Special contributing author Laura Mueller, City Attorney for Dripping Springs
City of Austin, Texas v. Reagan Nat’l Advert. Of Austin, LLC., et al, No. 20-1029 (April 21, 2022).
The primary question in regulating off-premise signs differently than on-premise signs is whether such a regulation implicates the First Amendment in a way that requires strict scrutiny or instead allows intermediate scrutiny. The Supreme Court of the United States held an Austin city regulation treating on-premise and off-premise signs differently is not content-based and so can be reviewed under intermediate scrutiny.
An outdoor advertiser, Reagan, attempted to obtain permits from the City of Austin to transition its off-premise signs, otherwise known as billboards, to electronic billboards. The applications were denied by the City because the signs were off-premise signs which are not allowed to be transitioned to electronic signs although the same restriction did not apply equally to on-premise signs. The City’s definition of “off-premise sign” at the applicable period included:
“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.”
Austin, Tex., City Code §25–10–3(11) (2016). After the denial, Reagan sued the City under the United States Constitution based on the Free Speech Clause of the First Amendment as interpreted by Reed v. Town of Gilbert, arguing that the distinction between on-premise and off-premise signs was a content-based regulation that required a strict scrutiny analysis. 576 U. S. 155 (2015). The district court held that the regulation differentiating between on- and off-premise signs were content-neutral and valid under intermediate scrutiny. In Reagan’s appeal, the Court of Appeals for the Fifth Circuit held that the distinction was content-based and that it required strict scrutiny because the distinction affected both non-commercial and commercial speech and it required the City to read the sign to regulate it. The City appealed to the Supreme Court of the United States and it granted certiorari.
Under Reed, a land-use regulation requires review under strict scrutiny, a standard almost impossible to meet to validate the regulation, if it is content-based in how it regulates speech or “applies to particular speech because of the topic discussed or the idea or message expressed.” Reed, 576 U.S. at 163. If it is content-neutral it must meet intermediate scrutiny which means the regulation is “narrowly tailored to serve a significant governmental interest.” Ward v. Rock Against Racism, 491 U. S. 781, 791 (1989). The Court in this case held that even though the regulation required that the sign be read to determine how to regulate it, the regulation did not “single out any topic or subject matter for differential treatment.” Reagan at 8. Instead, the regulation was focused on the location of the sign. The Court stated that its ruling is consistent with the Reed case and:
It is the dissent that would upend settled understandings of the law. Where we adhere to the teachings of history, experience, and precedent, the dissent would hold that tens of thousands of jurisdictions have presumptively violated the First Amendment, some for more than half a century, and that they have done so by use of an on-/off-premises distinction this Court has repeatedly reviewed and never previously questioned. For the reasons we have explained, the Constitution does not require that bizarre result.
Reagan at 13.
The Court reversed the court of appeals opinion and remanded the question of whether the regulation meets the lower standard of intermediate scrutiny to the court of appeals for review. The Court also did not issue a holding related to whether a city can treat commercial speech differently to non-commercial speech. Reagan at fn.3. However, it did reference cases that provided for such commercial versus non-commercial distinctions favorably. Reagan at 9-10. See Suffolk Outdoor Advertising Co. v. Hulse, 439 U. S. 808 (1978); Metromedia, Inc. v. San Diego, 453 U. S. 490, 503–512 (1981) (plurality opinion); Central Hudson Gas & Elec. Corp. v. Public Serv. Comm’n of N. Y., 447 U. S. 557 (1980). Practically, this is a minor change to the Reed analysis that only applies to on-and-off-premise signs, but could have implications for other sign regulations that are broad and do not target a specific communicative content. This case does not approve or disapprove a distinction between commercial and non-commercial content.
Sotomayer, J., delivered the opinion of the Court, in which Roberts, C.J., and Breyer, Kagan, and Kavanaugh, JJ., joined. Breyer, J. and Alito, J. concurring. Thomas, J. filed a dissenting opinion, in which Gorsuch and Barrett, JJ., joined.
Breyer Concurrence: Does not agree with Reed, but agrees that this opinion is consistent with Reed. “But the First Amendment is not the Tax Code. Its purposes are often better served when judge-made categories (like “content discrimination”) are treated, not as bright-line rules, but instead as rules of thumb.”
Alito concurring and dissenting. Does not agree that on-/off-premise distinction is content neutral, but instead the court of appeals should look at the billboards in question on a case-by-case basis to see if the City’s ordinance is unconstitutional.
Thomas Dissent: The bright-line rule of Reed is that if the sign has to be read to be regulated then it is a content-based restriction. No communicative content can be a basis for regulation.
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