Content Neutrality and Commercial Speech Doctrine after Reed v Town of Gilbert

Introduction

At the end of the October 2014 term, the Supreme Court decided a seemingly mundane case involving municipal sign ordinances. That case, Reed v Town of Gilbert, Arizona,1 was brought by Good News Community Church in Gilbert, Arizona.2 The church and its pastor challenged the constitutionality of the town’s sign code, arguing that it interfered with the church’s ability to advertise its weekly meetings.3 The code imposed different dimensional and durational requirements based on the subject matter of the signs.4 While the code specified twenty-three categories, only three were at issue in Reed: “ideological signs,” “political signs,” and “temporary directional signs relating to a qualifying event.”5 The church’s signs fell under the final category.6 The Court unanimously struck down the law for violating the First Amendment, with a majority finding that the law was content based on its face and failed strict scrutiny.7

While the disposition was uncontroversial, the reasoning divided the Court, as the case generated four separate opinions.8 The majority opinion, penned by Justice Clarence Thomas and joined by five other justices, laid out a new, seemingly simple test for content neutrality. A law is content based, and therefore triggers strict scrutiny, (1) if “on its face [the law] draws distinctions based on the message a speaker conveys” or on the topic of the speech, or (2) if the law “cannot be justified without reference to the content of the regulated speech.”9 The opinion also clarified that either viewpoint or subject-matter discrimination will qualify a law as content based.10 By crafting a singular test, the Supreme Court likely sought to simplify the wider doctrine, although most of the back-and-forth between opinions interestingly focused on issues with sign ordinances.11 However, if read broadly, the majority opinion has vast implications for First Amendment jurisprudence generally. Even before Reed was decided, some commentators were already concerned about the grounds on which the Court would decide the case.12 After the decision, commentators argued that Reed signaled a potentially vast shift in the Court’s content-neutrality doctrine, and noted that Thomas’s formulation of the standard could have wide-ranging effects, superseding whole swaths of doctrine.13 The first substantial scholarship written about Reed called for the case to be “distinguished up, down, and sideways.”14 Commentators have also noted Reed’s effect on specific types of ordinances, such as panhandling ordinances and sign codes.15

This Comment considers an important implication of the Reed Court’s reasoning: the potential evisceration of commercial speech doctrine. Commercial speech, once thought to lie outside the First Amendment’s protection, was first recognized as a lower-value class of protected speech in the mid-1970s.16 The Supreme Court now subjects commercial speech to a form of intermediate scrutiny. While the stringency of this scrutiny (and the definition of commercial speech) has fluctuated over time, the general outlines of the doctrine are well established.17

The content-neutrality principle, with its beginnings in the 1970s, developed alongside commercial speech doctrine. Since the principle’s inception, content-based regulations have always been “presumptively invalid.”18 Until Reed, however, the Supreme Court generally favored a more flexible standard of content neutrality. While the Court sometimes articulated the test as requiring purely neutral application,19 it more often looked to whether the government could provide a content-neutral justification for the challenged law.20 Reed’s seemingly unyielding demand for facial content neutrality marks a significant departure from prior doctrine, and poses particular problems for regulations of commercial speech, which often rely on facial content-based distinctions.

Complicating matters further, the Supreme Court has increasingly relied on content-neutrality principles in commercial speech cases.21 The Court’s recent decision in Sorrell v IMS Health Inc22 has particularly unsettled content neutrality’s role by indicating that “heightened scrutiny” applies to content-based regulations of commercial speech.23 However, the Court left the particulars of this heightened scrutiny unresolved, leaving lower courts to grapple with content neutrality’s role with respect to commercial speech.24 In other words, the two doctrines are now unsettled and fundamentally incompatible but must nonetheless be considered together according to recent Supreme Court precedent.

Likely because of this inherent tension, courts have already shown considerable hesitance in applying Reed to commercial speech, but have yet to articulate a satisfying doctrinal defense.25 This uncertainty has led to an explosion of complaints invoking Reed to challenge regulations of commercial speech.26 This Comment examines the tricky intersection between Reed’s content-neutrality standard and modern content-neutrality-inflected commercial speech doctrine. Part I traces the concurrent development of content neutrality and commercial speech doctrine. Part II then examines how courts have dealt with the intersection of these two doctrines, both before and after the Reed decision. Finally, Part III evaluates the various approaches courts have taken and could pursue in reconciling Reed, before concluding that Reed does not apply to commercial speech cases.

I. Concurrent Developments in Free Speech Doctrine

On its face, the Constitution protects free speech rather plainly: “Congress shall make no law . . . abridging the freedom of speech.”27 Despite this apparent simplicity, the Supreme Court has created a complex framework28 to ensure that state actors respect this principle.29 While this Comment occasionally touches on other doctrinal areas, the bulk of the analysis focuses on the two doctrines that Reed and Sorrell have put directly at odds: content neutrality and commercial speech. This Part tracks the concurrent development of each doctrine, beginning with the development of the content-neutrality principle and concluding with the development of commercial speech doctrine.

A. The Development of Content-Neutrality Doctrine

The distinction between content-neutral and content-based speech first emerged in Police Department of the City of Chicago v Mosley.30 Earl Mosley challenged a Chicago law exempting “peaceful labor picketing” from a prohibition against picketing near schools after he was threatened with arrest for continuing to picket a high school for its discriminatory practices.31 Drawing on the Equal Protection Clause, the Court ruled that, once a public forum is created, the government may not circumscribe usage of the forum based on viewpoint or subject matter.32 In Carey v Brown,33 the Court struck down a similar nonlabor picketing prohibition, finding it indistinguishable from the law at issue in Mosley.34 While again noting that “content-based distinctions” are generally prohibited by the Equal Protection Clause, the Court suggested that “certain state interests may be so compelling” that a “narrowly drawn” content-based distinction may survive if “no adequate alternatives exist,” subjecting content-based regulations to Fourteenth Amendment–style strict scrutiny rather than the absolute ban suggested by Mosley.35 While these initial cases were grounded in a blend of equal protection and First Amendment analysis, later cases articulated the content-neutrality principle on purely First Amendment grounds.36

Since Mosley, the Supreme Court has almost universally invalidated content-based laws. One line of cases found that “[a] statute is presumptively inconsistent with the First Amendment if it imposes a financial burden on speakers because of the content of their speech.”37 This principle was, shortly thereafter, extended to all regulations. In R.A.V. v City of St. Paul, Minnesota,38 the Supreme Court summarized the doctrine as such: “Content-based regulations are presumptively invalid.”39 The Court noted, however, that certain “traditional limitations” of content, such as regulation of obscenity, defamation, and “fighting words,” are exempt from triggering this presumption.40 That said, the government cannot discriminate at will within low-value categories. Instead, content-based distinctions within a low-value speech category must be made based on “the very reason the entire class of speech at issue is proscribable.”41 Consider one of the Court’s examples of this principle: “A State might choose to prohibit only that obscenity which is the most patently offensive in its prurience. . . . But it may not prohibit, for example, only that obscenity which includes offensive political messages.”42 Additionally, despite Mosley’s insistence that the principle is neutral, the Court has not always consistently invoked it, particularly with respect to subject-matter discrimination.43 While viewpoint discrimination has always been treated as content based, the Court has not always addressed subject-matter discrimination through this framework.44 Since this initial development, the test for content neutrality has become extraordinarily important to First Amendment jurisprudence, both theoretically and practically.

As a theoretical matter, the Supreme Court has long viewed the content-neutrality principle as central to the First Amendment goal of preventing government censorship.45 As first articulated in Mosley, “[A]bove all else, the First Amendment means that government has no power to restrict expression because of its message, its ideas, its subject matter, or its content.”46 Professor Geoffrey R. Stone has argued that this primacy is due to the “uniquely powerful distorting effect of [ ] content-based restrictions” on public discourse.47 Stone noted, however, that this distortion principle cannot account for the harsh treatment of “modest” content-based regulations (or those “limited in scope” to “narrowly defined circumstances”), but that considerations of “equality, communicative impact, distortion, and [government] motivation” can collectively explain the Court’s extreme skepticism.48 Advancing a different primary consideration, then-Professor Elena Kagan argued that content neutrality first serves “to identify a set of improper [government] motives,” rather than to combat skewing effects.49 Whichever consideration is primary, a well-functioning content-neutrality rule should ideally serve both underlying values.

As a practical matter, once a regulation is found to be content based, its survival is unlikely. Content-based laws “are presumptively unconstitutional” and trigger strict scrutiny.50 Strict scrutiny is notably difficult to satisfy, as a law “must be the least restrictive means of achieving a compelling state interest.”51 By comparison, content-neutral laws are analyzed under intermediate scrutiny,52 which requires that a law be “narrowly tailored to serve a significant governmental interest.”53 Because of the wide difference between tests, “[t]oday, virtually every free speech case turns on the application of the distinction between content-based and content-neutral laws.”54

1. Differing articulations of the content-neutrality test.

Despite the Supreme Court’s consistency in striking down content-based regulations, the Court has been markedly less consistent in articulating the test for determining content neutrality. One oft-quoted early case took a literal approach by providing that a regulation is content based when it is “based on the content of speech.”55 From this broad conception, the Court determined that “regulations must be applicable to all speech irrespective of content” to survive judicial review.56 In more difficult factual contexts, however, the Supreme Court has crafted a number of narrower standards with subtle differences to determine content neutrality.

An influential, narrow articulation of the content-neutrality test emerged through cases challenging regulations of the time, place, or manner of speech.57 Grayned v City of Rockford,58 decided the same day as Mosley, contrasted clearly impermissible regulations that “restrict [ ] activity because of its message” with permissible regulations establishing “reasonable time, place and manner” restrictions for speech.59 Crucially, this articulation focused on the government’s justification for passing an ordinance, noting that “expressive activity may be restricted only for weighty reasons.”60 In the leading justification-based case, Ward v Rock against Racism,61 the Supreme Court added more substance to this principle, asserting that “[t]he principal inquiry in determining content neutrality, in speech cases generally . . . , is whether the government has adopted a regulation of speech because of disagreement with the message it conveys.”62 This version of the test makes “[t]he government’s purpose [ ] the controlling consideration.”63 Leading up to Reed, the Ward test had become very influential. Its roots dated back to the inception of the content-neutrality principle,64 and it was the test advanced by the United States as an amicus curiae in Reed.65

Complicating matters, the Supreme Court has based a number of decisions on more specific rules derived from Ward’s version of content neutrality. These tests generally attempt to capture whether the government is motivated by the content of the speech or some other factor closely related to its content. In a move stemming from an implication of the Ward test, the Supreme Court has held that statutes “designed to combat the undesirable secondary effects” of speech are content neutral even if plainly facially content based.66 In City of Renton v Playtime Theatres, Inc,67 the Court relied on the trial court’s finding “that the City Council’s ‘predominate concerns’ were with the secondary effects of adult theaters, and not with the content of adult films themselves.”68 In other words, because these statutes are justified by reference to the “secondary effects” of speech and not by reference to the content of speech, they are content neutral, even though they facially regulate speech based on its content. These “secondary effects” cases have primarily arisen in challenges to zoning regulations of pornography like those in Renton.69 In other contexts, the Court has frequently refused to apply the secondary effects test.70 In cases in which restrictions on political speech have been justified through the impact on observers—which, on first glance, would seem to implicate the secondary effects test71 —the Court has articulated a slightly different test. In striking down a restriction on speech near foreign embassies, the Court singled out “[r]egulations that focus on the direct impact of speech on its audience” as content based.72 Similarly, a Texas flag-burning statute was struck down for its content-based focus “on the likely communicative impact of [ ] expressive conduct.”73 These tests effectively narrowed the range of non-content-based justifications on which regulators could rely. While these slight wrinkles in doctrine may not affect the average case, a Ward-type test allowed the Court to craft varying explanations of when justifications are content based.

