Friday, October 2, 2015
Alan C. Weinstein (Cleveland-Marshall) and Brian J. Connolly (Independent) have posted "Sign Regulation after Reed: Suggestions for Coping with Legal Uncertainty," which I imagine scholars and practitioners will both find of particular interest. Here is the abstract:
This article discusses Reed v. Town of Gilbert, in which the Court resolved a Circuit split over what constitutes content based sign regulations. We note that Justice Thomas's majority opinion applies a mechanical "need to read" approach to this question, and then explore the doctrinal and practical concerns raised by this approach. Doctrinally, we explore the tensions between Thomas's "need to read" approach and the Court's current approach of treating some regulation of speech as content-neutral despite the fact that a message must be read to determine its regulatory treatment. A prime example being the Court's "secondary effects" doctrine. Practically, we note that Thomas's opinion leaves several questions unanswered and and the uncertainty is further compounded by the inconsistencies between Thomas and Justice Alito's concurrence. In light of these uncertainties, we advise local governments to consider how much legal risk they are willing to take in seeking to retain workable sign regulations.