The Universe of Discourse

Wed, 02 Oct 2019

Free coffee again

Last month I mentioned that, while federal law generally prohibits signs and billboards about signs within ⅛ mile of a federal highway, signs offering free coffee are allowed.

Vilhelm Sjöberg brought to my attention the 2015 U.S. Supreme Court decision in Reed v. Town of Gilbert. Under the Reed logic, the exemption for free coffee may actually be unconsitutional. The majority's opinion states, in part:

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.

The court concluded that the Sign Code (of the town of Gilbert, AZ) was therefore subject to the very restrictive standard of strict scrutiny, which required that it be struck down unless the government could demonstrate both that it was necessary to a “compelling state interest” and that it be “narrowly tailored” to achieving that interest. The Gilbert Sign Code did not survive this analysis.

Although the court unanimously struck down the Sign Code, a concurrence, written by Justice Kagan and joined by Ginsburg and Breyer, faulted the majority's reasoning:

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?)

Kagan specifically mentioned the “free coffee” exception as being one of many that would be imperiled by the court's reasoning in this case.

Thanks very much to M. Sjöberg for pointing this out.

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