This is the fourth post in our series looking at Reed v. Town of Gilbert, and it will consider Justice Breyer’s opinion concurring in judgment. Despite reaching the same conclusion as the majority, Justice Breyer advocates for a very different approach in the application of strict scrutiny, and does so in a manner that reads very much like a dissent.
Justice Breyer’s opinion argues for a more nuanced approach to the application of strict scrutiny, writing “while using content discrimination to trigger strict scrutiny sometimes makes perfect sense… it cannot and should not always trigger strict scrutiny.” As applying strict scrutiny leads to “almost certain legal condemnation,” the Court must be more sensitive in its use. Regarding content discrimination in particular, many government regulations discriminating based on content (labeling for prescription drugs, what documents fall under confidentiality laws, tax statements, etc.) provide good examples of where a strong presumption against constitutionality is inappropriate. To address this, Justice Breyer suggests an approach that is admittedly somewhat mechanical, where for public forum or viewpoint discrimination issues, content discrimination is treated as strongly arguing against constitutionality, while in other cases it is simply a factor in measuring the strength of a regulation’s justification. In conclusion, though the Sign Code at issue should rightly be found unconstitutional, strict scrutiny should not have been applied, nor should it be applied to casually going forward.
The Court’s full decision can be found here: http://www.supremecourt.gov/opinions/14pdf/13-502_9olb.pdf