7 Contemporary Speech Doctrine and the Principle of Content Discrimination

Strict and Intermediate Scrutiny in Speech Doctrine

Though Equal Protection doctrine is beyond the scope of our materials, a short primer of some relevant material is needed here to help explain how the Court evaluates content-based and content-neutral laws. Building on the preferred freedoms approach discussed in Footnote Four of Carolene Products, the Supreme Court declared it would more stringently evaluate state or federal laws that affected either fundamental rights (including, though not exclusive to, Bill of Right rights such as the First Amendment) or aimed at “particular religious, national minorities, [or] …[based on] prejudice against discrete and insular minorities.” This additional scrutiny has manifested itself in tests that government must meet in order for the law to be constitutional.

While earlier forms of these tests can be seen in Mosley and Grayned, their contemporary forms have evolved somewhat and are therefore discussed further here. In our free speech context, the most protective of these tests, strict scrutiny, is used to assess the constitutionality of content-based regulation, as such laws violate the government’s obligation to treat ideas and speakers equally under the law. Strict scrutiny is a type of interest-means analysis, in which the Court examines both the reason for the law, or the government interest, and the means by which the government aims to achieve that interest. Specifically:

1. The government’s interest must be compelling
2. The law must be narrowly tailored to achieve that interest
3. In the First Amendment context, the Court has additionally required that the law must employ the least restrictive means of achieving that interest, above and beyond narrow tailoring.

What do these terms mean?

First, a compelling state interest (Marshall uses the term “substantial” in Mosley but “compelling” is the standard adjective in contemporary law) is something important enough to justify restricting a fundamental right or discriminating against a protected class. This definition is admittedly tautological, and the Court has failed to better define or circumscribe what interests qualify as compelling. Given this, it’s better to reason by analogy and rely on examples of what the courts have found compelling in their rulings:

• potential injury or loss of life
• national security
• public health
• ending public discrimination, particularly racial discrimination
• protecting other fundamental rights

This list of examples is illustrative rather than definitive, and the exact boundary as to what interests are compelling and what interests instead belong in a lower tier of importance is sometimes unclear. That said, most government interests—such as saving money, efficiency, aesthetics, and so on—will not qualify as compelling.

Second, it’s not enough that the government has a compelling reason for passing a content-based law—the law must further be narrowly tailored in the means it employs to achieve that end. The basic concern in the free speech context is that a law that regulates a particular type of speech might also punish or censor unrelated and/or protected speech if not carefully written. Take the Grayned case above, for example. Marshall found that Rockford’s anti-noise ordinance was narrowly tailored because it 1) only applied to noisy and disruptive protests 2) during school hours. Had the city also banned silent protests or protest outside the school after school hours, the law would have no longer been narrowly tailored to its stated interest of preventing classroom disruption.

Third and finally, in the First Amendment context the Court normally appends an additional requirement on the means test: that the government’s means be not only narrowly tailored, but the least restrictive means of achieving its interest. In other words, if the Court is convinced that the government could have achieved its goals in another, more speech-protective way, it will strike down the existing law.

For example: imagine a city that attempts to deal with a littering problem by banning individuals from handing out pamphlets to passers-by (who presumably toss them on the ground afterward). A least-restrictive means approach would likely require striking down this pamphlet ban, as the city could have instead passed an ordinance that punished litterers, potentially achieving its interest without burdening speech. Governments that wish to regulate speech based on content, then, must be prepared to argue that there are no other more speech-protective means of achieving their compelling interest.

Simply put, strict scrutiny is a high burden for the state, one it normally fails to meet. Once a court determines that a law is content-based rather than content-neutral, that law is probably going to be struck down.

What about content-neutral laws? As discussed above, content-neutral laws not only pose less of a threat to free speech—since they presumably treat different speakers and speech equally—but also serve important, if not necessarily “compelling” state interests. Given this, courts are much more tolerant of the burdens that content-neutral regulations might incidentally place on speech. Content-neutral laws do not need to meet strict scrutiny in order to be constitutional; instead, they must pass a less restrictive test often referred to as intermediate scrutiny. This test varies somewhat depending on which area of law it’s being used, but in the context of assessing content-neutral laws, a law that meets intermediate scrutiny must:

1. have an important government interest
2. be narrowly tailored
3. leave open ample alternative channels for communication

How are these prongs defined?

In normal English important, substantial, and compelling are synonyms. In these legal tests, however, an important government interest is one that is legitimate, addressing a real problem that governments have the authority to address, while still not rising to the level of importance that a compelling state interest represents. Some scholars have argued that compelling state interests deal with problems government must solve (prevent loss of life, disease, etc.), while important state interests are ones that government chooses to address. Whatever the usefulness of this distinction, a very broad range of goals reasonably associated with the government will meet the “important” standard.