Surveying the landscape prior to Reed, the Court had articulated two primary tests: a facial content-neutrality test and the narrower Ward purpose-based test, with the latter more frequently relied on. Additionally, a number of targeted tests emerged to determine whether a government’s justification is content based. A restriction is content based if government actors focused on the “direct impact” or “communicative impact” of speech, but content neutral if government actors focused on the “secondary effects” of such speech. These distinctions gave courts some flexibility in deciding cases, but relied on a purpose-based version of content neutrality. As these variations should show, the Ward-type tests are broader along some dimensions (capturing facially neutral regulations motivated only by animus toward speech) but narrower along others (facially content-based laws justified by secondary effects or other alternative considerations).

2. Reed and a unified content-neutrality principle.

In the term before the Reed decision, the Supreme Court referenced both standards described in the previous Section in determining whether restrictions on gathering in front of abortion clinics were content based.74 McCullen v Coakley,75 drawing on earlier language, noted that a law is “content based if it require[s] enforcement authorities to examine the content of the message that is conveyed to determine whether a violation has occurred.”76 Later, the Court noted that a “facially neutral law” cannot become content based by “disproportionately affect[ing] speech on certain topics,” but rather must fail the justification-based test.77 Perhaps prefiguring Reed, the Court incorporated both lines of precedent discussed in the previous Section into a single discussion.78 In such combination, McCullen marks a stark departure from the Court’s statement when applying the Ward test only fourteen years before that it “ha[d] never held, or suggested, that it is improper to look at the content of an oral or written statement in order to determine whether a rule of law applies to a course of conduct.”79

In Reed, of course, the Court cemented this shift, laying out a precise test to determine whether speech regulations are content based and, accordingly, whether strict scrutiny applies. That standard united the two lines of precedent into a unified test, triggering strict scrutiny (1) if “on its face [the law] draws distinctions based on the message a speaker conveys” or on the topic of the speech, or (2) if the law “cannot be justified without reference to the content of the regulated speech.”80 The town’s sign code failed the first prong by facially distinguishing between categories of signs, but would likely have passed the second prong.81 Thus, under a Ward-type test, the code would have avoided strict scrutiny. Nevertheless, as evidenced by Justice Elena Kagan’s and Justice Stephen Breyer’s concurrences, the sign code would have failed any level of scrutiny.82 While the code was not justified by reference to the signs’ content, it simply was not justified at all. The town argued that the code’s smaller dimensional requirements for temporary directional signs were justified because those signs “need to be smaller because they need to guide travelers along a route.”83 The town’s lackluster justifications under any standard make Reed an odd case in which to insist on bright-line facial rules.84

Not stopping there, the Court also held that either viewpoint or subject-matter discrimination will trigger this strict scrutiny test.85 A regulation discriminates based on viewpoint when its force depends on the views or ideas expressed by the speaker.86 Meanwhile, a regulation discriminates based on subject matter when it proscribes or regulates a whole topic, even if all viewpoints within that subject-matter area are treated the same.87 Historically, courts have been much more skeptical of viewpoint discrimination than subject-matter discrimination, sometimes even failing to recognize subject-matter discrimination as a form of content-based regulation.88 But, under Reed’s test, both types of content-based laws trigger strict scrutiny.

While the plain language of the opinion suggests that the test is meant to be all-encompassing, aspects of the concurrences suggest otherwise. Justice Samuel Alito’s concurrence, which included three votes necessary for the majority, proposed a number of possible sign ordinances that he claimed would survive the majority rule, including a pair of suggestions that actually seem to fail the majority’s standard.89 For instance, Alito pointed to distinctions between on-premises and off-premises signs as permissible under the majority test.90 However, it is hard to see—and Alito did not explain—how this distinction does not require enforcement authorities to examine the content of the signs. Put differently, at least three of the six justices for the majority seem to have understood the opinion somewhat differently than the plain language suggests.91

The concurrences in the judgment also seem to differ as to their understandings of the extent of the opinion’s reach. Kagan’s concurrence in the judgment laments only that “many sign ordinances . . . are now in jeopardy.”92 Only Breyer’s concurrence in the judgment discusses the application of the majority’s stan­dard to other areas of law, concluding that content neutrality should be a “rule of thumb” rather than an automatic trigger for strict scrutiny.93 The contrast between the plain language of the majority opinion and the Court’s back-and-forth suggests that a question remains as to the proper interpretation of Reed’s seemingly broad language.

B. The Development of Commercial Speech Doctrine

Commercial speech doctrine emerged roughly concurrently with content-neutrality doctrine, beginning with the Court’s first protection of commercial speech in Virginia State Board of Pharmacy v Virginia Citizens Consumer Council, Inc,94 decided four years after Mosley. This Section first discusses this historical emergence of commercial speech as a protected category, noting the boundaries of the doctrine and the theory behind it. Next, it considers the current state of commercial speech doctrine.

1. Historical and theoretical foundations of commercial speech.

Commercial speech—aside from the paradigmatic case of commercial advertising—is difficult to define, and the bound­aries are often litigated.95 In one common articulation by the Supreme Court that largely tracks the paradigmatic case, commercial speech, quite simply, is speech which does “no more than propose a commercial transaction.”96 The Supreme Court has sometimes suggested a potentially broader definition: “[E]xpression related solely to the economic interests of the speaker and its audience.”97 What is clear, however, is that “important commercial attributes of various forms of communication” do not transform otherwise high-value speech into commercial speech.98 For example, newspapers, films, and books are all sold for profit, but this does not make their content commercial speech.99 These boundaries were particularly important when, prior to the 1970s, the Supreme Court had held that commercial speech was unprotected by the First Amendment.100 Now that commercial speech enjoys some protection, precisely defining the boundaries of commercial speech—while still important and contentious—can often be avoided if the challenged regulation would fail judicial scrutiny whether it is classified as commercial or noncommercial.101 Even so, the slipperiness of the boundaries “has haunted [commercial speech] jurisprudence and scholarship” and complicates any discussion of commercial speech doctrine.102

Definitional issues aside, modern commercial speech doctrine begins with Virginia Pharmacy, in which the Court first explicitly subjected regulation of commercial speech to First Amendment scrutiny.103 Specifically, the Court held that a state could not “completely suppress the dissemination of concededly truthful information about entirely lawful activity,” but reserved additional questions regarding the regulation of commercial speech for later decisions.104 By limiting this protection to “concededly truthful” commercial advertising, the Court excluded false or misleading commercial speech from constitutional protection, maintaining a sharp difference from higher-value speech.105 The Supreme Court later clarified that Virginia Pharmacy preserved the “common-sense distinction between speech proposing a commercial transaction . . . and other varieties of speech,” because “parity of constitutional protection for commercial and noncommercial speech alike could invite dilution.”106 Thus, the Court, while extending protection to commercial speech, established a separate framework for assessing its constitutionality based largely on the fear of dilution.

Before discussing the specifics of current commercial speech doctrine, it is worth considering why commercial speech merits different treatment. Coupled with the initial dilution concerns, the Supreme Court has justified the separation by describing commercial speech as a “hardy breed of expression.”107 Commercial speech is seen as “hardy” because it is (1) less susceptible to chilling effects and (2) usually advanced by legally sophisticated repeat players.108 However, scholars have long criticized this account, arguing that, “despite its superficial plausibility,” it “do[es] not survive close examination” and “fails to identify any essential distinction” between commercial speech and other types of speech.109 Scholars have, however, suggested alternate justifications for the category. Professor Daniel Farber, while advocating doctrinal reform, has argued that commercial speech is distinct because of the dual “informative aspect of advertising” and “non-first amendment, contractual aspect” of advertising.110 More recently, Professor Robert Post has described a “commonsense” justification: unlike higher-value speech, commercial speech is not valued for its participatory value, but instead only to “safeguard the circulation of information.”111 These crucial differences suggest a theoretical grounding for a specialized constitutional regime.

2. The current state of commercial speech doctrine.

The modern doctrinal framework began with the leading case Central Hudson Gas & Electric Corp v Public Service Commission of New York,112 which established a now well-settled four-part test to analyze commercial speech regulations: (1) “[i]f the communication is neither misleading nor related to unlawful activity,” (2) the government must show a “substantial interest,” (3) the limitation must “directly advance the state interest involved,” and (4) if a “more limited restriction on commercial speech” could serve the interest, the law cannot survive.113 The first prong of the test excludes false or misleading commercial speech from First Amendment scrutiny, while the latter three parts impose a test on truthful commercial speech, in line with Virginia Pharmacy. The Central Hudson test, or more precisely the latter three prongs of it, is a form of intermediate scrutiny.114

Concurring in Central Hudson, Justice Harry Blackmun worried that the test did not afford commercial speech adequate protection.115 The Court later may have validated these concerns. In Board of Trustees of the State University of New York v Fox,116 the Court held that Central Hudson’s fourth prong does not impose a “least-restrictive-means requirement,” as the language might suggest, but rather requires “a fit between the legislature’s ends and the means chosen to accomplish those ends—a fit that is not necessarily perfect, but reasonable.”117 That said, subsequent Supreme Court decisions have suggested that Central Hudson requires something more than a reasonable fit in practice. Despite Fox’s disavowal of the least-restrictive-means requirement, later cases have found “that if the Government could achieve its interests in a manner that does not restrict speech, or that restricts less speech, the Government must do so.”118 The Court is particularly suspicious in cases in which existing alternatives “would not involve any restriction on speech.”119 In short, the fourth prong of the Central Hudson test, despite Fox’s mitigating language, has been a difficult hurdle for regulations to surpass.

Although the exact nature of Central Hudson’s scrutiny may have shifted somewhat since the test’s first articulation, it is now well established that the test governs all commercial speech cases.120 Unsurprisingly, given the history described above, commentators have criticized the Central Hudson test for being “susceptible to [ ] wide swings of application.”121 As noted by Post, the Rehnquist Court was initially quite deferential to government regulation of commercial speech, while the Supreme Court had by 2000 swung back to “a severity that borders on strict scrutiny,”122 a trend commentators continue to observe.123 Lower courts, too, can vary significantly in application, sometimes invoking Fox, sometimes not.124 Even so, commercial speech cases have not departed from applying its basic framework, although they sometimes appear driven by considerations outside the ambit of the Central Hudson test.125

In addition to application of the distinctive Central Hudson test, commercial speech cases are also notable in a number of other respects. Most importantly, a number of doctrines that protect higher-value speech are not applicable to commercial speech. The absence of these doctrines from commercial speech cases—overbreadth, prior restraint, compelled speech, and at one point, content neutrality—suggests that a change in these doctrines need not be imported into the commercial speech arena.126

For example, the Supreme Court has consistently declined to apply overbreadth doctrine to grant standing to challenge commercial speech regulations.127 However, the Court has been somewhat unclear on whether this is an outright prohibition or whether such an application would only be highly unusual.128 In the latter case, the Court suggested in dicta that overbreadth might be properly applied to a commercial speaker if there were “basis in the record to believe that [a statute] will be interpreted or applied to infringe significantly on noncommercial speech rights.”129 While the outlines are not well defined, it is at least clear that a speaker of an unprotected form of commercial speech could not facially challenge a law that implicates protected commercial speech. Instead, higher-value speech must be implicated.

Similarly, two types of ex ante government speech restrictions—prior restraints and compelled speech—operate quite differently in commercial speech doctrine. Prior restraints, while strongly discouraged with respect to public discourse, are seen as acceptable, and even preferable, as limits on commercial speech.130 Likewise, speech compelled by the government is seen as a unique evil when imposed on higher-value speech, and is commonplace with respect to commercial speech regulation.131 Yet these mandated disclosure regimes are thought not to trigger usual protections against compelled speech.132 Both of these ex ante government restrictions typically fail with higher-value speech but are broadly accepted in the commercial speech context.

Content neutrality was once in this category of doctrines with limited applicability to commercial speech, but as discussed in the following Part, recent cases have cast doubt on this conclusion.133 The existence of these exceptions, however, makes clear that the categorization of speech as commercial or noncommercial implicates more than the choice of whether Central Hudson’s intermediate scrutiny or some other higher tier of scrutiny applies.

