The NCSL Blog

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In City of Austin, Texas v. Reagan National Advertising the U.S. Supreme Court held 6-3 that strict (fatal) scrutiny doesn’t apply to the city of Austin allowing on-premises but not off-premises signs to be digitized. The State and Local Legal Center (SLLC) filed an amicus brief supporting Austin, which Justice Stephen Breyer quoted twice in his concurring opinion. NCSL did not join this brief.

supreme courtAustin’s sign code prohibits construction of any new off-premises signs but has grandfathered such existing signs. Only on-premises signs may be digitized. Reagan National Advertising argued that this distinction violates the First Amendment’s Free Speech Clause.

In her majority opinion, Justice Sonia Sotomayor notes that “’tens of thousands of municipalities nationwide’ have adopted analogous on-/off-premises distinctions in their sign codes.” Likewise, since the Highway Beautification Act of 1965 “approximately two-thirds of States have implemented similar on-/off-premises distinctions.”

Per Reed v. Town of Gilbert (2015), a regulation of speech is content based, meaning strict scrutiny applies and it is almost certainly unconstitutional, if the regulation “applies to particular speech because of the topic discussed or the idea or message expressed.” According to the 5th Circuit, because Austin's on-/off premises distinction required a reader to determine “who is the speaker and what is the speaker saying,” the distinction was content based.

According to the Supreme Court, the lower court’s interpretation of Reed was “too extreme.” In Reed, the town of Gilbert’s sign code “applied distinct size, placement, and time restrictions to 23 different categories of signs.” For example, ideological signs were treated better than political signs and temporary directional signs were most restricted. The court reasoned these categories were content based because Gilbert “single[d] out specific subject matter for differential treatment, even if it [did] not target viewpoints within that subject matter.”

Sotomayor opined: “Unlike the sign code at issue in Reed . . . the city’s provisions at issue here do not single out any topic or subject matter for differential treatment. A sign’s substantive message itself is irrelevant to the application of thecity’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 message on the sign matters only to the extent that it informs the sign’s relative location.”

The Supreme Court left it to the lower court to decide whether Austin’s sign ordinance was constitutional. In a concurring opinion, Breyer explained why he thought “a strong presumption of unlawfulness is out of place here,” citing to the SLLC amicus brief.

According to Breyer, “the public has an interest in ensuring traffic safety and preserving an esthetically pleasing environment . . . and the city here has reasonably explained how its regulation of off-premises signs in general, and digitization in particular, serves those interests. Amici tell us that billboards, especially digital ones, can distract drivers and cause accidents. Brief for National League of Cities et al. as Amici Curiae 22 (‘The Wisconsin Department of Transport found a 35% increase in collisions near a variable message sign’). They add that on-premises signs are less likely to cause accidents. Id., at 23 (‘[A] 2014 study found no evidence that on premises digital signs led to an increase in crashes’).”

John Korzen of the Wake Forest University School of Law Appellate Advocacy Clinic wrote the SLLC amicus brief which the following organizations joined: National League of Cities, U.S. Conference of Mayors, International City/County Management Association and International Municipal Lawyers Association.

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This blog offers updates on the National Conference of State Legislatures' research and training, the latest on federalism and the state legislative institution, and posts about state legislators and legislative staff. The blog is edited by NCSL staff and written primarily by NCSL's experts on public policy and the state legislative institution.