If almost any legitimate government interest suffices to meet this standard, why bother including it? The answer likely lies in preventing governments from using ostensibly content-neutral laws as a pretext for discrimination or other illegitimate goals. Since governments know they cannot adopt laws that blatantly discriminate on content, they may instead try to disguise such laws as content-neutral regulations. The first prong of this test thus ensures that the government’s interest is real and legitimate, rather than a fig leaf for censorship.

The narrowly tailored prong is more or less the same criterion used in strict scrutiny, though courts may be more relaxed in their application of it here. The purpose remains the same, however: ensuring that regulation achieves its interest without unnecessarily burdening or sweeping in additional speech. Such determinations remain context-specific and fact-driven: a law that bans noisy protests within 150 feet of a school might be upheld, while a law that increases that ban to 1000 feet might be seen as no longer narrowly tailored.

Intermediate scrutiny does not have a least restrictive means requirement. As long as the means employed are narrowly tailored to the interest in question, courts will grant the government more flexibility in their policy choices. In other words, a regulation need not be the “best” way of achieving governmental interests from a speech-protective viewpoint, as long as it remains narrowly tailored.

Finally, the Court has added a third item to intermediate scrutiny when assessing content-neutral laws, that such laws leave open ample alternative channels of communication. What does this prong mean, and what purpose does it serve?

Consider a local government that wants to ban Black Lives Matter protests, both because it finds such protests disruptive and because it doesn’t support the protestors’ views. Correctly fearing that a content-restrictive ban on “racial protests” would fail strict scrutiny, this local government instead bans all protests. The law is now content-neutral. Though such a law could still fail a narrowly tailored requirement, the specific inclusion of “ample alternative channels” warns governments they may not maintain content neutrality by restricting everyone’s speech, even if it is done without reference to the content of speech or the identity of speakers.

To recap the above: when the court evaluates a free-speech challenge to a law or ordinance that doesn’t fall in a special or unprotected category, it first assesses whether the law is content-discriminatory or content-neutral. After this determination, it applies the appropriate test. Importantly, the government must meet every prong of the relevant test for the law in question to be constitutional. For example, if a content-based law has a compelling state interest but is not narrowly tailored to achieve that interest, it will be struck down.

Together, this set of legal doctrines is sometimes referred to by judges and legal scholars as the “Two-Track” system, as the “track” a case is put on, i.e. content-based or content-neutral, usually determines if it will survive judicial review. Under this framing, content-based laws are assessed under strict scrutiny, or Track One, while content-neutral laws are assessed under intermediate scrutiny, or Track Two,

Our next two cases illustrate this doctrine. Ward v. Rock Against Racism, a case that emerged from a longstanding dispute between a musical festival and New York City, raises interesting questions about how to distinguish between content-based and content-neutral laws, as well as illustrating how intermediate scrutiny is employed. City of Ladue v. Gilleo, born from a dispute over a city’s rules on yard signs, both highlights the two-track system and provides a useful example of how the ample alternative channels prong from intermediate scrutiny plays out in practice.

Ward v. Rock Against Racism

491 U.S. 781 (1989)

Facts: Rock Against Racism (RAR) had annual concerts in Central Park; the noise from these concerts led nearby residents to make noise complaints. After prior attempts to directly regulate the noise level met with “anger and disruption” from RAR organizers and attendees, the city denied RAR a permit to perform. This denial was followed by a lawsuit from RAR, which in turn led the city to try a new approach: requiring RAR to use its city sound technicians and equipment in order to regulate noise levels and sound quality.

RAR sued, arguing that this new requirement violated their First Amendment right to free speech.

Question: Does forcing RAR to use city-provided equipment and technicians violate the First Amendment?

Vote: No, 6-3

For the Court: Justice Kennedy

Dissenting opinion: Justice Marshall

JUSTICE KENNEDY delivered the opinion of the Court.

… This case arises from the city’s attempt to regulate the volume of amplified music at the bandshell so the performances are satisfactory to the audience without intruding upon those who use the Sheep Meadow or live on Central Park West and in its vicinity.

The city’s regulation requires bandshell performers to use sound amplification equipment and a sound technician provided by the city. The challenge to this volume control technique comes from the sponsor of a rock concert. The trial court sustained the noise control measures, but the Court of Appeals for the Second Circuit reversed. We granted certiorari to resolve the important First Amendment issues presented by the case.

