Reed v. Town of Gilbert

(Slip Opinion) OCTOBER TERM, 2014 1

Syllabus

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is

being done in connection with this case, at the time the opinion is issued.

The syllabus constitutes no part of the opinion of the Court but has been

prepared by the Reporter of Decisions for the convenience of the reader.

See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.

SUPREME COURT OF THE UNITED STATES

Syllabus

REED ET AL. v. TOWN OF GILBERT, ARIZONA, ET AL.

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR

THE NINTH CIRCUIT

No. 13–502. Argued January 12, 2015—Decided June 18, 2015

Gilbert, Arizona (Town), has a comprehensive code (Sign Code or Code)

that prohibits the display of outdoor signs without a permit, but ex-

empts 23 categories of signs, including three relevant here. “Ideolog-

ical Signs,” defined as signs “communicating a message or ideas” that

do not fit in any other Sign Code category, may be up to 20 square

feet and have no placement or time restrictions. “Political Signs,” de-

fined as signs “designed to influence the outcome of an election,” may

be up to 32 square feet and may only be displayed during an election

season. “Temporary Directional Signs,” defined as signs directing the

public to a church or other “qualifying event,” have even greater re-

strictions: No more than four of the signs, limited to six square feet,

may be on a single property at any time, and signs may be displayed

no more than 12 hours before the “qualifying event” and 1 hour after.

Petitioners, Good News Community Church (Church) and its pas-

tor, Clyde Reed, whose Sunday church services are held at various

temporary locations in and near the Town, posted signs early each

Saturday bearing the Church name and the time and location of the

next service and did not remove the signs until around midday Sun-

day. The Church was cited for exceeding the time limits for display-

ing temporary directional signs and for failing to include an event

date on the signs. Unable to reach an accommodation with the Town,

petitioners filed suit, claiming that the Code abridged their freedom

of speech. The District Court denied their motion for a preliminary

injunction, and the Ninth Circuit affirmed, ultimately concluding

that the Code’s sign categories were content neutral, and that the

Code satisfied the intermediate scrutiny accorded to content-neutral

regulations of speech.

Held: The Sign Code’s provisions are content-based regulations of

2 REED v. TOWN OF GILBERT

Syllabus

speech that do not survive strict scrutiny. Pp. 6–17.

(a) Because content-based laws target speech based on its commu-

nicative content, they are presumptively unconstitutional and may be

justified only if the government proves that they are narrowly tai-

lored to serve compelling state interests. E.g., R. A. V. v. St. Paul,

505 U. S. 377, 395. Speech regulation is content based if a law ap-

plies to particular speech because of the topic discussed or the idea or

message expressed. E.g., Sorrell v. IMS Health, Inc., 564 U. S. ___,

___–___. And courts are required to consider whether a regulation of

speech “on its face” draws distinctions based on the message a speak-

er conveys. Id., at ___. Whether laws define regulated speech by par-

ticular subject matter or by its function or purpose, they are subject

to strict scrutiny. The same is true for laws that, though facially con-

tent neutral, cannot be “ ‘justified without reference to the content of

the regulated speech,’ ” or were adopted by the government “because

of disagreement with the message” conveyed. Ward v. Rock Against

Racism, 491 U. S. 781, 791. Pp. 6–7.

(b) The Sign Code is content based on its face. It defines the cate-

gories of temporary, political, and ideological signs on the basis of

their messages and then subjects each category to different re-

strictions. The restrictions applied thus depend entirely on the sign’s

communicative content. Because the Code, on its face, is a content-

based regulation of speech, there is no need to consider the govern-

ment’s justifications or purposes for enacting the Code to determine

whether it is subject to strict scrutiny. Pp. 7.

(c) None of the Ninth Circuit’s theories for its contrary holding is

persuasive. Its conclusion that the Town’s regulation was not based

on a disagreement with the message conveyed skips the crucial first

step in the content-neutrality analysis: determining whether the law

is content neutral on its face. A law that is content based on its face

is subject to strict scrutiny regardless of the government’s benign mo-

tive, content-neutral justification, or lack of “animus toward the ideas

contained” in the regulated speech. Cincinnati v. Discovery Network,

Inc., 507 U. S. 410, 429. Thus, an innocuous justification cannot

transform a facially content-based law into one that is content neu-

tral. A court must evaluate each question—whether a law is content

based on its face and whether the purpose and justification for the

law are content based—before concluding that a law is content neu-

tral. Ward does not require otherwise, for its framework applies only

to a content-neutral statute.

The Ninth Circuit’s conclusion that the Sign Code does not single

out any idea or viewpoint for discrimination conflates two distinct but

related limitations that the First Amendment places on government

regulation of speech. Government discrimination among viewpoints

Cite as: 576 U. S. ____ (2015) 3

Syllabus

is a “more blatant” and “egregious form of content discrimination,”

Rosenberger v. Rector and Visitors of Univ. of Va., 515 U. S. 819, 829,

but “[t]he First Amendment’s hostility to content-based regulation

[also] extends . . . to prohibition of public discussion of an entire top-

ic,” Consolidated Edison Co. of N. Y. v. Public Serv. Comm’n of N. Y.,

447 U. S. 530, 537. The Sign Code, a paradigmatic example of con-

tent-based discrimination, singles out specific subject matter for dif-

ferential treatment, even if it does not target viewpoints within that

subject matter.

The Ninth Circuit also erred in concluding that the Sign Code was

not content based because it made only speaker-based and event-

based distinctions. The Code’s categories are not speaker-based—the

restrictions for political, ideological, and temporary event signs apply

equally no matter who sponsors them. And even if the sign catego-

ries were speaker based, that would not automatically render the law

content neutral. Rather, “laws favoring some speakers over others

demand strict scrutiny when the legislature’s speaker preference re-

flects a content preference.” Turner Broadcasting System, Inc. v.

FCC, 512 U. S. 622, 658. This same analysis applies to event-based

distinctions. Pp. 8–14.

(d) The Sign Code’s content-based restrictions do not survive strict

scrutiny because the Town has not demonstrated that the Code’s dif-

ferentiation between temporary directional signs and other types of

signs furthers a compelling governmental interest and is narrowly

tailored to that end. See Arizona Free Enterprise Club’s Freedom

Club PAC v. Bennett, 564 U. S. ___, ___. Assuming that the Town

has a compelling interest in preserving its aesthetic appeal and traf-

fic safety, the Code’s distinctions are highly underinclusive. The

Town cannot claim that placing strict limits on temporary directional

signs is necessary to beautify the Town when other types of signs

create the same problem. See Discovery Network, supra, at 425. Nor

has it shown that temporary directional signs pose a greater threat to

public safety than ideological or political signs. Pp. 14–15.

(e) This decision will not prevent governments from enacting effec-

tive sign laws. The Town has ample content-neutral options availa-

ble to resolve problems with safety and aesthetics, including regulat-

ing size, building materials, lighting, moving parts, and portability.

And the Town may be able to forbid postings on public property, so

long as it does so in an evenhanded, content-neutral manner. See

Members of City Council of Los Angeles v. Taxpayers for Vincent, 466

U. S. 789, 817. An ordinance narrowly tailored to the challenges of

protecting the safety of pedestrians, drivers, and passengers—e.g.,

warning signs marking hazards on private property or signs directing

traffic—might also survive strict scrutiny. Pp. 16–17.

