No. 03-14-00375-CV

In the 

Third Court of Appeals 

Austin, Texas _______________

AUSPRO ENTERPRISES, LP,

Appellant,

v.

TEXAS DEPARTMENT OF TRANSPORTATION,

Appellee.

_______________

On Appeal from the 345th Judicial District Court of 

Travis County, Texas

_______________

APPELLANT AUSPRO ENTERPRISES, LP’S SUPPLEMENTAL BRIEF ON

REED V. TOWN OF GILBERT & APPENDIX

_______________

Meredith B. Parenti

State Bar No. 00797202

PARENTI LAW PLLC

7500 San Felipe, Suite 600

Houston, Texas 77063

[Tel] (281) 224-5848

[Fax] (281) 605-5677

meredith@parentilaw.com

Counsel for Appellant 

AusPro Enterprises, LP

ORAL ARGUMENT REQUESTED

ACCEPTED

03-14-00375-CV

6136719

THIRD COURT OF APPEALS

AUSTIN, TEXAS

7/20/2015 1:44:46 PM

JEFFREY D. KYLE

CLERK

 FILED IN 3rd COURT OF APPEALS AUSTIN, TEXAS 7/20/2015 1:44:46 PM JEFFREY D. KYLE Clerk
i

IDENTITIES OF PARTIES AND COUNSEL 

The following is a complete list of the parties, attorneys, and any other 

person who has any interest in the outcome of this appeal.

Defandant/Appellant:

AusPro Enterprises, LP

Counsel for Defendant/Appellant:

Meredith B. Parenti

State Bar No. 00797202

PARENTI LAW PLLC

7500 San Felipe, Suite 600

Houston, Texas 77063

[Tel] (281) 224-5848

[Fax] (281) 605-5677

meredith@parentilaw.com

Plaintiff/Appellee:

Texas Department of Transportation

Counsel for Plaintiff/Appellee:

Douglas Geyser

Assistant Solicitor General

Matthew Bohuslav

Assistant Attorney General, Transportation Division

P.O. Box 12548, Capitol Station

Austin, Texas 78711-2548

[Tel] (512) 936-2540

[Fax] (512) 472-3855

douglas.geyser@texasattorneygeneral.gov

matthew.bohuslav@texasattorneygeneral.gov
ii

SUPPLEMENTAL STATEMENT REGARDING ORAL ARGUMENT

Although the Supreme Court’s decision in Reed v. Town of Gilbert 

undoubtedly controls this case and requires reversal of the trial court’s judgment, 

oral argument may benefit the Court by permitting counsel to address Reed’s 

application to the facts of this case and to answer any questions the Court may 

have about the record and the extent to which the Texas Highway Beautification 

Act and its implementing regulations can survive a holding that they impermissibly

regulate the content of speech.
iii

TABLE OF CONTENTS

Identity of Parties and Counsel................................................................................... i

Supplemental Statement Regarding Oral Argument .................................................. ii

Table of Authorities.................................................................................................... iv

Background on Reed v. Town of Gilbert .................................................................... 1

Argument .................................................................................................................... 6

I. The Election Sign Exemption Is a Content-Based Regulation of Speech........ 7

A. The Act and Its Implementing Regulations Are Not Subject to 

Intermediate Scrutiny as Time, Place, and Manner Restrictions........... 9

B. The State Cannot Justify the Statute on the Grounds That It Is Aimed 

at the Secondary Effects of Signs........................................................... 11

C. TxDOT Cannot Satisfy Its Burden to Show That the Election Sign 

Exemption Is Narrowly Tailored to Further a Compelling 

Governmental Interest............................................................................ 11

II. The Court Should Invalidate Both the Act and Its Implementing 

Regulations....................................................................................................... 16

III. The Texas Constitution Also Forbids the State’s Regulation of Election 

Signs................................................................................................................. 19

Prayer.......................................................................................................................... 20

Appendix
iv

TABLE OF AUTHORITIES

Cases

Bantam Books, Inc. v. Sullivan,

372 U.S. 58 (1963) ........................................................................................... 17

Cincinnati v. Discovery Network, Inc., 

507 U.S. 410 (1993) ......................................................................................... 5

Citizens United v. Federal Election Commission, 

130 S.Ct. 876 (2010) ........................................................................................ 12

City of Painesville Building Dep’t v. Dworken & Bernstein Co., L.P.A., 

89 Ohio St.3d 564 (2000)................................................................................. 15

City of Renton v. Playtime Theatres, Inc., 

475 U.S. 41 (1986) ........................................................................................... 10

Curry v. Prince George’s County, 

33 F.Supp.2d 447 (D. Md. 1999)...................................................................... 15

FW/PBS, Inc. v. Dallas, 

493 U.S. 215 (1990) ......................................................................................... 17

Freedman v. Maryland, 

380 U.S. 51 (1965) ........................................................................................... 16-17

Knoeffler v. Town of Mamakating, 

87 F.Supp.2d 322 (S.D.N.Y. 2000).................................................................. 15

Police Dep’t of Chicago v. Mosley, 

408 U.S. 92 (1972) ........................................................................................... 3

Reed v. Town of Gilbert, 

576 U.S. __, 135 S.Ct. 2218 (2015) ................................................................. passim

Shuttlesworth v. Birmingham, 

394 U.S. 147 (1969) ......................................................................................... 17
v

Sorrell v. IMS Health, Inc., 

564 U.S. ___, 131 S.Ct. 2653 (2011) ............................................................... 3

Texas Department of Transportation v. Barber, 

111 S.W.3d 86 (Tex. 2003) .............................................................................. 9-11

Union City Bd. of Zoning Appeals v. Justice Outdoor Displays, Inc., 

467 S.E.2d 875 (Ga. 1996)............................................................................... 13, 14

United States v. Playboy Entm’t Grp., Inc., 

529 U.S. 803 (2000) ......................................................................................... 11

Ward v. Rock Against Racism, 

491 U. S. 781 (1989) ........................................................................................ 4, 10

Whitton v. City of Gladstone, 

54 F.3d 1400 (8th Cir. 1995)............................................................................ 13, 14, 15

Statutes, Regulations, & Constitutional Provisions

43 TEX. ADMIN. CODE §§21.141–.260........................................................................ 18

43 TEX. ADMIN. CODE §21.146(a)(10)........................................................................ 8, 16

TEX. TRANSP. CODE §391.002(b)(1), (2) .................................................................... 12

TEX. TRANSP. CODE §391.005 .................................................................................... passim

TEX. TRANSP. CODE §391.031(a)(1) ........................................................................... 7

TEX. TRANSP. CODE §391.031(b)(1), (2), (3), (5)....................................................... 14

TEX. TRANSP. CODE §391.037 .................................................................................... 14

TEX. TRANSP. CODE §391.099 .................................................................................... 14

TEX. CONST. art. I, §8.................................................................................................. 19

TEX. CONST. art. I, §29................................................................................................ 19

U.S. CONST. amend. I.................................................................................................. 10
1

TO THE HONORABLE THIRD COURT OF APPEALS:

After the parties filed their opening briefs in this case, Appellant AusPro 

Enterprises, LP moved to stay this appeal pending the decision by the Supreme 

Court of the United States in Reed v. Town of Gilbert, No. 13-502. AusPro also 

requested supplemental briefing under TEX. R. APP. P. 38.7 to address the decision 

in Reed. The Court granted the motion in part and stayed the case, permitting the 

parties to file supplemental briefs to address Reed. Now that the Supreme Court 

has issued its decision in Reed, Appellant respectfully submits that the decision 

controls this case, and requires this Court to reverse the trial court’s judgment and 

hold that the Texas Highway Beautification Act and its implementing regulations, 

like the sign code held unconstitutional in Reed, are “content-based regulations of 

speech that cannot survive strict scrutiny.” Reed v. Town of Gilbert, 576 U.S. __, 

135 S.Ct. 2218, slip op. at 1 (2015); App. 1.

BACKGROUND ON REED V. TOWN OF GILBERT

Petitioners in Reed, a pastor and his church, challenged a Gilbert, Arizona 

sign code involving durational and other limitations on various categories of signs, 

including political, ideological, and temporary directional signs, based on the 

subject matter of the signs. App. 1 at 1-3. The sign code treated ideological signs 

most favorably, allowing them to be up to 20 square feet in area and placed in all 

zoning areas without time limits. Id. at 2. 
2

Political signs, defined as any “temporary sign designed to influence the 

outcome of an election called by a public body,” were treated less favorably than 

ideological signs, with a maximum size of 16 square feet on residential property 

and 32 square feet on nonresidential property, undeveloped municipal property, 

and rights of way. Id. Political signs could be displayed up to 60 days before a 

primary election and up to 15 days after a general election. Id. 

Temporary directional signs intended to direct pedestrians, motorists, and 

passersby to qualifying events such as assemblies and meetings, were treated even 

less favorably by the code, with a maximum size of six square feet and a durational 

limitation on their placement, either on private property or a right of way, of no 

more than 12 hours before the event and 1 hour afterward. Id. at 3.

Petitioners advertised the time and place of their Sunday church services, 

which were held in a variety of locations, with signs posted early in the day on 

Saturday and removed around midday on Sunday. Id. at 3-4. After the town cited 

the church for violating the sign code’s time limits, petitioners challenged the sign 

code under the First and Fourteenth Amendments. Id. at 4. The district court 

denied preliminary injunctive relief, and the Ninth Circuit affirmed, holding the 

sign code was content-neutral. Id. On remand, the district court granted summary 

judgment for the town, and the court of appeals again affirmed. Id. at 5.

The question presented in Reed was:
3

Does Gilbert’s mere assertion of a lack of discriminatory motive 

render its facially content-based sign code content neutral and justify 

the code’s differential treatment of Petitioners’ religious signs?

Brief for Petitioners, Reed v. Town of Gilbert, No. 13-502 (Sept. 15, 2014).

The Supreme Court reversed, holding that the sign code’s restrictions were 

“content-based regulations of speech that cannot survive strict scrutiny.” App. 1 at 

1.

The Court’s analysis began with the fundamental principle that, under the 

First Amendment, applicable to the states and municipalities through the 

Fourteenth Amendment, the government “has no power to restrict expression 

because of its message, its ideas, its subject matter, or its content.” Id. at 6 (quoting 

Police Dep’t of Chicago v. Mosley, 408 U.S. 92, 95 (1972)). Addressing what it 

means for a regulation of speech to be “content based,” the Court gave the phrase 

the “commonsense” meaning that “[g]overnment regulation of speech is content 

based if a law applies to particular speech because of the topic discussed or the 

idea or message expressed.” Id. (citing Sorrell v. IMS Health, Inc., 564 U.S. ___, 

___–___, 131 S.Ct. 2653, slip op. at 8-9 (2011)). Under the Court’s definition, a 

court must “consider whether a regulation of speech ‘on its face’ draws distinctions 

based on the message a speaker conveys.” Id. While some distinctions “are 

obvious, defining regulated speech by particular subject matter, . . . others are more 

subtle, defining regulated speech by its function or purpose.” Id. Regardless, 
4

“[b]oth are distinctions drawn based on the message a speaker conveys, and, 

therefore, are subject to strict scrutiny.” Id. The Court also identified a separate 

category of laws that, “though facially content neutral, will be considered contentbased regulations of speech: laws that cannot be ‘justified without reference to the 

content of the regulated speech,’ or that were adopted by the government ‘because 

of disagreement with the message [the speech] conveys.’” Id. at 6-7 (quoting Ward 

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

The Court held that the Gilbert sign code was “content based on its face” 

because it defined temporary directional signs “on the basis of whether a sign 

convey[ed] the message of directing the public to church or some other ‘qualifying 

event.’” Id. at 7. Moreover, the code defined political signs “on the basis of 

whether a sign’s message was ‘designed to influence the outcome of an election,’” 

and ideological signs on the basis of whether a sign “‘communicat[ed] a message 

or ideas’ that d[id] not fit within the Code’s other categories.” Id. Thus, the sign 

code’s restrictions “depend[ed] entirely on the communicative content of the sign.” 

Id.

Because the sign code was a content-based regulation of speech, the Court 

refused to consider the government’s justifications or purposes for enacting the 

code in determining whether strict scrutiny applied. Id. The Court rejected several 

arguments as to why the code should be deemed content neutral. Significantly, the 
5

court of appeals had determined that the town did not adopt its regulation based on 

disagreement with the message conveyed, and its justifications for the regulation 

were unrelated to the content of the sign. Id. at 8. The Court flatly rejected this 

logic:

But this analysis skips the crucial first step in the content-neutrality 

analysis: determining whether the law is content neutral on its face. A 

law that is content based on its face is subject to strict scrutiny 

regardless of the government’s benign motive, content-neutral 

justification, or lack of “animus toward the ideas contained” in the 

regulated speech. 

Id. (quoting Cincinnati v. Discovery Network, Inc., 507 U. S. 410, 429 (1993)).

Thus, “an innocuous justification cannot transform a facially content-based law 

into one that is content neutral.” Id. at 9. 