I

Rock Against Racism, respondent in this case, is an unincorporated association which, in its own words, is “dedicated to the espousal and promotion of antiracist views.” Each year from 1979 through 1986, RAR has sponsored a program of speeches and rock music at the bandshell…

Over the years, the city received numerous complaints about excessive sound amplification at respondent’s concerts from park users and residents of areas adjacent to the park. On some occasions, RAR was less than cooperative when city officials asked that the volume be reduced; at one concert, police felt compelled to cut off the power to the sound system, an action that caused the audience to become unruly and hostile…

… when respondent sought permission to hold its upcoming concert at the bandshell, the city declined to grant an event permit… RAR … filed suit in United States District Court against the city, its mayor, and various police and parks department officials, seeking an injunction directing issuance of an event permit. After respondent agreed to abide by all applicable regulations, the parties reached agreement and a permit was issued…

The city considered various solutions to the sound amplification problem. The idea of a fixed decibel limit for all performers using the bandshell was rejected because the impact on listeners of a single decibel level is not constant, but varies in response to changes in air temperature, foliage, audience size, and like factors.  The city also rejected the possibility of employing a sound technician to operate the equipment provided by the various sponsors of bandshell events because the city’s technician might have had difficulty satisfying the needs of sponsors while operating unfamiliar, and perhaps inadequate, sound equipment.

Instead, the city concluded that the most effective way to achieve adequate but not excessive sound amplification would be for the city to furnish high quality sound equipment and retain an independent, experienced sound technician for all performances at the bandshell. After an extensive search, the city hired a private sound company capable of meeting the needs of all the varied users of the bandshell…

After learning that it would be expected to comply with the guidelines at its upcoming annual concert in May, 1986, respondent returned to the District Court and filed a motion for an injunction…

After hearing five days of testimony about various aspects of the guidelines, the District Court issued its decision upholding the sound amplification guideline. The court found that the city had been “motivated by a desire to obtain top-flight sound equipment and experienced operators” in selecting an independent contractor to provide the equipment and technician for bandshell events, and that the performers who did use the city’s sound system in the 1986 season, in performances “which ran the full cultural gamut from grand opera to salsa to reggae,” were uniformly pleased with the quality of the sound provided…

Although the city’s sound technician controlled both sound volume and sound mix by virtue of his position at the mixing board, the court found that “[t]he City’s practice for events at the Bandshell is to give the sponsor autonomy with respect to the sound mix: balancing treble with bass, highlighting a particular instrument or voice, and the like,” and that the city’s sound technician “does all he can to accommodate the sponsor’s desires in those regards.”…

Applying this Court’s three-part test for judging the constitutionality of government regulation of the time, place, or manner of protected speech, the court found the city’s regulation valid.

The Court of Appeals reversed… the court added the proviso that “the method and extent of such regulation must be reasonable, that is, it must be the least intrusive upon the freedom of expression as is reasonably necessary to achieve a legitimate purpose of the regulation.” Applying this test, the court determined that the city’s guideline was valid only to the extent necessary to achieve the city’s legitimate interest in controlling excessive volume, but found there were various alternative means of controlling volume without also intruding on respondent’s ability to control the sound mix…

We granted certiorari to clarify the legal standard applicable to governmental regulation of the time, place, or manner of protected speech. Because the Court of Appeals erred in requiring the city to prove that its regulation was the least intrusive means of furthering its legitimate governmental interests, and because the ordinance is valid on its face, we now reverse.

II

Music is one of the oldest forms of human expression. From Plato’s discourse in the Republic to the totalitarian state in our own times, rulers have known its capacity to appeal to the intellect and to the emotions, and have censored musical compositions to serve the needs of the state. The Constitution prohibits any like attempts in our own legal order. Music, as a form of expression and communication, is protected under the First Amendment.

Here the bandshell was open, apparently, to all performers; and we decide the case as one in which the bandshell is a public forum for performances in which the government’s right to regulate expression is subject to the protections of the First Amendment.  Our cases make clear, however, that even in a public forum, the government may impose reasonable restrictions on the time, place, or manner of protected speech, provided the restrictions “are justified without reference to the content of the regulated speech, that they are narrowly tailored to serve a significant governmental interest, and that they leave open ample alternative channels for communication of the information.”

We consider these requirements in turn.

A

The principal inquiry in determining content-neutrality, in speech cases generally and in time, place, or manner cases in particular, is whether the government has adopted a regulation of speech because of disagreement with the message it conveys. The government’s purpose is the controlling consideration. A regulation that serves purposes unrelated to the content of expression is deemed neutral, even if it has an incidental effect on some speakers or messages, but not others…

The principal justification for the sound amplification guideline is the city’s desire to control noise levels at bandshell events… This justification for the guideline “ha[s] nothing to do with content,” and it satisfies the requirement that time, place, or manner regulations be content-neutral…

Any governmental attempt to serve purely aesthetic goals by imposing subjective standards of acceptable sound mix on performers would raise serious First Amendment concerns, but this case provides us with no opportunity to address those questions. As related above, the District Court found that the city’s equipment and its sound technician could meet all of the standards requested by the performers, including RAR…

Respondent argues further that the guideline, even if not content-based in explicit terms, is nonetheless invalid on its face because it places unbridled discretion in the hands of city officials charged with enforcing it. According to respondent, there is nothing in the language of the guideline to prevent city officials from selecting wholly inadequate sound equipment or technicians, or even from varying the volume and quality of sound based on the message being conveyed by the performers…

Our cases permitting facial challenges to regulations that allegedly grant officials unconstrained authority to regulate speech have generally involved licensing schemes that “ves[t] unbridled discretion in a government official over whether to permit or deny expressive activity.”  The grant of discretion that respondent seeks to challenge here is of an entirely different, and lesser, order of magnitude, because respondent does not suggest that city officials enjoy unfettered discretion to deny bandshell permits altogether…

The city’s guideline states that its goals are to “provide the best sound for all events” and to “insure appropriate sound quality balanced with respect for nearby residential neighbors and the mayorally decreed quiet zone of [the] Sheep Meadow.”

