City of Austin, Texas v. Reagan National Advertising of Austin
142 S. Ct. 1464 (2022)
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Rule of Law:
A sign regulation that distinguishes between on-premises and off-premises signs is a facially content-neutral, location-based regulation that is not subject to strict scrutiny under the First Amendment, even if an official must read the sign's message to determine its location-based status.
Facts:
- The City of Austin's sign code distinguishes between 'on-premises' and 'off-premises' signs.
- An 'off-premises sign' is defined as one '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 City's code prohibited the construction of new off-premises signs.
- Existing off-premises signs were 'grandfathered' in as non-conforming signs but could not be altered in ways that increased their nonconformity, such as through digitization.
- The code, however, permitted the digitization of on-premises signs.
- Reagan National Advertising of Austin, LLC, owns and operates numerous off-premises billboards in Austin.
- In 2017, Reagan sought permits from the City to digitize some of its existing off-premises billboards.
- The City denied Reagan's permit applications, citing the sign code's restrictions on non-conforming off-premises signs.
Procedural Posture:
- Reagan National Advertising of Austin, LLC, filed suit against the City of Austin in a Texas state court.
- The City removed the case to the U.S. District Court for the Western District of Texas, where Lamar Advantage Outdoor Company, L.P., intervened as a plaintiff.
- Following a bench trial, the District Court (court of first instance) entered judgment in favor of the City, holding that the sign code's distinction was content-neutral and survived intermediate scrutiny.
- Reagan and Lamar (appellants) appealed to the U.S. Court of Appeals for the Fifth Circuit.
- The Fifth Circuit (intermediate appellate court) reversed the District Court's decision, finding the on-/off-premises distinction to be facially content-based and holding that it failed to survive strict scrutiny.
- The City of Austin (petitioner) successfully petitioned the U.S. Supreme Court for a writ of certiorari.
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Issue:
Does a city's sign ordinance that distinguishes between on-premises and off-premises signs, which requires reading the sign to apply, constitute a facially content-based regulation of speech subject to strict scrutiny under the First Amendment?
Opinions:
Majority - Sotomayor
No. The City's on-/off-premises distinction is facially content neutral and is therefore not subject to strict scrutiny. A regulation is not content-based simply because its application requires reading a sign; rather, the key inquiry is whether the regulation targets speech based on its communicative content, such as the topic discussed or the idea expressed. The Austin ordinance distinguishes signs based on their location, not their message. Unlike the code in Reed v. Town of Gilbert, which singled out specific subject matters like politics or religion for different treatment, Austin's code is content-agnostic. The message on the sign matters only to determine its location relative to the subject it discusses. This distinction is consistent with the long history of regulating off-premises advertising and with precedents that treat such location-based rules as ordinary time, place, or manner restrictions.
Concurring - Breyer
No. While joining the majority opinion under the binding precedent of Reed v. Town of Gilbert, this opinion argues that Reed's rigid, formalist approach is flawed. Instead of automatically applying strict scrutiny to any law that could be labeled 'content-based,' courts should conduct a proportionality analysis, asking whether the regulation's harm to First Amendment interests is disproportionate to its legitimate regulatory objectives. Here, Austin's regulation serves significant interests in safety and aesthetics while imposing only a minimal burden on speech, making the harsh presumption of unconstitutionality under strict scrutiny inappropriate.
Concurring in the judgment in part and dissenting in part - Alito
No, on the question of facial unconstitutionality. The judgment should be reversed because the Court of Appeals failed to apply the proper test for a facial challenge, which requires showing a law is unconstitutional in all or a substantial number of its applications. However, the majority is wrong to declare the ordinance categorically content-neutral. In certain applications, the distinction is clearly content-based, as it would permit a sign advertising an on-site product (e.g., coffee) but prohibit a sign in the same location advocating for an off-site political or social cause. The case should be remanded for an as-applied analysis without the majority's broad pronouncement on content neutrality.
Dissenting - Thomas
Yes. The City of Austin's off-premises restriction is a content-based regulation that should be subject to strict scrutiny. The majority misinterprets Reed's clear, commonsense rule that a regulation is content-based if it 'draws distinctions based on the message a speaker conveys.' Austin's ordinance does exactly that by treating a sign differently depending on whether its message is about an on-site or off-site activity. Enforcing the rule requires an official to read and understand the sign's message, the very definition of a content-based inquiry. The majority creates a new, unworkable 'specificity test' and revives the discredited reasoning of Hill v. Colorado by allowing a facially content-based law to be treated as content-neutral simply because the category of speech it regulates is broad.
Analysis:
This decision significantly narrows the application of Reed v. Town of Gilbert, clarifying that its holding does not create a simple rule where any regulation requiring an official to read a sign is automatically deemed content-based. The Court preserved the long-standing and widespread practice of using on-premises/off-premises distinctions to regulate billboards, thereby preventing a major disruption to municipal sign codes nationwide. By focusing the inquiry on whether a regulation targets a specific topic or idea, rather than on the mere act of reading a sign's message, the Court provides local governments more leeway to enact location-based regulations without triggering strict scrutiny. The case signals a move away from a purely formalistic reading of Reed toward a more functional approach that considers the purpose and effect of the distinction being drawn.
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