II. The Intersection of Content Neutrality and Commercial Speech Doctrine

Given the broad applicability of content-neutrality principles to First Amendment cases generally, it is unsurprising that the issue has frequently arisen in commercial speech cases. This Part discusses the developing intersection of content neutrality and commercial speech. Section A tracks the Court’s gradual incorporation of content-neutrality principles into commercial speech doctrine. Section B then addresses how lower courts have attempted to reconcile this trend with Reed’s new standard for content neutrality.

A. Content Neutrality and Commercial Speech before Reed

In its initial forays into commercial speech, the Supreme Court declined to extend content-neutrality protection to commercial speech. In Virginia Pharmacy, for example, the Court discussed the justification-based articulation of content neutral­ity with respect to time, place, and manner restrictions, noting that they were not relevant to the case at hand.134 The Court declined to determine the “proper bounds” of this inquiry with respect to commercial speech, but held that content-neutrality principles did not apply.135 In Central Hudson, the Court noted that “[i]n most other contexts” content-based regulations of speech are prohibited.136 However, in a footnote, the Court advanced two reasons why government actors could nevertheless regulate commercial speech based on its content:

First, commercial speakers have extensive knowledge of both the market and their products. Thus, they are well situated to evaluate the accuracy of their messages and the lawfulness of the underlying activity. In addition, commercial speech, the offspring of economic self-interest, is a hardy breed of expression that is not particularly susceptible to being crushed by overbroad regulation.137

Without further discussion, content neutrality was brushed aside. Similarly, early content-neutrality cases sometimes cited commercial speech as a context in which content-based distinctions were perfectly permissible.138 Following these cases, early commentators assumed that content neutrality applied only to high-value speech.139

However, a decade later, a line of cases called this assumption into question and applied content-neutrality principles to regulations of commercial speech. In R.A.V., the Supreme Court proposed a framework by which content neutrality could apply to categories of low-value speech like commercial speech for the first time.140 While the case addressed fighting words, it proposed a principle generalizable to all low-value categories: regulations may not discriminate on content unless “the basis for the content discrimination consists entirely of the very reason the entire class of speech at issue is proscribable.”141 In dicta, the Court suggested that, consistent with this principle, “a State may choose to regulate price advertising in one industry but not in others, because the risk of fraud . . . is in its view greater there.”142

The following term, the Supreme Court applied these principles in a commercial speech case. In City of Cincinnati v Discovery Network, Inc,143 the Supreme Court struck down a Cincinnati law that prohibited commercial handbill newsracks from public streets but allowed newspaper racks.144 The city argued, among other things, that this restriction was a permissible time, place, or manner restriction.145 However, the Court rejected this argument, citing the justification-based Ward test, “because the very basis for the regulation is the difference in content between ordinary newspapers and commercial speech.”146 Because the only distinction between commercial and noncommercial newsracks made by the city was that “commercial speech has ‘low value,’” the Court rejected the city’s contention that its justifications were content neutral.147 Discovery Network suggests that the content-neutrality inquiry should be applied not only within the commercial speech category (as established by R.A.V.) but also to commercial speech as a category. Commercial speech must be targeted for the reasons it is entitled to less constitutional protection, not simply because it is less well protected.

More recently, in Sorrell, the Supreme Court returned to content neutrality in the commercial speech context. The case concerned a Vermont law that “restrict[ed] the sale, disclosure, and use of pharmacy records that reveal the prescribing practices of individual doctors.”148 Striking down the statute, the Court imposed “heightened judicial scrutiny” because the statute was “designed to impose a specific, content-based burden on protected expression.”149 Here, too, the Court cited Ward’s justification-based articulation of the content-neutrality standard and stated that “[c]ommercial speech is no exception.”150 However, the Court never specified what this form of “heightened scrutiny” entails. Instead, because “the outcome is the same whether a special commercial speech inquiry or a stricter form of judicial scrutiny is applied,” the Court declined to decide whether “heightened scrutiny” is “all but dispositive” as with high-value speech or if some lower—but still higher than Central Hudson’s intermediate scrutiny—standard applies.151 Thus, it is somewhat difficult to parse what work the Court’s determination that the statute is content based does for its analysis. As one hint, confronting the dissent’s objection that heightened scrutiny is unnecessary, the Court at least suggested that the case would be different if false or misleading speech were at issue.152 This would not be the case with high-value speech, so heightened scrutiny must mean something less than traditional strict scrutiny, perhaps by importing (or preserving) Central Hudson’s first prong. Because the Court mandated that content-neutrality analysis have a place in the commercial speech test without resolving the extent to which the analysis changes established practice, lower courts were left to confront the implications of Sorrell without much guidance. Even before Reed, this left commercial speech doctrine in a state of some uncertainty.

B. Litigation since Reed Involving Commercial Speech

The Court’s new content-neutrality test announced in Reed has only added to the confusion that followed Sorrell. Since the decision, a number of district courts and two appellate courts have already considered Reed’s effect on commercial speech restrictions. These courts have fallen into two basic camps. The first group has found that Reed should not apply at all to commercial speech. The second group has followed the lead of Sorrell to integrate Reed’s content-neutrality standard into Central Hudson, but has stopped short of applying strict scrutiny. Notably, no court has ruled that Reed fully applies to commercial speech, which would trigger strict scrutiny. Perhaps more interestingly, a third group of courts has avoided answering the question entirely (or has alternately hedged the determination) by ruling that the challenged regulation would either fail or survive any degree of scrutiny, as the Supreme Court did in Sorrell. Because of courts’ hesitance to fully address Reed’s implications for commercial speech, litigants continue to seize on the uncertainty by challenging commercial speech regulations. Section 1 addresses the two approaches courts have taken to reconcile Reed and commercial speech, while Section 2 examines pending litigation and courts that have declined to propose a resolution.

1. The two leading approaches to Reed and commercial speech.

The majority of courts fall into the first group and have summarily rejected plaintiffs’ contentions that Reed applies to commercial speech. In the first post-Reed decision, the Central District of California, upholding a prohibition on off-site commercial billboards, found that “Reed does not concern commercial speech.”153 Because Reed does not cite Central Hudson, the court argued that “Reed is most notable for what it is not about, and what it does not say.”154 At least five other courts have followed this approach without any real discussion.155 And although Discovery Network may suggest otherwise, one court went so far as to note that “the classification of speech between commercial and noncommercial is itself a content-based distinction[ ] [but] it cannot seriously be contended that such classification itself runs afoul of the First Amendment.”156 Coming to the same conclusion, a judge in the Northern District of Illinois avoided engaging with the question by noting that “absent an express overruling of Central Hudson,” lower courts are bound to its standard in commercial speech cases.157 Uniting these cases is a strong disinclination that Reed should apply, but an underdeveloped analysis as to why.

While most courts have rejected Reed’s application to commercial speech, two courts have argued that Reed should apply to at least a limited extent, but, again, without much discussion. In Centro de la Comunidad Hispana de Locust Valley v Town of Oyster Bay,158 a judge in the Eastern District of New York found that Reed weighs on the commercial speech inquiry.159 Specifically, the court found that Sorrell modified the fourth prong of the Central Hudson test, which looks to whether a statute is narrowly drawn, to “require[ ] the Court to determine if the Ordinance is content based.”160 The court then applied Reed’s facial test to determine that the regulation was content based, and struck down the ordinance for failure to meet Central Hudson’s fourth prong because less burdensome alternatives were avail­able.161 While the court did not address this, one could imagine how content neutrality would aid this inquiry: a content-based law seems undesirable if a content-neutral alternative would satisfy the same government objective. However, despite emphasizing the necessity of determining whether the law was content based before embarking on Central Hudson’s fourth prong, the court did not even mention the word “content” in its nearly four-page discussion of that prong.162 As in Sorrell, content neutrality seems to play little actual role in the analysis. More notably, the court did not fully apply Reed (by triggering strict scrutiny), but merely incorporated Reed’s facial test into the court’s interpretation of the Sorrell-modified Central Hudson inquiry.163 This case marks a sort of hybridized approach, taking Reed’s reasoning into account without applying its full holding.

The Eleventh Circuit adopted a similar approach, using Reed’s test to determine whether speech is content based within its Sorrell-modified Central Hudson framework.164 However, the court also found that content-based restrictions on commercial speech do not trigger strict scrutiny, distinguishing Reed in that respect.165 In both of these cases, as in Sorrell, it is somewhat difficult to determine what work the content-neutrality determination actually does in resolving the case. But the Eleventh Circuit did suggest that Central Hudson is triggered only for content-based regulations of commercial speech,166 which would seem paradoxically less protective than traditional Central Hudson scrutiny, which applies to any regulation of commercial speech. Because the challenged laws would fail “any level of heightened scrutiny,”167 it may take a closer case to bring to the forefront the potential implications of this hybridized approach.

2. Courts avoiding reconciliation and pending litigation.

While courts that have attempted to reconcile Reed with commercial speech doctrine have largely split into the two approaches outlined above, a number of courts have taken interesting steps to avoid addressing the issue at all. Two recent court of appeals decisions are particularly worth noting, even though they do not directly hold whether Reed bears on commercial speech. First, although subsequently reversed en banc, a panel on the Eleventh Circuit recently declined to decide whether Reed has an effect on professional speech doctrine (a closely related cousin of commercial speech also subject to a form of intermediate scrutiny).168 Interestingly, however, the panel did not reach the question, because it found that the content-based restriction on professional speech survived both intermediate and strict scrutiny.169 Given the rarity of content-based distinctions that survive strict scrutiny,170 this could suggest, despite the panel’s subsequent reversal, that courts may be inclined to apply a diluted form of strict scrutiny to commercial and professional speech if Reed is so extended.

En banc, the Eleventh Circuit reversed, but also avoided deciding the effect of Reed on professional speech doctrine. The en banc court found that portions of the challenged regulation failed both heightened scrutiny under Sorrell and strict scru­tiny.171 By coming out the other way on both tests, the court explicitly declined to decide whether strict or heightened scrutiny was proper.172 Despite reversing on the issue, the en banc majority decision followed the earlier panel’s approach to avoid reconciling Reed’s implications for broader First Amendment doctrine.

However, two separate opinions engaged in a spirited discussion of Reed’s effect. Judge Charles Wilson wrote a concurrence arguing that “after the Supreme Court’s decision in Reed last year reiterated that content-based restrictions must be subjected to strict scrutiny, I am convinced that it is the only stan­dard with which to review this law.”173 Wilson argued that the regulation at issue was paradigmatically content-based, and that although the regulation concerned a class of professionals, it did not fall properly within the Court’s line of professional speech cases.174 Judge Gerald Bard Tjoflat’s dissent, meanwhile, argued that Reed should be read as inapplicable to professional speech so as to cabin its disruptive effect.175 These opinions are likely the most robust judicial discussion to date of Reed’s effect on low-value-speech doctrine. Even so, only two of the eleven judges on the en banc panel joined this discussion, with the majority expressly leaving consideration of Reed’s effect for a later date.

Second, the Federal Circuit recently struck down a federal trademark regulation because it triggered Reed’s content-neutrality test and failed strict scrutiny.176 The court accomplished this, however, not by extending Reed to commercial speech, but by finding that the expressive elements of trademarks do not qualify as commercial speech.177 In the alternative, the court found that the regulation would also fail the Central Hudson test if classified as a regulation of commercial speech.178 By applying a relatively narrow understanding of commercial speech, the Federal Circuit suggested an alternative way to apply Reed without overturning existing commercial speech doctrine. However, the case is currently under review by the Supreme Court.179

Although only a few courts have considered Reed in a commercial context so far, a number of pending cases raise the same question. In a complaint filed in the Southern District of New York, a plaintiff has challenged a New York law prohibiting advertising on rideshare vehicles as a violation of Reed’s content-based standard.180 Facebook has challenged portions of the Telephone Consumer Protection Act of 1991181 that regulate both commercial and noncommercial speech, arguing that Reed has changed the calculus.182 San Francisco’s ban on advertising for sugar-sweetened beverages similarly was recently challenged, with the complaint invoking Reed’s test as applicable to commercial speech.183 Interestingly, the city of San Francisco responded to the complaint by repealing the provision of its ordinance banning soda advertisements from city property.184 While a number of considerations (such as litigation costs) could have led the city to revise the code, city officials have publicly indicated that they assumed Reed applied to commercial speech.185 One city official commented that “the law has changed, so we’re taking today’s action.”186 San Francisco’s experience demonstrates how litigants have seized on this unsettled issue. Plaintiffs will invariably continue to bring cases, especially if this uncertainty will lead parties—particularly more-risk-averse municipal parties—to settle.