4 REED v. TOWN OF GILBERT

Syllabus

707 F. 3d 1057, reversed and remanded.

THOMAS, J., delivered the opinion of the Court, in which ROBERTS,

C. J., and SCALIA, KENNEDY, ALITO, and SOTOMAYOR, JJ., joined. ALITO,

J., filed a concurring opinion, in which KENNEDY and SOTOMAYOR, JJ.,

joined. BREYER, J., filed an opinion concurring in the judgment. KA-

GAN, J., filed an opinion concurring in the judgment, in which GINSBURG

and BREYER, JJ., joined

Cite as: 576 U. S. ____ (2015) 1

Opinion of the Court

NOTICE: This opinion is subject to formal revision before publication in the

preliminary print of the United States Reports. Readers are requested to

notify the Reporter of Decisions, Supreme Court of the United States, Wash-

ington, D. C. 20543, of any typographical or other formal errors, in order

that corrections may be made before the preliminary print goes to press.

SUPREME COURT OF THE UNITED STATES

_________________

No. 13–502

_________________

CLYDE REED, ET AL., PETITIONERS v. TOWN OF

GILBERT, ARIZONA, ET AL.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE NINTH CIRCUIT

[June 18, 2015]

JUSTICE THOMAS delivered the opinion of the Court.

The town of Gilbert, Arizona (or Town), has adopted a

comprehensive code governing the manner in which people

may display outdoor signs. Gilbert, Ariz., Land Develop-

ment Code (Sign Code or Code), ch. 1, §4.402 (2005).1 The

Sign Code identifies various categories of signs based on

the type of information they convey, then subjects each

category to different restrictions. One of the categories is

“Temporary Directional Signs Relating to a Qualifying

Event,” loosely defined as signs directing the public to a

meeting of a nonprofit group. §4.402(P). The Code imposes

more stringent restrictions on these signs than it does

on signs conveying other messages. We hold that these

provisions are content-based regulations of speech that

cannot survive strict scrutiny.

——————

1 The Town’s Sign Code is available online at http://www.gilbertaz.gov/

departments / development - service / planning - development / land -

development-code (as visited June 16, 2015, and available in Clerk of

Court’s case file).

2 REED v. TOWN OF GILBERT

Opinion of the Court

I

A

The Sign Code prohibits the display of outdoor signs

anywhere within the Town without a permit, but it then

exempts 23 categories of signs from that requirement.

These exemptions include everything from bazaar signs to

flying banners. Three categories of exempt signs are

particularly relevant here.

The first is “Ideological Sign[s].” This category includes

any “sign communicating a message or ideas for noncom-

mercial purposes that is not a Construction Sign, Direc-

tional Sign, Temporary Directional Sign Relating to a

Qualifying Event, Political Sign, Garage Sale Sign, or a

sign owned or required by a governmental agency.” Sign

Code, Glossary of General Terms (Glossary), p. 23 (em-

phasis deleted). Of the three categories discussed here,

the Code treats ideological signs most favorably, allowing

them to be up to 20 square feet in area and to be placed in

all “zoning districts” without time limits. §4.402(J).

The second category is “Political Sign[s].” This includes

any “temporary sign designed to influence the outcome of

an election called by a public body.” Glossary 23.2 The

Code treats these signs less favorably than ideological

signs. The Code allows the placement of political signs up

to 16 square feet on residential property and up to 32

square feet on nonresidential property, undeveloped mu-

nicipal property, and “rights-of-way.” §4.402(I).3 These

signs may be displayed up to 60 days before a primary

election and up to 15 days following a general election.

Ibid.

——————

2 A “Temporary Sign” is a “sign not permanently attached to the

ground, a wall or a building, and not designed or intended for perma-

nent display.” Glossary 25.

3 The Code defines “Right-of-Way” as a “strip of publicly owned land

occupied by or planned for a street, utilities, landscaping, sidewalks,

trails, and similar facilities.” Id., at 18.

Cite as: 576 U. S. ____ (2015) 3

Opinion of the Court

The third category is “Temporary Directional Signs

Relating to a Qualifying Event.” This includes any “Tem-

porary Sign intended to direct pedestrians, motorists, and

other passersby to a ‘qualifying event.’ ” Glossary 25

(emphasis deleted). A “qualifying event” is defined as any

“assembly, gathering, activity, or meeting sponsored,

arranged, or promoted by a religious, charitable, commu-

nity service, educational, or other similar non-profit organ-

ization.” Ibid. The Code treats temporary directional

signs even less favorably than political signs.4 Temporary

directional signs may be no larger than six square feet.

§4.402(P). They may be placed on private property or on a

public right-of-way, but no more than four signs may be

placed on a single property at any time. Ibid. And, they

may be displayed no more than 12 hours before the “quali-

fying event” and no more than 1 hour afterward. Ibid.

B

Petitioners Good News Community Church (Church)

and its pastor, Clyde Reed, wish to advertise the time and

location of their Sunday church services. The Church is a

small, cash-strapped entity that owns no building, so it

holds its services at elementary schools or other locations

in or near the Town. In order to inform the public about

its services, which are held in a variety of different loca-

——————

4 The Sign Code has been amended twice during the pendency of this

case. When litigation began in 2007, the Code defined the signs at

issue as “Religious Assembly Temporary Direction Signs.” App. 75.

The Code entirely prohibited placement of those signs in the public

right-of-way, and it forbade posting them in any location for more than

two hours before the religious assembly or more than one hour after-

ward. Id., at 75–76. In 2008, the Town redefined the category as

“Temporary Directional Signs Related to a Qualifying Event,” and it

expanded the time limit to 12 hours before and 1 hour after the “quali-

fying event.” Ibid. In 2011, the Town amended the Code to authorize

placement of temporary directional signs in the public right-of-way.

Id., at 89.

4 REED v. TOWN OF GILBERT

Opinion of the Court

tions, the Church began placing 15 to 20 temporary signs

around the Town, frequently in the public right-of-way

abutting the street. The signs typically displayed the

Church’s name, along with the time and location of the

upcoming service. Church members would post the signs

early in the day on Saturday and then remove them

around midday on Sunday. The display of these signs

requires little money and manpower, and thus has proved

to be an economical and effective way for the Church to let

the community know where its services are being held

each week.

This practice caught the attention of the Town’s Sign

Code compliance manager, who twice cited the Church for

violating the Code. The first citation noted that the

Church exceeded the time limits for displaying its tempo-

rary directional signs. The second citation referred to the

same problem, along with the Church’s failure to include

the date of the event on the signs. Town officials even

confiscated one of the Church’s signs, which Reed had to

retrieve from the municipal offices.

Reed contacted the Sign Code Compliance Department

in an attempt to reach an accommodation. His efforts

proved unsuccessful. The Town’s Code compliance man-

ager informed the Church that there would be “no leni-

ency under the Code” and promised to punish any future

violations.

Shortly thereafter, petitioners filed a complaint in the

United States District Court for the District of Arizona,

arguing that the Sign Code abridged their freedom of

speech in violation of the First and Fourteenth Amend-

ments. The District Court denied the petitioners’ motion

for a preliminary injunction. The Court of Appeals for the

Ninth Circuit affirmed, holding that the Sign Code’s provi-

sion regulating temporary directional signs did not regu-

late speech on the basis of content. 587 F. 3d 966, 979

(2009). It reasoned that, even though an enforcement

Cite as: 576 U. S. ____ (2015) 5

Opinion of the Court

officer would have to read the sign to determine what

provisions of the Sign Code applied to it, the “ ‘kind of

cursory examination’ ” that would be necessary for an

officer to classify it as a temporary directional sign was

“not akin to an officer synthesizing the expressive content

of the sign.” Id., at 978. It then remanded for the District

Court to determine in the first instance whether the Sign

Code’s distinctions among temporary directional signs,

political signs, and ideological signs nevertheless consti-

tuted a content-based regulation of speech.