The Court also rejected the court of appeals’s reasoning that the sign code 

was neutral because it did not single out any idea or viewpoint for disparate 

treatment. Id. at 11. The Court explained that this argument “conflates two distinct 

but related limitations” on regulations of speech—discrimination among 

viewpoints, which is “more blatant” content discrimination, and prohibitions on 

entire topics of discussion. Id. at 11-12. “Thus, a speech regulation targeted at 

specific subject matter is content based even if it does not discriminate among 

viewpoints within that subject matter.” Id. at 12.

Because the sign code was content based, the Court applied strict scrutiny, 

“which requires the Government to prove that the restriction furthers a compelling 
6

interest and is narrowly tailored to achieve that interest.” Id. at 14 (citations and 

internal quotations omitted). Thus, it was “the Town’s burden to demonstrate that 

the Code’s differentiation between temporary directional signs and other types of

signs, such as political signs and ideological signs, furthers a compelling 

governmental interest and is narrowly tailored to that end.” Id. at 14-15.

The Court held that the town could not demonstrate that the sign code was 

narrowly tailored to further a compelling governmental interest. Id. at 14-15. The 

Court concluded that the two proffered governmental interests—aesthetics and 

traffic safety—were “hopelessly underinclusive” because the code allowed 

unlimited, larger ideological signs while strictly limiting smaller, directional signs. 

Id. at 15. Nor did directional signs pose a greater traffic hazard than ideological or 

political signs. Id. “The signs at issue in this case, including political and 

ideological signs and signs for events, are far removed from those purposes [of 

traffic safety]. . . . [T]hey are facially content based and are neither justified by 

traditional safety concerns nor narrowly tailored.” Id. at 17. Thus, the Court held 

that the sign code “fail[ed] strict scrutiny.” Id.at 15.
7

ARGUMENT

I. THE ELECTION SIGN EXEMPTION IS A CONTENT-BASED REGULATION OF 

SPEECH.

After Reed, there is no doubt that a restriction on the display of election 

signs is, by definition, a content-based regulation of speech that is subject to strict 

scrutiny. Reed held that a town sign code that distinguished between signs based 

on whether they were ideological, political, or directional was “content based on its 

face.” App. 1 at 7. So, too, are Texas’s Highway Beautification Act and its 

implementing regulations.

The Texas Highway Beautification Act generally prohibits outdoor 

advertising within 660 feet of the right of way of interstate or primary state 

highways. TEX. TRANSP. CODE §391.031(a)(1); App. J; AusPro Br. at 14-15.1 The 

election sign exemption challenged by AusPro provides that:

This chapter does not apply to a sign erected solely for and relating to 

a public election if the sign:

(1) is on private property;

(2) is erected not earlier than the 90th day before the date of the 

election and is removed not later than the 10th day after the election 

date;

(3) is constructed of lightweight material; and

(4) has a surface area not larger than 50 square feet.

 1 Citations to the lettered portions of the Appendix (App. A–Z) refer to the Appendix filed with 

Appellant’s opening brief.
8

TEX. TRANSP. CODE §391.005 (emphasis added); App. D; see also 43 TEX. ADMIN.

CODE §21.146(a)(10); App. E. 

By singling out speech “erected solely for and relating to a public election”

for disparate treatment in TEX. TRANSP. CODE §391.005, the election sign 

exemption constitutes the type of “obvious” content-based regulation of speech the 

Supreme Court in Reed held is subject to strict scrutiny. App. 1 at 6. Like the sign 

code in Reed, the Act and its implementing regulations distinguish between signs 

based on their content. The code invalidated in Reed defined political signs “on the 

basis of whether a sign’s message is ‘designed to influence the outcome of an 

election.’” App. 1 at 7. The Texas election sign exemption similarly applies to 

signs “erected solely for and relating to a public election.” TEX. TRANSP. CODE

§391.005; App. D. Both restrictions “depend entirely on the communicative 

content of the sign.” App. 1 at 7. Both restrictions are obvious content-based 

restrictions on speech. 

As discussed below, the Court in Reed rejected every major argument 

proffered by TxDOT to justify the Act and its implementing regulations. After 

Reed, there is simply no basis to apply intermediate scrutiny to the Act and its 

regulations. Instead, the Act and its regulations are subject to strict scrutiny, which 

they cannot withstand.
9

A. The Act and Its Implementing Regulations Are Not Subject to 

Intermediate Scrutiny as Time, Place, and Manner Restrictions.

Relying on the Supreme Court of Texas’s decision in Texas Department of 

Transportation v. Barber, 111 S.W.3d 86 (Tex. 2003), TxDOT argues that the Act 

is content neutral and that it may be justified as a time, place, and manner 

restriction subject to intermediate scrutiny. TxDOT Br. at 11-16. This analysis 

cannot stand after Reed, however, because the election sign exemption is 

undoubtedly content based. On its face, the election sign exemption regulates the 

duration of election signs based on their content. If the sign relates to an election, 

the Act strictly limits the speech to a limited window of 90 days prior to, and ten 

days after, an election. The Act prohibits speech relating to elections along 

interstate and primary highways at all other times of the year.

The Texas Supreme Court in Barber held that the Act’s general prohibition 

on signs along state highways and interstates was a content-neutral time, place, and 

manner restriction as applied to Barber’s billboard. 111 S.W.3d at 89. The election 

sign exemption was not directly before the Court given that Barber had only 

challenged the Act as applied to his sign, which was unrelated to any election. Id. 

at 100. Regardless, the Court recognized that the Act “does make certain 

distinctions based on subject matter,” such as the exemptions for directional signs, 

signs relating to natural wonders or scenic or historic attractions, and election 

signs. Id. at 98. Nevertheless, the Court held the Act was “content neutral because 
10

it is ‘justified without reference to the content of the regulated speech.’” Id. at 100

(quoting City of Renton v. Playtime Theatres, Inc., 475 U.S. 41, 48 (1986) (adding 

emphasis)). Moreover, the Court held that although the “election sign exemption is 

arguably content based, . . . ‘[a] regulation that serves purposes unrelated to the 

content of expression is deemed neutral, even if it has an incidental effect on some 

speakers or messages but not others.’” Id. (quoting Ward, 491 U.S. at 791). 

The reasoning in Barber is no longer good law. Under Reed, the justification 

and purposes of the regulation are irrelevant to the threshold question of whether it 

is content based. App. 1 at 9 (“[W]e have repeatedly considered whether a law is 

content neutral on its face before turning to the law’s justification or purpose.”). 

Instead, the Court must first ask whether the regulation “applies to particular 

speech because of the topic discussed or the idea or message expressed.” Id. at 6. 

As the Supreme Court recognized in Reed, “[i]nnocent motives do not eliminate 

the danger of censorship presented by a facially content-based statute, as future 

government officials may one day wield such statutes to suppress disfavored 

speech. That is why the First Amendment expressly targets the operation of the 

laws—i.e., the ‘abridg[ement] of speech’—rather than merely the motives of those 

who enacted them.” App. 1 at 10 (quoting U.S. CONST. amend. I).

Because the Act and its regulation make “certain distinctions based on 

subject matter,” as the Texas Supreme Court recognized in Barber, 111 S.W.3d at 
11

98, it is content based and subject to strict scrutiny. The sign code invalidated in 

Reed similarly was content based because it “identifie[d] various categories of 

signs based on the type of information they convey, then subject[ed] each category 

to different restrictions.” App. 1 at 1. TxDOT’s justification that the Act and 

regulations are reasonable time, place, and manner restrictions falls by the 

wayside, and the regulations must satisfy strict scrutiny.

B. The State Cannot Justify the Statute on the Grounds That It Is 

Aimed at the Secondary Effects of Signs.

As established in AusPro’s opening brief, TxDOT cannot justify the Act and 

its regulations on the grounds that they are aimed at the “secondary effects of 

billboards and signs along State highways.” CR72; TxDOT Br. at 29; AusPro Br. 

at 38-42. The lesser scrutiny applied to regulations targeting secondary effects “has 

no application to content-based regulations targeting the primary effects of

protected speech.” United States v. Playboy Entm’t Grp., Inc., 529 U.S. 803, 815

(2000). Because the election sign exemption is obviously content based, Reed, 

App. 1 at 6, a secondary effects rationale has no application here and strict scrutiny 

applies.

C. TxDOT Cannot Satisfy Its Burden to Show That the Election Sign 

Exemption Is Narrowly Tailored to Further a Compelling 

Governmental Interest.

TxDOT proffers the same governmental interests—aesthetics and traffic 

safety—rejected by the Supreme Court in Reed as “hopelessly underinclusive.” 
12

App. 1 at 15; TxDOT Br. at 2, 32; CR72 (TxDOT contending that that “[t]he 

purpose of the HBA is to control the secondary effects of billboards and signs 

along State highways such as stemming visual clutter on the landscape and 

promoting travel safety”); TEX. TRANSP. CODE § 391.002(b) (1), (2) (declaring that 

purpose of Act is to “promote the health, safety, welfare, morals, convenience, and 

enjoyment of the traveling public” and to “protect the public investment in the

interstate and primary systems”). Even if the proffered interests were compelling, 

which the Supreme Court assumed for the sake of argument, the Court held they 

were not narrowly tailored. App. 1 at 15. Likewise, even if TxDOT could 

demonstrate that its interests in aesthetics and safety are compelling enough to 

severely restrict core political speech, which AusPro does not concede, AusPro Br. 

at 42-44,

2 the Act and its regulations are not narrowly tailored.

The Court in Reed rejected the town’s aesthetics rationale, observing that 

temporary directional signs were “no greater an eyesore” than ideological or 

political signs, yet the code strictly limited durational signs while permitting other 

signs to proliferate. App. 1 at 15. The same is true of the election sign exemption, 

 2 Given that “[l]aws that burden political speech are “subject to strict scrutiny,” the Supreme 

Court in Citizens United v. Federal Election Commission invalidated an “outright ban” on 

corporate speech within 30 days of a primary election and 60 days of a general election, holding 

that “[n]o sufficient governmental interest justifies limits on the political speech of nonprofit or 

for-profit corporations.” 130 S.Ct. 876, 897-98, 913 (2010). The election sign exemption 

amounts to an even broader outright ban on speech relating to an election for three-fourths of the 

year, except for a period 90 days before and ten days after an election. TEX. TRANSP. CODE

§391.005; App. D.
13

which places strict time limitations on election signs that does not apply to other 

signs, which are permitted to remain on display all year. See AusPro Br. at 44-49. 

This is not narrow tailoring, but the state impermissibly discriminating against core 

political speech. See Whitton v. City of Gladstone, 54 F.3d 1400, 1407 (8th Cir. 

1995) (explaining that “a sign which stated ‘Go Royals’ would not be subjected to 

the durational limitations while a sign stating ‘Go Ashcroft’ would, even though 

the signs were made of the same material, installed in the same manner, erected on 

the same spot, posed the same traffic hazards and detracted from the City’s 

aesthetic beauty in the same manner”); Union City Bd. of Zoning Appeals v. Justice 

Outdoor Displays, Inc., 467 S.E.2d 875, 882 (Ga. 1996) (explaining that city had 

“not demonstrated that political signs pose a greater danger to the motoring public 

or detract from the aesthetics of the city any more than other signs, with greater or 

unlimited durational limitations, permitted in the same zoning districts”).

The Supreme Court in Reed also rejected the argument that limiting 

directional signs was necessary to eliminate threats to traffic safety, reasoning that 

there was no reason to believe directional signs posed a greater traffic hazard than 

ideological or political signs. App. 1 at 15. “The signs at issue in this case, 

including political and ideological signs and signs for events, are far removed from 

those purposes [of traffic safety]. . . . [T]hey are facially content based and are 

neither justified by traditional safety concerns nor narrowly tailored.” Id. at 17.
14

Likewise, there is no reason to believe that election signs are more hazardous to 

public safety than the many other types of signs permitted along state highways 

and interstates without durational limitations under the Act and its implementing 

regulations, including (1) directional or official advertising; (2) advertising for the 

sale or lease of property; (3) on-site commercial advertising promoting an activity 

on the premises; (4) outdoor advertising for the purpose of protecting life or 

property; (5) certain signs containing the logo or emblem of an entity that sponsors 

an agricultural fair, school, or institution of higher education; (6) tourist-oriented 

directional signs for wineries or businesses related to agriculture or tourism. TEX.

TRANSP. CODE §§391.031(b)(1), (2), (3), (5), .037, .099; App. J, M, N; see AusPro 

Br. at 27-30 & n.7; see also Whitton, 54 F.3d at 1407; Union City, 467 S.E.2d at 

882.

The election sign exemption is not narrowly tailored, and should meet the 

same fate as the sign code in Reed. The sign code invalidated in Reed limited 

political signs to 60 days before a primary election and up to 15 days after a 

general election. See App. 1 at 2. Similarly, Texas’s election sign exemption limits 

speech relating to an election to 90 days before and up to ten days after an election. 

TEX. TRANSP. CODE §391.005; App. D. Even before Reed, courts across the 

country held that such durational limitations on signs are not narrowly tailored to 

serve compelling governmental interests and amount to unconstitutional limitations 
15

on speech. See, e.g., Curry v. Prince George’s County, 33 F.Supp.2d 447, 455 (D. 

