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    Regulating the Limits of Speech

    Signs, social media, elections, and wedding cakes: all can convey facts or opinions and all have played a role in seminal U.S. Supreme Court First Amendment pronouncements in the 21st century.

    Douglas James Hoffer

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    Some people consider freedom of speech the most fundamental right of U.S. citizens. Freedom of speech reinforces all other rights, and progress in almost every human endeavor depends on a free exchange of ideas. The First Amendment recognizes the right to speak – with limited exceptions – without fearing governmental reprisal or censorship. Balancing free speech rights against the government’s responsibility to promote the general welfare provides challenges for courts examining whether speech regulation violates the First Amendment.

    Understanding speech regulation’s permissible boundaries is important both to lawyers representing governmental bodies seeking to regulate speech and lawyers representing private parties seeking to legally exercise free speech rights. Free speech jurisprudence can sometimes be complicated and inconsistently applied, but the important interests at stake require lawyers to understand speech regulation.

    Fortunately, recent case law developments may provide important guidance on speech regulation. This article discusses Reed v. Town of Gilbert,1 which involved a constitutional challenge to a local sign ordinance; Packingham v. North Carolina,2 which examined the ability to regulate speech on social media platforms; Citizens United v. Federal Election Commission,3 which struck down a federal law that limited the amount of money corporations and unions could spend to influence elections; and Masterpiece Cakeshop Ltd. v. Colorado Civil Rights Commission,4 which examined whether the government could compel a business owner to engage in artistic expression to comply with Colorado’s Anti-Discrimination Act. These cases, along with lower court decisions applying their holdings, have further developed speech regulation’s permissible boundaries.

    Along with recent speech regulation case law summaries, this article provides a broad overview of some concepts important in understanding speech regulation. Readers interested in a deeper discussion on these topics should look into the innumerable law review articles that deeply examine each of these cases and concepts.

    Content Neutrality – Reed v. Town of Gilbert

    Reed v. Town of Gilbert is important because it further refined the definition of “content-neutral” regulation. Reed, which examined a constitutional challenge to a local sign ordinance, determined that speech regulation is content-based if it applies different rules based on the content of particular messages.

    Douglas J. Hoffercom douglashoffer gmail Douglas J. Hoffer, Marquette 2010, is an Eau Claire deputy city attorney.

    Gilbert’s sign code required permits for signs but included various exemptions for different sign categories. A local church that lacked a permanent building violated the local sign ordinance by placing temporary signs in the town’s right-of-way directing people to its services. Gilbert’s sign code included requirements on when parties could place temporary directional signs and when parties must remove temporary directional signs. The sign code did not include similar restrictions for temporary political signs and ideological signs.

    In Reed, the U.S. Supreme Court concluded the sign code thus treated signs differently based on the message on the sign, and consequently Gilbert’s sign code was content-based and unconstitutional. Because almost all local sign ordinances applied different rules based on the category of sign, Reed called into question the constitutionality of almost every local sign ordinance.

    Some legal commentators expressed concerns regarding the possible impact of Reed on speech regulation.5 Legal commentators also expressed the belief that Reed might transform First Amendment jurisprudence because whether courts deem a regulation “content neutral” or “content based” is often dispositive on the issue of constitutionality.6 Content-based regulations are subject to strict scrutiny and presumed unconstitutional, while content-neutral regulations are subject to intermediate scrutiny. One legal commentator suggested that because “almost all laws fail strict scrutiny and almost all laws pass intermediate scrutiny, the pivotal point in the doctrinal structure is the content analysis.”7

    Reed may make it more difficult to avoid strict scrutiny in some circumstances. Before Reed, many free speech decisions concluded that content-based distinctions did not require strict-scrutiny application if the distinction was not based on governmental disagreement with the content. Consequently, a lot of speech regulation – including regulation containing content-based distinctions – avoided strict scrutiny because the distinctions were not based on governmental disagreement.