III. Reconciling Commercial Speech and Content Neutrality Post-Reed

Despite the recent convergence of content neutrality and commercial speech doctrine, district courts have been hesitant to broadly consider Reed’s implications. Perhaps much of this hesitance stems from the fact that neither full applicability of Reed nor complete inapplicability of it is fully satisfying given existing doctrine and Reed’s plain language. More troublingly, Reed’s version of content neutrality forecloses some of content neutral­ity’s natural applications to commercial speech. This Part first addresses why full application of Reed’s standard would render commercial speech doctrine a dead letter. Next, it explores how even a soft incorporation of Reed—use of its content-neutrality principles without the strict scrutiny trigger—weakens the usefulness of content neutrality in the commercial speech context. A final Section argues that, as a result of these troubling implications, courts can and should avoid applying Reed in commercial speech cases.

A. Full Application of Reed Would Eviscerate Commercial Speech Doctrine

That Reed’s test might apply to all regulations of speech, whether commercial or noncommercial, is a compelling reading of the plain language of the opinion. The majority’s rule is appealingly simple with respect to “facial distinctions” and “more subtle” distinctions based on “function or purpose”: “Both are distinctions drawn based on the message a speaker conveys, and, therefore, are subject to strict scrutiny.”187 The Court even cited Sorrell in this paragraph, suggesting that the opinion’s definition of content-based regulations applies broadly to commercial speech cases.188 Based on this straightforward reading, then, one could argue that content-based regulations, whether facial or justification based, will trigger strict scrutiny, even with respect to commercial speech.

Although this solution seems straightforward, complete application of Reed to commercial speech would essentially overrule all existing commercial speech doctrine. The standard for determining facial content discrimination is quite broad: a regulation is content based if “enforcement authorities [must] examine the content of the message.”189 Almost by definition, a law regulating commercial speech will distinguish speech facially based on its content. Consider just a few regulations of commercial speech challenged since Reed’s decision: a city ordinance requiring disclosure during cell phone sales,190 distinctions between “primary and non-primary business uses,”191 and on- and off-site commercial signs.192 All require examination of the content, and all would be content based under Reed, but none seem to implicate Ward’s framework, which requires disagreement with the message conveyed. In short, it is difficult to imagine a regulation of commercial speech that would not trigger Reed’s strict scru­tiny analysis. Even further, one court has skeptically noted that the Court’s practice of distinguishing commercial and noncommercial speech could itself be seen as an impermissible content-based distinction under a broad reading of Reed.193

Of course, some sorting out of the strict scrutiny bucket could be accomplished through Discovery Network or R.A.V., but this would leave the content-neutrality sorting largely ineffec­tual. Instead, these two (ironically justification-centered) tests would accomplish all of the scrutiny-sorting work. This would allay some of the concerns—particularly those expressed by lower courts that the very act of distinguishing commercial speech would be improper—but could raise significantly more problems as the tests would be expanded beyond their original ambit.

That Reed’s broad applicability would swallow existing commercial speech doctrine is also borne out by the way the Supreme Court has discussed commercial speech regulation in the past. In Central Hudson, the Supreme Court expressly acknowledged that its new test would allow for content-based distinctions in the commercial speech context.194 Even in Discovery Network, which applied content-neutrality principles, the Court spent considerable time discussing the bounds of commercial speech, noting that commercial speech “must be distinguished by its content.”195 In short, it is difficult to see how a principled, independent commercial speech test could be maintained while subjecting every content-based distinction to strict scrutiny. Some commentators would certainly invite that destruction, but there is little reason to think that Reed is the proper instrument for it, and post-Reed decisions have already suggested that dilution concerns are real.196

It is important to note that death to commercial speech doctrine would not necessarily mean death to commercial speech regulation. Although full application of Reed would subject nearly every commercial speech regulation to strict scrutiny, it does not necessarily follow that all commercial speech regulations would be invalidated.197 While some on the Court would invite this evisceration of advertising regulation,198 many lower courts would likely preserve a considerable share of commercial speech regulation by finding that many challenged provisions survive strict scrutiny.199 For example, although later reversed en banc, a panel on the Eleventh Circuit recently found a compelling interest in “the right to privacy in one’s status as a firearm owner” to uphold a regulation of professional speech prohibiting doctors from discussing firearms with patients.200 One could imagine a litany of compelling state interests in policing advertising to emerge from lower court case law. Recall that this was the primary concern that compelled the creation of commercial speech doctrine in the first instance: “To require a parity of constitutional protection for commercial and noncommercial speech alike could invite dilution.”201 If the state has a compelling interest in regulating relatively innocuous forms of advertising, it could all too easily establish by analogy a compelling interest in restricting more important—and potentially more harmful—forms of speech. In other words, under an interpretation of Reed that applies strict scrutiny to all commercial regulations, courts would be stuck between two unenviable alternatives: (1) invalidate almost all regulations of commercial speech or (2) create new categories of compelling interests, diluting the force of strict scrutiny. That strict scrutiny would force courts into these choices further undercuts the notion that Reed was meant to extend this far.

Of course, there is an argument to be made that the Supreme Court intended to implicitly overrule much of its old doctrine distinguishing commercial speech by making Reed’s test broadly applicable. After all, recent cases have taken increasingly tough looks at restrictions on commercial speech despite nominally sticking to the Central Hudson framework.202 Some commentators have even suggested that, by the time Sorrell was decided, the distinction between protection for commercial and noncommercial speech had all but disappeared.203 However, a close reading of Reed does not suggest that the Supreme Court intended such significant upheaval. Justice Thomas’s majority opinion assures readers, “Our decision today will not prevent governments from enacting effective sign laws.”204 Justice Alito’s and Justice Kagan’s concurrences similarly spar over the fate of sign ordinances.205 Only Justice Breyer’s solo concurrence discusses the potentially disruptive implications of a blanket application of strict scrutiny to far-reaching areas of law.206 Given this generally narrow focus, it seems unlikely that the Court intended to implicitly overrule three decades of precedent far afield from the topic of litigation.207

B. Reed’s Version of Content Neutrality Is an Awkward Fit for Central Hudson

Because full application of Reed to commercial speech cases would effectively render decades of doctrine a dead letter, courts and litigants have sensibly tried to find a middle ground by which to reconcile these two lines of precedent. While these middle paths to incorporation are, at first glance, the most promising ways to reconcile existing doctrine, Reed’s central holdings make such a reconciliation troubling for underlying First Amendment theory. The following two Sections show that two of Reed’s central holdings—facial content neutrality and the equivalence of viewpoint and subject-matter discrimination—make Reed an ill fit for commercial speech jurisprudence.

1. Incorporating facial content neutrality into the Central Hudson test dilutes the importance of content neutrality.

Courts that have held that Reed applies to commercial speech have incorporated only a small portion of its holding into the Central Hudson analysis.208 These courts have used Reed’s two-prong test to determine content neutrality but, rather than applying strict scrutiny, have incorporated the results into the Central Hudson test. One court incorporated content neutrality into Central Hudson’s fourth prong (tailoring), while the other treated it as a threshold question.209 Both cases relied on Sorrell for the notion that “the general rule that content-based restrictions trigger strict scrutiny is not absolute.”210 This view also has considerable support from case law developed before Reed’s per se strict scrutiny rule. While content-based regulations were “presumptively invalid” in most contexts, this presumption was never previously extended to commercial speech.211 As noted above, Sorrell explicitly reserved the question whether this presumption carries over to commercial speech.212 Absent specific language in Reed, it is easy to argue that Reed, while importing the two-prong facial content-neutrality test into all tests, did not upset the (however tenuous) balance of how far strict scrutiny reaches within commercial speech, last revisited in Sorrell.

Despite the relative doctrinal ease of this path and its avoidance of dilution, it is worth considering what effect incorporating the Reed test for content neutrality into Central Hudson would have. As noted above, it is hard to imagine any commercial speech regulation that will not qualify as content based under Reed’s broad standard. There is reason to be concerned, then, that courts applying Reed would determine that commercial speech regulations are content based as a matter of course before proceeding into the Central Hudson analysis. There is a flavor of this cursory content-neutrality analysis in Centro de la Comunidad Hispana. While the court argued that Sorrell required it to determine whether the speech was content based, once the court made that distinction, it seemed to play no role in the analysis.213 Indeed, after making the determination, the court did not mention the law’s content-based status once in its Central Hudson analysis, despite the court’s insistence that content neutrality should weigh on the fourth prong.214

This seems to create a fundamental problem: If virtually all commercial speech regulations are content based under the Reed test, what effect could its incorporation possibly have on the Central Hudson calculus? Consider what work the content-neutrality analysis accomplished in commercial speech cases driven by content-neutrality concerns. Under Sorrell, “[t]o sustain the targeted, content-based burden [the statute] imposes on protected expression, the State must show at least that the statute directly advances a substantial governmental interest and that the measure is drawn to achieve that interest.”215 In other words, content-based restrictions must at least satisfy the standard Central Hudson test. What more they must satisfy is unclear. The Court seemed most troubled by the state’s failure to provide a “neutral justification,” suggesting that “[t]he State’s interest in burdening the speech of detailers instead turns on nothing more than a difference of opinion.”216

The Court in Discovery Network was driven by similar concerns, troubled that the city regulated commercial handbills solely because they were “low value,” rather than because of any particular harm they caused relative to noncommercial handbills.217 Similarly, the R.A.V. test essentially asks whether the government’s motive aligns with the reasons the area is afforded reduced First Amendment protection.218 In short, the content-neutrality analysis added value to commercial speech doctrine when the Court focused on neutral justifications in accordance with Ward. Reed’s broader version of content neutrality, divorced from an inquiry into government motive, does not correlate as well with the concerns of the Central Hudson test, and is thus unlikely to add the same value to the inquiry if incorporated by courts taking this middle path.

Federal advertising regulations are replete with provisions that would likely pass the Ward version of content neutrality but almost certainly fail Reed’s facial test. Specific provisions apply to only advertising of television screen size219 or home amplifier power,220 “Retail Food Store Advertising and Marketing,”221 and the advertising of home insulation.222 Alcohol advertising rules vary depending on whether the ad sells wine,223 distilled spirits,224 or malt beverages.225 Finally, Food and Drug Administration regulations rely on numerous granular distinctions between types of foods and drinks in advertising and labeling rules.226

These types of regulatory regimes, which apply different restrictions to different messages, are almost perfectly analogous to the fact pattern in Reed and would almost certainly be content based under Reed’s test.227 However, most of these regulations do not even begin to suggest the government “disagreement with the message [ ] convey[ed]” needed to trigger the Ward test,228 but instead seem to serve as commonsensical ground rules for competition between advertisers.229 While some regulations may be more constitutionally troubling, many of these regulations may further the antidistortion and information-disseminating purposes of commercial speech protection by simply facilitating, rather than blocking, commercial speech. Further, by capturing all such rules, the Reed test does nothing to distinguish a subset of potentially more troubling rules and prevents the standard from serving as any meaningful proxy for government motive.230 Such a broad conception of content neutrality, when applied to commercial speech, does nothing to further its underlying purposes. Rather, it renders nearly every regulation content based, leaving courts with no guidance on how to weigh the impact of each regulation’s content-based status.

Thus, while incorporating Reed into the Central Hudson test may sensibly reconcile the two lines of precedent and avoid the dilution of strict scrutiny tests, it risks watering down the importance of content neutrality in commercial speech cases. Because nearly every form of commercial speech regulation would be content based, this incorporation of Reed would counterintuitively lower the importance of the distinction in the evaluation of commercial speech and divorce the content-neutrality test itself from its purposes. Instead, each regulation would be cast into Sorrell’s form of heightened scrutiny, risking a different sort of dilution.231 Central Hudson’s “false and misleading” prong could protect many of these regulations (as suggested by Sorrell232 ), but this still leaves the content-neutrality barrier ineffectual. That said, for courts inclined to cabin Reed’s encroachment on commercial speech doctrine, this approach may paradoxically more effectively limit Reed’s influence than outright rejection of its applicability would. Beyond this pragmatic justification and doctrinal expediency, there is little to say in favor of the incorporative approach.