While these standards are undoubtedly flexible, and the officials implementing them will exercise considerable discretion, perfect clarity and precise guidance have never been required even of regulations that restrict expressive activity.  By its own terms, the city’s sound amplification guideline must be interpreted to forbid city officials purposely to select inadequate sound systems or to vary the sound quality or volume based on the message being delivered by performers…

With respect to sound volume, the city retains ultimate control, but city officials “mak[e] it a practice to confer with the sponsor if any questions of excessive sound arise, before taking any corrective action.”  The city’s goal of ensuring that “the sound amplification [is] sufficient to reach all listeners within the defined concert-ground,” serves to limit further the discretion of the officials on the scene…

B

The city’s regulation is also “narrowly tailored to serve a significant governmental interest.” Despite respondent’s protestations to the contrary, it can no longer be doubted that government “ha[s] a substantial interest in protecting its citizens from unwelcome noise.”  This interest is perhaps at its greatest when government seeks to protect “the wellbeing, tranquility, and privacy of the home,” but it is by no means limited to that context, for the government may act to protect even such traditional public forums as city streets and parks from excessive noise…

We think it also apparent that the city’s interest in ensuring the sufficiency of sound amplification at bandshell events is a substantial one. The record indicates that inadequate sound amplification has had an adverse effect on the ability of some audiences to hear and enjoy performances at the bandshell. The city enjoys a substantial interest in ensuring the ability of its citizens to enjoy whatever benefits the city parks have to offer, from amplified music to silent meditation…

The Court of Appeals recognized the city’s substantial interest in limiting the sound emanating from the bandshell. The court concluded, however, that the city’s sound amplification guideline was not narrowly tailored to further this interest, because “it has not [been] shown . . . that the requirement of the use of the city’s sound system and technician was the least intrusive means of regulating the volume…”

The Court of Appeals erred in sifting through all the available or imagined alternative means of regulating sound volume in order to determine whether the city’s solution was “the least intrusive means” of achieving the desired end. This “less-restrictive-alternative analysis … has never been a part of the inquiry into the validity of a time, place, and manner regulation.”

Lest any confusion on the point remain, we reaffirm today that a regulation of the time, place, or manner of protected speech must be narrowly tailored to serve the government’s legitimate, content-neutral interests, but that it need not be the least restrictive or least intrusive means of doing so.

Rather, the requirement of narrow tailoring is satisfied “so long as the … regulation promotes a substantial government interest that would be achieved less effectively absent the regulation.” To be sure, this standard does not mean that a time, place, or manner regulation may burden substantially more speech than is necessary to further the government’s legitimate interests…

So long as the means chosen are not substantially broader than necessary to achieve the government’s interest, however, the regulation will not be invalid simply because a court concludes that the government’s interest could be adequately served by some less-speech-restrictive alternative…

It is undeniable that the city’s substantial interest in limiting sound volume is served in a direct and effective way by the requirement that the city’s sound technician control the mixing board during performances. Absent this requirement, the city’s interest would have been served less well, as is evidenced by the complaints about excessive volume generated by respondent’s past concerts. The alternative regulatory methods hypothesized by the Court of Appeals reflect nothing more than a disagreement with the city over how much control of volume is appropriate or how that level of control is to be achieved…  The Court of Appeals erred in failing to defer to the city’s reasonable determination that its interest in controlling volume would be best served by requiring bandshell performers to utilize the city’s sound technician…

Respondent nonetheless argues that the sound amplification guideline is not narrowly tailored because, by placing control of sound mix in the hands of the city’s technician, the guideline sweeps far more broadly than is necessary to further the city’s legitimate concern with sound volume. According to respondent, the guideline “targets … more than the exact source of the evil it seeks to remedy.”

If the city’s regulatory scheme had a substantial deleterious effect on the ability of bandshell performers to achieve the quality of sound they desired, respondent’s concerns would have considerable force. The District Court found, however, that, pursuant to city policy, the city’s sound technician “give[s] the sponsor autonomy with respect to the sound mix … [and] does all that he can to accommodate the sponsor’s desires in those regards.”