    Many of the worst fears related to Reed’s potential impact, however, have not materialized. To the contrary, although many communities across the country had to revise their sign codes, courts interpreting Reed have left most existing First Amendment jurisprudence undisturbed. Prudent government lawyers will explore ways to eliminate content-based distinctions in speech-related regulation to avoid strict scrutiny.

    Narrow Tailoring & Social Media Regulation – Packingham v. North Carolina

    In Packingham v. North Carolina the U.S. Supreme Court determined that a North Carolina law that prohibited convicted sex offenders from using social networking websites that allow minors to create accounts violated the U.S. Constitution. The Court agreed with the state of North Carolina that convicted sex offenders should not have access to vulnerable victims such as children but concluded that North Carolina’s law went too far. North Carolina’s law, the Court concluded, stifled lawful speech as the means to suppress unlawful speech.8

    Packingham demonstrates the importance of narrowly tailoring speech regulation to avoid suppressing lawful speech. Packingham said that more specific laws than the one at issue in the case might survive constitutional scrutiny. For example, the Court said that a law prohibiting a sex offender from engaging in conduct that often precedes a sexual crime, such as using a website to gather information about a minor, would not violate the First Amendment.9 Precluding access to social networking sites, on the other hand, eliminates access to principal sources of knowing current events, checking ads for employment, speaking and listening in the modern public square, and otherwise exploring the vast realms of human thought and knowledge. In sum, the law prevents users from engaging in the legitimate exercise of First Amendment rights.

    Packingham also demonstrates speech regulation’s challenges in a world where technology provides new and different ways to communicate. Justice Kennedy remarked on these challenges in the majority opinion in Citizens United, discussed below for other reasons, when he said the Court must “decline to draw, and then redraw, constitutional lines based on the particular media or technology used to disseminate political speech from a particular speaker.”10

    Identity of the Speaker – Citizens United v. Federal Election Commission

    In determining whether speech-related regulation is constitutional, one must sometimes determine the identity of the speaker. Governmental speech provides a useful example. The Free Speech Clause of the First Amendment governs how the government can regulate private speech but does not regulate governmental speech.11 The Free Speech Clause does not restrain governmental entities from controlling their own speech. The government “is entitled to say what it wishes, and to select the views that it wants to express.”12 If a governmental entity is the speaker, then the Free Speech Clause does not apply.

    The lack of Free Speech Clause limitations on governmental speech does not mean there are no limitations on governmental speech. In addition to other limitations, governmental speech must comply with the Establishment Clause. Determining speaker identity may have less relevance in some contexts as free speech jurisprudence continues to evolve after the Citizens United decision.

    By applying First Amendment rights to nonnatural persons, Citizens United may affect how to apply free speech rules based on the speaker’s identity. In Citizens United, the Supreme Court struck down a federal law that limited the amount of money corporations and unions could spend to influence elections.

    In examining whether speech regulations comply with constitutional requirements, it is essential to understand whether the speech in question is protected speech.

    In Citizens United, a nonprofit corporation released a 90-minute documentary, Hillary: The Movie, which questioned whether Hillary Clinton was fit to be President. Federal law prohibited corporations and unions from spending general treasury funds on speech that expressly advocated for the election or defeat of a candidate or electioneering communications. The nonprofit corporation argued that federal law unconstitutionally violated the organization’s free speech rights. The Supreme Court held that the government may not suppress political speech on the basis of the speaker’s corporate identity, and that no sufficient governmental interest justified limitations on corporations’ political speech.13

    One legal commentator suggested that Citizens United’s suspicion of speech regulation based on speaker identity is not new and has long been implicit in case law.14 Nevertheless, case law includes various examples where speaker identity is relevant to free speech analysis, including cases involving public employees, limited public forums, students, and prisoners.15

    The effect of the speaker’s identity on speech-regulation constitutionality may continue to evolve in light of Citizens United and other case law. Attorneys should continue to scrutinize the role speaker identity plays in speech-regulation constitutionality.