Md. 1999) (“Extended durational bans on political speech for all but 45 days 

before and 10 days after a political election, are bans nonetheless—in-consistent 

[sic] with the ‘venerable’ status that the Supreme Court has accorded to individual 

speech . . . .”); City of Painesville Building Dep’t v. Dworken & Bernstein Co., 

L.P.A., 89 Ohio St.3d 564, 573 (2000) (holding ordinance was “not narrowly 

tailored to further the governmental interests asserted by the city of Painesville, nor 

do ample alternative means for communicating the desired message exist for such 

a property owner”); Knoeffler v. Town of Mamakating, 87 F.Supp.2d 322, 333, 330

(S.D.N.Y. 2000) (explaining that “durational limits on signs have been repeatedly 

declared unconstitutional” and holding that ordinance was “not narrowly tailored 

to” town’s interests in aesthetics and safety); Whitton, 54 F.3d at 1401-02 & n.2, 

1409 (holding that city’s durational limitations on campaign signs for 30 days prior 

and 7 days after election were content-based restrictions that failed to satisfy strict 

scrutiny and therefore constituted unconstitutional restraints on speech as applied 

to residential and commercial property); AusPro Br. at 17-18 & n.5 (citing cases).

Reed now confirms that a regulation that restricts certain signs based on their 

content, while allowing other signs to proliferate, is not narrowly tailored to serve 

the governmental interests of aesthetics and traffic safety.
16

II. THE COURT SHOULD INVALIDATE BOTH THE ACT AND ITS IMPLEMENTING 

REGULATIONS.

AusPro challenges both the election sign exemption contained in §391.005

of the Act and its implementing regulations as unconstitutional regulations of core 

political speech. AusPro Br. at 15-17. Applying the Supreme Court’s decision in 

Reed, the Court should hold both the Act and its implementing regulations are 

unconstitutional because they make distinctions between signs on the basis of their 

content and are not narrowly tailored to serve a compelling governmental interest. 

See AusPro Br. at 13-49; supra Part I. Like the Act, the regulations implementing 

it permit signs that “relate[ ] only to a public election” to be displayed only during 

the 100-day window around an election. 43 TEX. ADMIN. CODE §21.146(a)(10); 

App. E; see also TEX. TRANSP. CODE §391.005; App. D.

TxDOT argues that AusPro forfeited its challenge to TxDOT’s licensing and 

permitting regulations as an invalid prior restraint. TxDOT Br. at 35. AusPro 

challenged both the Act and its implementing regulations throughout this case, as 

detailed below. On appeal, AusPro specifically detailed how the licensing and 

permitting regulations operate as an invalid prior restraint in response to TxDOT’s 

argument that AusPro could simply apply for a permit to display its sign. See 

CR80; AusPro Br. at 49-55. AusPro has every right to challenge TxDOT’s

licensing and permitting regime because it was prosecuted civilly for failure to 

comply with it. CR5-7, 10-11; see Freedman v. Maryland, 380 U.S. 51, 56 (1965)
17

(“One who might have had a license for the asking may . . . call into question the 

whole scheme of licensing when he is prosecuted for failure to procure it.”

(citations and internal quotations omitted)); Shuttlesworth v. Birmingham, 394 U.S. 

147, 151 (1969) (“[O]ur decisions have made clear that a person faced with such 

an unconstitutional licensing law may ignore it and engage with impunity in the 

exercise of the right of free expression for which the law purports to require a 

license.”).3

Regardless, TxDOT does not argue that AusPro forfeited its broader 

challenge to TxDOT’s regulations on First Amendment grounds, and for good 

reason. Without question, AusPro preserved its challenge to the licensing and 

permitting regulations throughout this case. It did so by asserting in its affirmative 

defenses and trial briefing that “the statutes and regulations on which Plaintiff 

relies violate AusPro’s right to free speech” on their face and as applied under the 

First Amendment and the Texas Constitution. CR14, 63, 65-70. TxDOT itself 

relied on the licensing and permitting regulations in its petition, summary 

 3 Although the Court need not reach AusPro’s prior restraint argument if it holds that the Act and 

its implementing regulations are unconstitutional as content-based regulations of speech, it will 

be up to the legislature to revisit the Act, and TxDOT to rewrite its regulations. Because AusPro 

raises significant concerns about how the licensing and permitting regulations chill protected 

speech and deny judicial review, the Court may wish to caution that any new regulations include 

an expeditious means for judicial review. See FW/PBS, Inc. v. Dallas, 493 U.S. 215, 227 (1990)

(plurality) (citing Freedman, 380 U.S. at 58-60 (1965)); Bantam Books, Inc. v. Sullivan, 372 U.S.

58, 70-71 (1963); AusPro Br. at 49-56. TxDOT argues that judicial review is not required for 

content-neutral regulations, see TxDOT Br. at 37-38, 45, but that rationale obviously no longer 

applies if this Court holds that the Act and regulations are content based.
18

judgment motion, and trial brief. See CR3 (citing 43 TEX. ADMIN. CODE §§21.141–

.260); CR5 (same); CR16-17, 19, 22, 72-74, 77, 80 (same). Moreover, the parties’

agreed stipulated facts asked the trial court to take judicial notice of the Act “and 

TxDOT’s related administrative rules, 43 TEXAS ADMIN. CODE §§ 21.141-.260.”

CR52. Finally, the trial court specifically ruled in its judgment that the Act and its 

regulations in “43 TEX. ADMIN. CODE §§21.141–.260, are not unconstitutional as 

applied to AusPro.” App. A at 1. 

The Court should reverse the trial court’s judgment and hold that the Act and 

TxDOT’s licensing and permitting regulations impermissibly regulate signs based 

on content, and fail to satisfy strict scrutiny. While the Court could simply strike 

down the election sign exemption contained in the Act and its regulations and 

leave the rest of the Act and the regulations intact, it should also more broadly hold 

that the Act and its regulations are unconstitutional to the extent they regulate signs 

based on their subject matter. Because AusPro raised both facial and as-applied 

challenges to the Act and its implementing regulations, both options are available 

to the Court. See AusPro Br. at 13 & n.2. The Supreme Court in Reed held the sign 

code as a whole unconstitutional, see App. 1 at 15 (holding that “the Sign Code 

fails strict scrutiny”), and did not merely invalidate the provision for temporary 

signs applicable to Petitioners. Id. at 2-3 (discussing three categories of exempt 

signs under the code, including the temporary directional signs applicable to 
19

Petitioners); id. at 7, 14, 17 (same). Holding the Act and its regulations 

unconstitutional to the extent they regulate signs based on their subject matter not 

only be would consistent with the broad holding in Reed, but it would also give the 

Texas Legislature and TxDOT helpful guidance as they rewrite the Act and its 

implementing regulations.

III. THE TEXAS CONSTITUTION ALSO FORBIDS THE STATE’S REGULATION OF 

ELECTION SIGNS.

To the extent there is any doubt that Reed governs and requires the Court to 

hold that the Act and its regulations are unconstitutional under the First 

Amendment to the United States Constitution (and there should be no such doubt), 

they are also unconstitutional under the Texas Constitution for the reasons 

explained in AusPro’s opening brief. AusPro Br. at 58-64. While TxDOT tries to 

dodge the Texas Constitution, TxDOT Br. at 46-48, there is no way around its 

plain text, which unequivocally prohibits laws “curtailing the liberty of speech or 

of the press.” TEX. CONST. art. I, §§8, 29 (providing that “no law shall ever be 

passed curtailing the liberty of speech or of the press” and that this right “shall 

forever remain inviolate, and all laws contrary thereto, or to the following 

provisions, shall be void”); App. G, H. The Act and its implementing regulations 

violate this simple, yet fundamental guarantee in the Texas Constitution, and 

should be held unconstitutional on this ground as well.
20

PRAYER

For the above reasons, AusPro respectfully requests that this Court reverse 

the trial court’s judgment and render judgment that the Act and its implementing 

regulations violate the First Amendment of the United States Constitution and 

Article I, sections 8 and 29 of the Texas Constitution.

Respectfully submitted,

/s/ Meredith B. Parenti

Meredith B. Parenti

PARENTI LAW PLLC

7500 San Felipe, Suite 600

Houston, TX 77063

[Tel] (281) 224-5848

[Fax] (281) 605-5677

meredith@parentilaw.com

Counsel for Appellant 

AusPro Enterprises, LP
21

CERTIFICATE OF COMPLIANCE

I certify that this document was produced on a computer using Microsoft®

Word for Mac 2011 and contains 5328 words, as determined by the computer 

software’s word-count function, excluding the sections of the document listed in 

TEX. R. APP. P. 9.4(i)(1).

/s/ Meredith B. Parenti

Meredith B. Parenti

CERTIFICATE OF SERVICE

I certify that on July 20, 2015, I served a copy of this filing on the following 

party via email and through the Court’s electronic filing system:

Douglas Geyser

Assistant Solicitor General

P.O. Box 12548, Capitol Station

Austin, Texas 78711-2548

Counsel for Appellee Texas Department of Transportation

/s/ Meredith B. Parenti

Meredith B. Parenti
No. 03-14-00375-CV

In the 

Third Court of Appeals 

Austin, Texas _______________

AUSPRO ENTERPRISES, LP,

Appellant,

v.

TEXAS DEPARTMENT OF TRANSPORTATION,

Appellee.

_______________

On Appeal from the 345th Judicial District Court of 

Travis County, Texas

_______________

APPELLANT AUSPRO ENTERPRISES, LP’S APPENDIX IN SUPPORT OF 

SUPPLEMENTAL BRIEF ON REED V. TOWN OF GILBERT

_______________

1. Reed v. Town of Gilbert, 576 U.S. __, 135 S.Ct. 2218, slip op. (2015).
 

 

 

 

 

(Slip Opinion) OCTOBER TERM, 2014 1 

Syllabus 

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is

being done in connection with this case, at the time the opinion is issued.

The syllabus constitutes no part of the opinion of the Court but has been

prepared by the Reporter of Decisions for the convenience of the reader. 

See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337. 

SUPREME COURT OF THE UNITED STATES 

Syllabus 

REED ET AL. v. TOWN OF GILBERT, ARIZONA, ET AL. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR 

THE NINTH CIRCUIT 

No. 13–502. Argued January 12, 2015—Decided June 18, 2015 

Gilbert, Arizona (Town), has a comprehensive code (Sign Code or Code) 

that prohibits the display of outdoor signs without a permit, but exempts 23 categories of signs, including three relevant here. “Ideological Signs,” defined as signs “communicating a message or ideas” that

do not fit in any other Sign Code category, may be up to 20 square

feet and have no placement or time restrictions. “Political Signs,” defined as signs “designed to influence the outcome of an election,” may 

be up to 32 square feet and may only be displayed during an election 

season. “Temporary Directional Signs,” defined as signs directing the

public to a church or other “qualifying event,” have even greater restrictions: No more than four of the signs, limited to six square feet,

may be on a single property at any time, and signs may be displayed

no more than 12 hours before the “qualifying event” and 1 hour after.

Petitioners, Good News Community Church (Church) and its pastor, Clyde Reed, whose Sunday church services are held at various 

temporary locations in and near the Town, posted signs early each 

Saturday bearing the Church name and the time and location of the 

next service and did not remove the signs until around midday Sunday. The Church was cited for exceeding the time limits for displaying temporary directional signs and for failing to include an event

date on the signs. Unable to reach an accommodation with the Town, 

petitioners filed suit, claiming that the Code abridged their freedom 

of speech. The District Court denied their motion for a preliminary 

injunction, and the Ninth Circuit affirmed, ultimately concluding 

that the Code’s sign categories were content neutral, and that the 

Code satisfied the intermediate scrutiny accorded to content-neutral 

regulations of speech. 

Held: The Sign Code’s provisions are content-based regulations of 
 

 

 

 

2 REED v. TOWN OF GILBERT 

Syllabus 

speech that do not survive strict scrutiny. Pp. 6–17.

(a) Because content-based laws target speech based on its communicative content, they are presumptively unconstitutional and may be

justified only if the government proves that they are narrowly tailored to serve compelling state interests. E.g., R. A. V. v. St. Paul, 

505 U. S. 377, 395. Speech regulation is content based if a law applies to particular speech because of the topic discussed or the idea or 

message expressed. E.g., Sorrell v. IMS Health, Inc., 564 U. S. ___, 

___–___. And courts are required to consider whether a regulation of 

speech “on its face” draws distinctions based on the message a speaker conveys. Id., at ___. Whether laws define regulated speech by particular subject matter or by its function or purpose, they are subject 

to strict scrutiny. The same is true for laws that, though facially content neutral, cannot be “ ‘justified without reference to the content of 

the regulated speech,’ ” or were adopted by the government “because

of disagreement with the message” conveyed. Ward v. Rock Against 

Racism, 491 U. S. 781, 791. Pp. 6–7.

(b) The Sign Code is content based on its face. It defines the categories of temporary, political, and ideological signs on the basis of

their messages and then subjects each category to different restrictions. The restrictions applied thus depend entirely on the sign’s

communicative content. Because the Code, on its face, is a contentbased regulation of speech, there is no need to consider the government’s justifications or purposes for enacting the Code to determine

whether it is subject to strict scrutiny. Pp. 7.

