Professor Alan Weinstein presented at the American Planning Association National Conference in Seattle, Washington, on April 20.  Professor Weinstein (and two other speakers) discussed Reed v. Town of Gilbert, in which the Supreme Court this term will resolve a Circuit split on the issue of the appropriate standard for finding that government regulation of signs is content-based.

Several Circuits have adopted an “absolute” view on the question, ruling that any regulation that characterizes a sign by the message it displays is content based and subject to strict scrutiny. Other Circuits have adopted a “purposive” rule that applies only intermediate scrutiny when government regulates a sign depending on the message it displays so long as the purpose of the regulation is unrelated to any attempt to suppress particular messages.

Professor Weinstein argued that the imposition of strict scrutiny in this context in an effort to ensure free speech values will have the perverse effect of lessening speech by leading to more restrictive regulation of signs. If sign regulations that consider a sign’s message are subject to strict scrutiny, government will adopt content neutral regulations that will treat all signs alike. Professor Weinstein predicted this will lead to fewer and smaller signs, thus constricting, rather than supporting, speech values.