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.

  • 1. 135 S Ct 2218 (2015).
  • 2. Id at 2224–25.
  • 3. Id at 2224–26.
  • 4. See id at 2224–25.
  • 5. See 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.
  • 6. See 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.
  • 7. The 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).
  • 8. See 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.
  • 9. Reed, 135 S Ct at 2227 (quotation marks omitted).
  • 10. Id at 2230.
  • 11. See 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).
  • 12. See, for example, Garrett Epps, Billboards and the Bill of Rights (The Atlantic, Jan 9, 2015), archived at (expressing concern at “[t]he slow degradation of [the] ‘viewpoint-subject matter’ rule”).
  • 13. See, for example, Adam Liptak, Court’s Free-Speech Expansion Has Far-Reaching Consequences (NY Times, Aug 17, 2015), online at http://
    -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”).
  • 14. Note, 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.
  • 15. See 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).
  • 16. See text accompanying notes 103–04.
  • 17. See notes 112–25 and accompanying text.
  • 18. R.A.V. v City of St. Paul, Minnesota, 505 US 377, 382 (1992).
  • 19. See 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”).
  • 20. See 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”).
  • 21. See notes 134–52 and accompanying text.
  • 22. 564 US 552 (2011).
  • 23. Id at 564–66.
  • 24. See id. For a full discussion, see Part II.A.
  • 25. See notes 154–56 and accompanying text.
  • 26. See Part II.B.