(c) None of the Ninth Circuit’s theories for its contrary holding is

persuasive. Its conclusion that the Town’s regulation was not based

on a disagreement with the message conveyed skips the crucial first 

step in the content-neutrality analysis: determining whether the law

is content neutral on its face. A law that is content based on its face 

is subject to strict scrutiny regardless of the government’s benign motive, content-neutral justification, or lack of “animus toward the ideas

contained” in the regulated speech. Cincinnati v. Discovery Network, 

Inc., 507 U. S. 410, 429. Thus, an innocuous justification cannot

transform a facially content-based law into one that is content neutral. A court must evaluate each question—whether a law is content 

based on its face and whether the purpose and justification for the

law are content based—before concluding that a law is content neutral. Ward does not require otherwise, for its framework applies only 

to a content-neutral statute. 

The Ninth Circuit’s conclusion that the Sign Code does not single 

out any idea or viewpoint for discrimination conflates two distinct but

related limitations that the First Amendment places on government

regulation of speech. Government discrimination among viewpoints 
 

 

Cite as: 576 U. S. ____ (2015) 3 

Syllabus 

is a “more blatant” and “egregious form of content discrimination,” 

Rosenberger v. Rector and Visitors of Univ. of Va., 515 U. S. 819, 829, 

but “[t]he First Amendment’s hostility to content-based regulation 

[also] extends . . . to prohibition of public discussion of an entire topic,” Consolidated Edison Co. of N. Y. v. Public Serv. Comm’n of N. Y., 

447 U. S. 530, 537. The Sign Code, a paradigmatic example of content-based discrimination, singles out specific subject matter for differential treatment, even if it does not target viewpoints within that 

subject matter.

The Ninth Circuit also erred in concluding that the Sign Code was

not content based because it made only speaker-based and eventbased distinctions. The Code’s categories are not speaker-based—the

restrictions for political, ideological, and temporary event signs apply

equally no matter who sponsors them. And even if the sign categories were speaker based, that would not automatically render the law

content neutral. Rather, “laws favoring some speakers over others 

demand strict scrutiny when the legislature’s speaker preference reflects a content preference.” Turner Broadcasting System, Inc. v. 

FCC, 512 U. S. 622, 658. This same analysis applies to event-based 

distinctions. Pp. 8–14.

(d) The Sign Code’s content-based restrictions do not survive strict 

scrutiny because the Town has not demonstrated that the Code’s differentiation between temporary directional signs and other types of 

signs furthers a compelling governmental interest and is narrowly 

tailored to that end. See Arizona Free Enterprise Club’s Freedom 

Club PAC v. Bennett, 564 U. S. ___, ___. Assuming that the Town 

has a compelling interest in preserving its aesthetic appeal and traffic safety, the Code’s distinctions are highly underinclusive. The 

Town cannot claim that placing strict limits on temporary directional

signs is necessary to beautify the Town when other types of signs 

create the same problem. See Discovery Network, supra, at 425. Nor 

has it shown that temporary directional signs pose a greater threat to

public safety than ideological or political signs. Pp. 14–15. 

(e) This decision will not prevent governments from enacting effective sign laws. The Town has ample content-neutral options available to resolve problems with safety and aesthetics, including regulating size, building materials, lighting, moving parts, and portability.

And the Town may be able to forbid postings on public property, so 

long as it does so in an evenhanded, content-neutral manner. See 

Members of City Council of Los Angeles v. Taxpayers for Vincent, 466 

U. S. 789, 817. An ordinance narrowly tailored to the challenges of 

protecting the safety of pedestrians, drivers, and passengers—e.g.,

warning signs marking hazards on private property or signs directing 

traffic—might also survive strict scrutiny. Pp. 16–17. 
 

 

 

 

 

 

 

4 REED v. TOWN OF GILBERT 

Syllabus 

707 F. 3d 1057, reversed and remanded. 

THOMAS, J., delivered the opinion of the Court, in which ROBERTS, 

C. J., and SCALIA, KENNEDY, ALITO, and SOTOMAYOR, JJ., joined. ALITO, 

J., filed a concurring opinion, in which KENNEDY and SOTOMAYOR, JJ., 

joined. BREYER, J., filed an opinion concurring in the judgment. KAGAN, J., filed an opinion concurring in the judgment, in which GINSBURG 

and BREYER, JJ., joined 
   

   

_________________ 

_________________ 

                   

Cite as:  576 U. S. ____ (2015)  1 

Opinion of the Court 

NOTICE:  This opinion is subject to formal revision before publication in the

preliminary  print  of  the  United  States  Reports.  Readers  are  requested  to

notify the Reporter of Decisions, Supreme Court of the United States, Washington,  D. C.  20543,  of  any  typographical  or  other  formal  errors,  in  order

that corrections may be made before the preliminary print goes to press. 

SUPREME COURT OF THE UNITED STATES

No. 13–502 

CLYDE REED, ET AL., PETITIONERS v. TOWN OF 

GILBERT, ARIZONA, ET AL. 

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF 

APPEALS FOR THE NINTH CIRCUIT 

[June 18, 2015] 

JUSTICE THOMAS delivered the opinion of the Court. 

The  town  of  Gilbert,  Arizona  (or  Town),  has  adopted  a

comprehensive code governing the manner in which people 

may  display  outdoor  signs.  Gilbert, Ariz., Land Development Code (Sign Code or Code), ch. 1, §4.402 (2005).1  The 

Sign  Code  identifies  various  categories  of  signs  based  on 

the  type  of  information  they  convey,  then  subjects  each

category to different restrictions.  One of the categories  is 

“Temporary  Directional  Signs  Relating  to  a  Qualifying

Event,”  loosely  defined  as  signs  directing  the  public  to  a

meeting of a nonprofit group.  §4.402(P).  The Code imposes

more  stringent  restrictions  on  these  signs  than  it  does

on  signs  conveying  other  messages.    We  hold  that  these 

provisions  are  content-based  regulations  of  speech  that 

cannot survive strict scrutiny. 

—————— 

1The Town’s Sign Code is available online at http://www.gilbertaz.gov/

departments / development - service / planning -development / land -

development-code  (as  visited  June  16,  2015,  and  available  in  Clerk  of

Court’s case file). 
   

  

2  REED v. TOWN OF GILBERT 

Opinion of the Court 

I 

A 

The  Sign  Code  prohibits  the  display  of  outdoor  signs 

anywhere  within  the Town  without  a  permit,  but  it  then

exempts  23  categories  of  signs  from  that  requirement.

These exemptions include everything from bazaar signs to

flying  banners.  Three  categories  of  exempt  signs  are

particularly relevant here. 

The first is “Ideological Sign[s].”  This category includes

any  “sign communicating a message  or  ideas  for noncommercial  purposes  that  is  not  a  Construction  Sign,  Directional  Sign,  Temporary  Directional  Sign  Relating  to  a

Qualifying  Event,  Political  Sign,  Garage  Sale  Sign,  or  a 

sign  owned  or required by a  governmental agency.”  Sign

Code,  Glossary  of  General  Terms  (Glossary),  p.  23  (emphasis  deleted).  Of  the  three  categories  discussed  here, 

the Code  treats  ideological signs most  favorably, allowing 

them to be up to 20 square feet in area and to be placed in

all “zoning districts” without time limits.  §4.402(J).

The second category is “Political Sign[s].”  This includes 

any  “temporary sign designed  to  influence  the outcome of 

an  election  called  by  a  public  body.”    Glossary  23.2    The  

Code  treats  these  signs  less  favorably  than  ideological 

signs.  The Code allows the placement of political signs up 

to  16  square  feet  on  residential  property  and  up  to  32

square  feet  on  nonresidential  property,  undeveloped  municipal  property,  and  “rights-of-way.”    §4.402(I).3    These  

signs  may  be  displayed  up  to  60  days  before  a  primary 

election  and  up  to  15  days  following  a  general  election. 

Ibid. 

—————— 

2A  “Temporary  Sign”  is  a  “sign  not  permanently  attached  to  the 

ground,  a wall  or  a  building,  and not  designed  or  intended  for  permanent display.”  Glossary 25.  3The Code defines  “Right-of-Way” as a  “strip  of publicly  owned  land 

occupied  by  or  planned  for  a  street,  utilities,  landscaping,  sidewalks, 

trails, and similar facilities.”  Id., at 18. 
  

  

  

Cite as:  576 U. S. ____ (2015)  3 

Opinion of the Court 

The  third  category  is  “Temporary  Directional  Signs

Relating to a Qualifying Event.”  This includes any “Temporary Sign intended to direct pedestrians, motorists, and 

other  passersby  to  a  ‘qualifying  event.’”  Glossary  25

(emphasis deleted).  A “qualifying event” is defined as any 

“assembly,  gathering,  activity,  or  meeting  sponsored,

arranged,  or  promoted  by  a  religious,  charitable,  community service, educational, or other similar non-profit organization.”  Ibid.    The  Code  treats  temporary  directional 

signs even less favorably than political signs.4  Temporary

directional  signs  may  be  no  larger  than  six  square  feet.

§4.402(P).  They may be placed on private property or on a 

public  right-of-way,  but  no  more  than  four  signs  may  be

placed on a single property at any time.  Ibid.  And,  they

may be displayed no more than 12 hours before the “qualifying event” and no more than 1 hour afterward.  Ibid. 

B 

Petitioners  Good  News  Community  Church  (Church)

and its pastor, Clyde Reed, wish to advertise the time and

location of their Sunday church services.  The Church is a 

small,  cash-strapped  entity  that  owns  no  building,  so  it

holds  its services at elementary schools or other  locations 

in or near the Town.  In order to  inform the public about

its  services,  which  are  held  in  a  variety  of  different  loca-

—————— 

4The Sign Code has been amended twice during the pendency of this 

case.    When  litigation  began  in  2007,  the  Code  defined  the  signs  at 

issue  as  “Religious  Assembly  Temporary  Direction  Signs.”    App.  75.

The  Code  entirely  prohibited  placement  of  those  signs  in  the  public 

right-of-way, and it forbade posting them in any location for more than

two  hours  before  the  religious  assembly  or more  than  one  hour  afterward.  Id.,  at  75–76.    In  2008,  the  Town  redefined  the  category  as 

“Temporary  Directional  Signs  Related  to  a  Qualifying  Event,”  and  it

expanded the time limit to 12 hours before and 1 hour after the “qualifying event.”  Ibid.  In 2011, the Town amended the Code to authorize 

placement  of  temporary  directional  signs  in  the  public  right-of-way. 

Id., at 89. 
   

4  REED v. TOWN OF GILBERT 

Opinion of the Court 

tions, the Church began placing 15 to 20 temporary signs 

around  the  Town,  frequently  in  the  public  right-of-way

abutting  the  street.    The  signs  typically  displayed  the 

Church’s  name,  along  with  the  time  and  location  of  the

upcoming service.  Church members would post  the signs 

early  in  the  day  on  Saturday  and  then  remove  them 

around  midday  on  Sunday.    The  display  of  these  signs

requires little money and manpower, and thus has proved 

to be an economical and effective way for the Church to let 

the  community  know  where  its  services  are  being  held 

each week. 

This  practice  caught  the  attention  of  the  Town’s  Sign

Code compliance manager, who twice cited the Church for

violating  the  Code.    The  first  citation  noted  that  the 

Church exceeded the time  limits  for displaying  its temporary directional signs.  The second citation referred to the 

same  problem,  along with  the Church’s  failure  to  include

the  date  of  the  event  on  the  signs.  Town  officials  even 

confiscated  one  of  the  Church’s  signs,  which  Reed  had  to

retrieve from the municipal offices.

Reed  contacted  the  Sign  Code  Compliance  Department

in  an  attempt  to  reach  an  accommodation.    His  efforts 

proved  unsuccessful.  The  Town’s  Code  compliance  manager  informed  the  Church  that  there  would  be  “no  leniency under  the Code”  and promised  to punish  any  future

violations. 

Shortly  thereafter,  petitioners  filed  a  complaint  in  the 

United  States  District  Court  for  the  District  of  Arizona, 

arguing  that  the  Sign  Code  abridged  their  freedom  of 

speech  in  violation  of  the  First  and  Fourteenth  Amendments.  The District Court denied  the petitioners’ motion 

for a preliminary injunction.  The Court of Appeals for the 

Ninth Circuit affirmed, holding that the Sign Code’s provision  regulating  temporary  directional  signs  did  not  regulate  speech  on  the  basis  of  content.  587  F. 3d  966,  979 

(2009).  It  reasoned  that,  even  though  an  enforcement 
  

Cite as:  576 U. S. ____ (2015)  5 

Opinion of the Court 

officer  would  have  to  read  the  sign  to  determine  what 

provisions  of  the  Sign  Code  applied  to  it,  the  “ ‘kind  of 

cursory  examination’”  that  would  be  necessary  for  an

officer  to  classify  it  as  a temporary  directional  sign  was

“not akin to an officer synthesizing the expressive content 

of the sign.”  Id., at 978.  It then remanded for the District 

Court to determine  in the  first  instance whether the Sign 

Code’s  distinctions  among  temporary  directional  signs,

political  signs,  and  ideological  signs  nevertheless  constituted a content-based regulation of speech. 