On remand, the District Court granted summary judg-

ment in favor of the Town. The Court of Appeals again

affirmed, holding that the Code’s sign categories were

content neutral. The court concluded that “the distinc-

tions between Temporary Directional Signs, Ideological

Signs, and Political Signs . . . are based on objective fac-

tors relevant to Gilbert’s creation of the specific exemption

from the permit requirement and do not otherwise consider

the substance of the sign.” 707 F. 3d 1057, 1069 (CA9

2013). Relying on this Court’s decision in Hill v. Colorado,

530 U. S. 703 (2000), the Court of Appeals concluded that

the Sign Code is content neutral. 707 F. 3d, at 1071–1072.

As the court explained, “Gilbert did not adopt its regula-

tion of speech because it disagreed with the message

conveyed” and its “interests in regulat[ing] temporary

signs are unrelated to the content of the sign.” Ibid. Accord-

ingly, the court believed that the Code was “content-

neutral as that term [has been] defined by the Supreme

Court.” Id., at 1071. In light of that determination, it

applied a lower level of scrutiny to the Sign Code and

concluded that the law did not violate the First Amend-

ment. Id., at 1073–1076.

We granted certiorari, 573 U. S. ___ (2014), and now

reverse.

6 REED v. TOWN OF GILBERT

Opinion of the Court

II

A

The First Amendment, applicable to the States through

the Fourteenth Amendment, prohibits the enactment of

laws “abridging the freedom of speech.” U. S. Const.,

Amdt. 1. Under that Clause, a government, including a

municipal government vested with state authority, “has no

power to restrict expression because of its message, its

ideas, its subject matter, or its content.” Police Dept. of

Chicago v. Mosley, 408 U. S. 92, 95 (1972). Content-based

laws—those that target speech based on its communica-

tive content—are presumptively unconstitutional and may

be justified only if the government proves that they are

narrowly tailored to serve compelling state interests.

R. A. V. v. St. Paul, 505 U. S. 377, 395 (1992); Simon &

Schuster, Inc. v. Members of N. Y. State Crime Victims

Bd., 502 U. S. 105, 115, 118 (1991).

Government regulation of speech is content based if a

law applies to particular speech because of the topic dis-

cussed or the idea or message expressed. E.g., Sorrell v.

IMS Health, Inc., 564 U. S. ___, ___–___ (2011) (slip op., at

8–9); Carey v. Brown, 447 U. S. 455, 462 (1980); Mosley,

supra, at 95. This commonsense meaning of the phrase

“content based” requires a court to consider whether a

regulation of speech “on its face” draws distinctions based

on the message a speaker conveys. Sorrell, supra, at ___

(slip op., at 8). Some facial distinctions based on a mes-

sage are obvious, defining regulated speech by particular

subject matter, and others are more subtle, defining regu-

lated speech by its function or purpose. Both are distinc-

tions drawn based on the message a speaker conveys, and,

therefore, are subject to strict scrutiny.

Our precedents have also recognized a separate and

additional category of laws that, though facially content

neutral, will be considered content-based regulations of

speech: laws that cannot be “ ‘justified without reference to

Cite as: 576 U. S. ____ (2015) 7

Opinion of the Court

the content of the regulated speech,’ ” or that were adopted

by the government “because of disagreement with the

message [the speech] conveys,” Ward v. Rock Against

Racism, 491 U. S. 781, 791 (1989). Those laws, like those

that are content based on their face, must also satisfy

strict scrutiny.

B

The Town’s Sign Code is content based on its face. It

defines “Temporary Directional Signs” on the basis of

whether a sign conveys the message of directing the public

to church or some other “qualifying event.” Glossary 25.

It defines “Political Signs” on the basis of whether a sign’s

message is “designed to influence the outcome of an elec-

tion.” Id., at 24. And it defines “Ideological Signs” on the

basis of whether a sign “communicat[es] a message or

ideas” that do not fit within the Code’s other categories.

Id., at 23. It then subjects each of these categories to

different restrictions.

The restrictions in the Sign Code that apply to any

given sign thus depend entirely on the communicative

content of the sign. If a sign informs its reader of the time

and place a book club will discuss John Locke’s Two Trea-

tises of Government, that sign will be treated differently

from a sign expressing the view that one should vote for

one of Locke’s followers in an upcoming election, and both

signs will be treated differently from a sign expressing an

ideological view rooted in Locke’s theory of government.

More to the point, the Church’s signs inviting people to

attend its worship services are treated differently from

signs conveying other types of ideas. On its face, the Sign

Code is a content-based regulation of speech. We thus

have no need to consider the government’s justifications or

purposes for enacting the Code to determine whether it is

subject to strict scrutiny.

8 REED v. TOWN OF GILBERT

Opinion of the Court

C

In reaching the contrary conclusion, the Court of Ap-

peals offered several theories to explain why the Town’s

Sign Code should be deemed content neutral. None is

persuasive.

1

The Court of Appeals first determined that the Sign

Code was content neutral because the Town “did not adopt

its regulation of speech [based on] disagree[ment] with the

message conveyed,” and its justifications for regulating

temporary directional signs were “unrelated to the content

of the sign.” 707 F. 3d, at 1071–1072. In its brief to this

Court, the United States similarly contends that a sign

regulation is content neutral—even if it expressly draws

distinctions based on the sign’s communicative content—if

those distinctions can be “ ‘justified without reference to

the content of the regulated speech.’ ” Brief for United

States as Amicus Curiae 20, 24 (quoting Ward, supra, at

791; emphasis deleted).

But this analysis skips the crucial first step in the

content-neutrality analysis: determining whether the law

is content neutral on its face. A law that is content based

on its face is subject to strict scrutiny regardless of the

government’s benign motive, content-neutral justification,

or lack of “animus toward the ideas contained” in the

regulated speech. Cincinnati v. Discovery Network, Inc.,

507 U. S. 410, 429 (1993). We have thus made clear that

“ ‘[i]llicit legislative intent is not the sine qua non of a

violation of the First Amendment,’ ” and a party opposing

the government “need adduce ‘no evidence of an improper

censorial motive.’ ” Simon & Schuster, supra, at 117.

Although “a content-based purpose may be sufficient in

certain circumstances to show that a regulation is content

based, it is not necessary.” Turner Broadcasting System,

Inc. v. FCC, 512 U. S. 622, 642 (1994). In other words, an

Cite as: 576 U. S. ____ (2015) 9

Opinion of the Court

innocuous justification cannot transform a facially content-

based law into one that is content neutral.

That is why we have repeatedly considered whether a

law is content neutral on its face before turning to the

law’s justification or purpose. See, e.g., Sorrell, supra, at

___–___ (slip op., at 8–9) (statute was content based “on its

face,” and there was also evidence of an impermissible

legislative motive); United States v. Eichman, 496 U. S.

310, 315 (1990) (“Although the [statute] contains no ex-

plicit content-based limitation on the scope of prohibited

conduct, it is nevertheless clear that the Government’s

asserted interest is related to the suppression of free ex-

pression” (internal quotation marks omitted)); Members of

City Council of Los Angeles v. Taxpayers for Vincent, 466

U. S. 789, 804 (1984) (“The text of the ordinance is neu-

tral,” and “there is not even a hint of bias or censorship in

the City’s enactment or enforcement of this ordinance”);

Clark v. Community for Creative Non-Violence, 468 U. S.