    Is Speech Present – Masterpiece Cakeshop Ltd. v. Colorado Civil Rights Commission

    Determining whether regulated conduct is “expressive” conduct protected by the First Amendment is an important first step in determining the regulation’s constitutionality. Regulation will enjoy greater legal protection if focused on nonexpressive conduct rather than speech in the constitutional sense. Determining whether the regulated behavior constitutes speech can be difficult.16 Case law articulating whether speech is present is sometimes imprecise and inconsistently applied, and unfortunately the Supreme Court, in a recent case, missed an opportunity to offer additional clarification on what constitutes speech.

    Masterpiece Cakeshop Ltd. v. Colorado Civil Rights Commission implicated a number of important First Amendment issues, including what forms of expression constitute “speech.” The case involves the owner of a bakery who refused to create cakes for same-sex weddings because of his religious beliefs. The owner argued that decorating cakes is a form of expression protected by the First Amendment, and the government could not legally compel him to engage in expression against his will. A same-sex couple filed charges of discrimination with the Colorado Civil Rights Commission against the cake shop alleging discrimination based on sexual orientation under Colorado’s Anti-Discrimination Act.

    The U.S. Supreme Court held oral argument in the case in December 2017. Discussion of what constituted speech was prominent throughout the oral argument, and many expected the Court would provide further clarification on the definition of speech when it issued its decision.

    The Supreme Court decided not to address whether cake decorating and similar artistic expression constitute “speech” and whether cake decorating and other kinds of artistic expression deserve First Amendment protection.

    Unfortunately, the Supreme Court chose not to address many of the important free speech issues raised in Masterpiece Cakeshop. Instead, the Court ruled in favor of the cake shop owner on the grounds that the Colorado administrative agency was explicitly hostile to the cake shop owner’s religious beliefs.17 It is unclear what the decision’s impact will be, but some issues raised in the case will likely remain unsettled pending the outcome of future cases.

    Lawyers should not skip the first step in the analysis by assuming speech is present. Only if the regulated conduct constitutes speech should the analysis turn to whether the speech is entitled to constitutional protection.

    Is It Protected Speech?

    Not all speech is entitled to constitutional protection. For example, fighting words, obscenity, and threats all fall outside many constitutional protections.18 The government may generally regulate unprotected speech provided the regulation does not discriminate by viewpoint.19 “A law that discriminates on viewpoint not only discriminates based on content but also chooses a side concerning the regulated speech.”20 Before joining the Supreme Court, Justice Elena Kagan used the following example to articulate the difference between content discrimination versus viewpoint discrimination: a content-based law would prohibit using a billboard for political candidates, while a viewpoint-discriminatory law would outlaw using a billboard for Democrats.21

    In examining whether speech regulations comply with constitutional requirements, it is essential to understand whether the speech in question is protected speech.

    By focusing on when, where, and how speech takes place rather than focusing on the content of the message, regulation of speech can often survive constitutional challenge.

    Masterpiece Cakeshop failed to further clarify which types of speech are entitled to constitutional protection. Many prior decisions concluded that artistic expression does not need to include words or symbols to express a message, but not every message is constitutionally protected. The Supreme Court decided not to address whether cake decorating and similar artistic expression constitute “speech” and whether cake decorating and other kinds of artistic expression deserve First Amendment protection. The Supreme Court also elected not to address whether the government can compel a business to engage in this form of expression. Further clarification on what constitutes protected speech will likely have to wait for future case law developments, and prudent lawyers will advise their clients accordingly.

    Time, Place, and Manner Restrictions

    The government is generally afforded a great deal of deference in imposing content-neutral time, place, and manner restrictions of protected speech.22 Content-neutral time, place, and manner restrictions of protected speech must be narrowly tailored to serve a significant governmental interest and leave open ample alternative channels for communication of information. By focusing on when, where, and how speech takes place rather than focusing on the content of the message, regulation of speech can often survive constitutional challenge.