In view of these findings, which were not disturbed by the Court of Appeals, we must conclude that the city’s guideline has no material impact on any performer’s ability to exercise complete artistic control over sound quality. Since the guideline allows the city to control volume without interfering with the performer’s desired sound mix, it is not “substantially broader than necessary” to achieve the city’s legitimate ends…

C

The final requirement, that the guideline leave open ample alternative channels of communication, is easily met. Indeed, in this respect the guideline is far less restrictive than regulations we have upheld in other cases, for it does not attempt to ban any particular manner or type of expression at a given place or time. Rather, the guideline continues to permit expressive activity in the bandshell, and has no effect on the quantity or content of that expression beyond regulating the extent of amplification…

III

The city’s sound amplification guideline is narrowly tailored to serve the substantial and content-neutral governmental interests of avoiding excessive sound volume and providing sufficient amplification within the bandshell concert-ground, and the guideline leaves open ample channels of communication. Accordingly, it is valid under the First Amendment as a reasonable regulation of the place and manner of expression…

JUSTICE BLACKMUN concurs in the result.

JUSTICE MARSHALL, with whom JUSTICE BRENNAN and JUSTICE STEVENS join, dissenting.

No one can doubt that government has a substantial interest in regulating the barrage of excessive sound that can plague urban life. Unfortunately, the majority plays to our shared impatience with loud noise to obscure the damage that it does to our First Amendment rights. Until today, a key safeguard of free speech has been government’s obligation to adopt the least intrusive restriction necessary to achieve its goals. By abandoning the requirement that time, place, and manner regulations must be narrowly tailored, the majority replaces constitutional scrutiny with mandatory deference. The majority’s willingness to give government officials a free hand in achieving their policy ends extends so far as to permit, in this case, government control of speech in advance of its dissemination. Because New York City’s Use Guidelines (Guidelines) are not narrowly tailored to serve its interest in regulating loud noise, and because they constitute an impermissible prior restraint, I dissent.

I

… The Guidelines indisputably are content-neutral, as they apply to all bandshell users irrespective of the message of their music. They also serve government’s significant interest in limiting loud noise in public places, see Grayned v. Rockford (1972), by giving the city exclusive control of all sound equipment.

My complaint is with the majority’s serious distortion of the narrow tailoring requirement. Our cases have not, as the majority asserts, “clearly” rejected a less-restrictive-alternative test.  On the contrary, just last Term, we held that a statute is narrowly tailored only “if it targets and eliminates no more than the exact source of the evil it seeks to remedy.” While there is language in a few opinions which, taken out of context, supports the majority’s position, in practice, the Court has interpreted the narrow tailoring requirement to mandate an examination of alternative methods of serving the asserted governmental interest and a determination whether the greater efficacy of the challenged regulation outweighs the increased burden it places on protected speech…

The majority requires only that government show that its interest cannot be served as effectively without the challenged restriction…  Despite its protestations to the contrary, the majority thus has abandoned the requirement that restrictions on speech be narrowly tailored in any ordinary use of the phrase. Indeed, after today’s decision, a city could claim that bans on handbill distribution or on door-to-door solicitation are the most effective means of avoiding littering and fraud, or that a ban on loudspeakers and radios in a public park is the most effective means of avoiding loud noise. Logically extended, the majority’s analysis would permit such far reaching restrictions on speech…

Government’s interest in avoiding loud sounds cannot justify giving government total control over sound equipment, any more than its interest in avoiding litter could justify a ban on handbill distribution. In both cases, government’s legitimate goals can be effectively and less intrusively served by directly punishing the evil — the persons responsible for excessive sounds and the persons who litter. Indeed, the city concedes that it has an ordinance generally limiting noise, but has chosen not to enforce it…

II

The majority’s conclusion that the city’s exclusive control of sound equipment is constitutional is deeply troubling for another reason. It places the Court’s imprimatur on a quintessential prior restraint, incompatible with fundamental First Amendment values…  Here, the city controls the volume and mix of sound through its monopoly on sound equipment. In both situations, government’s exclusive control of the means of communication enables public officials to censor speech in advance of its expression. Under more familiar prior restraints, government officials censor speech “by a simple stroke of the pen.” Here, it is done by a single turn of a knob.

The majority’s implication that government control of sound equipment is not a prior restraint because city officials do not “enjoy unguided discretion to deny the right to speak altogether,” is startling. In the majority’s view, this case involves a question of “different and lesser” magnitude — the discretion to provide inadequate sound for performers. But whether the city denies a performer a bandshell permit or grants the permit and then silences or distorts the performer’s music, the result is the same — the city censors speech…

As a system of prior restraint, the [city’s] Guidelines are presumptively invalid… They may be constitutional only if accompanied by the procedural safeguards necessary “to obviate the dangers of a censorship system.” …