On  remand,  the  District  Court  granted  summary judgment  in  favor  of  the  Town.    The  Court  of  Appeals  again

affirmed,  holding  that  the  Code’s  sign  categories  were 

content  neutral.  The  court  concluded  that  “the  distinctions  between  Temporary  Directional  Signs,  Ideological

Signs,  and  Political  Signs  . . .  are  based  on  objective  factors relevant to Gilbert’s creation of the specific exemption 

from the permit requirement and do not otherwise consider 

the  substance  of  the  sign.”  707  F. 3d  1057,  1069  (CA9 

2013).  Relying on this Court’s decision in Hill v. Colorado, 

530 U. S. 703 (2000), the Court of Appeals concluded that

the Sign Code is content neutral.  707 F. 3d, at 1071–1072. 

As  the  court  explained,  “Gilbert  did  not  adopt  its  regulation  of  speech  because  it  disagreed  with  the  message

conveyed”  and  its  “interests  in  regulat[ing]  temporary

signs are unrelated to the content of the sign.”  Ibid.  Accordingly,  the  court  believed  that  the  Code  was  “contentneutral  as  that  term  [has  been]  defined  by  the  Supreme

Court.”  Id.,  at  1071.  In  light  of  that  determination,  it 

applied  a  lower  level  of  scrutiny  to  the  Sign  Code  and

concluded  that  the  law  did  not  violate  the  First  Amendment.  Id., at 1073–1076. 

We  granted  certiorari,  573  U. S.  ___  (2014),  and  now 

reverse. 
   

6  REED v. TOWN OF GILBERT 

Opinion of the Court 

II 

A 

The First Amendment, applicable to the States through

the  Fourteenth  Amendment,  prohibits  the  enactment  of 

laws  “abridging  the  freedom  of  speech.”    U. S.  Const., 

Amdt.  1.  Under  that  Clause,  a  government,  including  a 

municipal government vested with state authority, “has no

power  to  restrict  expression  because  of  its  message,  its

ideas,  its  subject  matter,  or  its  content.”    Police Dept. of 

Chicago v. Mosley, 408 U. S. 92, 95 (1972).  Content-based 

laws—those  that  target  speech  based  on  its  communicative content—are presumptively unconstitutional and may

be  justified  only  if  the  government  proves  that  they  are 

narrowly  tailored  to  serve  compelling  state  interests. 

R. A. V.  v.  St. Paul,  505  U. S.  377,  395  (1992); Simon & 

Schuster, Inc.  v.  Members of N. Y. State Crime Victims 

Bd., 502 U. S. 105, 115, 118 (1991).

Government  regulation  of  speech  is  content  based  if  a 

law  applies  to  particular  speech  because  of  the  topic  discussed  or  the  idea  or message  expressed.  E.g., Sorrell v. 

IMS Health, Inc., 564 U. S. ___, ___–___ (2011) (slip op., at 

8–9);  Carey  v.  Brown,  447  U. S.  455,  462  (1980);  Mosley, 

supra,  at  95.    This  commonsense  meaning  of  the  phrase

“content  based”  requires  a  court  to  consider  whether  a

regulation of speech “on its face” draws distinctions based 

on  the message a speaker conveys.  Sorrell, supra, at  ___ 

(slip  op.,  at  8).  Some  facial  distinctions  based  on  a message  are  obvious,  defining  regulated  speech  by  particular 

subject matter, and others are more subtle, defining regulated speech by  its  function or purpose.  Both are distinctions drawn based on the message a speaker conveys, and, 

therefore, are subject to strict scrutiny. 

Our  precedents  have  also  recognized  a  separate  and

additional  category  of  laws  that,  though  facially  content

neutral,  will  be  considered  content-based  regulations  of

speech: laws that cannot be “‘justified without reference to 
  

 

Cite as:  576 U. S. ____ (2015)  7 

Opinion of the Court 

the content of the regulated speech,’” or that were adopted

by  the  government  “because  of  disagreement  with  the

message  [the  speech]  conveys,”  Ward  v.  Rock Against 

Racism, 491 U. S. 781, 791 (1989).  Those laws, like those 

that  are  content  based  on  their  face,  must  also  satisfy

strict scrutiny. 

B 

The  Town’s  Sign  Code  is  content  based  on  its  face.    It 

defines  “Temporary  Directional  Signs”  on  the  basis  of

whether a sign conveys the message of directing the public

to  church  or  some  other  “qualifying  event.”   Glossary  25.

It defines “Political Signs” on the basis of whether a sign’s 

message  is  “designed  to  influence  the  outcome  of  an  election.”  Id., at 24.  And it defines “Ideological Signs” on the

basis  of  whether  a  sign  “communicat[es]  a  message  or 

ideas”  that  do  not  fit  within the  Code’s  other  categories. 

Id.,  at  23.  It  then  subjects  each  of  these  categories  to

different restrictions. 

The  restrictions  in  the  Sign  Code  that  apply  to  any

given  sign  thus  depend  entirely  on  the  communicative

content of the sign.  If a sign informs its reader of the time 

and place a book club will discuss John Locke’s Two Treatises  of  Government,  that  sign will  be  treated  differently

from  a  sign  expressing  the  view  that  one  should  vote  for

one of Locke’s followers in an upcoming election, and both

signs will be treated differently from a sign expressing an 

ideological  view  rooted  in  Locke’s  theory  of  government. 

More  to  the  point,  the  Church’s  signs  inviting  people  to

attend  its  worship  services  are  treated  differently  from 

signs conveying other types of ideas.  On its face, the Sign

Code  is  a  content-based  regulation  of  speech.    We  thus 

have no need to consider the government’s justifications or

purposes for enacting the Code to determine whether it is 

subject to strict scrutiny. 
   

8  REED v. TOWN OF GILBERT 

Opinion of the Court 

C 

In  reaching  the  contrary  conclusion,  the  Court  of  Appeals  offered  several  theories to  explain  why  the  Town’s

Sign  Code  should  be  deemed  content  neutral.    None  is 

persuasive. 

1 

The  Court  of  Appeals  first  determined  that  the  Sign

Code was content neutral because the Town “did not adopt

its regulation of speech [based on] disagree[ment] with the

message  conveyed,”  and  its  justifications  for  regulating 

temporary directional signs were “unrelated to the content 

of the sign.”  707 F. 3d, at 1071–1072.  In  its brief to this 

Court,  the  United  States  similarly  contends  that  a  sign

regulation  is  content  neutral—even  if  it  expressly  draws 

distinctions based on the sign’s communicative content—if 

those  distinctions  can  be  “‘justified  without  reference  to

the  content  of  the  regulated  speech.’”    Brief  for  United 

States  as Amicus Curiae  20,  24  (quoting Ward, supra,  at 

791; emphasis deleted).

But  this  analysis  skips  the  crucial  first  step  in  the 

content-neutrality  analysis:  determining whether  the  law 

is content neutral on its face.  A law that is content based 

on  its  face  is  subject  to  strict  scrutiny  regardless  of  the 

government’s benign motive, content-neutral justification, 

or  lack  of  “animus  toward  the  ideas  contained”  in  the 

regulated  speech.    Cincinnati v.  Discovery Network,  Inc., 

507 U. S. 410, 429  (1993).  We have thus made clear that 

“‘[i]llicit  legislative  intent  is  not  the  sine qua non  of  a 

violation of  the First Amendment,’” and a party opposing

the government “need adduce ‘no evidence of an improper 

censorial  motive.’”    Simon & Schuster, supra,  at  117. 

Although  “a  content-based  purpose  may  be  sufficient  in

certain circumstances to show that a regulation is content

based,  it  is not necessary.”  Turner Broadcasting System, 

Inc. v. FCC, 512 U. S. 622, 642 (1994).  In other words, an 
Cite as:  576 U. S. ____ (2015)  9 

Opinion of the Court 

innocuous justification cannot transform a facially contentbased law into one that is content neutral. 

That  is  why  we  have  repeatedly  considered  whether  a

law  is  content  neutral  on  its  face  before  turning  to  the 

law’s justification  or purpose.  See, e.g., Sorrell, supra, at 

___–___ (slip op., at 8–9) (statute was content based “on its 

face,”  and  there  was  also  evidence  of  an  impermissible 

legislative  motive);  United States  v.  Eichman,  496  U. S. 

310,  315  (1990)  (“Although  the  [statute]  contains  no  ex- 

plicit  content-based  limitation  on  the  scope  of  prohibited

conduct,  it  is  nevertheless  clear  that  the  Government’s 

asserted interest is  related  to  the  suppression  of  free  expression” (internal quotation marks omitted)); Members of 

City Council of Los Angeles  v. Taxpayers for Vincent,  466 

U. S.  789,  804  (1984)  (“The  text  of  the  ordinance  is  neutral,” and “there is not even a hint of bias or censorship in

the  City’s  enactment  or  enforcement  of  this  ordinance”); 

Clark  v.  Community for Creative Non-Violence,  468  U. S. 

288,  293  (1984)  (requiring  that  a  facially  content-neutral 

ban on camping must be “justified without reference to the

content of the regulated speech”); United States v. O’Brien, 

391 U. S. 367, 375, 377 (1968) (noting that the statute “on

its  face  deals  with  conduct  having  no  connection  with

speech,”  but  examining  whether  the  “the  governmental 

interest  is  unrelated  to  the  suppression  of  free  expression”).  Because strict scrutiny  applies  either when  a  law 

is content based on its face or when the purpose and justification for the law are content based, a court must evaluate  each  question  before  it  concludes  that  the  law  is  content neutral and thus subject to a lower level of scrutiny.

The Court  of Appeals and  the United States misunderstand  our  decision  in  Ward  as  suggesting  that  a  government’s  purpose  is  relevant  even  when  a  law  is  content 

based on its face.  That is incorrect.  Ward had nothing to 

say  about  facially  content-based  restrictions  because  it 

involved  a  facially  content-neutral  ban  on  the  use,  in  a 
   

10  REED v. TOWN OF GILBERT 

Opinion of the Court 

city-owned  music  venue,  of  sound  amplification  systems

not  provided  by  the  city.   491 U. S.,  at  787,  and  n. 2.   In 

that context, we looked to governmental motive, including

whether the government had regulated speech “because of 

disagreement” with  its message,  and whether  the  regulation was “‘justified without reference to the content of the 

speech.’”  Id., at 791.  But Ward’s framework “applies only

if  a  statute  is  content  neutral.”  Hill,  530  U. S.,  at  766 

(KENNEDY, J., dissenting).  Its rules thus operate “to protect speech,” not “to restrict it.”  Id., at 765. 

The  First  Amendment  requires  no  less.    Innocent  motives do not eliminate  the danger  of censorship presented 

by  a  facially  content-based  statute,  as  future  government 

officials  may  one  day  wield  such  statutes  to  suppress

disfavored  speech.  That  is  why  the  First  Amendment 

expressly  targets  the  operation  of  the  laws—i.e., the 

“abridg[ement]  of  speech”—rather  than  merely  the  motives  of  those  who  enacted  them.    U. S.  Const.,  Amdt.  1. 

“‘The vice of content-based  legislation . . .  is not  that  it  is 

always  used  for  invidious,  thought-control  purposes,  but

that it lends itself to use for those purposes.’”  Hill, supra, 

at 743 (SCALIA, J., dissenting).

For instance, in NAACP v. Button, 371 U. S. 415 (1963),

the  Court  encountered  a  State’s  attempt  to  use  a  statute

prohibiting “‘improper solicitation’” by attorneys to outlaw

litigation-related  speech  of  the  National  Association  for 

the Advancement of Colored People.  Id., at 438.  Although 

Button predated  our  more  recent  formulations  of  strict

scrutiny,  the Court rightly rejected  the State’s claim  that

its  interest  in  the  “regulation  of  professional  conduct” 

rendered  the  statute  consistent  with  the  First  Amendment,  observing  that  “it  is  no  answer  . . .  to  say  . . .  that

the purpose of these regulations was merely to insure high

professional standards and not to curtail free expression.” 

Id., at 438–439.  Likewise, one could easily imagine a Sign

Code  compliance  manager  who  disliked  the  Church’s 
Cite as:  576 U. S. ____ (2015)  11 

Opinion of the Court 

substantive teachings deploying the Sign Code to make  it 

more  difficult  for  the  Church  to  inform  the  public  of  the 

location  of  its  services.    Accordingly,  we  have  repeatedly

“rejected the argument that ‘discriminatory . . . treatment

is  suspect  under  the  First  Amendment  only  when  the 

legislature  intends  to suppress  certain  ideas.’”  Discovery 

Network, 507 U. S., at 429.  We do so again today. 

2 

The Court of Appeals next reasoned that the Sign Code

was content neutral because it “does not mention any idea

or  viewpoint,  let  alone  single  one  out  for  differential 

treatment.”  587  F. 3d,  at  977.    It  reasoned  that,  for  the 

purpose  of  the  Code  provisions,  “[i]t  makes  no  difference 

which candidate  is supported, who sponsors  the  event,  or

what  ideological  perspective  is  asserted.”  707  F. 3d,  at 

1069. 

