[20-1029] City of Austin, Texas v. Reagan National Advertising of Texas Inc.

City of Austin, Texas v. Reagan National Advertising of Texas Inc.

Justia (with opinion) · Docket · oyez.org

Argued on Nov 10, 2021.
Decided on Apr 21, 2022.

Petitioner: City of Austin, Texas.
Respondent: Reagan National Advertising of Texas Inc., et al..

Advocates:

• Michael R. Dreeben (for the Petitioner)
• Benjamin W. Snyder (for the United States, as amicus curiae, supporting the Petitioner)
• Kannon K. Shanmugam (for the Respondents)

Facts of the case (from oyez.org)

Reagan National Advertising of Austin and Lamar Advantage Outdoor Company own and operate signs and billboards that display commercial and non-commercial messages. They filed applications with the City of Austin to digitize existing billboards, but the City denied the applications because its sign code does not allow the digitization of off-premises signs.

Reagan and Lamar sued, arguing that the code’s distinction between on-premise signs and off-premise signs violates the First Amendment. The district court held that the sign code was content-neutral and thus that it need only satisfy intermediate scrutiny—it must further an important government interest through means that are substantially related to that interest. The court found the code satisfied this test and entered judgment for the City. The U.S. Court of Appeals for the Fifth Circuit reversed, finding the code’s distinction is content-based, therefore subject to scrutiny, and that it cannot withstand strict scrutiny.

Question

Does the Austin city code’s distinction between on-premise signs, which may be digitized, and off-premise signs, which may not, constitute facially unconstitutional content-based regulation?

Conclusion

The City of Austin’s on-/off-premises distinction is facially content-neutral under the First Amendment. Justice Sonia Sotomayor authored the majority opinion of the Court.

When the government regulates speech based on its content, the regulation is subject to strict scrutiny, which requires that the government show the regulation is narrowly tailored to achieve a compelling governmental interest. A regulation of speech is content based if it “applies to particular speech because of the topic discussed or the idea or message expressed.” The City’s off-premises distinction is agnostic as to content. It does not single out any topic or subject matter for differential treatment, and its focus on location is akin to ordinary time, place, or manner restrictions, which are also not subject to strict scrutiny. Thus, it is facially content neutral.

Justice Stephen Breyer authored a concurrring opinion arguing that while Reed v. Town of Gilbert, 576 U.S. 155 (2015) is binding precedent that determines the outcome in this case (as the majority acknowledges), he disagrees with the Court’s reasoning in that decision.

Justice Samuel Alito authored an opinion concurring in the judgment in part and dissenting in part. He would reverse the lower court’s holding that the signs are facially unconstitutional but disagrees with the majority that the provisions defining on- and off- premises signs do not discriminate on the basis of content, at least as applied in some situations.

Justice Clarence Thomas authored a dissenting opinion, in which Justices Neil Gorsuch and Amy Coney Barrett joined, arguing that the majority misinterprets Reed’s rule for content-based restrictions and replaces it with “an incoherent and malleable standard.”