Reed v. Town of Gilbert: Relax, Everybody

Abstract

In Reed v. Town of Gilbert, the Supreme Court held that a law is content based if it draws distinctions on its face based on the message an affected speaker conveys. Reed rejected previous lower court interpretations of the Court’s content discrimination doctrine, which had consistently held that a content-based law was not subject to strict scrutiny if its reference to content was not based on government disapproval of that content.Reed has set off a firestorm. The Justices who concurred in the judgment warned that the case’s rule would cast doubt on a range of government action historically considered to not implicate the First Amendment, from securities regulation to product labeling. Commentators have called Reed everything from a “groundbreaker” to a “redefinition” of content discrimination doctrine that will have “profound consequences.”The message of this Article is that Reed’s critics should, in a word, relax. Close review of those areas in which Reed’s critics claim the case will cause the most harm demonstrates that other parts of First Amendment doctrine, all of which survive Reed, will limit the case’s reach. The case also clarified several murky areas of First Amendment doctrine. And the focus on Reed obscures a far more important issue: the fallacy of continuing to use a categorical approach to First Amendment cases that turns entirely on whether or not a given law refers to content and ignores a law’s actual effect on speech.