The Town  seizes  on  this  reasoning,  insisting  that  “content  based”  is  a  term  of  art  that  “should  be applied  flexibly” with the goal of protecting “viewpoints and ideas from

government censorship or  favoritism.”  Brief  for Respondents 22.  In the Town’s view, a sign regulation that “does

not censor or  favor particular viewpoints or  ideas” cannot 

be  content  based.    Ibid.  The  Sign  Code  allegedly  passes 

this  test  because  its  treatment  of  temporary  directional 

signs  does not  raise  any  concerns  that  the  government  is 

“endorsing or suppressing ‘ideas or viewpoints,’” id., at 27, 

and the provisions for political signs and  ideological signs

“are  neutral  as  to  particular  ideas  or  viewpoints”  within

those categories.  Id., at 37. 

This  analysis  conflates  two  distinct  but  related  limitations  that  the  First  Amendment  places  on  government

regulation  of  speech.  Government  discrimination  among

viewpoints—or  the  regulation  of  speech  based  on  “the

specific motivating  ideology  or  the  opinion  or  perspective

of the speaker”—is a “more blatant” and “egregious form of 
   

  

12  REED v. TOWN OF GILBERT 

Opinion of the Court 

content  discrimination.”  Rosenberger  v.  Rector and Visitors of Univ. of Va.,  515  U. S.  819,  829  (1995).    But  it  is 

well established that “[t]he First Amendment’s hostility to

content-based  regulation  extends  not  only  to  restrictions

on particular  viewpoints,  but  also  to prohibition  of public 

discussion of an entire topic.”  Consolidated Edison Co. of 

N. Y.  v. Public Serv. Comm’n of N. Y.,  447 U. S.  530,  537 

(1980).

Thus,  a  speech  regulation  targeted  at  specific  subject 

matter  is  content  based  even  if  it  does  not  discriminate 

among  viewpoints  within  that  subject matter.   Ibid.  For 

example, a law banning the use of sound trucks for political speech—and only political speech—would be a contentbased regulation, even if it imposed no limits on the political  viewpoints  that  could  be  expressed.  See  Discovery 

Network, supra,  at  428.    The  Town’s  Sign  Code  likewise 

singles  out  specific  subject  matter  for  differential  treatment,  even  if  it  does  not  target  viewpoints  within  that

subject  matter.    Ideological  messages  are  given  more

favorable  treatment  than messages  concerning  a  political

candidate,  which  are  themselves  given  more  favorable 

treatment than messages announcing an assembly of likeminded  individuals.  That  is  a  paradigmatic  example  of

content-based discrimination. 

3 

Finally,  the  Court  of  Appeals  characterized  the  Sign

Code’s  distinctions  as  turning  on  “‘the  content-neutral 

elements of who is speaking through the sign and whether 

and  when  an  event  is  occurring.’”    707  F. 3d,  at  1069. 

That  analysis  is  mistaken  on  both  factual  and  legal 

grounds.

To  start,  the  Sign  Code’s  distinctions  are  not  speaker

based.  The restrictions  for political,  ideological, and temporary  event signs apply  equally no matter who sponsors

them.  If  a  local  business,  for  example,  sought  to  put  up 
   

Cite as:  576 U. S. ____ (2015)  13 

Opinion of the Court 

signs  advertising  the  Church’s  meetings,  those  signs

would  be  subject  to  the  same  limitations  as  such  signs

placed  by  the  Church.    And  if  Reed  had  decided  to  dis- 

play  signs  in  support  of  a  particular  candidate,  he  could

have  made  those  signs  far  larger—and  kept  them  up  for 

far  longer—than  signs  inviting  people  to  attend  his 

church  services.    If  the  Code’s  distinctions  were  truly

speaker based, both types of signs would receive the same 

treatment. 

In any case, the fact that a distinction is speaker based 

does not, as the Court of Appeals seemed to believe, automatically render the distinction content neutral.  Because 

“[s]peech restrictions based on the  identity of the speaker 

are all  too  often simply a means  to control content,” Citizens United v.  Federal Election Comm’n,  558  U. S.  310, 

340  (2010),  we  have  insisted  that  “laws  favoring  some

speakers  over  others  demand  strict  scrutiny  when  the

legislature’s  speaker  preference  reflects  a  content  preference,” Turner, 512 U. S., at 658.  Thus, a law limiting the

content  of  newspapers,  but  only  newspapers,  could  not

evade strict scrutiny simply because it could be characterized as speaker based.  Likewise, a content-based law that 

restricted the political speech of all corporations would not 

become  content  neutral just  because  it  singled  out  corporations as a class of speakers.  See Citizens United, supra, 

at 340–341.  Characterizing a distinction as speaker based 

is only the beginning—not the end—of the inquiry. 

Nor  do  the  Sign  Code’s  distinctions  hinge  on  “whether

and when an event  is occurring.”  The Code does not permit citizens to post signs on any topic whatsoever within a

set period leading up to an election, for example.  Instead, 

come election time, it requires Town officials to determine 

whether a sign is “designed to influence the outcome of an

election” (and thus “political”) or merely “communicating a

message  or  ideas  for  noncommercial  purposes”  (and  thus 

“ideological”).  Glossary  24.  That  obvious  content-based 
   

14  REED v. TOWN OF GILBERT 

Opinion of the Court 

inquiry  does  not  evade  strict  scrutiny  review  simply  because an event (i.e., an election) is involved. 

And,  just  as  with  speaker-based  laws,  the  fact  that  a

distinction  is  event  based  does not  render  it  content neutral.  The  Court  of  Appeals  cited  no  precedent  from  this

Court supporting its novel theory of an exception from the

content-neutrality  requirement  for  event-based  laws.    As 

we have explained, a speech regulation is content based if 

the  law  applies  to  particular  speech  because  of  the  topic 

discussed  or  the  idea  or message  expressed.  Supra, at 6. 

A regulation that targets a sign because it conveys an idea

about  a  specific  event  is  no  less  content  based  than  a 

regulation  that  targets  a  sign  because  it  conveys  some 

other  idea.  Here,  the  Code  singles  out  signs  bearing  a

particular  message:  the  time  and  location  of  a  specific 

event.  This  type  of  ordinance  may  seem  like  a  perfectly

rational  way  to  regulate  signs,  but  a  clear  and  firm  rule

governing  content  neutrality  is  an  essential  means  of 

protecting  the  freedom  of speech,  even  if  laws  that might 

seem “entirely reasonable” will sometimes be “struck down 

because  of  their  content-based  nature.”  City of Ladue  v. 

Gilleo, 512 U. S. 43, 60 (1994) (O’Connor, J., concurring). 

III 

Because  the  Town’s  Sign  Code  imposes  content-based 

restrictions  on  speech,  those  provisions  can  stand  only  if

they survive strict scrutiny,  “‘which  requires  the Government  to  prove  that  the  restriction  furthers  a  compelling 

interest and is narrowly tailored to achieve that interest,’ ” 

Arizona Free Enterprise Club’s Freedom Club PAC v. 

Bennett,  564 U. S.  ___,  ___  (2011)  (slip  op.,  at  8)  (quoting 

Citizens United, 558 U. S., at 340).  Thus, it is the Town’s 

burden  to  demonstrate  that  the  Code’s  differentiation 

between  temporary  directional  signs  and  other  types  of

signs, such as political signs and ideological signs, furthers

a  compelling  governmental  interest  and  is  narrowly  tai-
  

Cite as:  576 U. S. ____ (2015)  15 

Opinion of the Court 

lored to that end.  See ibid. 

The Town cannot do so.  It has offered only two governmental  interests  in  support  of  the  distinctions  the  Sign 

Code  draws:  preserving  the  Town’s  aesthetic  appeal  and 

traffic  safety.  Assuming  for  the  sake  of  argument  that

those  are  compelling  governmental  interests,  the  Code’s

distinctions fail as hopelessly underinclusive.

Starting with  the  preservation  of  aesthetics,  temporary

directional  signs  are  “no  greater  an  eyesore,”  Discovery 

Network,  507  U. S.,  at  425,  than  ideological  or  political 

ones.  Yet the Code allows unlimited proliferation of larger

ideological  signs  while  strictly  limiting  the  number,  size, 

and  duration  of  smaller  directional  ones.  The Town  cannot  claim  that  placing  strict  limits  on  temporary  directional signs is necessary to beautify the Town while at the 

same  time  allowing  unlimited  numbers  of  other  types  of 

signs that create the same problem.

The Town similarly has not shown that limiting temporary directional signs  is necessary  to  eliminate  threats  to 

traffic safety, but that limiting other types of signs is not.

The Town has offered no reason to believe that directional 

signs pose a greater threat to safety than do ideological or 

political  signs.  If  anything,  a  sharply  worded  ideological

sign  seems  more  likely  to  distract  a  driver  than  a  sign 

directing the public to a nearby church meeting. 

In  light  of  this  underinclusiveness,  the  Town  has  not 

met  its  burden  to  prove  that  its  Sign  Code  is  narrowly 

tailored  to  further  a  compelling  government  interest. 

Because a “‘law cannot be regarded as protecting an interest  of  the  highest  order,  and  thus  as  justifying  a  restriction  on  truthful  speech,  when  it  leaves  appreciable

damage  to  that  supposedly  vital  interest  unprohibited,’” 

Republican Party of Minn. v.  White,  536  U. S.  765,  780 

(2002), the Sign Code fails strict scrutiny. 
   

16  REED v. TOWN OF GILBERT 

Opinion of the Court 

IV 

Our  decision  today  will  not  prevent  governments  from

enacting  effective  sign  laws.    The  Town  asserts  that  an 

“‘absolutist’”  content-neutrality  rule  would  render  “virtually all distinctions  in sign  laws . . . subject to strict scrutiny,”  Brief  for  Respondents  34–35,  but  that  is  not  the 

case.  Not  “all  distinctions”  are  subject  to  strict  scrutiny, 

only content-based ones are.  Laws that are content neutral 

are  instead  subject  to  lesser  scrutiny.  See  Clark,  468 

U. S., at 295. 

The  Town  has  ample  content-neutral  options  available

to resolve problems with safety and aesthetics.  For example, its current Code regulates many aspects of signs that 

have  nothing  to  do  with  a  sign’s  message:  size,  building 

materials,  lighting,  moving  parts,  and  portability.    See, 

e.g., §4.402(R).  And on public property, the Town may go

a long way toward entirely forbidding the posting of signs,

so  long  as  it  does  so  in  an  evenhanded,  content-neutral 

manner.  See  Taxpayers for Vincent,  466  U. S.,  at  817 

(upholding  content-neutral  ban  against  posting  signs  on

public  property).  Indeed,  some  lower  courts  have  long 

held  that  similar  content-based  sign  laws  receive  strict

scrutiny,  but  there  is  no  evidence  that  towns  in  those 

jurisdictions  have  suffered  catastrophic  effects.  See,  e.g., 

Solantic, LLC v.  Neptune Beach,  410  F. 3d  1250,  1264– 

1269  (CA11  2005)  (sign  categories  similar  to  the  town  of

Gilbert’s  were  content  based  and  subject  to  strict  scrutiny);  Matthews v.  Needham,  764  F. 2d  58,  59–60  (CA1

1985)  (law  banning  political  signs  but  not  commercial

signs was content based and subject to strict scrutiny).

We  acknowledge  that  a  city might  reasonably  view  the

general  regulation  of  signs  as  necessary  because  signs 

“take up space and may obstruct views, distract motorists,

displace alternative uses for land, and pose other problems 

that  legitimately  call  for  regulation.”    City of Ladue,  512 

U. S.,  at  48.  At  the  same  time,  the  presence  of  certain 
   

Cite as:  576 U. S. ____ (2015)  17 

Opinion of the Court 

signs may be essential, both  for vehicles and pedestrians,

to guide traffic or to identify hazards and ensure safety.  A 

sign  ordinance  narrowly  tailored  to  the  challenges  of 

protecting  the  safety  of  pedestrians,  drivers,  and  passengers—such  as warning  signs marking  hazards  on  private

property, signs directing traffic, or street numbers associated  with  private  houses—well might  survive  strict  scrutiny.  The  signs  at  issue  in  this  case,  including  political 

and ideological signs and signs for events, are far removed 

from those purposes.  As discussed above, they are facially 

content  based  and  are  neither  justified  by  traditional 

safety concerns nor narrowly tailored. 

*  *  * 

We  reverse  the  judgment  of  the  Court  of  Appeals  and 

remand  the  case  for  proceedings  consistent  with  this 

opinion. 

It is so ordered. 
_________________ 

_________________ 

Cite as: 576 U. S. ____ (2015) 1 

ALITO, J., concurring 

SUPREME COURT OF THE UNITED STATES

No. 13–502 

CLYDE REED, ET AL., PETITIONERS v. TOWN OF 

GILBERT, ARIZONA, ET AL. 

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF 

APPEALS FOR THE NINTH CIRCUIT 

[June 18, 2015] 

JUSTICE ALITO, with whom JUSTICE KENNEDY and 

JUSTICE SOTOMAYOR join, concurring. 

I join the opinion of the Court but add a few words of 

further explanation. 