288, 293 (1984) (requiring that a facially content-neutral

ban on camping must be “justified without reference to the

content of the regulated speech”); United States v. O’Brien,

391 U. S. 367, 375, 377 (1968) (noting that the statute “on

its face deals with conduct having no connection with

speech,” but examining whether the “the governmental

interest is unrelated to the suppression of free expres-

sion”). Because strict scrutiny applies either when a law

is content based on its face or when the purpose and justi-

fication for the law are content based, a court must evalu-

ate each question before it concludes that the law is con-

tent neutral and thus subject to a lower level of scrutiny.

The Court of Appeals and the United States misunder-

stand our decision in Ward as suggesting that a govern-

ment’s purpose is relevant even when a law is content

based on its face. That is incorrect. Ward had nothing to

say about facially content-based restrictions because it

involved a facially content-neutral ban on the use, in a

10 REED v. TOWN OF GILBERT

Opinion of the Court

city-owned music venue, of sound amplification systems

not provided by the city. 491 U. S., at 787, and n. 2. In

that context, we looked to governmental motive, including

whether the government had regulated speech “because of

disagreement” with its message, and whether the regula-

tion was “ ‘justified without reference to the content of the

speech.’ ” Id., at 791. But Ward’s framework “applies only

if a statute is content neutral.” Hill, 530 U. S., at 766

(KENNEDY, J., dissenting). Its rules thus operate “to pro-

tect speech,” not “to restrict it.” Id., at 765.

The First Amendment requires no less. Innocent mo-

tives do not eliminate the danger of censorship presented

by a facially content-based statute, as future government

officials may one day wield such statutes to suppress

disfavored speech. That is why the First Amendment

expressly targets the operation of the laws—i.e., the

“abridg[ement] of speech”—rather than merely the mo-

tives of those who enacted them. U. S. Const., Amdt. 1.

“ ‘The vice of content-based legislation . . . is not that it is

always used for invidious, thought-control purposes, but

that it lends itself to use for those purposes.’ ” Hill, supra,

at 743 (SCALIA, J., dissenting).

For instance, in NAACP v. Button, 371 U. S. 415 (1963),

the Court encountered a State’s attempt to use a statute

prohibiting “ ‘improper solicitation’ ” by attorneys to outlaw

litigation-related speech of the National Association for

the Advancement of Colored People. Id., at 438. Although

Button predated our more recent formulations of strict

scrutiny, the Court rightly rejected the State’s claim that

its interest in the “regulation of professional conduct”

rendered the statute consistent with the First Amend-

ment, observing that “it is no answer . . . to say . . . that

the purpose of these regulations was merely to insure high

professional standards and not to curtail free expression.”

Id., at 438–439. Likewise, one could easily imagine a Sign

Code compliance manager who disliked the Church’s

Cite as: 576 U. S. ____ (2015) 11

Opinion of the Court

substantive teachings deploying the Sign Code to make it

more difficult for the Church to inform the public of the

location of its services. Accordingly, we have repeatedly

“rejected the argument that ‘discriminatory . . . treatment

is suspect under the First Amendment only when the

legislature intends to suppress certain ideas.’ ” Discovery

Network, 507 U. S., at 429. We do so again today.

2

The Court of Appeals next reasoned that the Sign Code

was content neutral because it “does not mention any idea

or viewpoint, let alone single one out for differential

treatment.” 587 F. 3d, at 977. It reasoned that, for the

purpose of the Code provisions, “[i]t makes no difference

which candidate is supported, who sponsors the event, or

what ideological perspective is asserted.” 707 F. 3d, at

1069.

The Town seizes on this reasoning, insisting that “con-

tent based” is a term of art that “should be applied flexi-

bly” with the goal of protecting “viewpoints and ideas from

government censorship or favoritism.” Brief for Respond-

ents 22. In the Town’s view, a sign regulation that “does

not censor or favor particular viewpoints or ideas” cannot

be content based. Ibid. The Sign Code allegedly passes

this test because its treatment of temporary directional

signs does not raise any concerns that the government is

“endorsing or suppressing ‘ideas or viewpoints,’ ” id., at 27,

and the provisions for political signs and ideological signs

“are neutral as to particular ideas or viewpoints” within

those categories. Id., at 37.

This analysis conflates two distinct but related limita-

tions that the First Amendment places on government

regulation of speech. Government discrimination among

viewpoints—or the regulation of speech based on “the

specific motivating ideology or the opinion or perspective

of the speaker”—is a “more blatant” and “egregious form of

12 REED v. TOWN OF GILBERT

Opinion of the Court

content discrimination.” Rosenberger v. Rector and Visi-

tors of Univ. of Va., 515 U. S. 819, 829 (1995). But it is

well established that “[t]he First Amendment’s hostility to

content-based regulation extends not only to restrictions

on particular viewpoints, but also to prohibition of public

discussion of an entire topic.” Consolidated Edison Co. of

N. Y. v. Public Serv. Comm’n of N. Y., 447 U. S. 530, 537

(1980).

Thus, a speech regulation targeted at specific subject

matter is content based even if it does not discriminate

among viewpoints within that subject matter. Ibid. For

example, a law banning the use of sound trucks for politi-

cal speech—and only political speech—would be a content-

based regulation, even if it imposed no limits on the politi-

cal viewpoints that could be expressed. See Discovery

Network, supra, at 428. The Town’s Sign Code likewise

singles out specific subject matter for differential treat-

ment, even if it does not target viewpoints within that

subject matter. Ideological messages are given more

favorable treatment than messages concerning a political

candidate, which are themselves given more favorable

treatment than messages announcing an assembly of like-

minded individuals. That is a paradigmatic example of

content-based discrimination.

3

Finally, the Court of Appeals characterized the Sign

Code’s distinctions as turning on “ ‘the content-neutral

elements of who is speaking through the sign and whether

and when an event is occurring.’ ” 707 F. 3d, at 1069.

That analysis is mistaken on both factual and legal

grounds.

To start, the Sign Code’s distinctions are not speaker

based. The restrictions for political, ideological, and tem-

porary event signs apply equally no matter who sponsors

them. If a local business, for example, sought to put up

Cite as: 576 U. S. ____ (2015) 13

Opinion of the Court

signs advertising the Church’s meetings, those signs

would be subject to the same limitations as such signs

placed by the Church. And if Reed had decided to dis-

play signs in support of a particular candidate, he could

have made those signs far larger—and kept them up for

far longer—than signs inviting people to attend his

church services. If the Code’s distinctions were truly

speaker based, both types of signs would receive the same

treatment.

In any case, the fact that a distinction is speaker based

does not, as the Court of Appeals seemed to believe, auto-

matically render the distinction content neutral. Because

“[s]peech restrictions based on the identity of the speaker

are all too often simply a means to control content,” Citi-

zens United v. Federal Election Comm’n, 558 U. S. 310,

340 (2010), we have insisted that “laws favoring some

speakers over others demand strict scrutiny when the

legislature’s speaker preference reflects a content prefer-

ence,” Turner, 512 U. S., at 658. Thus, a law limiting the

content of newspapers, but only newspapers, could not

evade strict scrutiny simply because it could be character-

ized as speaker based. Likewise, a content-based law that

restricted the political speech of all corporations would not

become content neutral just because it singled out corpo-

rations as a class of speakers. See Citizens United, supra,

at 340–341. Characterizing a distinction as speaker based

is only the beginning—not the end—of the inquiry.

