This is the fifth and final post in our series looking at Reed v. Town of Gilbert, and it will consider the opinion concurring in judgment written by Justice Kagan (joined by Justices Ginsburg and Breyer). Like Justice Breyer’s opinion this would likely have been a dissent but for the Town of Gilbert’s defenses failing to pass, as Justice Kagan writes, “the laugh test,” let alone strict scrutiny.
Despite finding the Town of Gilbert’s defense sorely lacking and concurring in judgment, Justice Kagan shows serious concern about the majority’s opinion, beginning with some of the signs which will be analyzed and likely fail under strict scrutiny, such as the exemption of signs for historical sites from the federal Highway Beautification Act limits. She writes that the Court has historically been flexible in the application of strict scrutiny to facially content-based laws, and need not have decided the level-of-scrutiny issue. Here, given the Town’s poor defense, the court could have found the Town lacked a sufficient basis for the sign code’s rules without deciding on a broad standard, yet “the majority insists that applying strict scrutiny to all such ordinances is essential to protecting First Amendment freedoms, [but] I find it challenging to understand why that is so.” Given the limited relation between the majority’s opinion and the traditional First Amendment goals of protecting the “marketplace of ideas” and preventing government regulation based on “hostility or favoritism towards the underlying message,” the Court may well come to regret having adopted a hard (and stringent) rule going forward.
It is an open question whether Justice Kagan’s fears regarding the Court becoming the “Supreme Board of Sign Review” will come to pass. Maybe the courts will be flooded by issues such as whether Towns have a compelling interest to tell people “where George Washington slept” or whether there is “no other way to prevent hidden driveway mishaps than by specially treating hidden-driveway signs.” On the other hand, maybe they won’t. Ultimately it will come down to how broadly the lower courts attempt to apply this ruling. If Justice Alito’s concurrence becomes widely adopted as guidance, the parade of horribles may be avoided. Either way, it seems sign cases are going to become significantly more interesting for the foreseeable future.
The Court’s full decision can be found here: http://www.supremecourt.gov/opinions/14pdf/13-502_9olb.pdf