Did the Supremes Just Open Up Tactics and Speech?

The signs that created a fuss

the sign that created a fuss

New Orleans    Here’s one none of us saw coming. The Supreme Court in a unanimous decision in Reed vs. the Town of Gilbert in Arizona found that the city council had stepped over the line by barring a sign for a religious meeting, because it interfered with political signs put up by candidates for local election. Justice Clarence Thomas wrote the opinion for six of the Justices and in dismissing the Gilbert ordinance shifted the way freedom of speech is viewed from merely “strict scrutiny” of content, generally seen as the government’s attempt to curtail speech with which it disagrees to include topics. Or as The New York Times’ reporter, Adam Liptak noted,

Any law that singles out a topic for regulation, he said, discriminates based on content and is therefore presumptively unconstitutional.

In the two months since the decision based on Reed, cases have been overturned involving panhandling, elections, robocalls. Liptak details these turnabouts well, saying:

“The majority opinion in Reed effectively abolishes any distinction between content regulation and subject-matter regulation,” Judge Easterbrook wrote. “Any law distinguishing one kind of speech from another by reference to its meaning now requires a compelling justification.” That same week, the federal appeals court in Richmond, Va., agreed that Reed had revised the meaning of content neutrality. “Reed has made clear,” the court said, that “the government’s justification or purpose in enacting the law is irrelevant” if it singles out topics for regulation. The court struck down a South Carolina law that barred robocalls on political and commercial topics but not on others.

Some lawyers are speculating that the Supremes knee jerked on the stupidity of the Gilbert council without fully thinking about the consequences of going with Thomas on his expansion of speech rights. As Liptak notes, regulations on consumer protection, financial securities, and communications are all “topics,” and would be “presumptively unconstitutional,” meaning they would have to be proven otherwise.

While the big whoops sort this out at 30,000 feet, organizers on the ground may have just seen the ceiling demolished for tactics that had been increasingly endangered and now should be reexamined.

For example more and more communities have tried to outlaw the classic community organizing tactic of suiting up, jumping on the school buses, and heading for the suburbs to publicly shame a campaign target to his neighbors and friends for his business practices or oppositional position. How have these ordinances and statutes handled the content and topic question? The window is now wide open, so it’s worth looking!

Panhandling is a litmus test for example. Usually, these “begging” ordinances have only prevailed when municipal jurisdictions are able to conceal restrictions behind arguments about public safety and traffic regulations. Some of that has fallen by the wayside in recent years through other decisions. In New Orleans and numerous other cities where courts had broken bad on “tagging,” which is solicitation for donations at traffic lights, it is now legal again, and the restrictions against it are unenforceable. Street solicitation that attempts to be regulated through costly registration and location restrictions to stop not only panhandlers but also “chuggers,” as they are fondly called in England, short for “charity muggers,” and those seeking support for campaigns, organizations, and other issues would all seem to be unconstitutional under the Reed decision.

And, how about the extensive regulation of signs and speech for workers and their unions around boycotts, strikes, healthcare facilities, and the like. Are these not “topics” and therefore subject to “strict scrutiny” and presumed to be unconstitutional? I’m no lawyer but it would seem to this organizer that the sky just opened again for a wider expression of organizational speech and tactics.

Until this sorts out, keep in mind the brilliant explanation and amazing metaphor offered by the Times’ Liptak:

Strict scrutiny requires the government to prove that the challenged law is “narrowly tailored to serve compelling state interests.” You can stare at those words as long as you like, but here is what you need to know: Strict scrutiny, like a Civil War stomach wound, is generally fatal.

If we still have the troops in the field and the boots on the grounds for effective protest, it’s time to get stepping and let our voices roar!

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