City of Austin, Texas v. Reagan National Advertising
Even in this digital age, signage remains prominent as a form of speech. In City of Austin, Texas v. Reagan National Advertising, the question before the U.S. Supreme Court was whether a city ordinance forbidding “off-premises” signs was an infringement of the First Amendment.
Protect The First Foundation made the case in an amicus brief that Austin’s prohibition of messages that advertise “a business, person, activity, goods, products, or services not located where the sign was installed” is inherently a regulation of content.
A Supreme Court 5-4 majority today disagreed, narrowing the scope of First Amendment protection for billboards and similar signs. The Court’s reasoning seems straightforward. Writing for the majority, Justice Sonia Sotomayor declared that the distinction in location is “agnostic as to content” and is therefore constitutional.
“Rather, the City’s provisions distinguish based on location: A given sign is treated differently based solely on whether it is located on the same premises as the thing being discussed or not.”
The majority reasons that if a regulation is based on a sufficiently general or broad category, it is not actually content based.
Justice Clarence Thomas, with Justices Gorsuch and Barrett, wrote an eloquent dissent:
“Under Reed, Austin’s off-premises restriction is content based. It 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 wrote that the majority ignored the Reed precedent’s “rule for content- based restrictions and replaces it with an incoherent and malleable standard.” Justice Thomas then offered this vivid example:
“Take, for instance, a sign outside a Catholic bookstore. If the sign says, ‘Visit the Holy Land,’ it is likely an off-premises sign because it conveys a message directing people elsewhere (unless the name of the bookstore is ‘Holy Land Books’). But if the sign instead says, ‘Buy More Books,’ it is likely a permissible on-premises sign (unless the sign also contains the address of another bookstore across town). Finally, suppose the sign says, ‘Go to Confession.’ After examining the sign’s message, an official would need to inquire whether a priest ever hears confessions at that location. If one does, the sign could convey a permissible ‘on-premises’ message. If not, the sign conveys an impermissible off-premises message. Because enforcing the sign code in any of these instances ‘requires [Austin] officials to determine whether a sign’ conveys a particular message, the sign code is content based under Reed …
“The majority concedes that ‘[t]he message on the sign matters’ when applying Austin’s sign code. Ante, at 8. That concession should end the inquiry under Reed.”
Justice Thomas found that the majority transforms the clear precedent of “content based regulation” into an “opaque and malleable ‘term of art’ that “turns the concept of content neutrality into a vehicle for the implementation of individual judges’ policy preferences.” He warned the acceptance of Austin’s “content-based distinction” of off-premises speech restriction “plainly lends itself to “suppress[ing] disfavored speech.”
Protect The 1st and the Protect The First Foundation will remain alert to any use of today’s opinion by jurisdictions to invent novel infringements on speech.