Special contributing author Laura Mueller, City Attorney for Dripping Springs
Reagan Nat’l Advertising of Austin, Inc.; Lamar Advantage Outdoor Co. v. City of Austin, No. 19-50354 (5th Cir. August 25, 2020).
In this First Amendment sign case, the U.S. Fifth Circuit held that the distinction between off-premise and on-premise signs is a prohibited content-based distinction under Reed v. Town of Gilbert if the regulation could include non-commercial content.
The plaintiff sign companies desired to digitize their off-premise signs (billboards) in the City. Their applications were denied by the City because the City prohibits the digitization of off-premises signs, but allows the digitization of on-premises signs. The City defined off-premises sign as, “a sign advertising a business, person, activity, goods, products, or services not located on the site where the sign is installed, or that directs persons to any location not on that site.” The plaintiffs asserted the distinction between on-premises and off-premises signs was a violation of the First Amendment as a content-based distinction that cannot withstand strict scrutiny. After the suit was filed, the City amended its sign ordinance. The City argued that the difference between on-premises and off-premises was content-neutral and that it should only be reviewed under intermediate scrutiny. The trial court held that the ordinance was valid under intermediate scrutiny and the plaintiffs appealed.
There are two levels of scrutiny that are used to review regulations that implicate free speech. Strict scrutiny is used to review content-based regulations that regulate non-commercial speech. To pass strict scrutiny, a City must prove that “the restriction furthers a compelling interest and is narrowly tailored to achieve that interest.” Reed v. Town of Gilbert, Ariz., 576 U.S. 155, 171 (2015). Intermediate scrutiny is used when the content is commercial or if the ordinance is content-neutral. Centr. Hudson Gas & Elec. Corp. v. Pub. Serv. Comm’n, 447 U.S. 557, 561 (1980). To pass intermediate scrutiny, a City has to prove that the regulation directly advances a substantial government interest and is not more extensive than is necessary to serve that interest. See Central Hudson Gas & Elec. Corp. v. Pub. Serv. Comm’n of New York, 447 U.S. 557, 561 (1980). Content-based commercial speech may be regulated if it meets an intermediate level of scrutiny. Id. Any regulation of speech other than commercial speech must meet strict scrutiny. Reed, 576 U.S. at 163, (2015)(“Content-based laws—those that target speech based on its communicative content—are presumptively unconstitutional and may be justified only if the government proves that they are narrowly tailored to serve compelling state interests.).
The Court held that the City’s regulation of off-premises signs differently from on-premises signs was not a regulation of commercial speech and was not content-neutral and therefore had to be reviewed under strict scrutiny. The regulation is content-based because the sign’s content, other than its commercial content, determines whether it falls under a stricter regulation. The Court held the regulation did not meet the requirements of strict scrutiny and therefore was invalid. The Court declined to hold whether the lesser level of scrutiny still applied to a content-based regulation that only applies to commercial speech.
If you would like to read this opinion click here. Panel consists of Judges Elrod, Southwick, and Haynes. Opinion by Justice Jennifer Walker Elrod.