In Light of Reed, Free Speech Protections Broaden

Despite what many see as the continual erosion of religious liberty, the right to free speech has been recently receiving broader protection in the judicial system. On the heels on the U.S. Supreme Court’s sweeping decision for free speech in Reed v. Town of Gilbert, the 7th U.S. Circuit Court of Appeals has followed suit in strengthening the First Amendment protection in Illinois.

In Springfield, Illinois, two panhandlers filed suit against the city, claiming the local panhandling ordinance violated their right to free speech. The ordinance in question banned any oral requests for money in the city’s historic district, but allowed panhandlers to hold signs or make oral pleas to send money later.  In September of 2014, the 7th Court of Appeals upheld the ordinance saying, “Springfield has not meddled with the marketplace of ideas.”

In its original decision, the Court analyzed the law using a free speech test which allowed for regulation of speech as long as it was based on the subject matter of the speech and not one’s viewpoint. For example, a law regarding “religious” speech would be considered to be based on a “subject matter” and could be allowed, but an ordinance specifically banning “Christian” speech would be unconstitutional since it bans a particular viewpoint. With this test, the Court upheld the ordinance since Springfield had a legitimate reason to regulate speech rather than viewpoint censorship.

However, while a motion for reconsideration was pending with the 7th Circuit, the U.S. Supreme Court ruled in Reed v. Gilbert this past June. The decision imposed a much stricter standard for assessing restrictions on free speech. In Reed, the Town of Gilbert, Arizona, had created differing sets of restrictions for roadside signs based on the sign's content. While the local government held signs that were "political" or "ideological" to a loose set of rules, the signs of a local church were subjected to tight regulation.

The U.S. Supreme Court ruled, since the town’s code was content based, even though viewpoint neutral, the code must be subject to “strict scrutiny,” the most stringent standard of judicial review. In the majority decision, Justice Alito wrote, “A speech regulation targeted at specific subject matter is content based even if it does not discriminate among viewpoints within that subject matter.”

In light of Reed, the 7th Circuit Court of Appeals reconsidered Norton v. Springfield and completely reversed its decision, noting, “The majority opinion in Reed effectively abolishes any distinction between content regulation and subject-matter regulation. Any law distinguishing one kind of speech from another by reference to its meaning now requires a compelling justification.” When the ordinance was deemed content-based, Springfield did not seek to justify it and the Court struck down the law.

These recent rulings offer a broad and clear test for future free speech cases. No longer is government allowed to discriminate based on the content of the speech but only if it has a compelling interest. In order to regulate free speech, the government must now overcome a higher barrier.

Also see: The Supreme Court Unanimously Protects Free Speech