By Lisa Soronen
In the City of Austin, Texas v. Reagan National Advertising of Texas Inc., the State and Local Legal Center (SLLC) argues in a U.S. Supreme Court amicus brief that states and local governments should be able to regulate off-premises billboards differently than on-premises signs.
About 30 states have enacted rules distinguishing between on-premises signage and off-premises billboards. NCSL did not join the brief.
Austin allows on-premises billboards to be digitized but not off-premises billboards. Two outdoor advertising companies claim that this distinction is “content-based” under the First Amendment.
In Reed v. Town of Gilbert (2015), the Supreme Court held that content-based restrictions on speech are subject to strict scrutiny, meaning they are “presumptively unconstitutional” under the First Amendment. In Reed, the court defined content-based broadly.
Per Austin’s sign code, “off-premises” signs advertise “a business, person, activity, goods, products or services not located on the site where the sign is installed.”
According to the 5th Circuit, treating off-premises and on-premises signs differently is content-based because one must read the sign to determine whether it meets the above definition of “off-premises.”
The SLLC amicus brief encourages the court to reject the “need to read” test.
The brief argues the test is “too onerous, because it could literally be applied to every sign ordinance, obliterating the concepts of content-neutral and concept-based and making all sign rules subject to strict scrutiny review.” The SLLC suggests instead the court should “reaffirm that content-based rules involve a billboard’s topic, idea, or message—not its location. A cursory examination of content-neutral aspects of a sign, such as its lighting, moving parts, or location, is not a content-based inquiry.”
Finally, the brief notes that local governments “regulate digital billboards out of genuine concern for public safety and local aesthetics, without regard to the billboards’ topics, ideas, or messages.”
John Korzen of the Wake Forest University School of Law Appellate Advocacy Clinic wrote the SLLC amicus brief which the following organizations joined: the National League of Cities, U.S. Conference of Mayors, International City/County Management Association and International Municipal Lawyers Association.
Lisa Soronen is executive director of the State and Local Legal Center and a regular contributor to the NCSL Blog on judicial issues.