The Guidelines contain neither of these procedural safeguards. First, there are no “narrowly drawn, reasonable and definite standards” guiding the hands of the city’s sound technician as he mixes the sound. The Guidelines state that the goals are “to provide the best sound for all events” and to “insure appropriate sound quality balanced with respect for nearby residential neighbors and the mayorally decreed quiet zone.” But the city never defines “best sound” or “appropriate sound quality.” The bandshell program director-manager testified that quality of sound refers to tone and to sound mix. Yet questions of tone and mix cannot be separated from musical expression as a whole… Because judgments that sounds are too loud, noise-like, or discordant can mask disapproval of the music itself, government control of the sound mixing equipment necessitates detailed and neutral standards…

Alternatively, the majority finds a limitation in the city’s practice of deferring to the sponsor with respect to sound mix, and of conferring “with the sponsor if any questions of excessive sound arise before taking any corrective action.” A promise to consult, however, does not provide the detailed “neutral criteria” necessary to prevent future abuses of discretion…

Second, even if there were narrowly drawn guidelines limiting the city’s discretion, the Guidelines would be fundamentally flawed. For the requirement that there be detailed standards is of value only so far as there is a judicial mechanism to enforce them. Here, that necessary safeguard is absent… During the performance itself, the technician makes hundreds of decisions affecting the mix and volume of sound. The music is played immediately after each decision. There is, of course, no time for appeal in the middle of a song. As a result, no court ever determines that a particular restraint on speech is necessary… With neither prompt judicial review nor detailed and neutral standards fettering the city’s discretion to restrict protected speech, the Guidelines constitute a quintessential, and unconstitutional, prior restraint.

III

Today’s decision has significance far beyond the world of rock music. Government no longer need balance the effectiveness of regulation with the burdens on free speech. After today, government need only assert that it is most effective to control speech in advance of its expression. Because such a result eviscerates the First Amendment, I dissent.

City of Ladue v. Gilleo

512 U.S. 43 (1994)

Facts: Gilleo owned a single-family home with a front lawn. She placed anti-Persian Gulf War signs on her lawn. After one sign was stolen, she contacted the police, who informed her that such signs were prohibited in Ladue. She sued, arguing this determination violated the First Amendment.

Ladue (a wealthy suburb of St. Louis) responded to the lawsuit by repealing its prior ordinance on signs and writing one which largely banned yard signs with ten exemptions (such as for sale signs, safety hazards, residence ID signs, gasoline for sale, etc.). Ladue argued its government interest was minimizing “visual clutter.” Gilleo replaced her yard sign with a window sign but was informed this too violated the new ordinance.

Question: Did the Ladue ordinance violate the First Amendment?

Vote: Yes, 9-0

For the Court: Justice Stevens

Concurring opinion: Justice O’Connor

JUSTICE STEVENS delivered the opinion of the Court.

An ordinance of the City of Ladue prohibits homeowners from displaying any signs on their property except “residence identification” signs, “for sale” signs, and signs warning of safety hazards. The ordinance permits commercial establishments, churches, and nonprofit organizations to erect certain signs that are not allowed at residences. The question presented is whether the ordinance violates a Ladue resident’s right to free speech.

I

Respondent Margaret P. Gilleo owns one of the 57 single-family homes in the Willow Hill subdivision of Ladue. On December 8, 1990, she placed on her front lawn a 24-by-36-inch sign printed with the words, “Say No to War in the Persian Gulf, Call Congress Now.” After that sign disappeared, Gilleo put up another but it was knocked to the ground. When Gilleo reported these incidents to the police, they advised her that such signs were prohibited in Ladue. The city council denied her petition for a variance. Gilleo then filed this action under 42 U. S. C. § 1983 against the City, the mayor, and members of the city council …

The District Court issued a preliminary injunction against enforcement of the ordinance… Gilleo then placed an 8.5-by-11-inch sign in the second-story window of her home stating, “For Peace in the Gulf.” The Ladue City Council responded to the injunction by repealing its ordinance and enacting a replacement. Like its predecessor, the new ordinance contains a general prohibition of “signs” and defines that term broadly. The ordinance prohibits all signs except those that fall within 1 of 10 exemptions. Thus, “residential identification signs” no larger than one square foot are allowed, as are signs advertising “that the property is for sale, lease or exchange” and identifying the owner or agent. Also exempted are signs “for churches, religious institutions, and schools,” “[c]ommercial signs in commercially zoned or industrial zoned districts,” and on-site signs advertising “gasoline filling stations.” Unlike its predecessor, the new ordinance contains a lengthy “Declaration of Findings, Policies, Interests, and Purposes,” part of which recites that the:

proliferation of an unlimited number of signs in private, residential, commercial, industrial, and public areas of the City of Ladue would create ugliness, visual blight and clutter, tarnish the natural beauty of the landscape as well as the residential and commercial architecture, impair property values, substantially impinge upon the privacy and special ambience of the community, and may cause safety and traffic hazards to motorists, pedestrians, and children.

