Page:Reed v. Town of Gilbert.pdf/2

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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 564. 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. 163–164.

(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 content-based 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. 164–165.

(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 questionwhether 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 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.