Nor do the Sign Code’s distinctions hinge on “whether

and when an event is occurring.” The Code does not per-

mit citizens to post signs on any topic whatsoever within a

set period leading up to an election, for example. Instead,

come election time, it requires Town officials to determine

whether a sign is “designed to influence the outcome of an

election” (and thus “political”) or merely “communicating a

message or ideas for noncommercial purposes” (and thus

“ideological”). Glossary 24. That obvious content-based

14 REED v. TOWN OF GILBERT

Opinion of the Court

inquiry does not evade strict scrutiny review simply be-

cause an event (i.e., an election) is involved.

And, just as with speaker-based laws, the fact that a

distinction is event based does not render it content neu-

tral. The Court of Appeals cited no precedent from this

Court supporting its novel theory of an exception from the

content-neutrality requirement for event-based laws. As

we have explained, a speech regulation is content based if

the law applies to particular speech because of the topic

discussed or the idea or message expressed. Supra, at 6.

A regulation that targets a sign because it conveys an idea

about a specific event is no less content based than a

regulation that targets a sign because it conveys some

other idea. Here, the Code singles out signs bearing a

particular message: the time and location of a specific

event. This type of ordinance may seem like a perfectly

rational way to regulate signs, but a clear and firm rule

governing content neutrality is an essential means of

protecting the freedom of speech, even if laws that might

seem “entirely reasonable” will sometimes be “struck down

because of their content-based nature.” City of Ladue v.

Gilleo, 512 U. S. 43, 60 (1994) (O’Connor, J., concurring).

III

Because the Town’s Sign Code imposes content-based

restrictions on speech, those provisions can stand only if

they survive strict scrutiny, “ ‘which requires the Govern-

ment to prove that the restriction furthers a compelling

interest and is narrowly tailored to achieve that interest,’ ”

Arizona Free Enterprise Club’s Freedom Club PAC v.

Bennett, 564 U. S. ___, ___ (2011) (slip op., at 8) (quoting

Citizens United, 558 U. S., at 340). Thus, it is the Town’s

burden to demonstrate that the Code’s differentiation

between temporary directional signs and other types of

signs, such as political signs and ideological signs, furthers

a compelling governmental interest and is narrowly tai-

Cite as: 576 U. S. ____ (2015) 15

Opinion of the Court

lored to that end. See ibid.

The Town cannot do so. It has offered only two govern-

mental interests in support of the distinctions the Sign

Code draws: preserving the Town’s aesthetic appeal and

traffic safety. Assuming for the sake of argument that

those are compelling governmental interests, the Code’s

distinctions fail as hopelessly underinclusive.

Starting with the preservation of aesthetics, temporary

directional signs are “no greater an eyesore,” Discovery

Network, 507 U. S., at 425, than ideological or political

ones. Yet the Code allows unlimited proliferation of larger

ideological signs while strictly limiting the number, size,

and duration of smaller directional ones. The Town can-

not claim that placing strict limits on temporary direc-

tional signs is necessary to beautify the Town while at the

same time allowing unlimited numbers of other types of

signs that create the same problem.

The Town similarly has not shown that limiting tempo-

rary directional signs is necessary to eliminate threats to

traffic safety, but that limiting other types of signs is not.

The Town has offered no reason to believe that directional

signs pose a greater threat to safety than do ideological or

political signs. If anything, a sharply worded ideological

sign seems more likely to distract a driver than a sign

directing the public to a nearby church meeting.

In light of this underinclusiveness, the Town has not

met its burden to prove that its Sign Code is narrowly

tailored to further a compelling government interest.

Because a “ ‘law cannot be regarded as protecting an inter-

est of the highest order, and thus as justifying a re-

striction on truthful speech, when it leaves appreciable

damage to that supposedly vital interest unprohibited,’ ”

Republican Party of Minn. v. White, 536 U. S. 765, 780

(2002), the Sign Code fails strict scrutiny.

16 REED v. TOWN OF GILBERT

Opinion of the Court

IV

Our decision today will not prevent governments from

enacting effective sign laws. The Town asserts that an

“ ‘absolutist’ ” content-neutrality rule would render “virtu-

ally all distinctions in sign laws . . . subject to strict scru-

tiny,” Brief for Respondents 34–35, but that is not the

case. Not “all distinctions” are subject to strict scrutiny,

only content-based ones are. Laws that are content neutral

are instead subject to lesser scrutiny. See Clark, 468

U. S., at 295.

The Town has ample content-neutral options available

to resolve problems with safety and aesthetics. For exam-

ple, its current Code regulates many aspects of signs that

have nothing to do with a sign’s message: size, building

materials, lighting, moving parts, and portability. See,

e.g., §4.402(R). And on public property, the Town may go

a long way toward entirely forbidding the posting of signs,

so long as it does so in an evenhanded, content-neutral

manner. See Taxpayers for Vincent, 466 U. S., at 817

(upholding content-neutral ban against posting signs on

public property). Indeed, some lower courts have long

held that similar content-based sign laws receive strict

scrutiny, but there is no evidence that towns in those

jurisdictions have suffered catastrophic effects. See, e.g.,

Solantic, LLC v. Neptune Beach, 410 F. 3d 1250, 1264–

1269 (CA11 2005) (sign categories similar to the town of

Gilbert’s were content based and subject to strict scru-

tiny); Matthews v. Needham, 764 F. 2d 58, 59–60 (CA1

1985) (law banning political signs but not commercial

signs was content based and subject to strict scrutiny).

We acknowledge that a city might reasonably view the

general regulation of signs as necessary because signs

“take up space and may obstruct views, distract motorists,

displace alternative uses for land, and pose other problems

that legitimately call for regulation.” City of Ladue, 512

U. S., at 48. At the same time, the presence of certain

Cite as: 576 U. S. ____ (2015) 17

Opinion of the Court

signs may be essential, both for vehicles and pedestrians,

to guide traffic or to identify hazards and ensure safety. A

sign ordinance narrowly tailored to the challenges of

protecting the safety of pedestrians, drivers, and passen-

gers—such as warning signs marking hazards on private

property, signs directing traffic, or street numbers associ-

ated with private houses—well might survive strict scru-

tiny. The signs at issue in this case, including political

and ideological signs and signs for events, are far removed

from those purposes. As discussed above, they are facially

content based and are neither justified by traditional

safety concerns nor narrowly tailored.

* * *

We reverse the judgment of the Court of Appeals and

remand the case for proceedings consistent with this

opinion.

It is so ordered.

Cite as: 576 U. S. ____ (2015) 1

ALITO, J., concurring

SUPREME COURT OF THE UNITED STATES

_________________

No. 13–502

_________________

CLYDE REED, ET AL., PETITIONERS v. TOWN OF

GILBERT, ARIZONA, ET AL.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE NINTH CIRCUIT

[June 18, 2015]

JUSTICE ALITO, with whom JUSTICE KENNEDY and

JUSTICE SOTOMAYOR join, concurring.

I join the opinion of the Court but add a few words of

further explanation.

As the Court holds, what we have termed “content-

based” laws must satisfy strict scrutiny. Content-based

laws merit this protection because they present, albeit

sometimes in a subtler form, the same dangers as laws

that regulate speech based on viewpoint. Limiting speech

based on its “topic” or “subject” favors those who do not

want to disturb the status quo. Such regulations may

interfere with democratic self-government and the search

for truth. See Consolidated Edison Co. of N. Y. v. Public

Serv. Comm’n of N. Y., 447 U. S. 530, 537 (1980).