2. Reed’s equivalent treatment of subject-matter discrimination and viewpoint discrimination poses particular difficulties for commercial speech doctrine.

Working from first principles, imposing strict scrutiny for some subset of content-based regulations of commercial speech might have been one way to clarify the doctrine, solving some of the wide swings in Central Hudson’s application. Sorrell’s undefined “heightened” scrutiny for content-based restrictions on commercial speech would seem to have allowed for such an altered test.233 However, as discussed above, wholesale importation of Reed’s rule would effectively subject all commercial speech regulations to strict scrutiny. Because of the problems with this,234 some limiting principle must be applied to Reed’s broad conception of content discrimination in order to make strict scrutiny within the commercial speech context work.

One possible reconciliation might have applied strict scru­tiny only to viewpoint discrimination (historically the greater evil) while leaving subject-matter discrimination within the ambit of Central Hudson. Unfortunately, Reed held that the two types of content discrimination are equivalent evils, foreclosing one of the most promising available limiting principles.235 Strict scrutiny for viewpoint discrimination would likely not create any new problems for commercial speech regulation, as these types of regulations are almost certain to be struck down under existing precedent. Applying viewpoint-neutrality principles alone, government actors could still regulate industries, so long as no specific players or advocacy groups were singled out. However, subject-matter discrimination is a much more challenging problem, because all regulations of commercial speech, if targeted at a specific industry, must by definition make distinctions based on subject matter. Prohibiting these types of distinctions would make regulating any advertising exceptionally difficult.

The R.A.V. test, which would exclude subject-matter distinctions designed to further the purposes underlying commercial speech doctrine from triggering strict scrutiny,236 could provide something of a solution. This test would avoid subjecting all of commercial speech to strict scrutiny, but would allow the expansion contemplated by Sorrell. However, extending R.A.V., which was decided based on Ward’s version of content neutrality, could create troubling consequences. Tiers of scrutiny would be determined by how susceptible certain industries are to fraud,237 and would invite complex, industry-wide factual determinations early in the trial process. Deference to legislative determinations of fraud risk could mitigate this problem, but would also undermine the purpose of Reed’s clean test. Using the R.A.V. test to police regulatory subject-matter distinctions would hardly clar­ify commercial speech doctrine, instead reallocating Central Hudson’s ambiguity to a different, less-well-tested doctrinal framework.

Even still, some may argue that applying strict scrutiny based on both viewpoint and subject-matter discrimination would not be such a dangerous departure. As recently applied by the Court, the Central Hudson test has already treated these kinds of content-based restrictions harshly. Subject-matter bans of speech have failed the Central Hudson test quite consistently: the Court has struck down laws banning beer strength labeling,238 advertising alcohol prices,239 and advertisements for legal gambling,240 as just a few prominent examples. Because the Court is already treating these types of restrictions harshly, there is at least an argument that applying Reed’s strict scru­tiny could add some clarity to the uncertainty surrounding the stringency of Central Hudson. However, there is a considerable difference between hostility toward subject-matter bans and applying strict scrutiny to all subject-matter distinctions. In fact, as discussed in the previous Section, nearly all regulations of advertising make at least product-level subject-matter distinctions.241 Further, subject-matter distinctions in rulemaking do not pose the same class of danger to the informational function of commercial speech as do subject-matter bans. Under Ward, subject-matter bans are easily distinguished from subject-matter distinctions, because bans suggest government dis­agreement much more readily than simple distinctions do. Reed forecloses that move—both bans and distinctions involve facial content discrimination—which makes squaring it with past commercial speech cases considerably more difficult.

While the Reed test provides one possibility for the use of strict scrutiny for commercial speech, other aspects of its holding foreclosed two more promising possibilities. As noted above, commercial speech cases invoking content-neutrality doctrine seemed particularly troubled by government intent, and all relied on the Ward test.242 By foreclosing the use of intent-based tests in the face of facial content-based regulations,243 Reed appears to prevent commercial speech strict scrutiny from being built around a purpose-based version of content neutrality. Similarly, Reed’s treatment of subject-matter and viewpoint discrimination prevents courts from taking a targeted look at viewpoint discrimination in commercial speech, without doing the same with subject-matter distinctions. Because regulations using subject-matter distinctions are the norm in advertising law, such equivalence poses a problem for any version of commercial speech strict scrutiny.

C. Keeping Reed Out of Commercial Speech

Full application of Reed leaves no room for a distinct commercial speech test, and Reed’s holdings present intractable difficulties for preserving any meaningful place for content neutrality within existing commercial speech analysis. In light of these problems, interpreting Reed to have no effect on commercial speech doctrine is the most workable solution. Most courts and observers have come to this conclusion—total inapplicability—but have yet to articulate a satisfying justification.244 This Section argues that Reed can and should be found inapplicable in order to preserve a meaningful commercial speech standard.

While the complete inapplicability of Reed is difficult to reconcile with the Supreme Court’s increasing tendency to draw on content-neutrality principles in commercial speech cases,245 these cases all speak in the language of Ward’s justification-based test. Sorrell first opened the door for a Reed-like strict scrutiny trigger in commercial speech cases by raising the issue of whether “heightened” scrutiny should apply to content-based regulations of commercial speech.246 It is notable, however, that it and other recent commercial speech cases have cited Ward’s articulation of a justification-focused content-neutrality stan­dard.247 Reed explicitly disavowed this application of the Ward test in the face of facial content distinctions, arguing that such an “analysis skips the crucial first step.”248 Indeed, a judge on the Seventh Circuit has recognized Reed’s primary innovation as “eliminat[ing] the confusion that followed from Ward” by establishing a new “rigorous standard.”249 Because past cases at the intersection of commercial speech and content neutrality relied on the Ward formulation, Reed suggests two possibilities: Sorrell and its ilk were wrongly decided, or Reed was not meant to apply to commercial speech.

Despite Reed’s broad language, it does not apply to all content-based categories. As a starting point, it is unlikely that Reed applies strict scrutiny within all traditionally unprotected low-value content-based categories of speech, such as obscenity and defamation.250 If Reed’s scope does not reach unprotected low-value speech, at least one category of commercial speech, factu­ally false or misleading speech (excluded from constitutional protection by the first part of Central Hudson), would unambiguously fall outside Reed’s ambit.251 Similarly, R.A.V.’s test could exempt regulations that make content-based distinctions targeting the types of speech most prone to fraud by misleading consumers.252 Discovery Network’s principle could potentially justify certain regulations addressing commercial speech as a whole, if similarly targeted for the reasons commercial speech is sometimes proscribable.253 However, pushing these tests to the forefront of commercial speech jurisprudence risks hopelessly confusing the boundaries of the doctrine. The reasons commercial speech can be treated as low-value speech are deeply contested. Some reasons for commercial speech’s differential treatment—its hardiness and dilution concerns, for example—do not translate into this inquiry at all.254 While these elements of commercial speech and unprotected speech doctrines suggest natural boundaries for the Reed test in the commercial speech context, the difficulty of defining these boundaries creates questions as to whether Reed was meant to apply here at all.

In fact, content-neutrality rules have not been applied as broadly as worded since the Court’s initial forays into the area. Mosley is itself written in language nearly as broad as Reed’s, but was not interpreted to reach low-value speech.255 In 1982, while content neutrality was still a relatively fresh doctrine, Professor Paul Stephan wrote that “[d]espite its repeated invocations of a near-absolute content neutrality rule, the Court has not followed its own precept.”256 Another contemporaneous commentator noted that the Court’s advances in content neutrality seemed plainly inconsistent with the developing law of defamation.257 Similarly, the Court often does not invoke the doctrine in cases in which its applicability would seem near certain.258 The Court’s pronouncements in this area have always been understood to exclude certain categories,259 and it is reasonable to think the same is true here.

If Reed is left inapplicable to commercial speech cases, a question remains as to how to handle Sorrell. An answer could come from similar doctrines that are applied, but treated differently, in commercial speech cases. Specifically, Sorrell grounds its analysis in Central Hudson as modified by Fox, but suggests that, had the statute not failed that test, a “heightened” form of scrutiny need apply.260 On these grounds, Sorrell could be understood as incorporating content-neutrality principles without incorporating the doctrine wholesale. Like prior restraint, compelled speech, and overbreadth,261 content-neutrality principles could simply function differently in commercial speech cases. Until Sorrell, this was explicitly the case with commercial speech, and even Sorrell stopped short of imposing the “all but dispositive” presumption that typically applies to content-based restrictions.262 Put differently, because facial content distinctions have long been thought endemic to commercial speech doctrine, importation of the Reed test seems unnecessary.

Absent further Supreme Court comment, then, lower courts should continue to apply the Ward test in commercial speech cases. Of course, Sorrell left open the question of how the content-neutrality standard should figure in. It seems that the most value could be added by incorporating the inquiry into the fourth prong (tailoring) of Central Hudson.263 Since Fox adjusted this prong, it has been the source of much of the volatility of commercial speech inquiry.264 Incorporating Sorrell-Ward here would allow for real differentiation in a portion of the test that has created considerable confusion. Moreover, the Ward stan­dard avoids the problems noted in the previous Section, while still allowing for meaningful application of content-neutrality principles in commercial speech cases.

Conclusion

Courts are left with an unenviable task in the face of Reed’s broad test for content neutrality and Sorrell’s unsettling of commercial speech doctrine. Much of this confusion arises from Reed’s central holding that courts must always consider whether a law is facially content based as part of the content-neutrality inquiry. This formulation comes into fundamental conflict with the category of commercial speech itself, one that courts had always contemplated would involve content-based distinctions. Courts have even explicitly justified the presence of these distinctions in the commercial speech context, contrary to their prohibitions elsewhere.265 Given this inevitability of facial content distinction, commercial speech cases had largely focused on what Reed called the “more subtle” justification-based forms of content discrimination when decrying laws as content based.266 Reed, however, mandated that both forms of content neutrality be considered in tandem, which considerably unsettles these past approaches. The confusion this has created is evident from the recent surge of litigants citing Reed to attack regulations of commercial speech.

Any application of Reed to commercial speech doctrine creates considerable problems. Of the ways to salvage a (limited) application of Reed to commercial speech cases, incorporating Reed’s test for content neutrality into the Central Hudson test provides the most promise at first glance.267 It allows commercial speech doctrine to be maintained, but paradoxically would decrease the importance of content neutrality in the commercial speech inquiry. The wholesale application of Reed’s standard268 creates problems in the other direction, by effectively overruling all other commercial speech doctrine. Ironically, the most promising opportunities to reconcile the two doctrines after the Sorrell decision—either by focusing on justifications or by singling out viewpoint discrimination for strict scrutiny—were entirely foreclosed by Reed’s holdings.

Because of this effect of Reed’s holdings, the most workable conclusion is that Reed does not apply at all in the commercial speech context. Instead—and particularly because Sorrell and Discovery Network rely on it—the Ward justification-based test should figure into commercial speech cases. This solution is not without its problems, especially given the Court’s movement toward using the doctrines together in Sorrell. Further, recent decisions’ summary treatments of the issue have done little to resolve the confusion created by Sorrell. Still, courts and litigants can carve out a principled justification for Reed’s inapplicability. Other foundational doctrines like prior restraint are treated differently in commercial speech cases, and Sorrell’s focus on government motive is totally inconsistent with Reed. By preserving a space for content-neutrality principles, albeit not Reed’s broad version of those principles, continued application of Ward via Sorrell to commercial speech cases best serves the first principles underlying First Amendment doctrine.