Gilleo amended her complaint to challenge the new ordinance, which explicitly prohibits window signs like hers. The District Court held the ordinance unconstitutional, and the Court of Appeals affirmed [holding] … the ordinance invalid as a “content based” regulation because the City treated commercial speech more favorably than noncommercial speech and favored some kinds of noncommercial speech over others. Acknowledging that “Ladue’s interests in enacting its ordinance are substantial,” the Court of Appeals nevertheless concluded that those interests were “not sufficiently ‘compelling’ to support a content-based restriction.”

We granted the City of Ladue’s petition for certiorari, and now affirm.

II

While signs are a form of expression protected by the Free Speech Clause, they pose distinctive problems that are subject to municipalities’ police powers. Unlike oral speech, signs take up space and may obstruct views, distract motorists, displace alternative uses for land, and pose other problems that legitimately call for regulation. It is common ground that governments may regulate the physical characteristics of signs-just as they can, within reasonable bounds and absent censorial purpose, regulate audible expression in its capacity as noise. However, because regulation of a medium inevitably affects communication itself, it is not surprising that we have had occasion to review the constitutionality of municipal ordinances prohibiting the display of certain outdoor signs…

[Our] decisions identify two analytically distinct grounds for challenging the constitutionality of a municipal ordinance regulating the display of signs. One is that the measure in effect restricts too little speech because its exemptions discriminate on the basis of the signs’ messages. Alternatively, such provisions are subject to attack on the ground that they simply prohibit too much protected speech. The City of Ladue contends, first, that the Court of Appeals’ reliance on the former rationale was misplaced because the City’s regulatory purposes are content neutral, and, second, that those purposes justify the comprehensiveness of the sign prohibition. A comment on the former contention will help explain why we ultimately base our decision on a rejection of the latter.

III

While surprising at first glance, the notion that a regulation of speech may be impermissibly underinclusive is firmly grounded in basic First Amendment principles. Thus, an exemption from an otherwise permissible regulation of speech may represent a governmental “attempt to give one side of a debatable public question an advantage in expressing its views to the people.” Alternatively, through the combined operation of a general speech restriction and its exemptions, the government might seek to select the “permissible subjects for public debate” and thereby to “control … the search for political truth.”

The City argues that its sign ordinance implicates neither of these concerns, and that the Court of Appeals therefore erred in demanding a “compelling” justification for the exemptions. The mix of prohibitions and exemptions in the ordinance, Ladue maintains, reflects legitimate differences among the side effects of various kinds of signs…. the permitted signs, unlike the prohibited signs, are unlikely to contribute to the dangers of “unlimited proliferation” associated with categories of signs that are not inherently limited in number. Because only a few residents will need to display “for sale” or “for rent” signs at any given time, permitting one such sign per marketed house does not threaten visual clutter. Because the City has only a few businesses, churches, and schools, the same rationale explains the exemption for on-site commercial and organizational signs. Moreover, some of the exempted categories (e. g., danger signs) respond to unique public needs to permit certain kinds of speech. Even if we assume the validity of these arguments, the exemptions in Ladue’s ordinance nevertheless shed light on the separate question whether the ordinance prohibits too much speech.

In this case, at the very least, the exemptions from Ladue’s ordinance demonstrate that Ladue has concluded that the interest in allowing certain messages to be conveyed by means of residential signs outweighs the City’s esthetic interest in eliminating outdoor signs. Ladue has not imposed a flat ban on signs because it has determined that at least some of them are too vital to be banned…

Under the Court of Appeals’ content discrimination rationale, the City might theoretically remove the defects in its ordinance by simply repealing all of the exemptions. If, however, the ordinance is also vulnerable because it prohibits too much speech, that solution would not save it. Moreover, if the prohibitions in Ladue’s ordinance are impermissible, resting our decision on its exemptions would afford scant relief for respondent Gilleo. She is primarily concerned not with the scope of the exemptions available in other locations, such as commercial areas and on church property; she asserts a constitutional right to display an antiwar sign at her own home… In examining the propriety of Ladue’s near total prohibition of residential signs, we will assume, arguendo, the validity of the City’s submission that the various exemptions are free of impermissible content or viewpoint discrimination.

IV

… Ladue’s sign ordinance is supported principally by the City’s interest in minimizing the visual clutter associated with signs, an interest that is concededly valid but certainly [not] compelling…

Gilleo and other residents of Ladue are forbidden to display virtually any “sign” on their property. The ordinance defines that term sweepingly…

Ladue has almost completely foreclosed a venerable means of communication that is both unique and important. It has totally foreclosed that medium to political, religious, or personal messages. Signs that react to a local happening or express a view on a controversial issue both reflect and animate change in the life of a community.

Often placed on lawns or in windows, residential signs play an important part in political campaigns, during which they are displayed to signal the resident’s support for particular candidates, parties, or causes. They may not afford the same opportunities for conveying complex ideas as do other media, but residential signs have long been an important and distinct medium of expression.