As the Court shows, the regulations at issue in this case

are replete with content-based distinctions, and as a result

they must satisfy strict scrutiny. This does not mean,

however, that municipalities are powerless to enact and

enforce reasonable sign regulations. I will not attempt to

provide anything like a comprehensive list, but here are

some rules that would not be content based:

Rules regulating the size of signs. These rules may

distinguish among signs based on any content-neutral

criteria, including any relevant criteria listed below.

Rules regulating the locations in which signs may be

2 REED v. TOWN OF GILBERT

ALITO, J., concurring

placed. These rules may distinguish between free-

standing signs and those attached to buildings.

Rules distinguishing between lighted and unlighted

signs.

Rules distinguishing between signs with fixed messages

and electronic signs with messages that change.

Rules that distinguish between the placement of signs

on private and public property.

Rules distinguishing between the placement of signs on

commercial and residential property.

Rules distinguishing between on-premises and off-

premises signs.

Rules restricting the total number of signs allowed per

mile of roadway.

Rules imposing time restrictions on signs advertising a

one-time event. Rules of this nature do not discriminate

based on topic or subject and are akin to rules restricting

the times within which oral speech or music is allowed.*

In addition to regulating signs put up by private actors,

government entities may also erect their own signs con-

sistent with the principles that allow governmental

speech. See Pleasant Grove City v. Summum, 555 U. S.

460, 467–469 (2009). They may put up all manner of signs

to promote safety, as well as directional signs and signs

pointing out historic sites and scenic spots.

Properly understood, today’s decision will not prevent

cities from regulating signs in a way that fully protects

public safety and serves legitimate esthetic objectives.

——————

* Of course, content-neutral restrictions on speech are not necessarily

consistent with the First Amendment. Time, place, and manner

restrictions “must be narrowly tailored to serve the government’s

legitimate, content-neutral interests.” Ward v. Rock Against Racism,

491 U. S. 781, 798 (1989). But they need not meet the high standard

imposed on viewpoint- and content-based restrictions.

Cite as: 576 U. S. ____ (2015) 1

BREYER, J., concurring in judgment

SUPREME COURT OF THE UNITED STATES

_________________

No. 13–502

_________________

CLYDE REED, ET AL., PETITIONERS v. TOWN OF

GILBERT, ARIZONA, ET AL.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE NINTH CIRCUIT

[June 18, 2015]

JUSTICE BREYER, concurring in the judgment.

I join JUSTICE KAGAN’s separate opinion. Like JUSTICE

KAGAN I believe that categories alone cannot satisfactorily

resolve the legal problem before us. The First Amendment

requires greater judicial sensitivity both to the Amend-

ment’s expressive objectives and to the public’s legitimate

need for regulation than a simple recitation of categories,

such as “content discrimination” and “strict scrutiny,”

would permit. In my view, the category “content discrimi-

nation” is better considered in many contexts, including

here, as a rule of thumb, rather than as an automatic

“strict scrutiny” trigger, leading to almost certain legal

condemnation.

To use content discrimination to trigger strict scrutiny

sometimes makes perfect sense. There are cases in which

the Court has found content discrimination an unconstitu-

tional method for suppressing a viewpoint. E.g., Rosen-

berger v. Rector and Visitors of Univ. of Va., 515 U. S. 819,

828–829 (1995); see also Boos v. Barry, 485 U. S. 312, 318–

319 (1988) (plurality opinion) (applying strict scrutiny

where the line between subject matter and viewpoint was

not obvious). And there are cases where the Court has

found content discrimination to reveal that rules govern-

ing a traditional public forum are, in fact, not a neutral

way of fairly managing the forum in the interest of all

2 REED v. TOWN OF GILBERT

BREYER, J., concurring in judgment

speakers. Police Dept. of Chicago v. Mosley, 408 U. S. 92,

96 (1972) (“Once a forum is opened up to assembly or

speaking by some groups, government may not prohibit

others from assembling or speaking on the basis of what

they intend to say”). In these types of cases, strict scru-

tiny is often appropriate, and content discrimination has

thus served a useful purpose.

But content discrimination, while helping courts to

identify unconstitutional suppression of expression, can-

not and should not always trigger strict scrutiny. To say

that it is not an automatic “strict scrutiny” trigger is not to

argue against that concept’s use. I readily concede, for

example, that content discrimination, as a conceptual tool,

can sometimes reveal weaknesses in the government’s

rationale for a rule that limits speech. If, for example, a

city looks to litter prevention as the rationale for a prohi-

bition against placing newsracks dispensing free adver-

tisements on public property, why does it exempt other

newsracks causing similar litter? Cf. Cincinnati v. Dis-

covery Network, Inc., 507 U. S. 410 (1993). I also concede

that, whenever government disfavors one kind of speech,

it places that speech at a disadvantage, potentially inter-

fering with the free marketplace of ideas and with an

individual’s ability to express thoughts and ideas that can

help that individual determine the kind of society in which

he wishes to live, help shape that society, and help define

his place within it.

Nonetheless, in these latter instances to use the pres-

ence of content discrimination automatically to trigger

strict scrutiny and thereby call into play a strong pre-

sumption against constitutionality goes too far. That is

because virtually all government activities involve speech,

many of which involve the regulation of speech. Regula-

tory programs almost always require content discrimination.

And to hold that such content discrimination triggers

strict scrutiny is to write a recipe for judicial management

Cite as: 576 U. S. ____ (2015) 3

BREYER, J., concurring in judgment

of ordinary government regulatory activity.

Consider a few examples of speech regulated by gov-

ernment that inevitably involve content discrimination,

but where a strong presumption against constitutionality

has no place. Consider governmental regulation of securi-

ties, e.g., 15 U. S. C. §78l (requirements for content that

must be included in a registration statement); of energy

conservation labeling-practices, e.g., 42 U. S. C. §6294

(requirements for content that must be included on labels

of certain consumer electronics); of prescription drugs, e.g.,

21 U. S. C. §353(b)(4)(A) (requiring a prescription drug

label to bear the symbol “Rx only”); of doctor-patient confi-

dentiality, e.g., 38 U. S. C. §7332 (requiring confidentiality

of certain medical records, but allowing a physician to

disclose that the patient has HIV to the patient’s spouse or

sexual partner); of income tax statements, e.g., 26 U. S. C.

§6039F (requiring taxpayers to furnish information about

foreign gifts received if the aggregate amount exceeds

$10,000); of commercial airplane briefings, e.g., 14 CFR

§136.7 (2015) (requiring pilots to ensure that each passen-

ger has been briefed on flight procedures, such as seatbelt

fastening); of signs at petting zoos, e.g., N. Y. Gen. Bus.

Law Ann. §399–ff(3) (West Cum. Supp. 2015) (requiring

petting zoos to post a sign at every exit “ ‘strongly recom-

mend[ing] that persons wash their hands upon exiting the

petting zoo area’ ”); and so on.

Nor can the majority avoid the application of strict

scrutiny to all sorts of justifiable governmental regulations

by relying on this Court’s many subcategories and excep-

tions to the rule. The Court has said, for example, that we

should apply less strict standards to “commercial speech.”

Central Hudson Gas & Elec. Corp. v. Public Service

Comm’n of N. Y., 447 U. S. 557, 562–563 (1980). But

I have great concern that many justifiable instances

of “content-based” regulation are noncommercial. And,

worse than that, the Court has applied the heightened

4 REED v. TOWN OF GILBERT

BREYER, J., concurring in judgment

“strict scrutiny” standard even in cases where the less

stringent “commercial speech” standard was appropriate.

