Director, Center for Supreme Court AdvocacyNational Association of Attorneys General
This Report summarizes opinions issued on April 21, 2022 (Part I).
Opinion: City of Austin, Texas v. Reagan National Advertising of Austin, LLC, 20-1029
In a 6-3 decision, the Court held that a city code provision distinguishing between on- and off-premises signs is content neutral and not subject to strict scrutiny. The City of Austin’s code defines an 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 code permitted the digitization of on-premises signs, but not off-premises signs. Reagan National Advertising challenged the prohibition against digitizing off-premises signs as a violation of the Free Speech Clause of the First Amendment. The federal district court held that the distinction between on- and off-premises signs was based on location and facially content neutral under Reed v. Town of Gilbert, 576 U.S. 155 (2015). The court therefore applied intermediate scrutiny to the distinction and ruled that it satisfied that scrutiny. The Fifth Circuit reversed. It reasoned that the distinction between on- and off-premises signs requires a reader to inquire “who is the speaker and what is the speaker saying.” And the fact that a government official must read a sign’s message to determine its purpose, said the court, renders the regulation content based and subject to strict scrutiny. The Court reversed in an opinion by Justice Sotomayor.
Reed held that a regulation is content based if it targets speech based on “communicative content,” i.e., if it “applies to particular speech because of the topic discussed or the idea or message expressed.” Reed involved a sign code that distinguished among “ideological signs” communicating noncommercial messages, “political signs” regarding elections, and temporary directional signs relating to events promoted by nonprofit organizations. The Reed Court found these distinctions content based because, although they did not depend on the speaker’s viewpoint, they required different treatment based on the sign’s subject matter. In contrast, Austin’s distinction between on- and off-premises signs “requires an examination of speech only in service of drawing neutral, location-based lines. It is agnostic as to content. Thus, absent a content-based purpose or justification, the City’s distinction is content neutral and does not warrant the application of strict scrutiny.” Enforcement of Austin’s sign code, said the Court, requires only “reading a billboard to determine whether it directs readers to the property on which it stands or to some other, offsite location.” The code does not discriminate based on political, ideological, or other messages; instead, the focus on location is “similar to ordinary time, place, or manner restrictions.”
The Court also noted that the First Amendment allows regulation of solicitation. Although one must read or hear speech to determine whether it entails solicitation, restrictions on such speech are not facially content based “so long as they do not discriminate based on topic, subject matter, or viewpoint.” In the past, the Court has invalidated statutes prohibiting content-based solicitation, while allowing restrictions on the time, place, and manner of solicitation. Consistent with those principles, the Court has considered distinctions between on- and off-premises signs to be content neutral. Prior cases have rejected the view that “any examination of speech or expression inherently triggers heightened First Amendment concern. Rather, it is regulations that discriminate based on the topic discussed or the idea or message expressed that are content based.” The Court found that Austin’s code does not discriminate on those bases.
Reagan relied on Reed’s observation that “some facial distinctions based on a message are obvious, defining regulated speech by particular subject matter, and others are more subtle, defining regulated speech by its function or purpose.” Reagan argued that Austin’s code defines off-premises signs based on their function or purpose, and is therefore content based. The Court found that Reed’s language did not go so far. Instead, a facially content-based regulation cannot escape strict liability “simply by swapping an obvious subject-matter distinction for a function or purpose that achieves the same result.” In the Court’s view, it is common sense that a “location-based and content-agnostic” distinction does not single out specific subject matter for differential treatment. The Court remanded the case for the Fifth Circuit to address whether an impermissible purpose or justification underpinned the regulation, or whether the restriction survived intermediate scrutiny.
Justice Breyer wrote a concurring opinion stating that Reed’s reasoning was wrong. In Justice Breyer’s view, the First Amendment’s purposes are better served when judge-made categories like content discrimination “are treated, not as bright-line rules, but instead as rules of thumb.” Where strict scrutiny’s “harsh presumption of unconstitutionality” is at issue, a court should not jump to that conclusion without considering whether the regulation “works harm to First Amendment interests that is disproportionate in light of the relevant regulatory objectives.” Although he rejected Reed’s formalism and rigidity, Justice Breyer found that Austin’s sign code did not cause disproportionate harm.
Justice Alito concurred in the judgment because the Fifth Circuit did not apply the proper test for a facial challenge. Ordinarily, a court must consider whether any set of circumstances exists under which a challenged law would be valid, and whether the law has a plainly legitimate sweep. Justice Alito would remand the case for the lower court to consider those questions. He disagreed, however, with the majority’s categorical statement that Austin’s sign code does not discriminate based on the message expressed. As an example, Justice Alito stated that a sign in the window of a coffee shop would be considered on-premises if it advertised a new drink, but it would be considered an off-premises sign subject to restriction if it solicited funds for a person’s legal defense, advertised free COVID tests at a pharmacy, or urged patrons to attend a city council meeting to speak about a particular issue.
Justice Thomas wrote a dissenting opinion, which Justices Gorsuch and Barrett joined. In the dissent’s view, the sign code “discriminates against certain signs based on the message they convey―e.g., whether they promote an on- or off-site event, activity, or service.” Justice Thomas opined that the majority “misinterprets Reed’s clear rule for content-based restrictions and replaces it with an incoherent and malleable standard.” He pointed out that Austin’s sign code reaches everything from large billboards to small yard signs, and it restricts messages about off-premises activities while permitting messages about on-premises activities. Justice Thomas argued that it makes no difference that the restriction depends in part on the sign’s location, because enforcement depends on what the sign says as well as where the sign is. Justice Thomas interpreted the majority opinion to mean that “a regulation based on a sufficiently general or broad category of communicative content is not actually content based,” and he argued that the need to examine the content of a message is a strong indicator that a regulation is content based, not a “true time, place, or manner restriction.” The dissent compared the majority opinion to the “defunct” opinion in Hill v. Colorado, 530 U.S. 703 (2000), where the Court upheld as content neutral a law prohibiting persons outside abortion clinics from approaching another person without consent for the purpose of engaging in oral protest, education, or counseling.