As the Court holds, what we have termed “contentbased” laws must satisfy strict scrutiny. Content-based 

laws merit this protection because they present, albeit

sometimes in a subtler form, the same dangers as laws

that regulate speech based on viewpoint. Limiting speech

based on its “topic” or “subject” favors those who do not

want to disturb the status quo. Such regulations may 

interfere with democratic self-government and the search 

for truth. See Consolidated Edison Co. of N. Y. v. Public 

Serv. Comm’n of N. Y., 447 U. S. 530, 537 (1980).

As the Court shows, the regulations at issue in this case

are replete with content-based distinctions, and as a result 

they must satisfy strict scrutiny. This does not mean, 

however, that municipalities are powerless to enact and

enforce reasonable sign regulations. I will not attempt to 

provide anything like a comprehensive list, but here are

some rules that would not be content based: 

Rules regulating the size of signs. These rules may 

distinguish among signs based on any content-neutral 

criteria, including any relevant criteria listed below. 

Rules regulating the locations in which signs may be 
 

2 REED v. TOWN OF GILBERT 

ALITO, J., concurring 

placed. These rules may distinguish between freestanding signs and those attached to buildings.

Rules distinguishing between lighted and unlighted

signs.

Rules distinguishing between signs with fixed messages

and electronic signs with messages that change. 

Rules that distinguish between the placement of signs

on private and public property.

Rules distinguishing between the placement of signs on 

commercial and residential property. 

Rules distinguishing between on-premises and offpremises signs. 

Rules restricting the total number of signs allowed per

mile of roadway. 

Rules imposing time restrictions on signs advertising a

one-time event. Rules of this nature do not discriminate 

based on topic or subject and are akin to rules restricting

the times within which oral speech or music is allowed.*

In addition to regulating signs put up by private actors,

government entities may also erect their own signs consistent with the principles that allow governmental 

speech. See Pleasant Grove City v. Summum, 555 U. S. 

460, 467–469 (2009). They may put up all manner of signs 

to promote safety, as well as directional signs and signs

pointing out historic sites and scenic spots.

Properly understood, today’s decision will not prevent 

cities from regulating signs in a way that fully protects

public safety and serves legitimate esthetic objectives. 

—————— 

*Of course, content-neutral restrictions on speech are not necessarily

consistent with the First Amendment. Time, place, and manner 

restrictions “must be narrowly tailored to serve the government’s 

legitimate, content-neutral interests.” Ward v. Rock Against Racism, 

491 U. S. 781, 798 (1989). But they need not meet the high standard

imposed on viewpoint- and content-based restrictions. 
_________________ 

_________________ 

Cite as:  576 U. S. ____ (2015)  1 

BREYER, J., concurring in judgment 

SUPREME COURT OF THE UNITED STATES

No. 13–502 

CLYDE REED, ET AL., PETITIONERS v. TOWN OF 

GILBERT, ARIZONA, ET AL. 

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF 

APPEALS FOR THE NINTH CIRCUIT 

[June 18, 2015]

 JUSTICE BREYER, concurring in the judgment. 

I join JUSTICE KAGAN’s separate opinion.  Like JUSTICE 

KAGAN I believe that categories alone cannot satisfactorily 

resolve the legal problem before us.  The First Amendment 

requires  greater  judicial  sensitivity  both  to  the  Amendment’s expressive objectives and to the public’s  legitimate

need  for regulation than a simple recitation of categories, 

such  as  “content  discrimination”  and  “strict  scrutiny,” 

would permit.  In my view, the category “content discrimination”  is  better  considered  in  many  contexts,  including 

here,  as  a  rule  of  thumb,  rather  than  as  an  automatic 

“strict  scrutiny”  trigger,  leading  to  almost  certain  legal 

condemnation. 

To  use  content  discrimination  to  trigger  strict  scrutiny

sometimes makes perfect sense.  There are cases in which 

the Court has found content discrimination an unconstitutional  method  for  suppressing  a  viewpoint.    E.g., Rosenberger v. Rector and Visitors of Univ. of Va., 515 U. S. 819, 

828–829 (1995); see also Boos v. Barry, 485 U. S. 312, 318– 

319  (1988)  (plurality  opinion)  (applying  strict  scrutiny

where the line between subject matter and viewpoint was

not  obvious).    And  there  are  cases  where  the  Court  has 

found  content  discrimination  to  reveal  that  rules  governing  a  traditional  public  forum  are,  in  fact,  not  a  neutral 

way  of  fairly  managing  the  forum  in  the  interest  of  all 
   

  

2  REED v. TOWN OF GILBERT 

BREYER, J., concurring in judgment 

speakers.  Police Dept. of Chicago v. Mosley, 408 U. S. 92, 

96  (1972)  (“Once  a  forum  is  opened  up  to  assembly  or

speaking  by  some  groups,  government  may  not  prohibit 

others  from  assembling  or  speaking  on  the  basis  of  what

they  intend  to  say”).   In  these  types  of  cases,  strict  scrutiny  is  often  appropriate,  and  content  discrimination  has 

thus served a useful purpose. 

But  content  discrimination,  while  helping  courts  to

identify  unconstitutional  suppression  of  expression,  cannot and should not always  trigger strict scrutiny.  To say

that it is not an automatic “strict scrutiny” trigger is not to

argue  against  that  concept’s  use.  I  readily  concede,  for 

example, that content discrimination, as a conceptual tool, 

can  sometimes  reveal  weaknesses  in  the  government’s

rationale  for  a  rule  that  limits speech.   If,  for  example,  a

city  looks to  litter prevention as the rationale  for a prohibition  against  placing  newsracks  dispensing  free  advertisements  on  public  property,  why  does  it  exempt  other 

newsracks  causing  similar  litter?    Cf.  Cincinnati v.  Discovery Network, Inc., 507 U. S. 410 (1993).  I also concede 

that,  whenever  government  disfavors  one  kind  of  speech, 

it places  that speech at a disadvantage, potentially  interfering  with  the  free  marketplace  of  ideas  and  with  an

individual’s ability to express thoughts and ideas that can 

help that individual determine the kind of society in which

he wishes to live, help shape that society, and help define 

his place within it.

Nonetheless,  in  these  latter  instances  to  use  the  presence  of  content  discrimination  automatically  to  trigger 

strict  scrutiny  and  thereby  call  into  play  a  strong  presumption  against  constitutionality  goes  too  far.  That  is 

because virtually all government activities involve speech,

many  of  which  involve  the  regulation  of  speech.   Regulatory programs almost always require content discrimination.

And  to  hold  that  such  content  discrimination  triggers

strict scrutiny is to write a recipe for judicial management 
   

Cite as:  576 U. S. ____ (2015)  3 

BREYER, J., concurring in judgment 

of ordinary government regulatory activity.

Consider  a  few  examples  of  speech  regulated  by  government  that  inevitably  involve  content  discrimination,

but where  a  strong  presumption  against  constitutionality 

has no place. Consider governmental regulation of securities,  e.g., 15  U. S. C.  §78l  (requirements  for  content  that

must  be  included  in  a  registration  statement);  of  energy 

conservation  labeling-practices,  e.g., 42  U. S. C.  §6294

(requirements for content that must be included on labels 

of certain consumer electronics); of prescription drugs, e.g.,

21  U. S. C.  §353(b)(4)(A)  (requiring  a  prescription  drug

label to bear the symbol “Rx only”); of doctor-patient confidentiality, e.g., 38 U. S. C. §7332 (requiring confidentiality 

of  certain  medical  records,  but  allowing  a  physician  to

disclose that the patient has HIV to the patient’s spouse or

sexual partner); of income tax statements, e.g., 26 U. S. C. 

§6039F  (requiring taxpayers to  furnish  information about

foreign  gifts  received  if  the  aggregate  amount  exceeds

$10,000);  of  commercial  airplane  briefings,  e.g., 14  CFR 

§136.7 (2015) (requiring pilots to ensure that each passenger has been briefed on flight procedures, such as seatbelt 

fastening);  of  signs  at  petting  zoos,  e.g., N. Y.  Gen.  Bus. 

Law  Ann.  §399–ff(3)  (West  Cum.  Supp.  2015)  (requiring 

petting zoos  to post a sign at  every  exit  “‘strongly recommend[ing] that persons wash their hands upon exiting the

petting zoo area’”); and so on.

Nor  can  the  majority  avoid  the  application  of  strict

scrutiny to all sorts of justifiable governmental regulations

by  relying  on  this Court’s many subcategories  and  exceptions to the rule.  The Court has said, for example, that we 

should apply less strict standards to “commercial speech.” 

Central Hudson Gas & Elec. Corp.  v.  Public Service 

Comm’n of N. Y.,  447  U. S.  557,  562–563  (1980).    But 

I  have  great  concern  that  many  justifiable  instances 

of  “content-based”  regulation  are  noncommercial.  And, 

worse  than  that,  the  Court  has  applied  the  heightened 
   

 

4  REED v. TOWN OF GILBERT 

BREYER, J., concurring in judgment 

“strict  scrutiny”  standard  even  in  cases  where  the  less

stringent  “commercial  speech”  standard  was  appropriate.

See Sorrell v.  IMS Health Inc.,  564  U. S.  ___,  ___  (2011) 

(BREYER, J., dissenting)  (slip op., at ___  ). The Court has 

also said  that  “government speech”  escapes First Amendment strictures.  See Rust v. Sullivan, 500 U. S. 173, 193– 

194  (1991).  But  regulated  speech  is  typically  private

speech,  not  government  speech.  Further,  the  Court  has 

said that, “[w]hen the basis for the content discrimination

consists  entirely  of  the  very  reason  the  entire  class  of

speech  at  issue  is  proscribable,  no  significant  danger  of

idea  or  viewpoint  discrimination  exists.”  R. A. V. v. 

St. Paul,  505  U. S.  377,  388  (1992).   But  this  exception

accounts  for  only  a  few  of  the  instances  in which  content 

discrimination is readily justifiable.

I  recognize  that  the Court  could  escape  the problem  by

watering  down  the  force  of  the  presumption  against  constitutionality  that  “strict  scrutiny”  normally  carries  with

it.  But,  in  my  view,  doing  so  will  weaken  the  First

Amendment’s  protection  in  instances  where  “strict  scrutiny” should apply in full force.

The  better  approach  is  to  generally  treat  content  discrimination  as  a  strong  reason weighing  against  the  constitutionality of a rule where a traditional public forum, or 

where  viewpoint  discrimination,  is  threatened,  but  elsewhere treat it as a rule of thumb, finding it a helpful, but 

not  determinative  legal  tool,  in  an  appropriate  case,  to

determine  the  strength  of  a  justification.  I  would  use 

content  discrimination  as  a  supplement  to  a  more  basic

analysis,  which,  tracking  most  of  our  First  Amendment 

cases, asks whether the regulation at issue works harm to

First  Amendment  interests  that  is  disproportionate  in

light of the relevant regulatory objectives.  Answering this

question  requires  examining  the  seriousness  of  the  harm

to speech, the importance of the countervailing objectives, 

the  extent  to which  the  law will  achieve  those  objectives, 
  

Cite as:  576 U. S. ____ (2015)  5 

BREYER, J., concurring in judgment 

and whether there are other, less restrictive ways of doing 

so. See,  e.g., United States v. Alvarez,  567 U. S.  ___,  ___– 

___  (2012)  (BREYER, J.,  concurring  in judgment)  (slip  op., 

at  1–3);  Nixon v. Shrink Missouri Government PAC,  528 

U. S.  377,  400–403  (2000)  (BREYER, J.,  concurring).  Admittedly,  this  approach  does  not  have  the  simplicity  of  a 

mechanical use of categories.  But  it does permit the government  to regulate speech  in numerous  instances where

the  voters  have  authorized  the  government  to  regulate

and  where  courts  should  hesitate  to  substitute  judicial

judgment for that of administrators.

Here, regulation  of signage along  the roadside,  for purposes of safety and beautification  is at  issue.  There  is no 

traditional public forum nor do I find any general effort to

censor  a  particular  viewpoint.  Consequently,  the  specific

regulation  at  issue  does  not  warrant  “strict  scrutiny.”

Nonetheless,  for  the  reasons  that  JUSTICE  KAGAN  sets 

forth, I believe that the Town of Gilbert’s regulatory rules 

violate  the  First  Amendment.    I  consequently  concur  in 

the Court’s judgment only.  
_________________ 

_________________ 

Cite as:  576 U. S. ____ (2015)  1 

KAGAN, J., concurring in judgment 

SUPREME COURT OF THE UNITED STATES

No. 13–502 

CLYDE REED, ET AL., PETITIONERS v. TOWN OF 

GILBERT, ARIZONA, ET AL. 

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF 

APPEALS FOR THE NINTH CIRCUIT 

[June 18, 2015] 

JUSTICE  KAGAN,  with  whom  JUSTICE  GINSBURG  and 

JUSTICE BREYER join, concurring in the judgment. 

Countless cities and towns across America have adopted 

ordinances  regulating  the  posting  of signs, while  exempting certain categories of signs based on their subject matter.  For  example,  some municipalities  generally  prohibit 

illuminated  signs  in  residential  neighborhoods,  but  lift 

that  ban  for  signs  that  identify  the  address  of  a  home  or 

the name of its owner or occupant.  See, e.g., City of Truth 

or  Consequences,  N. M.,  Code  of  Ordinances,  ch.  16,  Art. 