• 1135 S Ct 2218 (2015).
• 2Id at 2224–25.
• 3Id at 2224–26.
• 4See id at 2224–25.
• 5See Reed, 135 S Ct at 2224–25. A “qualifying event” was defined elsewhere in the statute as an “assembly, gathering, activity, or meeting sponsored, arranged, or promoted by a religious, charitable, community service, educational, or other similar non-profit organization.” Id at 2225.
• 6See id at 2225. The church’s signs, while permitted as temporary directional signs, were posted longer than the thirteen hours permitted by the ordinance. Id.
• 7The majority opinion applied strict scrutiny in striking down the law. Id at 2231–32. Justice Stephen Breyer disagreed with the application of strict scrutiny in his concurring opinion, as did Justice Elena Kagan in a concurring opinion joined by Breyer and Justice Ruth Bader Ginsburg. See id at 2234–36 (Breyer concurring in the judgment); id at 2236–39 (Kagan concurring in the judgment).
• 8See generally id. Justice Clarence Thomas wrote the majority opinion, Justice Samuel Alito concurred, and Breyer and Kagan each wrote separately to concur in the judgment.
• 9Reed, 135 S Ct at 2227 (quotation marks omitted).
• 10Id at 2230.
• 11See id at 2233 (Alito concurring) (suggesting a number of sign ordinances that would survive the new test); id at 2236–37 (Kagan concurring in the judgment) (noting that communities will be left “in an unenviable bind” when they attempt to revise sign ordinances).
• 12See, for example, Garrett Epps, Billboards and the Bill of Rights (The Atlantic, Jan 9, 2015), archived at http://perma.cc/6UAX-ZLDA (expressing concern at “[t]he slow degradation of [the] ‘viewpoint-subject matter’ rule”).
• 13See, for example, Adam Liptak, Court’s Free-Speech Expansion Has Far-Reaching Consequences (NY Times, Aug 17, 2015), online at http://
  www.nytimes.com/2015/08/18/us/politics/courts-free-speech-expansion-has-far-reaching
  -consequences.html (visited Oct 14, 2016) (Perma archive unavailable) (noting an argument by a legal commentator that “[t]he decision’s logic . . . endangered all sorts of laws, including ones that regulate misleading advertising and professional malpractice”).
• 14Note, Free Speech Doctrine after Reed v. Town of Gilbert, 129 Harv L Rev 1981, 1981 (2016). This note argued that Reed can be distinguished in three respects: “down” by relying on the conduct–speech distinction, “sideways” by not applying it to commercial speech, and “up” by diluting the definition of either content neutrality or strict scrutiny. Id at 1987. While the note dedicated some time to commercial speech, it failed to grapple with the complexity of the doctrine as it stands now: content-neutrality principles have pervaded commercial speech in recent years, which makes distinguishing Reed more difficult than the note acknowledges. See id at 1990–92 (discussing commercial speech). As such, this Comment fills a gap in the literature by fully considering the implications of Reed for a commercial speech doctrine that is already deeply infused with content-neutrality principles.
• 15See generally Anthony D. Lauriello, Note, Panhandling Regulation after Reed v. Town of Gilbert, 116 Colum L Rev 1105 (2016); Leah K. Brady, Note, Lawn Sign Litigation: What Makes a Statute Content-Based for First Amendment Purposes?, 21 Suffolk J Trial & App Advoc 320 (2016).
• 16See text accompanying notes 103–04.
• 17See notes 112–25 and accompanying text.
• 18R.A.V. v City of St. Paul, Minnesota, 505 US 377, 382 (1992).
• 19See Consolidated Edison Co of New York v Public Service Commission of New York, 447 US 530, 535–36 (1980), quoting Erznoznik v City of Jacksonville, 422 US 205, 209 (1975) (noting that regulations must be “applicable to all speech irrespective of content”).
• 20See Ward v Rock against Racism, 491 US 781, 791 (1989) (noting that the crucial question is “whether the government has adopted a regulation of speech because of dis­agreement with the message it conveys”).
• 21See notes 134–52 and accompanying text.
• 22564 US 552 (2011).
• 23Id at 564–66.
• 24See id. For a full discussion, see Part II.A.
• 25See notes 154–56 and accompanying text.
• 26See Part II.B.
• 27US Const Amend I.
• 28For an overview of the substantial number of categories and tests that comprise the doctrine, see Geoffrey R. Stone, et al, Constitutional Law 1027–1452 (Wolters Kluwer 7th ed 2013).
• 29Like most of the Bill of Rights protections, freedom of speech has been incorporated to apply to the states and other federal government actors, despite the clause’s specification of “Congress.” See Gitlow v New York, 268 US 652, 666 (1925) (“[F]reedom of speech and of the press . . . are among the fundamental personal rights and ‘liberties’ protected by the due process clause of the Fourteenth Amendment from impairment by the States.”).
• 30408 US 92 (1972).
• 31Id at 92–94.
• 32Id at 96. In the words of the Court, the government cannot “deny use to those wishing to express less favored or more controversial views” (viewpoint discrimination) and similarly “may not select which issues are worth discussing or debating” (subject-matter discrimination). Id.
• 33447 US 455 (1980).
• 34See id at 460–61.
• 35Id at 464–65.
• 36See, for example, R.A.V. v City of St. Paul, Minnesota, 505 US 377, 382 (1992) (“The First Amendment generally prevents government from proscribing speech, or even expressive conduct, because of disapproval of the ideas expressed.”) (citations omitted). See also Erwin Chemerinsky, Content Neutrality as a Central Problem of Freedom of Speech: Problems in the Supreme Court’s Application, 74 S Cal L Rev 49, 53 (2000) (noting that equal protection analysis disappeared from free speech cases despite content neutrality’s increased importance).
• 37Simon & Schuster, Inc v Members of the New York State Crime Victims Board, 502 US 105, 115 (1991), citing Leathers v Medlock, 499 US 439, 447 (1991). See also Arkansas Writers’ Project, Inc v Ragland, 481 US 221, 234 (1987) (striking down a content-based magazine tax).
• 38505 US 377 (1992).
• 39Id at 382.
• 40Id at 382–83.
• 41Id at 388. For more on the implications of this carve-out from content-neutrality rules, see Part II.A.
• 42R.A.V., 505 US at 388.
• 43See Geoffrey R. Stone, Restrictions of Speech Because of Its Content: The Peculiar Case of Subject-Matter Restrictions, 46 U Chi L Rev 81, 83–84, 99 (1978) (discussing the Court’s inconsistent treatment of subject-matter discrimination within the content-based/content-neutral framework).
• 44See id at 88–100 (cataloging variation in the treatment of subject-matter discrimination by the Court in the five years following Mosley).
• 45See Mosley, 408 US at 95–96.
• 46Id at 95.
• 47Geoffrey R. Stone, Content Regulation and the First Amendment, 25 Wm & Mary L Rev 189, 200 (1983).
• 48Id at 200, 233. At the time Stone wrote this article, the Court did not consistently treat subject-matter-based regulations as content based, see id at 239–42, a point that Reed definitively settled. As such, Stone’s analysis is largely of viewpoint-based regulations, although he noted that it would hold for at least large subject-matter restrictions. See id at 242 n 179.
• 49Elena Kagan, Private Speech, Public Purpose: The Role of Governmental Motive in First Amendment Doctrine, 63 U Chi L Rev 413, 450–52 (1996).
• 50Reed, 135 S Ct at 2226–27.
• 51McCullen v Coakley, 134 S Ct 2518, 2530 (2014).
• 52See Turner Broadcasting System, Inc v Federal Communications Commission, 512 US 622, 642 (1994).
• 53McCullen, 134 S Ct at 2534, quoting Ward v Rock against Racism, 491 US 781, 796 (1989).
• 54Chemerinsky, 74 S Cal L Rev at 53 (cited in note 36). Interestingly, rational basis review is absent from this framework, despite its typical place alongside strict and intermediate scrutiny. Commentators have noted that “rational basis review plays an extremely limited role in free speech cases” and that strict scrutiny itself was imported “almost inadvertently” from equal protection law. Ashutosh Bhagwat, The Test That Ate Everything: Intermediate Scrutiny in First Amendment Jurisprudence, 2007 U Ill L Rev 783, 787.
• 55Consolidated Edison Co of New York v Public Service Commission of New York, 447 US 530, 536 (1980). It is worth noting that the Public Service Commission effectively conceded that its regulation was content based, so the Court may not have paid the definition much attention. See id at 537.
• 56Id at 536 (quotation marks omitted). Although decided the same day as Carey, the Consolidated Edison opinion did not use a strict scrutiny framework, but did note that “governmental regulation based on subject matter has been approved in narrow circumstances.” Id at 538.
• 57The Supreme Court initially upheld the authority of municipalities “to give consideration, without unfair discrimination, to time, place and manner” of protected speech in Cox v New Hampshire, 312 US 569, 576 (1941).
• 58408 US 104 (1972).
• 59Id at 115 (quotation marks omitted).
• 60Id.
• 61491 US 781 (1989).
• 62Id at 791, citing Clark v Community for Creative Non-violence, 468 US 288, 295 (1984).
• 63Ward, 491 US at 791.
• 64See Grayned, 408 US at 115 (“The right to use a public place for expressive activity may be restricted only for weighty reasons. Clearly, government has no power to restrict such activity because of its message.”) (paragraph break omitted).
• 65See Reed, 135 S Ct at 2228.
• 66City of Renton v Playtime Theatres, Inc, 475 US 41, 49 (1986).
• 67475 US 41 (1986).
• 68Id at 47.
• 69See, for example, id at 54–55 (upholding a zoning ordinance targeted against adult theaters); Young v American Mini Theatres, Inc, 427 US 50, 71–73 (1976) (Stevens) (plurality) (upholding a similar ordinance).
• 70See, for example, Boos v Barry, 485 US 312, 320 (1988) (O’Connor) (plurality) (stating that “secondary effects” analysis is appropriate only when “regulatory targets happen to be associated with that type of speech” but “justifications for regulation have nothing to do with content”).
• 71The respondent in Boos argued as much. Id (O’Connor) (plurality).
• 72Id at 321 (O’Connor) (plurality).
• 73Texas v Johnson, 491 US 397, 411, 420 (1989).
• 74McCullen, 134 S Ct at 2529.
• 75134 S Ct 2518 (2014).
• 76Id at 2531 (quotation marks omitted), quoting Federal Communications Commission v League of Women Voters of California, 468 US 364, 383 (1984).
• 77McCullen, 134 S Ct at 2531.
• 78However, because the Court ultimately found that neither standard was met and that the law was not content based, it stopped short of announcing a new test. See id.
• 79Hill v Colorado, 530 US 703, 721 (2000). Notably, Hill also concerned regulations on gathering at abortion clinics. Id at 708.
• 80Reed, 135 S Ct at 2227 (quotation marks omitted).
• 81See id at 2227–28.
• 82See id at 2234–36 (Breyer concurring in the judgment); id at 2236–39 (Kagan concurring in the judgment).
• 83Id at 2239 (Kagan concurring in the judgment).
• 84Contrast the Court’s assertive pronouncement of a new test here with its more cautious approach in Sorrell only a few years before, when the majority left the details of a “heightened” standard undefined because the regulation would have failed even intermediate scrutiny. See Sorrell, 564 US at 571.
• 85Reed, 135 S Ct at 2230.
• 86See id at 2229–30.
• 87See id.
• 88See Stone, 46 U Chi L Rev at 84–88 (cited in note 43). See also, for example, R.A.V., 505 US at 391 (“[T]he ordinance goes even beyond mere content discrimination, to actual viewpoint discrimination.”); Perry Education Association v Perry Local Educators’ Association, 460 US 37, 59–62 (1983) (Brennan dissenting) (“Once the government permits discussion of certain subject matter, it may not impose restrictions that discriminate among viewpoints.”).
• 89See Reed, 135 S Ct at 2233 (Alito concurring).
• 90Id (Alito concurring).
