On April 3, 2020, the State of Tennessee petitioned the Supreme Court for review in Bright v. Thomas. The State asks the Court to decide whether the Tennessee Billboard Law’s permit exception for onsite signs is content based under Reed v. Town of Gilbert (2015). Bright raises important First Amendment issues that I’ll be discussing on my blog (mfwrightlaw.com). But the backdrop for these issues is unsettled law about precedent. In Reed, the Supreme Court held that a sign regulation is content based, and subject to strict scrutiny, if it applies “because of the topic discussed or the idea or message expressed.” The Sixth Circuit Court of Appeals held that, at least with respect to noncommercial signs, Tennessee’s onsite exception is content based under this rule. But three of the six justices who joined the majority opinion in Reed also joined in a separate concurrence authored by Justice Samuel Alito. The concurrence said, “Rules distinguishing between on-premises and off-premises signs” are “not content based.” The State argues that the Sixth Circuit’s failure to follow the Alito concurrence was an “egregious” error. But the State ignores a critical question: was the Sixth Circuit required to follow the Alito concurrence? In other words, is the concurrence precedent?
The Supreme Court usually decides a case by issuing a majority opinion, which includes a judgment deciding the case before the Court and a rationale for its decision that establishes law for later cases. Sometimes justices who join in a majority opinion also write separate concurrences stating views that differ from the majority rationale. When the concurring justices’ votes are not necessary to form the majority, the concurrence lacks precedential force. But sometimes – as in Reed – the majority opinion wouldn’t command a majority without the votes of concurring justices. In these cases, the courts are divided about whether a concurrence might narrow the legal rule announced in a majority opinion.
As close as the Supreme Court has gotten to this question is an inconclusive debate in McKoy v. North Carolina (1990). There Justice William Brennan argued in a lone concurrence that “the meaning of a majority opinion is to be found within the opinion itself,” whether or not a member of the majority writes a separate concurrence. But in a dissent by Justice Antonin Scalia, three justices reasoned that although a separate concurrence “cannot add to what the majority opinion holds,” it can narrow the majority opinion “by explaining the more limited interpretation adopted by a necessary member of that majority.” Neither the Brennan concurrence nor the Scalia dissent qualifies as binding precedent, which leaves the effect of the Alito concurrence unresolved in the Supreme Court.
The precedential effect of concurrences has divided the federal appellate courts along the lines drawn in McKoy. In In re Grand Jury Subpoenas (Judith Miller) (2006)), the D.C. Circuit aligned with the Brennan concurrence. The court analyzed a 5-4 Supreme Court decision in which one of the five justices filed a separate concurrence that arguably limited the majority opinion. But the D.C. Circuit said the majority opinion is “not a plurality opinion of four justices joined by a separate [concurring justice] to create a majority, it is the opinion of the majority of the Court. As such it is authoritative precedent. It says what it says.” Earlier, in In re Grand Jury Proceedings (1993), the Ninth Circuit adopted the same view.
Under this approach, the Alito concurrence has no precedential effect. That would help the sign operator in Bright, but it wouldn’t be the end of the case. Issues would remain, including whether the onsite exception is based on content or (as the State argues) location. But it would mean that in deciding that issue, the Court would find precedent in the majority opinion, not the Alito concurrence.
In B.H. ex rel. Hawk v. Easton Area School Dist. (2013), the Third Circuit held that the separate opinion of a “linchpin justice,” whose vote is necessary to the majority, can narrow the majority opinion, citing Justice Scalia’s dissent in McKoy. Under this approach, even if the onsite-offsite distinction would be content based under the Reed majority opinion considered alone, it could still be content neutral under the Alito concurrence. That would help the State, but again it wouldn’t end the case. Issues would remain, including whether by “on-premises” and “off-premises” Justice Alito was referring to a sign’s message or something unrelated to content, such as the sign’s distance from a building, as the Sixth Circuit said in Bright. But it would mean that in deciding what Reed held, the Court would treat the Alito concurrence as having precedential weight.
The Supreme Court usually grants review in cases involving legal questions that have divided the federal appellate courts. Parties seeking Supreme Court review typically raise every circuit split they can find. But the State says nothing in its petition about the Grand Jury-Hawk split.
One wonders why. The State may believe the Court isn’t much interested in the Alito precedent issue. In Hughes v. U.S. (2018), the Court avoided a similar issue about the precedential effect of a fractured decision that produced no majority opinion. Instead of struggling with that issue, the Court realigned from 4-1-4 to 6-3 on the merits. Or the State may believe the precedent issue would detract from the First Amendment question it wants the Court to decide. But if the Court grants review in Bright, it will have to address whether the Alito concurrence is precedential in deciding what Reed held.
Bright raises fundamental First Amendment issues. Is the test for content-based regulation whether an official has to read a sign to apply the regulation? If so, should courts nonetheless treat the onsite-offsite distinction as content neutral? Bright dealt with noncommercial signs. Does it implicate commercial speech? I’ll be discussing these questions and others on the blog. Whether the Alito concurrence qualifies as precedent is relevant to all of them.
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