See Sorrell v. IMS Health Inc., 564 U. S. ___, ___ (2011)

(BREYER, J., dissenting) (slip op., at ___ ). The Court has

also said that “government speech” escapes First Amend-

ment strictures. See Rust v. Sullivan, 500 U. S. 173, 193–

194 (1991). But regulated speech is typically private

speech, not government speech. Further, the Court has

said that, “[w]hen the basis for the content discrimination

consists entirely of the very reason the entire class of

speech at issue is proscribable, no significant danger of

idea or viewpoint discrimination exists.” R. A. V. v.

St. Paul, 505 U. S. 377, 388 (1992). But this exception

accounts for only a few of the instances in which content

discrimination is readily justifiable.

I recognize that the Court could escape the problem by

watering down the force of the presumption against con-

stitutionality that “strict scrutiny” normally carries with

it. But, in my view, doing so will weaken the First

Amendment’s protection in instances where “strict scru-

tiny” should apply in full force.

The better approach is to generally treat content dis-

crimination as a strong reason weighing against the con-

stitutionality of a rule where a traditional public forum, or

where viewpoint discrimination, is threatened, but else-

where treat it as a rule of thumb, finding it a helpful, but

not determinative legal tool, in an appropriate case, to

determine the strength of a justification. I would use

content discrimination as a supplement to a more basic

analysis, which, tracking most of our First Amendment

cases, asks whether the regulation at issue works harm to

First Amendment interests that is disproportionate in

light of the relevant regulatory objectives. Answering this

question requires examining the seriousness of the harm

to speech, the importance of the countervailing objectives,

the extent to which the law will achieve those objectives,

Cite as: 576 U. S. ____ (2015) 5

BREYER, J., concurring in judgment

and whether there are other, less restrictive ways of doing

so. See, e.g., United States v. Alvarez, 567 U. S. ___, ___–

___ (2012) (BREYER, J., concurring in judgment) (slip op.,

at 1–3); Nixon v. Shrink Missouri Government PAC, 528

U. S. 377, 400–403 (2000) (BREYER, J., concurring). Ad-

mittedly, this approach does not have the simplicity of a

mechanical use of categories. But it does permit the gov-

ernment to regulate speech in numerous instances where

the voters have authorized the government to regulate

and where courts should hesitate to substitute judicial

judgment for that of administrators.

Here, regulation of signage along the roadside, for pur-

poses of safety and beautification is at issue. There is no

traditional public forum nor do I find any general effort to

censor a particular viewpoint. Consequently, the specific

regulation at issue does not warrant “strict scrutiny.”

Nonetheless, for the reasons that JUSTICE KAGAN sets

forth, I believe that the Town of Gilbert’s regulatory rules

violate the First Amendment. I consequently concur in

the Court’s judgment only.

Cite as: 576 U. S. ____ (2015) 1

KAGAN, J., concurring in judgment

SUPREME COURT OF THE UNITED STATES

_________________

No. 13–502

_________________

CLYDE REED, ET AL., PETITIONERS v. TOWN OF

GILBERT, ARIZONA, ET AL.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE NINTH CIRCUIT

[June 18, 2015]

JUSTICE KAGAN, with whom JUSTICE GINSBURG and

JUSTICE BREYER join, concurring in the judgment.

Countless cities and towns across America have adopted

ordinances regulating the posting of signs, while exempt-

ing certain categories of signs based on their subject mat-

ter. For example, some municipalities generally prohibit

illuminated signs in residential neighborhoods, but lift

that ban for signs that identify the address of a home or

the name of its owner or occupant. See, e.g., City of Truth

or Consequences, N. M., Code of Ordinances, ch. 16, Art.

XIII, §§11–13–2.3, 11–13–2.9(H)(4) (2014). In other mu-

nicipalities, safety signs such as “Blind Pedestrian Cross-

ing” and “Hidden Driveway” can be posted without a

permit, even as other permanent signs require one. See,

e.g., Code of Athens-Clarke County, Ga., Pt. III, §7–4–7(1)

(1993). Elsewhere, historic site markers—for example,

“George Washington Slept Here”—are also exempt from

general regulations. See, e.g., Dover, Del., Code of Ordi-

nances, Pt. II, App. B, Art. 5, §4.5(F) (2012). And simi-

larly, the federal Highway Beautification Act limits signs

along interstate highways unless, for instance, they direct

travelers to “scenic and historical attractions” or advertise

free coffee. See 23 U. S. C. §§131(b), (c)(1), (c)(5).

Given the Court’s analysis, many sign ordinances of that

kind are now in jeopardy. See ante, at 14 (acknowledging

2 REED v. TOWN OF GILBERT

KAGAN, J., concurring in judgment

that “entirely reasonable” sign laws “will sometimes be

struck down” under its approach (internal quotation

marks omitted)). Says the majority: When laws “single[ ]

out specific subject matter,” they are “facially content

based”; and when they are facially content based, they are

automatically subject to strict scrutiny. Ante, at 12, 16–

17. And although the majority holds out hope that some

sign laws with subject-matter exemptions “might survive”

that stringent review, ante, at 17, the likelihood is that

most will be struck down. After all, it is the “rare case[] in

which a speech restriction withstands strict scrutiny.”

Williams-Yulee v. Florida Bar, 575 U. S. ___, ___ (2015)

(slip op., at 9). To clear that high bar, the government

must show that a content-based distinction “is necessary

to serve a compelling state interest and is narrowly drawn

to achieve that end.” Arkansas Writers’ Project, Inc. v.

Ragland, 481 U. S. 221, 231 (1987). So on the majority’s

view, courts would have to determine that a town has a

compelling interest in informing passersby where George

Washington slept. And likewise, courts would have to find

that a town has no other way to prevent hidden-driveway

mishaps than by specially treating hidden-driveway signs.

(Well-placed speed bumps? Lower speed limits? Or how

about just a ban on hidden driveways?) The conse-

quence—unless courts water down strict scrutiny to some-

thing unrecognizable—is that our communities will find

themselves in an unenviable bind: They will have to either

repeal the exemptions that allow for helpful signs on

streets and sidewalks, or else lift their sign restrictions

altogether and resign themselves to the resulting clutter.*

——————

* Even in trying (commendably) to limit today’s decision, JUSTICE

ALITO’s concurrence highlights its far-reaching effects. According to

JUSTICE ALITO, the majority does not subject to strict scrutiny regula-

tions of “signs advertising a one-time event.” Ante, at 2 (ALITO, J.,

concurring). But of course it does. On the majority’s view, a law with

an exception for such signs “singles out specific subject matter for

Cite as: 576 U. S. ____ (2015) 3

KAGAN, J., concurring in judgment

Although the majority insists that applying strict scru-

tiny to all such ordinances is “essential” to protecting First

Amendment freedoms, ante, at 14, I find it challenging to

understand why that is so. This Court’s decisions articu-

late two important and related reasons for subjecting

content-based speech regulations to the most exacting

standard of review. The first is “to preserve an uninhib-

ited marketplace of ideas in which truth will ultimately

prevail.” McCullen v. Coakley, 573 U. S. ___, ___–___

(2014) (slip op., at 8–9) (internal quotation marks omit-

ted). The second is to ensure that the government has not

regulated speech “based on hostility—or favoritism—

towards the underlying message expressed.” R. A. V. v.