XIII,  §§11–13–2.3,  11–13–2.9(H)(4)  (2014).    In  other  municipalities, safety signs such as  “Blind Pedestrian Crossing”  and  “Hidden  Driveway”  can  be  posted  without  a 

permit,  even  as  other  permanent  signs  require  one.  See, 

e.g., Code of Athens-Clarke County, Ga., Pt. III, §7–4–7(1) 

(1993).  Elsewhere,  historic  site  markers—for  example,

“George  Washington  Slept  Here”—are  also  exempt  from 

general  regulations.  See,  e.g.,  Dover,  Del.,  Code  of  Ordinances,  Pt.  II,  App.  B,  Art.  5,  §4.5(F)  (2012).  And  similarly,  the  federal Highway Beautification Act  limits signs 

along interstate highways unless, for instance, they direct 

travelers to “scenic and historical attractions” or advertise 

free coffee.  See 23 U. S. C. §§131(b), (c)(1), (c)(5). 

Given the Court’s analysis, many sign ordinances of that

kind are now in jeopardy.  See ante, at 14 (acknowledging 
   

  

 

  

2  REED v. TOWN OF GILBERT 

KAGAN, J., concurring in judgment 

that  “entirely  reasonable”  sign  laws  “will  sometimes  be

struck  down”  under  its  approach  (internal  quotation

marks  omitted)).  Says  the majority: When  laws  “single[]

out  specific  subject  matter,”  they  are  “facially  content

based”; and when they are facially content based, they are

automatically  subject  to  strict  scrutiny.    Ante,  at  12,  16– 

17.  And  although  the majority holds  out hope  that some

sign laws with subject-matter exemptions “might survive” 

that  stringent  review,  ante,  at  17,  the  likelihood  is  that 

most will be struck down.  After all, it is the “rare case[] in 

which  a  speech  restriction  withstands  strict  scrutiny.” 

Williams-Yulee  v.  Florida Bar,  575  U.  S.  ___,  ___  (2015)

(slip  op.,  at  9).  To  clear  that  high  bar,  the  government 

must  show  that  a  content-based  distinction  “is  necessary

to serve a compelling state interest and is narrowly drawn 

to  achieve  that  end.”  Arkansas Writers’ Project, Inc.  v. 

Ragland, 481 U. S. 221, 231  (1987).  So  on  the majority’s

view,  courts  would  have  to  determine  that  a  town  has  a 

compelling  interest  in  informing  passersby  where  George

Washington slept.  And likewise, courts would have to find 

that a town has no other way to prevent hidden-driveway 

mishaps than by specially treating hidden-driveway signs.

(Well-placed  speed  bumps?  Lower  speed  limits?  Or how 

about  just  a  ban  on  hidden  driveways?)    The  consequence—unless courts water down strict scrutiny to something  unrecognizable—is  that  our  communities  will  find

themselves in an unenviable bind: They will have to either 

repeal  the  exemptions  that  allow  for  helpful  signs  on

streets  and  sidewalks,  or  else  lift  their  sign  restrictions

altogether and resign themselves to the resulting clutter.* 

—————— 

*Even  in  trying  (commendably)  to  limit  today’s  decision,  JUSTICE 

ALITO’s  concurrence  highlights  its  far-reaching  effects.   According  to 

JUSTICE ALITO,  the majority  does  not  subject  to  strict  scrutiny  regulations  of  “signs  advertising  a  one-time  event.”    Ante,  at  2  (ALITO,  J., 

concurring).  But of course  it does.  On the majority’s view, a law with

an  exception  for  such  signs  “singles  out  specific  subject  matter  for 
Cite as:  576 U. S. ____ (2015)  3 

KAGAN, J., concurring in judgment 

Although  the majority  insists  that  applying  strict  scrutiny to all such ordinances is “essential” to protecting First

Amendment  freedoms, ante, at 14, I  find  it challenging to 

understand why that  is so.  This Court’s decisions articulate  two  important  and  related  reasons  for  subjecting

content-based  speech  regulations  to  the  most  exacting

standard  of  review.  The  first  is  “to  preserve  an uninhib- 

ited  marketplace  of  ideas  in  which  truth  will  ultimately 

prevail.”  McCullen  v.  Coakley,  573  U.  S.  ___,  ___–___ 

(2014)  (slip  op.,  at  8–9)  (internal  quotation  marks  omitted).  The second is to ensure that the government has not 

regulated  speech  “based  on  hostility—or  favoritism— 

towards  the  underlying  message  expressed.”    R. A. V. v. 

St. Paul, 505 U. S. 377, 386 (1992).  Yet the subject-matter 

exemptions  included  in  many  sign  ordinances  do  not  implicate those concerns.  Allowing residents, say, to install a 

light  bulb  over  “name  and  address”  signs  but  no  others

does  not  distort  the marketplace  of  ideas.  Nor  does  that 

different  treatment  give rise to an  inference  of  impermissible government motive.

We  apply  strict  scrutiny  to facially  content-based  regulations  of  speech,  in  keeping  with  the  rationales  just  described, when there is any “realistic possibility that official

suppression  of  ideas  is  afoot.”  Davenport  v.  Washington 

Ed. Assn., 551 U. S. 177, 189 (2007) (quoting R. A. V., 505 

U. S.,  at  390).  That  is  always  the  case  when  the  regulation  facially  differentiates  on  the  basis  of  viewpoint.  See 

Rosenberger  v.  Rector and Visitors of Univ. of Va.,  515 

U. S.  819,  829  (1995).  It  is  also  the  case  (except  in  nonpublic or limited public forums) when a law restricts “discussion of an entire topic”  in public debate.  Consolidated 

—————— 

differential  treatment”  and  “defin[es]  regulated  speech  by  particular

subject matter.”  Ante, at 6, 12  (majority opinion).  Indeed, the precise 

reason  the  majority  applies  strict  scrutiny  here  is  that  “the  Code 

singles out signs bearing a particular message: the time and location of

a specific event.”  Ante, at 14. 
   

  

   

  

4  REED v. TOWN OF GILBERT 

KAGAN, J., concurring in judgment 

Edison Co. of N. Y.  v. Public Serv. Comm’n of N. Y.,  447 

U. S.  530,  537,  539–540  (1980)  (invalidating  a  limitation 

on speech about nuclear power).  We have stated that “[i]f

the marketplace  of  ideas  is  to remain  free and  open,  governments must not be allowed to choose ‘which issues are 

worth  discussing  or  debating.’”    Id.,  at  537–538  (quoting 

Police Dept. of Chicago v. Mosley, 408 U. S. 92, 96 (1972)).

And  we  have  recognized  that  such  subject-matter  restrictions,  even  though  viewpoint-neutral  on  their  face, 

may “suggest[] an attempt to give one side of a debatable 

public  question  an  advantage  in  expressing  its  views  to

the  people.”  First Nat. Bank of Boston  v.  Bellotti,  435 

U. S. 765, 785 (1978); accord, ante, at 1 (ALITO, J., concurring) (limiting all speech on one topic “favors those who do

not  want  to  disturb  the  status  quo”).  Subject-matter 

regulation, in other words, may have the intent or effect of

favoring some ideas over others.  When that is realistically

possible—when the restriction “raises the specter that the

Government  may  effectively  drive  certain  ideas  or  viewpoints from the marketplace”—we insist that the law pass 

the  most  demanding  constitutional  test.    R. A. V.,  505 

U. S., at 387  (quoting Simon & Schuster, Inc. v. Members 

of N. Y. State Crime Victims Bd.,  502  U. S.  105,  116 

(1991)).

But  when  that  is  not  realistically  possible,  we  may  do

well to relax our guard so that “entirely reasonable”  laws

imperiled by strict scrutiny can survive.  Ante, at 14.  This 

point  is  by  no  means  new.    Our  concern  with  contentbased regulation arises from the fear that the government

will skew the public’s debate of  ideas—so when “that risk

is  inconsequential,  . . .  strict  scrutiny  is  unwarranted.” 

Davenport, 551 U. S., at 188; see R. A. V., 505 U. S., at 388 

(approving  certain  content-based  distinctions  when  there 

is  “no  significant  danger  of  idea  or  viewpoint  discrimination”).  To do  its  intended work, of course, the category of

content-based  regulation  triggering  strict  scrutiny  must 
  

   

Cite as:  576 U. S. ____ (2015)  5 

KAGAN, J., concurring in judgment 

sweep  more  broadly  than  the  actual  harm;  that  category 

exists  to  create  a  buffer  zone  guaranteeing  that  the  government cannot favor or disfavor certain viewpoints.  But 

that buffer zone need not extend forever.  We can administer our content-regulation doctrine with a dose of common 

sense,  so  as  to  leave  standing  laws  that  in no way  implicate its intended function. 

And indeed we have done just that: Our cases have been 

far  less  rigid  than  the majority  admits  in  applying  strict 

scrutiny to facially content-based laws—including in cases 

just like this one.  See Davenport, 551 U. S., at 188 (noting 

that  “we  have  identified  numerous  situations  in  which 

[the] risk” attached to content-based laws is “attenuated”).

In Members of City Council of Los Angeles v. Taxpayers for 

Vincent, 466 U. S. 789 (1984), the Court declined to apply 

strict  scrutiny  to  a  municipal  ordinance  that  exempted

address numbers and markers commemorating “historical, 

cultural,  or  artistic  event[s]”  from  a  generally  applicable

limit  on  sidewalk  signs.  Id.,  at  792,  n. 1  (listing  exemptions);  see  id.,  at  804–810  (upholding  ordinance  under 

intermediate scrutiny).  After all, we  explained,  the  law’s

enactment  and  enforcement  revealed  “not  even  a  hint  of 

bias  or  censorship.”  Id.,  at  804;  see  also Renton  v. Playtime Theatres, Inc.,  475  U. S.  41,  48  (1986)  (applying

intermediate scrutiny to a zoning  law that  facially distinguished among movie theaters based on content because it 

was  “designed  to  prevent  crime,  protect  the  city’s  retail

trade, [and] maintain property values . . . , not to suppress

the expression of unpopular views”).  And another decision 

involving a similar law provides an alternative model.  In 

City of Ladue  v.  Gilleo,  512  U.  S.  43  (1994),  the  Court 

assumed  arguendo  that  a  sign  ordinance’s  exceptions  for 

address  signs,  safety  signs,  and  for-sale  signs  in  residential areas did not trigger strict scrutiny.  See id., at 46–47, 

and  n. 6  (listing  exemptions);  id.,  at  53  (noting  this  assumption).  We did not need to, and so did not, decide the 
   

  

6  REED v. TOWN OF GILBERT 

KAGAN, J., concurring in judgment 

level-of-scrutiny question because the  law’s breadth made 

it unconstitutional under any standard.

The majority could easily have taken Ladue’s tack here. 

The Town of Gilbert’s defense of  its sign ordinance—most 

notably,  the  law’s  distinctions  between  directional  signs 

and others—does not pass strict scrutiny, or  intermediate

scrutiny,  or  even  the  laugh  test.  See ante, at 14–15 (discussing  those  distinctions).  The  Town,  for  example,  provides no reason at all for prohibiting more than four directional  signs  on  a  property  while  placing  no  limits  on  the 

number  of  other  types  of  signs.    See  Gilbert,  Ariz.,  Land 

Development  Code,  ch.  I,  §§4.402(J),  (P)(2)  (2014).   Similarly, the Town offers no coherent justification for restricting  the  size  of  directional  signs  to  6  square  feet  while 

allowing  other  signs  to  reach  20  square  feet.  See 

§§4.402(J), (P)(1).  The best the Town could come up with

at  oral  argument  was  that  directional  signs  “need  to  be 

smaller  because  they  need  to  guide  travelers  along  a

route.”  Tr.  of  Oral  Arg.  40.   Why  exactly  a  smaller  sign

better helps travelers get to where they are going is left a 

mystery.  The absence of any sensible basis  for these and 

other distinctions dooms the Town’s ordinance under even 

the  intermediate scrutiny that the Court typically applies

to “time, place, or manner” speech regulations.  Accordingly,

there is no need to decide in this case whether strict scrutiny  applies  to  every  sign  ordinance  in  every  town  across

this country containing a subject-matter exemption. 

I suspect this Court and others will regret the majority’s

insistence today on answering that question in the affirmative.  As  the  years  go  by,  courts will discover  that  thousands  of  towns  have  such  ordinances, many  of  them  “entirely reasonable.”  Ante, at 14.  And as  the challenges  to 

them  mount,  courts  will  have  to  invalidate  one  after  the 

other.  (This  Court  may  soon  find  itself  a  veritable  Supreme Board of Sign Review.)  And courts will strike down 

those  democratically  enacted  local  laws  even  though  no 
Cite as:  576 U. S. ____ (2015)  7 

KAGAN, J., concurring in judgment 

one—certainly  not  the majority—has  ever  explained  why

the  vindication  of  First  Amendment  values  requires  that

result.  Because  I  see  no  reason  why  such  an  easy  case

calls  for  us  to  cast  a  constitutional  pall  on  reasonable 

regulations quite unlike the law before us, I concur only in 

the judgment.