• 91One court has already found that an on-premises/off-premises sign rule was content based. See Thomas v Schroer, 116 F Supp 3d 869, 876 (WD Tenn 2015) (“[U]nder the Reed test, the on-premise exemption is facially content-based.”). Commentators were similarly perplexed at the time of the decision. See Eugene Volokh, Supreme Court Reaffirms Broad Prohibition on Content-Based Speech Restrictions, in Today’s Reed v. Town of Gilbert Decision (Wash Post, June 18, 2015), archived at http://perma.cc/6S4V-A4XF (pointing to Alito’s on-premises and one-time-event examples).
• 92See Reed, 135 S Ct at 2236 (Kagan concurring in the judgment).
• 93See id at 2234–35 (Breyer concurring in the judgment). Breyer continued: “Consider a few examples of speech regulated by government that inevitably involve content discrimination, but where a strong presumption against constitutionality has no place.” Id (Breyer concurring in the judgment). He listed a number of these examples, ranging from securities regulation and income tax requirements to petting zoo signs. Id at 2235 (Breyer concurring in the judgment).
• 94425 US 748 (1976).
• 95See, for example, City of Cincinnati v Discovery Network, Inc, 507 US 410, 419 (1993) (“This very case illustrates the difficulty of drawing bright lines that will clearly cabin commercial speech in a distinct category.”).
• 96Virginia Pharmacy, 425 US at 771 n 24. See also Board of Trustees of the State University of New York v Fox, 492 US 469, 473–74 (1989).
• 97Central Hudson Gas & Electric Corp v Public Service Commission of New York, 447 US 557, 561 (1980).
• 98Discovery Network, 507 US at 420.
• 99See id at 420–23 (cataloging types of speech with commercial components that do not fall within the “commercial speech” category).
• 100See Valentine v Chrestensen, 316 US 52, 54–55 (1942) (“We are equally clear that the Constitution imposes no such restraint on government as respects purely commercial advertising.”).
• 101See, for example, Sorrell, 564 US at 571.
• 102Robert Post, The Constitutional Status of Commercial Speech, 48 UCLA L Rev 1, 7 (2000).
• 103See Virginia Pharmacy, 425 US at 758–62.
• 104Id at 773.
• 105See id at 771–73.
• 106Ohralik v Ohio State Bar Assn, 436 US 447, 455–56 (1978) (quotation marks omitted).
• 107See, for example, Central Hudson, 447 US at 564 n 6.
• 108See id.
• 109Daniel A. Farber, Commercial Speech and First Amendment Theory, 74 Nw U L Rev 372, 385–86 (1979). Professor Daniel A. Farber has argued that a categorically smaller chilling effect is implausible because (1) advertising “is not necessarily more verifiable than other speech,” (2) the unpredictability of government findings could still deter advertisers, (3) the degree of punishment is more important than the type of speech in creating a chilling effect, and (4) “greed [may not be] more effective than idealism in motivating people.” Id.
• 110Id at 387–88.
• 111Post, 48 UCLA L Rev at 14, 18 (cited in note 102). As a point of comparison, under First Amendment analysis generally, both the participatory function and informative function of speech are highly valued. See id. For political speech particularly, “[t]he possibility of participating in the formation of public opinion authorizes citizens to imagine themselves as included within the process of collective self-determination.” Id at 7.
• 112447 US 557 (1980).
• 113Id at 564.
• 114See id at 573 (Blackmun concurring in the judgment).
• 115See id (Blackmun concurring in the judgment).
• 116492 US 469 (1989).
• 117Id at 477–80 (quotation marks and citation omitted).
• 118Thompson v Western States Medical Center, 535 US 357, 371 (2002).
• 11944 Liquormart, Inc v Rhode Island, 517 US 484, 507 (1996) (Stevens) (plurality).
• 120See, for example, Metromedia, Inc v City of San Diego, 453 US 490, 507 (1981) (White) (plurality) (noting that Central Hudson is “the proper approach to be taken in determining the validity of [ ] restrictions on commercial speech”); California Outdoor Equity Partners v City of Corona, 2015 WL 4163346, *9 (CD Cal) (describing a “well settled” application of the Central Hudson “test for government regulation of commercial speech”).
• 121Post, 48 UCLA L Rev at 42 (cited in note 102).
• 122Id.
• 123This is particularly true after Sorrell, which seems to have collapsed the distinction even further. See Hunter B. Thomson, Note, Whither Central Hudson? Commercial Speech in the Wake of Sorrell v. IMS Health, 47 Colum J L & Soc Probs 171, 206 (2013).
• 124Contrast Contest Promotions, LLC v City and County of San Francisco, 2015 WL 4571564, *3 (ND Cal) (invoking an unmodified Central Hudson), with Peterson v Village of Downers Grove, 150 F Supp 3d 910, 929–31 (ND Ill 2015) (invoking Fox’s language modifying Central Hudson).
• 125For example, content neutrality is now often considered in commercial speech cases despite Central Hudson’s and Fox’s silence on the principle. For a discussion of how outside considerations have often driven cases that ostensibly worked within the Central Hudson framework, see Part III.
• 126Post cataloged these differences (with the exception of content neutrality) in support of his proposition that commercial speech is distinguished by its purely informative, rather than participatory, function. See Post, 48 UCLA L Rev at 26–33 (cited in note 102). The remainder of this Section draws from Post’s account, but stresses a different significance of these discrepancies—that evolution of a doctrine toward higher-value speech need not signal a similar evolution within commercial and other lower-value categories.
• 127See, for example, Bates v State Bar of Arizona, 433 US 350, 380–81 (1977) (establishing that overbreadth doctrine should not be applied “to professional advertising, a context where it is not necessary to further its intended objective”). See also Post, 48 UCLA L Rev at 29–32 (cited in note 102). Generally speaking, overbreadth doctrine allows challenges to overinclusive statutes even when typical standing rules may not allow such challenges. See Post, 48 UCLA L Rev at 29–32 (cited in note 102).
• 128The Court has at times said application of overbreadth would be “highly questionable” while at other times has simply said it “does not apply to commercial speech.” Alan K. Chen, Statutory Speech Bubbles, First Amendment Overbreadth, and Improper Legislative Purpose, 38 Harv CR–CL L Rev 31, 41 n 53 (2003), quoting San Francisco Arts & Athletics, Inc v United States Olympic Committee, 483 US 522, 536 n 15 (1987), and Village of Hoffman Estates v The Flipside, Hoffman Estates, Inc, 455 US 489, 497 (1982).
• 129San Francisco Arts & Athletics, 483 US at 536 n 15.
• 130See Post, 48 UCLA L Rev at 32–33 (cited in note 102). Prior restraints are, quite simply, laws that prevent speech from happening in advance.
• 131See id at 26–28.
• 132See id. But see Jonathan H. Adler, Compelled Commercial Speech and the Consumer “Right to Know”, 58 Ariz L Rev 421, 434 (2016) (“This suggests to some that mandated disclosures may not raise the same degree of First Amendment concerns as other regulation of commercial speech. This view is mistaken.”) (citation omitted).
• 133For a full discussion of these developments, see Part II.A.
• 134See Virginia Pharmacy, 425 US at 771.
• 135Id.
• 136Central Hudson, 447 US at 564 n 6.
• 137Id (quotation marks and citation omitted).
• 138See Consolidated Edison Co of New York v Public Service Commission of New York, 447 US 530, 538 & n 5 (1980) (listing commercial speech among libel, obscenity, and fighting words as instances in which “governmental regulation based on subject matter has been approved in narrow circumstances”).
• 139See Stone, 25 Wm & Mary L Rev at 195–96 (cited in note 47).
• 140See generally R.A.V., 505 US 377.
• 141Id at 388. Although the Court spoke in absolute terms when discussing these forms of content discrimination, “[t]he dispositive question . . . is whether content discrimination is reasonably necessary to achieve [the state’s] compelling interests.” Id at 395–96. In other words, some of these types of content distinctions could conceivably survive if another compelling interest could be identified aside from the one that allows the category of low-value speech to be proscribed.
• 142Id at 388–89.
• 143507 US 410 (1993).
• 144Id at 413–15.
• 145Id at 428.
• 146Id at 428–29.
• 147Discovery Network, 507 US at 429–30.
• 148Sorrell, 564 US at 557.
• 149Id at 565, citing Discovery Network, 507 US at 418.
• 150Sorrell, 564 US at 565–66.
• 151Id at 570–71 (noting that failing both tests was characteristic of many such cases).
• 152See id at 579 (“The State nowhere contends that detailing is false or misleading within the meaning of this Court’s First Amendment precedents.”); id at 581 (Breyer dissenting) (“The First Amendment does not require courts to apply a special ‘heightened’ standard of review when reviewing [commercial regulation].”).
• 153California Outdoor Equity Partners v City of Corona, 2015 WL 4163346, *10 (CD Cal).
• 154Id.
• 155See Contest Promotions, LLC v City and County of San Francisco, 2015 WL 4571564, *3–4 (ND Cal); CTIA—the Wireless Association® v City of Berkeley, California, 139 F Supp 3d 1048, 1061 & n 9 (ND Cal 2015); Timilsina v West Valley City, 121 F Supp 3d 1205, 1215, 1218 (D Utah 2015); Chiropractors United for Research and Education, LLC v Conway, 2015 WL 5822721, *4–5 (WD Ky); Auspro Enterprises, LP v Texas Department of Transportation, 506 SW3d 688, 703 & n 109 (Tex App 2016).
• 156CTIA—the Wireless Association®, 139 F Supp 3d at 1061 n 9. The court seems to have missed that, under Discovery Network, the classification of commercial speech clearly can run afoul of the First Amendment. Or it could simply have been noting that, if the Reed standard were applied to Discovery Network’s analysis, all commercial speech classifications would do so because looking to justifications is impermissible if there is facial content discrimination.
• 157Peterson v Village of Downers Grove, 150 F Supp 3d 910, 927–28 (ND Ill 2015). Another judge on the Northern District of Illinois recently returned to the question, citing Peterson and Seventh Circuit precedent on Reed, and similarly concluded that Reed did not bear on commercial speech. RCP Publications Inc v City of Chicago, 2016 WL 4593830, *4 (ND Ill).
• 158128 F Supp 3d 597 (EDNY 2015).
• 159Id at 612–13.
• 160Id.
• 161See id at 613, 617.
• 162See Centro de la Comunidad Hispana, 128 F Supp 3d at 617–20.
• 163See id at 613.
• 164See Dana’s Railroad Supply v Attorney General, Florida, 807 F3d 1235, 1248 (11th Cir 2015).
• 165See id at 1246 (“As is so often true, the general rule that content-based restrictions trigger strict scrutiny is not absolute.”).
• 166See id (“Content-based restrictions on certain categories of speech such as commercial and professional speech, though still protected under the First Amendment, are given more leeway because of the robustness of the speech and the greater need for regulatory flexibility in those areas.”).
• 167Id at 1241.
• 168See Wollschlaeger v Governor of Florida, 814 F3d 1159, 1182–1202 (11th Cir 2015), revd, 848 F3d 1293 (11th Cir 2017) (en banc).
• 169See Wollschlaeger, 814 F3d at 1186. This is in contrast to cases like Sorrell and Dana’s Railroad Supply, which at least decided that content neutrality bore on the cases, even if they did not articulate a clear explanation as to why.
• 170See Burson v Freeman, 504 US 191, 211 (1992) (Blackmun) (plurality) (“In conclusion, we reaffirm that it is the rare case in which we have held that a law survives strict scrutiny. This, however, is such a rare case.”).
• 171Wollschlaeger v Governor of Florida, 848 F3d 1293, 1311 (11th Cir 2017) (en banc).
• 172Id at 1308 (“But we need not decide whether strict scrutiny applies here, because . . . [the challenged provisions] fail even under heightened scrutiny as articulated in Sorrell.”).