St. Paul, 505 U. S. 377, 386 (1992). Yet the subject-matter

exemptions included in many sign ordinances do not im-

plicate those concerns. Allowing residents, say, to install a

light bulb over “name and address” signs but no others

does not distort the marketplace of ideas. Nor does that

different treatment give rise to an inference of impermis-

sible government motive.

We apply strict scrutiny to facially content-based regu-

lations of speech, in keeping with the rationales just de-

scribed, when there is any “realistic possibility that official

suppression of ideas is afoot.” Davenport v. Washington

Ed. Assn., 551 U. S. 177, 189 (2007) (quoting R. A. V., 505

U. S., at 390). That is always the case when the regula-

tion facially differentiates on the basis of viewpoint. See

Rosenberger v. Rector and Visitors of Univ. of Va., 515

U. S. 819, 829 (1995). It is also the case (except in non-

public or limited public forums) when a law restricts “dis-

cussion of an entire topic” in public debate. Consolidated

——————

differential treatment” and “defin[es] regulated speech by particular

subject matter.” Ante, at 6, 12 (majority opinion). Indeed, the precise

reason the majority applies strict scrutiny here is that “the Code

singles out signs bearing a particular message: the time and location of

a specific event.” Ante, at 14.

4 REED v. TOWN OF GILBERT

KAGAN, J., concurring in judgment

Edison Co. of N. Y. v. Public Serv. Comm’n of N. Y., 447

U. S. 530, 537, 539–540 (1980) (invalidating a limitation

on speech about nuclear power). We have stated that “[i]f

the marketplace of ideas is to remain free and open, gov-

ernments must not be allowed to choose ‘which issues are

worth discussing or debating.’ ” Id., at 537–538 (quoting

Police Dept. of Chicago v. Mosley, 408 U. S. 92, 96 (1972)).

And we have recognized that such subject-matter re-

strictions, even though viewpoint-neutral on their face,

may “suggest[ ] an attempt to give one side of a debatable

public question an advantage in expressing its views to

the people.” First Nat. Bank of Boston v. Bellotti, 435

U. S. 765, 785 (1978); accord, ante, at 1 (ALITO, J., concur-

ring) (limiting all speech on one topic “favors those who do

not want to disturb the status quo”). Subject-matter

regulation, in other words, may have the intent or effect of

favoring some ideas over others. When that is realistically

possible—when the restriction “raises the specter that the

Government may effectively drive certain ideas or view-

points from the marketplace”—we insist that the law pass

the most demanding constitutional test. R. A. V., 505

U. S., at 387 (quoting Simon & Schuster, Inc. v. Members

of N. Y. State Crime Victims Bd., 502 U. S. 105, 116

(1991)).

But when that is not realistically possible, we may do

well to relax our guard so that “entirely reasonable” laws

imperiled by strict scrutiny can survive. Ante, at 14. This

point is by no means new. Our concern with content-

based regulation arises from the fear that the government

will skew the public’s debate of ideas—so when “that risk

is inconsequential, . . . strict scrutiny is unwarranted.”

Davenport, 551 U. S., at 188; see R. A. V., 505 U. S., at 388

(approving certain content-based distinctions when there

is “no significant danger of idea or viewpoint discrimina-

tion”). To do its intended work, of course, the category of

content-based regulation triggering strict scrutiny must

Cite as: 576 U. S. ____ (2015) 5

KAGAN, J., concurring in judgment

sweep more broadly than the actual harm; that category

exists to create a buffer zone guaranteeing that the gov-

ernment cannot favor or disfavor certain viewpoints. But

that buffer zone need not extend forever. We can adminis-

ter our content-regulation doctrine with a dose of common

sense, so as to leave standing laws that in no way impli-

cate its intended function.

And indeed we have done just that: Our cases have been

far less rigid than the majority admits in applying strict

scrutiny to facially content-based laws—including in cases

just like this one. See Davenport, 551 U. S., at 188 (noting

that “we have identified numerous situations in which

[the] risk” attached to content-based laws is “attenuated”).

In Members of City Council of Los Angeles v. Taxpayers for

Vincent, 466 U. S. 789 (1984), the Court declined to apply

strict scrutiny to a municipal ordinance that exempted

address numbers and markers commemorating “historical,

cultural, or artistic event[s]” from a generally applicable

limit on sidewalk signs. Id., at 792, n. 1 (listing exemp-

tions); see id., at 804–810 (upholding ordinance under

intermediate scrutiny). After all, we explained, the law’s

enactment and enforcement revealed “not even a hint of

bias or censorship.” Id., at 804; see also Renton v. Play-

time Theatres, Inc., 475 U. S. 41, 48 (1986) (applying

intermediate scrutiny to a zoning law that facially distin-

guished among movie theaters based on content because it

was “designed to prevent crime, protect the city’s retail

trade, [and] maintain property values . . . , not to suppress

the expression of unpopular views”). And another decision

involving a similar law provides an alternative model. In

City of Ladue v. Gilleo, 512 U. S. 43 (1994), the Court

assumed arguendo that a sign ordinance’s exceptions for

address signs, safety signs, and for-sale signs in residen-

tial areas did not trigger strict scrutiny. See id., at 46–47,

and n. 6 (listing exemptions); id., at 53 (noting this as-

sumption). We did not need to, and so did not, decide the

6 REED v. TOWN OF GILBERT

KAGAN, J., concurring in judgment

level-of-scrutiny question because the law’s breadth made

it unconstitutional under any standard.

The majority could easily have taken Ladue’s tack here.

The Town of Gilbert’s defense of its sign ordinance—most

notably, the law’s distinctions between directional signs

and others—does not pass strict scrutiny, or intermediate

scrutiny, or even the laugh test. See ante, at 14–15 (dis-

cussing those distinctions). The Town, for example, pro-

vides no reason at all for prohibiting more than four direc-

tional signs on a property while placing no limits on the

number of other types of signs. See Gilbert, Ariz., Land

Development Code, ch. I, §§4.402(J), (P)(2) (2014). Simi-

larly, the Town offers no coherent justification for restrict-

ing the size of directional signs to 6 square feet while

allowing other signs to reach 20 square feet. See

§§4.402(J), (P)(1). The best the Town could come up with

at oral argument was that directional signs “need to be

smaller because they need to guide travelers along a

route.” Tr. of Oral Arg. 40. Why exactly a smaller sign

better helps travelers get to where they are going is left a

mystery. The absence of any sensible basis for these and

other distinctions dooms the Town’s ordinance under even

the intermediate scrutiny that the Court typically applies

to “time, place, or manner” speech regulations. Accordingly,

there is no need to decide in this case whether strict scru-

tiny applies to every sign ordinance in every town across

this country containing a subject-matter exemption.

I suspect this Court and others will regret the majority’s

insistence today on answering that question in the affirm-

ative. As the years go by, courts will discover that thou-

sands of towns have such ordinances, many of them “en-

tirely reasonable.” Ante, at 14. And as the challenges to

them mount, courts will have to invalidate one after the

other. (This Court may soon find itself a veritable Su-

preme Board of Sign Review.) And courts will strike down

those democratically enacted local laws even though no

Cite as: 576 U. S. ____ (2015) 7

KAGAN, J., concurring in judgment

one—certainly not the majority—has ever explained why

the vindication of First Amendment values requires that

result. Because I see no reason why such an easy case

calls for us to cast a constitutional pall on reasonable

regulations quite unlike the law before us, I concur only in

the judgment.