    A prominent example of a time, place, and manner restriction that survived constitutional scrutiny was a New York City noise regulation that required performers to use city-provided sound systems and sound technicians to ensure that music performances in the Central Park band shell did not disturb surrounding residents. The Supreme Court, in Ward v. Rock Against Racism, held that New York’s noise regulation did not violate the performers’ free speech rights because the government has a substantial interest in protecting its citizens from unwelcome noise, the regulation was narrowly tailored to serve this legitimate interest, and the regulation was content neutral.

    Government lawyers drafting regulations addressing legitimate concerns such as the noise issue in Ward should consider the benefits of drafting content-neutral time, place, and manner restrictions rather than content-based restrictions, which might not survive strict scrutiny.

    Commercial versus Noncommercial Speech

    Despite some predictions to the contrary, Reed’s effect on commercial speech regulation appears minimal. Commercial speech is entitled to less constitutional protection than noncommercial speech. Content-based regulation of commercial speech generally must withstand only intermediate scrutiny, and commercial speech receives different treatment in other respects as well. For almost 40 years, the Central Hudson test governed commercial speech.23

    To satisfy the Central Hudson test a restriction on commercial speech must meet the following four elements: 1) the speech at issue must concern lawful activity and must not be misleading; 2) the asserted governmental interest must be substantial; 3) the regulation must directly advance the governmental interest asserted; and 4) the regulation must not be more extensive than is necessary to serve that interest.24

    Cases interpreting Reed have generally determined that Reed did not affect the existing commercial speech doctrine and have applied intermediate scrutiny under the Central Hudson test.25 Reed did not discuss Central Hudson or otherwise expressly call the commercial speech doctrine into question. Consequently, commercial speech likely continues to enjoy less constitutional protection than noncommercial speech.

    Secondary Effects Doctrine

    Similar to the commercial speech doctrine, Reed’s impact on the secondary effects doctrine also appears minimal. The secondary effects doctrine says that a time, place, or manner regulation that targets the secondary effects of speech rather than targeting the speech itself only needs to satisfy intermediate scrutiny.

    “When the government enacts a content-neutral regulation on a class of conduct, citing the harmful secondary effects related to that conduct, i.e., the subsidiary effects or ‘non-communicative impact’ of the speech, courts presume that the government did not intend to censor speech, even if the regulation incidentally burdens particular instances of expressive conduct.”26

    In BBL Inc. v. City of Angola, the Seventh Circuit Court of Appeals expressly rejected the argument that Reed impacted the secondary effects doctrine.27 In Angola the potential owners of an adult-oriented establishment challenged a zoning ordinance that prohibited new sexually oriented businesses from operating within 750 feet of a residence.

    Zoning ordinances governing sexually oriented businesses are one of the most common areas in which courts have applied the secondary effects doctrine, and the ordinances often use two approaches. The first approach requires that sexually oriented businesses maintain a certain distance apart.28 The second approach limits the location of sexually oriented business to specified zoning districts or other discrete locations.29 Courts consider such regulations consistent with content-neutral regulations because the regulation’s focus is not the content of the regulated speech.

    In Angola the Seventh Circuit rejected the argument that Reed impacted the secondary effects doctrine in part because regulating businesses that offer sexually explicit entertainment involves a category that occupies the outer fringes of First Amendment protection.

    A best practice for lawyers advising clients on secondary-effects-doctrine issues is to confirm whether a strong legislative record exists evidencing the purpose of reducing undesirable secondary effects rather than a desire to suppress protected speech.

    Conclusion

    This article contains a summary of important issues to consider in regulating speech, but the list is not exhaustive and speech-regulation analysis is often fact specific. Prudent lawyers will take the time to ensure regulations comply with constitutional requirements so that they can advise their clients accordingly.

    Meet Our Contributors

    As a deputy city attorney, what is the focus of your position? What is the most rewarding part of your job?

    Douglas J. HofferAs a deputy city attorney, I get to work on a variety of legal matters, and the variety helps keep things interesting. A city attorney’s office is similar to a general counsel’s office in a corporation. I provide advice on litigation, land use and real estate law, labor and employment law, ordinance drafting, and a wide variety of other matters. It can be challenging to provide advice on such a wide variety of topics, but I enjoy the challenge.

