JURIST Guest Columnist David A. Cortman, senior counsel at Alliance Defending Freedom, discusses the implications of the Supreme Court decision in Reed v. Town of Gilbert…

The government is relatively good at some things: protecting its citizens through police and fire departments, collecting and spending money (sometimes too good) and fixing potholes (on occasion). But one thing the government has repeatedly shown itself incapable of doing is regulating speech. Time and again the government has played favorites by giving preferred access to expression it likes and censoring speech it does not.



This is exactly what happened in the town of Gilbert, Arizona. When a small church attempted to put up a few small signs inviting passersby to its services, it found itself on the losing end of government speech regulations. The winners: political signs. No surprise there, since those making the rules want to ensure they get re-elected and stay in power. So while scores of political and many other types of signs could be displayed on the street corners throughout Gilbert for months at a time, the small church was restricted to put smaller signs that could only be displayed a few hours before the service.



The US Supreme Court’s unanimous ruling in Reed v. Town of Gilbert in favor of the church, which I represented, was thus an important victory for all the little guys who have ever found their speech silenced by the strong arm of government. By affirming that the government cannot ban speech based on “the topic discussed or the idea or message expressed” unless it has a compelling interest, the court ensured that government entities, both federal and local, cannot pick winners and losers when it comes to free speech. Indeed as Justice Elena Kagan explained in her concurring opinion, the town’s restrictions did not pass “even the laugh test.”



The court’s ruling means that whenever the government attempts to regulate speech—whether that speech is on roadside signs, in rooms rented out in schools and libraries, or at rallies in a public park—it must do so in an even-handed, neutral way. So whether your speech is religious like the church’s or is just discussing a particular topic that is important to you, it must be given the same access as all other speech.



There is another important impact of the court’s ruling. For many years some lower courts had upheld government restrictions on speech that harmed some speakers but not others as long as the government did not have a bad motive for enacting the restrictions. In other words as long as the government officials could articulate a seemingly legitimate rationale for censoring some speech or hide its bad motive well, that was sufficient. In fact, that is what happened to the small church in this case. Gilbert officials claimed that the restrictions on the church’s temporary signs were not the result of ill will but rather were needed to limit clutter. But if that was truly the justification, why did it allow an unlimited number of political signs to clutter up the town?



Fortunately the Supreme Court recognized that even “[i]nnocent motives do not eliminate the danger of censorship.” The town could not legitimately claim an interest in limiting clutter while “at the same time allowing unlimited numbers of other types of signs that create the same problem.” 

The impact of the broad protections for free speech the court recognized in Reed will be badly needed far outside of the context of sign regulations. Two areas in particular are worth noting.



First, just a few weeks after the Reed decision, the court ruled in Obergefell v. Hodges that a constitutional right to same-sex marriage exists. As a multitude of commentators have recognized, the Obergefell decision does more than simply change the marriage laws of every state; it opens the door for greater restrictions against those who vocally oppose same-sex marriage based on religious, political or other grounds.



While Justice Anthony Kennedy weakly acknowledged that “religions, and those who adhere to religious doctrines, may continue to advocate with utmost, sincere conviction that, by divine precepts, same-sex marriage should not be condoned,” we are already seeing efforts to paint opposition to same-sex marriage as beyond the pale in our post-Obergefell society. Indeed groups like the ACLU have already withdrawn their support from laws like the federal Religious Freedom Restoration Act that provide protections to religious speakers.



Things are even more dire on university campuses across our nation. The hot new trend among college administrators is the enactment of speech codes-policies that ban speech based upon its content or the reaction of the listener. Florida State University provides a perfect example. FSU’s Equal Opportunity and Non-Discrimination Statement [PDF] provides that “behavior that may be considered offensive, demeaning, or degrading to persons or groups will not be tolerated.” 

But who decides what is offensive or demeaning? Rather than provide robust protection for speech that offends, FSU defers to the arbitrary standards of tolerance of the most delicate in the student body whose ears cannot stand to hear an opinion that challenges or contradicts their own beliefs.



Reed addresses both of these scenarios head-on. Just like those in power in Reed could not afford special protection for their favored speech (political signs that help keep them in power) while denying protection for the church’s less favored speech, so too are same-sex marriage proponents restricted from banning speech opposing such marriages, and so too are university officials restricted from elevating their preferred orthodoxy and silencing the views of students they deem offensive.



Those in power cannot limit debate and dialogue to those views that flow in the same direction as their own. Tolerance is a two-way street and that means everyone is going to bump into those with opposing beliefs and views now and then. Reed teaches us that such conflict is desirable in a democratic society and the court will subject with exacting scrutiny efforts to mandate the flow of dialogue in a single direction.



Likewise any seemingly innocent motives of same-sex marriage advocates and university officials who claim to be solely concerned with protecting LGBT individuals and students do not change the outcome. When the government seeks to ban entire topics or viewpoints to address perceived societal harms, it is a clear sign of laziness (at best) or outright animosity (at worst) to those holding “unacceptable” beliefs.



Rather than drafting clear guidelines to remedy the perceived harm, government officials draft broad bans on protected expression-often targeted at certain groups, and then hide under the umbrella of “but we had good intentions.” Under Reed the nobility of the cause is not a sufficient justification for a restriction that impinges fundamental rights; otherwise, those rights are no longer fundamental.



Many more cultural debates will take place in our nation, just as many have since its inception. The debates between federalists and anti-federalists were as heated then as the debates are today between those who affirm the man-woman definition of marriage and those who do not. The First Amendment ensures that these debates can continue unfettered and without interference by government actors who favor one side of the debate. 

Whether you like signs or not, same-sex marriage or not, we can all agree that society is worse off when the government is given too much authority over what its citizens can say. The Reed decision provides an important check against this authority, ensuring a fair playing field in the marketplace of ideas.



David A. Cortman is senior counsel with Alliance Defending Freedom and argued the case Reed v. Town of Gilbert on behalf of an Arizona church before the US Supreme Court.

Suggested citation: David A. Al-Cortan Supreme Court Decision Ensures Fair Playing Field In Marketplace Of Ideas–DNP, JURIST- Professional Commentary, August 4, 2015, http://jurist.org/professional/2015/8/david-cortman-freedom-of-speech.php.