Our prior decisions have voiced particular concern with laws that foreclose an entire medium of expression. Thus, we have held invalid ordinances that completely banned the distribution of pamphlets within the municipality, handbills on the public streets, the door-to-door distribution of literature, and live entertainment. Although prohibitions foreclosing entire media may be completely free of content or viewpoint discrimination, the danger they pose to the freedom of speech is readily apparent-by eliminating a common means of speaking, such measures can suppress too much speech.

Ladue contends, however, that its ordinance is a mere regulation of the “time, place, or manner” of speech because residents remain free to convey their desired messages by other means, such as hand-held signs, “letters, handbills, flyers, telephone calls, newspaper advertisements, bumper stickers, speeches, and neighborhood or community meetings.” However, even regulations that do not foreclose an entire medium of expression, but merely shift the time, place, or manner of its use, must “leave open ample alternative channels for communication.” In this case, we are not persuaded that adequate substitutes exist for the important medium of speech that Ladue has closed off.

Displaying a sign from one’s own residence often carries a message quite distinct from placing the same sign someplace else, or conveying the same text or picture by other means. Precisely because of their location, such signs provide information about the identity of the “speaker.” As an early and eminent student of rhetoric observed, the identity of the speaker is an important component of many attempts to persuade. A sign advocating “Peace in the Gulf” in the front lawn of a retired general or decorated war veteran may provoke a different reaction than the same sign in a 10-year old child’s bedroom window or the same message on a bumper sticker of a passing automobile. An espousal of socialism may carry different implications when displayed on the grounds of a stately mansion than when pasted on a factory wall or an ambulatory sandwich board.

Residential signs are an unusually cheap and convenient form of communication. Especially for persons of modest means or limited mobility, a yard or window sign may have no practical substitute. Even for the affluent, the added costs in money or time of taking out a newspaper advertisement, handing out leaflets on the street, or standing in front of one’s house with a hand-held sign may make the difference between participating and not participating in some public debate. Furthermore, a person who puts up a sign at her residence often intends to reach neighbors, an audience that could not be reached nearly as well by other means…

Counsel observed that the ordinance does not restrict flags of any stripe, including flags bearing written messages. Even assuming that flags are nearly as affordable and legible as signs, we do not think the mere possibility that another medium could be used in an unconventional manner to carry the same messages alters the fact that Ladue has banned a distinct and traditionally important medium of expression.

A special respect for individual liberty in the home has long been part of our culture and our law; that principle has special resonance when the government seeks to constrain a person’s ability to speak there. Most Americans would be understandably dismayed, given that tradition, to learn that it was illegal to display from their window an 8-by-11-inch sign expressing their political views. Whereas the government’s need to mediate among various competing uses, including expressive ones, for public streets and facilities is constant and unavoidable, its need to regulate temperate speech from the home is surely much less pressing.

Our decision that Ladue’s ban on almost all residential signs violates the First Amendment by no means leaves the City powerless to address the ills that may be associated with residential signs… We are confident that more temperate measures could in large part satisfy Ladue’s stated regulatory needs without harm to the First Amendment rights of its citizens. As currently framed, however, the ordinance abridges those rights…

JUSTICE O’CONNOR, concurring.

It is unusual for us, when faced with a regulation that on its face draws content distinctions, to “assume, arguendo, the validity of the City’s submission that the various exemptions are free of impermissible content or viewpoint discrimination.” With rare exceptions, content discrimination in regulations of the speech of private citizens on private property or in a traditional public forum is presumptively impermissible, and this presumption is a very strong one. The normal inquiry that our doctrine dictates is, first, to determine whether a regulation is content based or content neutral, and then, based on the answer to that question, to apply the proper level of scrutiny… And it is quite true that regulations are occasionally struck down because of their content-based nature, even though common sense may suggest that they are entirely reasonable. The content distinctions present in this ordinance may, to some, be a good example of this.

But though our rule has flaws, it has substantial merit as well. It is a rule, in an area where fairly precise rules are better than more discretionary and more subjective balancing tests. On a theoretical level, it reflects important insights into the meaning of the free speech principle-for instance, that content-based speech restrictions are especially likely to be improper attempts to value some forms of speech over others, or are particularly susceptible to being used by the government to distort public debate. On a practical level, it has in application generally led to seemingly sensible results. And, perhaps most importantly, no better alternative has yet come to light.

I would have preferred to apply our normal analytical structure in this case, which may well have required us to examine this law with the scrutiny appropriate to content-based regulations. Perhaps this would have forced us to confront some of the difficulties with the existing doctrine; perhaps it would have shown weaknesses in the rule, and led us to modify it to take into account the special factors this case presents. But such reexamination is part of the process by which our rules evolve and improve.

Nonetheless, I join the Court’s opinion, because I agree with its conclusion in Part IV that even if the restriction were content neutral, it would still be invalid, and because I do not think Part III casts any doubt on the propriety of our normal content discrimination inquiry.

The framework developed in these cases remains largely intact today.