    The most rewarding part of my job is knowing the work I do affects the community in a positive way. Practicing law is most rewarding when your work helps others, and every day I get to provide advice to city departments trying to find ways to serve the 70,000 residents of the city of Eau Claire.

    com douglashoffer gmail Douglas J. Hoffer, Deputy City Attorney, Eau Claire.

    Become a contributor! Are you working on an interesting case? Have a practice tip to share? There are several ways to contribute to Wisconsin Lawyer. To discuss a topic idea, contact Managing Editor Karlé Lester at (800) 444-9404, ext. 6127, or email org klester wisbar wisbar klester org. Check out our writing and submission guidelines.

    Endnotes

    1 Reed v. Town of Gilbert, 135 S. Ct. 2218, 2224 (2015).

    2 Packingham v. North Carolina, 137 S. Ct. 1730 (2017).

    3 Citizens United v. Federal Election Comm'n, 558 U.S. 310, 318 (2010).

    4 Masterpiece Cakeshop Ltd. v. Colorado Civil Rights Comm’n, 138 S. Ct. 1719 (2018).

    5 Amanda Kellar, Reed’s Aftermath: Strict Scrutiny on Every Corner?, Municipal Law. 22-23, 30 (Oct./Nov. 2015).

    6 Adam Liptak, Court’s Free Speech Expansion Has Far Reaching Consequences, N.Y. Times (Aug. 17, 2015).

    7 Leslie Kendrick, Content Discrimination Revisted, 98 Va. L. Rev. 231, 237 (2012); see also Free Speech Doctrine After Reed v. Town of Gilbert, 129 Harv. L. Rev. 1981 (2015).

    8 Packingham, 137 S. Ct. at 1737-38.

    9 Id. at 1737.

    10 Citizens United, 558 U.S. at 326.

    11 Pleasant Grove City v. Summum, 555 U.S. 460, 469 (2009).

    12 Id.

    13 Citizens United, 558 U.S. 310.

    14 Michael Kagan, Speaker Discrimination: The Next Frontier of Free Speech, 42 Fla. St. U. L. Rev. 765 (2015).

    15 Id.

    16 For an extended discussion on what constitutes speech for the purposes of the First Amendment, see R. George Wright, What Counts as “Speech” in the First Place?: Determining the Scope of the Free Speech Clause, 37 Pepp. L. Rev. 1217 (2009-10).

    17 Masterpiece Cakeshop, 138 S. Ct. 1719.

    18 Chaplinsky v. New Hampshire, 315 U.S. 568, 571-72 (1942).

    19 R.A.V. v. City of St. Paul, 505 U.S. 377, 383 (1992).

    20 Anthony D. Lauriello, Panhandling Regulation After Reed v. Town of Gilbert, 116 Colum. L. Rev. 1105 (2016).

    21 Id.; Elena Kagan, Private Speech, Public Purpose: The Role of Governmental Motive in First Amendment Doctrine, 63 U. Chi. L. Rev. 413, 444-45 (1996).

    22 Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989).   

    23 Central Hudson Gas & Elec. Corp. v. Public Serv. Comm’n, 447 U.S. 557, 564 (1980).

    24 Id.

    25 San Francisco Apartment Ass’n v. City & Cty. of San Francisco, 142 F. Supp. 3d 910, 922 (N.D. Cal. 2015) (Reed “does not concern commercial speech. Restrictions on commercial speech are evaluated under Central Hudson, using a four-part test.”), aff’d, 881 F.3d 1169 (9th Cir. 2018).

    26 Schultz v. City of Cumberland, 228 F.3d 831, 841 (7th Cir. 2000).

    27 BBL Inc. v. City of Angola, 809 F.3d 317, 326 n.1 (7th Cir. 2015).

    28 Young v. American Mini Theatres Inc., 427 U.S. 50, 62 (1976).

    29 City of Renton v. Playtime Theatres Inc., 475 U.S. 41, 54 (1986).