• 173Id at 1324 (Wilson concurring).
• 174Id at 1324–25 (Wilson concurring).
• 175Wollschlaeger, 848 F3d at 1337 (Tjoflat dissenting).
• 176In re Tam, 808 F3d 1321, 1334–36 (Fed Cir 2015) (en banc), cert granted, Lee v Tam, 137 S Ct 30 (2016).
• 177Tam, 808 F3d at 1337–39.
• 178Id at 1355–57.
• 179Certiorari was granted on September 29, 2016. See Tam, 137 S Ct at 30. Although the merits briefs feature robust discussions of commercial speech doctrine and viewpoint-discrimination doctrine, Reed does not figure prominently in either party’s arguments. See generally Brief for the Petitioner, Lee v Tam, Docket No 15-1293 (US filed Nov 9, 2016) (available on Westlaw at 2016 WL 6678795); Brief for Respondent, Lee v Tam, Docket No 15-1293 (US filed Dec 9, 2016) (available on Westlaw at 2016 WL 7229149).
• 180See Complaint for Declaratory and Injunctive Relief, Vugo, Inc v City of New York, Civil Action No 15-08253, *7–8 (SDNY filed Oct 20, 2015) (available on Westlaw at 2015 WL 6164852). The complaint makes an argument in the vein of Discovery Network—that singling out commercial advertisements runs afoul of Reed’s standard. The plaintiff’s briefing for summary judgment similarly heavily leans on Reed. See Vugo’s Memorandum in Support of Motion for Summary Judgment, Vugo, Inc v City of New York, Civil Action No 15-08253, *11–13 (SDNY filed July 15, 2016) (available on Westlaw at 2016 WL 4728051).
• 181Pub L No 102-243, 105 Stat 2394, codified as amended in various sections of Title 47.
• 182See Facebook, Inc.’s Notice of Motion and Motion to Dismiss Plaintiff’s First Amended Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6) and Memorandum in Support, Brickman v Facebook, Inc, Civil Action No 16-00751, *17–23 (ND Cal filed Aug 9, 2016) (available on Westlaw at 2016 WL 6196205).
• 183See Complaint for Declaratory and Injunctive Relief, American Beverage Association v City and County of San Francisco, Civil Action No 15-03415, *25 (ND Cal filed July 24, 2015).
• 184See Katherine Proctor, San Francisco Dumps Part of Its Soda Ad Ban (Courthouse News Service, Dec 1, 2015), archived at http://perma.cc/W4VJ-64N6. The litigation continues over other aspects of San Francisco’s sugary-drink rules. For the most recent opinion in the case, denying a preliminary injunction of a warning requirement, see generally American Beverage Association v City and County of San Francisco, 187 F Supp 3d 1123 (ND Cal 2016).
• 185See Proctor, San Francisco Dumps Part of Its Soda Ad Ban (cited in note 184).
• 186Id.
• 187Reed, 135 S Ct at 2227.
• 188See id.
• 189McCullen, 134 S Ct at 2531 (quotation marks omitted).
• 190CTIA—the Wireless Association® v City of Berkeley, California, 139 F Supp 3d 1048, 1050–52 (ND Cal 2015).
• 191Contest Promotions, LLC v City and County of San Francisco, 2015 WL 4571564, *4 (ND Cal).
• 192California Outdoor Equity Partners v City of Corona, 2015 WL 4163346, *1 (CD Cal).
• 193See CTIA—the Wireless Association®, 139 F Supp 3d at 1061 n 9.
• 194Central Hudson, 447 US at 564 n 6.
• 195Discovery Network, 507 US at 418–24, quoting Virginia Pharmacy, 425 US at 761–62.
• 196A number of detractors have attacked the Central Hudson test and commercial speech doctrine generally for decades. As discussed above, the Central Hudson test itself is rather malleable and often fails to take into account critical considerations. See Post, 48 UCLA L Rev at 42 (cited in note 102). Some have even argued more forcefully that commercial speech doctrine is a potential license for government censorship. See Alex Kozinski and Stuart Banner, Who’s Afraid of Commercial Speech?, 76 Va L Rev 627, 653 (1990). Justice Thomas would similarly invite its total elimination. See 44 Liquormart, Inc v Rhode Island, 517 US 484, 522 (1996) (Thomas concurring in part and concurring in the judgment). Whatever the merits of these criticisms of commercial speech (and a full analysis is beyond the scope of this Comment), application of Reed, even to abolish the distinction between commercial speech and regular speech, would exacerbate the problems noted in these criticisms. As this Comment later explores in Part III.B, Reed’s holdings apply to commercial speech awkwardly at best. Further, there is already evidence that courts might dilute strict scrutiny considerably in applying it to commercial speech, see Wollschlaeger v Governor of Florida, 814 F3d 1159, 1186 (11th Cir 2015), revd, 848 F3d 1293 (11th Cir 2017) (en banc), which was a central concern underlying the Supreme Court’s establishment of commercial speech as an independent category. In other words, whatever is lacking about the Supreme Court’s current commercial speech jurisprudence, Reed’s test is not the vehicle to solve it.
• 197Some regulations would likely fall simply based on the higher probability of successful litigation, however, as has already happened at least in San Francisco. See Proctor, San Francisco Dumps Part of Its Soda Ad Ban (cited in note 184).
• 198See 44 Liquormart, 517 US at 522 (Thomas concurring in part and concurring in the judgment) (“I do not see a philosophical or historical basis for asserting that ‘commercial’ speech is of ‘lower value’ than ‘noncommercial’ speech.”).
• 199Courts might also react by filtering cases through a much more robust application of R.A.V. This approach has its own problems, which are discussed further in Part III.B.
• 200Wollschlaeger, 814 F3d at 1194.
• 201Ohralik v Ohio State Bar Assn, 436 US 447, 455–56 (1978).
• 202See text accompanying notes 116–20.
• 203See Thomson, Note, 47 Colum J L & Soc Probs at 206 (cited in note 123). But see Oleg Shik, Note, The Central Hudson Zombie: For Better or Worse, Intermediate Tier Review Survives Sorrell v. IMS Health, 25 Fordham Intel Prop Media & Enter L J 561, 587–88 (2015) (arguing that, because Sorrell was unclear on its standard, Central Hudson should remain the governing test).
• 204Reed, 135 S Ct at 2232 (noting that content-neutral restrictions applicable to all signs, such as those restricting size, material, and lighting, are still available).
• 205Compare id at 2233 (Alito concurring) (suggesting numerous “reasonable sign regulations” that survive), with id at 2236 (Kagan concurring in the judgment) (“[M]any sign ordinances . . . are now in jeopardy.”).
• 206Id at 2234–35 (Breyer concurring in the judgment) (“Consider a few examples of speech regulated by government that inevitably involve content discrimination, but where a strong presumption against constitutionality has no place.”).
• 207Although the Supreme Court has long said it is more likely to depart from stare decisis in constitutional cases than in the typical case, recent empirical research has cast this assertion into doubt. See Lee Epstein, William M. Landes, and Adam Liptak, The Decision to Depart (or Not) from Constitutional Precedent: An Empirical Study of the Roberts Court, 90 NYU L Rev 1115, 1141–42 (2015).
• 208See notes 158–67 and accompanying text.
• 209Contrast Centro de la Comunidad Hispana, 128 F Supp 3d at 612–13, with Dana’s Railroad Supply v Attorney General, Florida, 807 F3d 1235, 1246, 1248 (11th Cir 2015).
• 210Dana’s Railroad Supply, 807 F3d at 1246. See also Centro de la Comunidad Hispana, 128 F Supp 3d at 613 (“As adjusted by Sorrell, the Central Hudson test requires the Court to determine if the Ordinance is content based.”).
• 211R.A.V., 505 US at 382. See also Central Hudson, 447 US at 564 n 6.
• 212See Sorrell, 564 US at 571.
• 213See Centro de la Comunidad Hispana, 128 F Supp 3d at 612–20.
• 214See id at 613–20.
• 215Sorrell, 564 US at 572.
• 216Id at 579.
• 217Discovery Network, 507 US at 428.
• 218See R.A.V., 505 US at 388.
• 21916 CFR § 410.1.
• 22016 CFR §§ 432.1–432.6.
• 22116 CFR §§ 424.1–424.2.
• 22216 CFR §§ 460.1–460.24.
• 22327 CFR §§ 4.60–4.65.
• 22427 CFR §§ 5.61–5.66.
• 22527 CFR §§ 7.50–7.55.
• 226See 21 CFR ch 1.
• 227Reed, of course, concerned different requirements for different categories of signs, see Reed, 135 S Ct at 2224–25, which, if extended to commercial speech, seems impossible to distinguish from different advertising rules for different types of advertising.
• 228Ward, 491 US at 791, citing Clark v Community for Creative Non-violence, 468 US 288, 295 (1984).
• 229Many of these provisions simply define how certain terms must be used when advertising specific products, in effect curtailing the full range of expression available without fully suppressing commercial speech. See, for example, 27 CFR § 5.65.
• 230This argument tracks then-Professor Kagan’s interpretation of the utility of the doctrine. See Kagan, 63 U Chi L Rev at 450–52 (cited in note 49).
• 231See note 196 and accompanying text (discussing dilution concerns from overreliance on strict scrutiny).
• 232Sorrell, 564 US at 579 (noting that the state did not argue that the regulation at issue targeted misleading speech); id at 583–84 (Breyer dissenting) (cataloging defensible regulations).
• 233Id at 571.
• 234See notes 197–202 and accompanying text.
• 235See Reed, 135 S Ct at 2230.
• 236R.A.V., 505 US at 388–89.
• 237Id.
• 238See Rubin v Coors Brewing Co, 514 US 476, 478 (1995).
• 239See 44 Liquormart, 517 US at 489.
• 240See Greater New Orleans Broadcasting Association, Inc v United States, 527 US 173, 176 (1999).
• 241See text accompanying notes 215–26.
• 242See text accompanying notes 215–17.
• 243Reed, 135 S Ct at 2228 (“[T]his analysis skips the crucial first step in the content-neutrality analysis: determining whether the law is content neutral on its face.”).
• 244See notes 14, 154–57, and accompanying text.
• 245For a full discussion of this trend, see Part II.A.
• 246Sorrell, 564 US at 571.
• 247See id at 566, citing Ward, 491 US at 791; Discovery Network, 507 US at 428, quoting Ward, 491 US at 791 (quoting the same passage from Ward as Sorrell does).
• 248Reed, 135 S Ct at 2227–28.
• 249Norton v City of Springfield, Illinois, 806 F3d 411, 413 (7th Cir 2015) (Manion concurring).
• 250For a cataloging of these categories, see R.A.V., 505 US at 382–83. Of course, these categories of speech are only unprotected if strictly defined. See generally, for example, New York Times Co v Sullivan, 376 US 254 (1964). Even still, applying strict scrutiny to all state defamation statutes would mark a significant departure from current practice.
• 251See Central Hudson, 447 US at 563 (noting that “there can be no constitutional objection to the suppression of commercial messages that do not accurately inform the public about lawful activity”). See also R.A.V., 505 US at 389.
• 252See R.A.V., 505 US at 389.
• 253See Discovery Network, 507 US at 418.
• 254For a discussion of these factors, see Part I.B.1.
• 255See Mosley, 408 US at 95 (“[T]he First Amendment means that government has no power to restrict expression because of its message, its ideas, its subject matter, or its content.”).
• 256Paul B. Stephan III, The First Amendment and Content Discrimination, 68 Va L Rev 203, 205 (1982).
• 257See George C. Christie, Underlying Contradictions in the Supreme Court’s Classification of Defamation, 1981 Duke L J 811, 819 (“Probably no one could reconcile all the Court’s recent activity concerning the regulation of speech according to its content.”).
• 258See Stone, 46 U Chi L Rev at 88–100 (cited in note 43).
• 259See Stone, 25 Wm & Mary L Rev at 195–96 (cited in note 47) (noting that the rule announced in Mosley had been applied only to high-value speech).
• 260Sorrell, 564 US at 565.
• 261See notes 127–32 and accompanying text.
• 262Sorrell, 564 US at 571–72.
• 263This was the approach taken in Centro de la Comunidad Hispana, 128 F Supp 3d at 612–13.
• 264See Part I.B.2.
• 265See Central Hudson, 447 US at 564 n 6; Consolidated Edison Co of New York v Public Service Commission of New York, 447 US 530, 538 & n 5 (1980).
• 266See text accompanying notes 215–17.
• 267See Part III.B.1.
• 268See Part III.A.