When we last reviewed the general state of First Amendment jurisprudence, we concluded that on the United States Supreme Court there was “a slim, but solid, First Amendment majority.” Our basis for that conclusion was last term’s decision in Barr v. American Assn. of Political Consultants, Inc., 140 S. Ct. 2335 (2020), where despite a splintered overall decision, five justices agreed that, when a governmental unit imposed a content-based restriction on free speech, “strict scrutiny” was the proper standard of review. As we discussed in that post, four justices, in the lead Barr opinion concluded:
The Court’s precedents restrict the government from discriminating in the regulation of expression on the basis of the content of that expression. Content-based laws are subject to strict scrutiny.
Id. at 2346. Justice Gorsuch made five with his partial concurrence, stating that the statute in Barr “is a content-based restriction that fails strict scrutiny . . . because it allows speech on a subject the government favors . . . while banning speech on other disfavored subjects.” Id. at 2364.
Barr was the latest in a line of the Supreme Court decisions that have ruled in favor of strict scrutiny in cases involving governmental speech restrictions that were either content-based, speaker-based, or both. Two of the major cases are Reed v. Town of Gilbert, 576 U.S. 155 (2015) (which we discussed here), and Sorrell v. IMS Health, Inc., 564 U.S. 552 (2011) (which we discussed here).
Sorrell, of course, famously declared that “[s]peech in aid of pharmaceutical marketing, however, is a form of expression protected by the Free Speech Clause of the First Amendment.” 564 U.S. at 557. But Sorrell’s broader impact is as the decision in which a Supreme Court majority coalesced around the proposition that strict scrutiny applies to all governmental attempts to restrict speech based upon its content or speaker, including those involving “commercial speech.”
Lawmakers may no more silence unwanted speech by burdening its utterance than by censoring its content. The First Amendment requires heightened scrutiny whenever the government creates a regulation of speech because of disagreement with the message it conveys. . . . Commercial speech is no exception.
564 U.S. at 566 (numerous citations omitted). Ultimately, Sorrell pulled its punch a bit by also conducting an intermediate scrutiny “commercial speech” analysis, id. at 571-79, and by not making clear in its conclusion the precise basis of its ruling that the statute was unconstitutional.
Reed followed Sorrell to hold that “[g]overnment regulation of speech is content based if a law applies to particular speech because of the topic discussed or the idea or message expressed.” 576 U.S. at 163. However, the particular speech being suppressed in Reed was religious rather than commercial. Id. at 161. So Reed did not have to address the commercial/non-commercial distinction. Key to Reed, however, was its further holding on the hierarchy of First Amendment jurisprudence. “[W]e have repeatedly considered whether a law is content neutral on its face before turning to the law’s justification or purpose.” Id. at 166 (citing Sorrell) (emphasis added).
We are interested in these First Amendment developments, of course, because they spell constitutional difficulty for the FDA’s prohibition of truthful off-label promotion, which as we have repeatedly argued, is both content- and speaker-based. The Supreme Court is well aware of this aspect, as Justice Breyer has repeatedly raised it in dissents in the Sorrell line of cases. See Barr, 140 S. Ct. at 2360; Reed, 576 U.S. at 177; Sorrell, 564 U.S. at 586. We think Justice Breyer’s concerns are well-founded, although unlike the Justice, we believe that precluding the FDA from prohibiting truthful scientific speech is a very good idea.
Post-Sorrell and Reed, the lower courts have tackled (or avoided) the question whether strict scrutiny supplants intermediate scrutiny of content-based commercial speech restrictions. We blogged about an adverse decision – continuing to apply intermediate scrutiny – here (criticizing Retail Digital Network, LLC v. Prieto, 861 F.3d 839 (9th Cir. 2017) (en banc)). Unfortunately, most of the circuits seemed intent on continuing to treat content-based commercial speech restrictions under the old Central Hudson Gas & Electric Corp. v. Public Service Comm’n, 447 U.S. 557 (1980), test rather than to apply Sorrell/Reed.
But now we have a full-fledged circuit split.
In International Outdoor, Inc. v. City of Troy, Michigan, 974 F.3d 690 (6th Cir. 2020), the court held that Sorrell/Reed strict scrutiny analysis displaces Central Hudson whenever the disputed governmental speech restriction turns on the content of the speech involved:
It follows that the intermediate-scrutiny standard applicable to commercial speech under Central Hudson applies only to a speech regulation that is content-neutral on its face. That is, a regulation of commercial speech that is not content-neutral is still subject to strict scrutiny under Reed.
974 F.3d at 703 (citation omitted) (emphasis added). Thus, a governmental speech restriction involving commercial speech cannot use Central Hudson intermediate scrutiny to escape escape strict scrutiny.
It probably helped that International Outdoor, like Reed, was a sign ordinance case. But International Outdoor involved purely commercial speech − “content-based restrictions” on commercial outdoor billboards. 974 F.3d at 702. International Outdoor applied strict scrutiny because, logically under Reed and Barr, any conclusion that a speech restriction was content-based must precede commercial speech analysis:
Regulation of speech is content-based and therefore subject to strict scrutiny if a law applies to particular speech because of the topic discussed or the idea or message expressed . . . . The crucial first step in the content-neutrality analysis involves determining whether the law is content neutral on its face.
Id. at 703 (citations to Reed omitted).
International Outdoor expressly disagreed with “several circuit courts” that continued to apply Central Hudson intermediate scrutiny to content-based restrictions on commercial speech. 974 F.3d at 703. Those decisions either failed to address Reed or did not, in the end, involve content-based restrictions. See Id. at 703-06 (declining to follow Aptive Environmental, LLC v. Town of Castle Rock, 959 F.3d 961 (10th Cir. 2020); Greater Philadelphia Chamber of Commerce v. City of Philadelphia, 949 F.3d 116 (3d Cir. 2020); Vugo, Inc. v. City of New York, 931 F.3d 42 (2d Cir. 2019); and Lone Star Security & Video, Inc. v. City of Los Angeles, 827 F.3d 1192, 1200 (9th Cir. 2016)).
Furthermore, the recent Barr decision, postdating all of the adverse circuit authority, reiterated that strict scrutiny controlled over “commercial speech.” Barr was a “repudiat[ion of] the approach” taken by contrary circuit court opinions. Id. Since “[t]he Supreme Court has flatly confirmed the requirement to apply Reed’s strict-scrutiny” approach in commercial speech cases, id., International Outdoor agreed, applied strict scrutiny, and invalidated the defendant’s content-based restrictions without purporting to engage in any Central Hudson intermediate scrutiny analysis. 974 F.3d at 706-07.
[T]he ordinance regulated both commercial and non-commercial speech but treated them differently, requiring the [government] to consider the content of the message before deciding which treatment it should be afforded. But for content-based restrictions on speech, strict and not intermediate scrutiny applies pursuant to Reed.
Id. at 707-08 (citation omitted).
The explicit circuit split thus created by International Outdoor over application of Sorrell/Reed strict scrutiny will substantially increase the likelihood that future clashes between content-based governmental speech restrictions and “commercial speech” will either apply strict scrutiny or, if they don’t, be appealed to the Supreme Court. However, International Outdoor itself is not likely to be one of those case, as most of the dispute was mooted by the defendant municipality’s subsequent amendment of the ordinance at issue. Going forward, we would not be surprised if FDA off-label speech restrictions are at issue in some of these future to-be-appealed cases.