neutral justification, or lack of animus. Content-based regulations are presumptively unconstitutional and must satisfy strict scrutiny: the government must prove the regulation is narrowly tailored to serve a compelling governmental interest, and that no less restrictive, content-neutral alternative would achieve the government’s objectives. Viewpoint discrimination is a subset of content discrimination, but a law can be content-based without being viewpoint-based.
Yes. Gilbert’s sign code drew facial distinctions based on the signs’ subject matter and purpose, making it a content-based regulation of speech. Applying strict scrutiny, the ordinance was not narrowly tailored to any compelling interest and was therefore unconstitutional.
Majority (Thomas, J.): The sign code’s categorical scheme—treating ideological, political, and temporary directional event signs differently—was content-based on its face because an official must read the sign to determine which rules apply. The ordinance thus targeted speech based on its subject matter (e.g., political advocacy versus event directions). The Court emphasized that content neutrality does not turn on governmental motive; a benign purpose or administrative convenience cannot cure facial content discrimination. Nor is the ordinance saved because it is not viewpoint discriminatory; content discrimination alone triggers strict scrutiny. Under strict scrutiny, the Town’s asserted interests—traffic safety and aesthetics—did not justify the subject-matter distinctions. Even assuming those interests could be compelling, the ordinance was not narrowly tailored: it was underinclusive and ill fit because it burdened temporary directional signs more heavily than ideological or political signs, despite similar, or even greater, potential to affect safety and aesthetics. The code permitted many other signs that created the same supposed harms, revealing a poor fit between means and ends. The Town had ample content-neutral alternatives (e.g., uniform limits on size, materials, lighting, placement, location along rights-of-way, or total number of signs) that would serve its interests without discriminating by subject matter. Concurrences: Justice Alito (joined by Kennedy and Sotomayor) underscored that Reed does not foreclose sign regulation generally; jurisdictions can regulate features such as size, materials, lighting, moving parts, and location without reference to content. Justice Breyer cautioned against rigid, automatic strict scrutiny for every content distinction, suggesting a more functional approach sensitive to regulatory context. Justice Kagan (joined by Ginsburg and Breyer) agreed the ordinance was unconstitutional but warned that the majority’s rule could turn the Court into a "Supreme Board of Sign Review"; she emphasized that Gilbert’s law was so poorly justified it failed even intermediate scrutiny. Disposition: The Supreme Court reversed the Ninth Circuit and remanded.
Reed is the modern touchstone for when content discrimination triggers strict scrutiny. Its clear, facial test reshaped First Amendment doctrine and prompted waves of challenges to subject-matter-based regulations (e.g., panhandling or solicitation bans distinguishing requests for donations from other speech; differential rules for political versus other signs). Municipalities now draft sign codes to avoid content references, relying on content-neutral criteria like size, materials, location, or illumination. Subsequent decisions have clarified Reed’s reach. Notably, City of Austin v. Reagan National Advertising (2022) held that on-/off-premises distinctions are location-based, not content-based, signaling that not every rule requiring reading a sign is automatically content-based. Still, Reed’s core principle stands: when a law singles out speech by subject matter or message, strict scrutiny applies—and is rarely satisfied.
The code imposed different rules based on the sign’s subject matter and purpose—ideological, political, or temporary directional. Determining which restrictions applied required reading the sign to identify its topic, which is the hallmark of facial content discrimination.
No. Reed holds that a facial content distinction triggers strict scrutiny regardless of governmental motive or asserted content-neutral justifications. Intent may matter for other analyses, but facial subject-matter distinctions are enough.
Ward permits content-neutral time, place, and manner regulations subject to intermediate scrutiny. Reed clarifies that if a regulation’s application depends on the message’s topic or function, it is not content-neutral and cannot be justified under Ward’s framework; strict scrutiny applies.
The Court assumed, without deciding, that these interests could be compelling, but held the ordinance was not narrowly tailored. It was underinclusive and poorly fitted because it burdened temporary directional signs more than other signs causing similar harms, and less restrictive, content-neutral alternatives were available.
No. Reed permits content-neutral regulations—e.g., uniform limits on size, materials, lighting, moving parts, digital displays, location (such as setbacks or rights-of-way), and total number of signs. Justice Alito’s concurrence lists examples of permissible content-neutral approaches.
Reed led courts to strike down many subject-matter-based rules (e.g., targeted panhandling or solicitation bans). At the same time, City of Austin later clarified that not every rule referencing a sign’s relation to its location is content-based. Municipalities now draft content-neutral, feature-based sign codes to avoid strict scrutiny.
Reed v. Town of Gilbert decisively instructs that subject-matter distinctions are content-based on their face and presumptively unconstitutional. By insisting that courts look to the text of the regulation—not just government motive—Reed ensures robust protection for speech against subtle forms of content discrimination. The result is a strong, administrable trigger for strict scrutiny whenever authorities differentiate speech by topic or function.
For practitioners and students, Reed’s legacy is twofold: it supplies a clear doctrinal test that reshaped local regulation nationwide and it emphasizes narrow tailoring and less restrictive alternatives as central to strict scrutiny. Even as later cases refine its edges, Reed remains the lodestar for evaluating content-based restrictions under the First Amendment.