In Reed v. Town of Gilbert, Ariz., 135 S. Ct. 2218 (2015), the Supreme Court held that the temporary non-commercial sign regulations of a local sign code violated the First Amendment because they were content based and did not survive strict scrutiny. On its face, the Court’s holding was not extraordinary and was unanimously supported, but the Court fractured over the rationale for the holding.
The six-Justice majority’s analysis has led to some confusion. In contrast to the three concurring opinions, the majority indicated that content discrimination should always trigger strict scrutiny, even if the law was passed in good faith, furthered a content-neutral justification, and did not single out any idea or viewpoint. The majority also suggested that a law is “content-based” if an officer must read it to enforce it, however glancing that review. The majority’s analysis thus raised questions concerning the applicability of strict scrutiny review in related contexts, as well as the appropriate application of content neutrality analysis.
Moreover, it is not clear that, if the issue were to come back before the Court, the majority analysis would hold sway. Three of the six Justices in the majority supported a narrowing concurring opinion, and one of the remaining three Justices in the majority is no longer on the Court.