City of Austin, Texas v. Reagan National Advertising of Texas, LLC.

CONTENT-BASED REGULATION OF SPEECH UNDER REED

Petitioner Austin argues that its distinction between on- and off-premises signs is a content-neutral regulation. Brief for Petitioner, City of Austin, Texas (“Austin”) at 11. Austin claims that the Supreme Court’s decision in Reed v. Town of Gilbert does not require that the Supreme Court consider its sign code content based. Id. at 14. In Austin’s view, Reed defines content-based regulations of speech, which are subject to strict scrutiny review, as those that regulate only particular subject matter or viewpoints. Id. at 14, 21. Austin rejects the Court of Appeals’ formulation of Reed as imposing a “read the sign” test, where a sign is deemed content-based when one must read the sign to determine whether the regulation applies. Id. Instead, Austin asserts that Reed merely clarifies the analytical process of identifying a content-based law. Id. at 22. Austin contends that a “read the sign” test would be incompatible with Reed and existing First Amendment precedent. Id. at 25. In prior cases not overruled by Reed, Austin argues that the Supreme Court held that regulations were content-neutral even when their application required that officials read the sign’s contents. Id. at 26. Further, Austin claims that the “read the sign” test would be unworkable in practice because it would require the application of strict scrutiny review to many reasonable sign regulations. Id. at 32–33.

Interpreting Reed to define content-based regulation of speech as regulation of particular subject matters or viewpoints, Austin contends that its on- versus off-premises distinction is not content-based since it regulates all subjects and viewpoints equally. Id. at 21, 38. Austin emphasizes that Justice Alito, in his Reed concurrence, states that rules are not content-based when they distinguish between signs with fixed messages and electronic signs with changing messages, as well as between on-premises and off-premises signs. Id. at 22. Additionally, Austin points to lower-court decisions holding that on- versus off-premises distinctions were not content-based under Reed. Id. at 40. Austin notes that federal, state, and local governments have long imposed distinct restrictions on off-premises signs due to unique concerns posed by billboards. Id. at 14–15. Consequently, Austin finds the code is subject to intermediate scrutiny, rather than strict scrutiny, review. Id. at 11.

Respondent Reagan National Advertising of Austin, LLC (“Reagan”) counters that Austin’s ordinance is a content-based regulation. Brief for Respondent, Reagan National Advertising of Austin, LLC (“Reagan”) at 17. Reagan asserts that Austin wrongly limits Reed’s application when it argues that Reed restricts its definition of “content-based” to regulations singling out specific subjects or viewpoints. Id. at 23. Reagan points out that the Reed Court warned against conflating content neutrality and viewpoint neutrality and articulated that courts may find more subtle instances of content-based regulation. Id. Thus, Reagan contends strict scrutiny review would apply to regulations that do not single out specific subjects or viewpoints. Id. In response to Austin’s emphasis on Justice Alito’s Reed concurrence, Reagan notes that Justice Alito joined the Reed majority in full. Id. at 24–25. Reagan stresses that construing Justice Alito’s comments about on-premises versus off-premises sign distinctions in this way would immunize the regulations from strict scrutiny and contradict the majority opinion. Id. Also, Reagan asserts that prior cases are not inconsistent with its interpretation of the Reed majority. Id. at 28.

Further, Reagan argues that Austin’s sign code is content-based because its on-premises versus off-premises distinction applies based on the communicative content of the signs. Id. at 17. Reagan views the Code as distinguishing based on “function or purpose.” Id. at 19. Off-premises signs’ functions are to advertise businesses and direct people to their premises at a different location, and whether a sign qualifies as off-premises hinges on the communicative content of the sign. Id. Reagan argues that Austin’s distinction will lead to prohibitions on certain messages from certain speakers, like those who lack the ability to host on-premises signs. Id. at 21. Additionally, Reagan warns that Austin’s code may threaten non-commercial speech: banning the digitization of new off-premises signs restricts the number of messages that can appear on each off-premises sign, and, since on-site speech is more likely to be commercial, the code leaves non-commercial entities with fewer outlets. Id. at 22.

APPLICATION OF STRICT SCRUTINY AND INTERMEDIATE SCRUTINY STANDARDS

Austin asserts that the regulation must survive intermediate scrutiny, rather than strict scrutiny, review because its ordinance is not content-based. Brief for Petitioner at 38. A regulation survives intermediate scrutiny review and is valid if it is “narrowly tailored to serve a significant governmental interest” and “leaves open ample alternative channels for communication of information.” Id. at 38. To be narrowly tailored, the regulation cannot be substantially broader than necessary to achieve the government’s interest. Id. at 45. Austin argues its on- versus off-premises distinction is valid under intermediate scrutiny. Id. at 11. Austin maintains that the government has a significant interest in regulating the proliferation of new off-premises signs to improve traffic safety and aesthetic interests, noting that the Supreme Court has found these interests to be significant in the past. Id. at 43–44. Austin further asserts that the ordinance is narrowly tailored because it is not substantially broader than necessary to achieve the government’s goals of improving traffic safety and aesthetics. Id. at 45. Finally, Austin opines that ample alternative channels for communication exist because businesses and advertisers can still use on-premises signs. Id. at 47.

By contrast, Reagan asserts that the ordinance is content-based and therefore subject to strict scrutiny review. Brief for Respondent at 26. A regulation is valid under strict scrutiny review when it is “narrowly tailored” to “further[] a compelling governmental interest.” Id. at 34–35. Ultimately, though, Reagan contends that Austin’s ordinance would fail under strict scrutiny or intermediate scrutiny review. Id. at 34. While Reagan concedes that Austin’s public safety interest may be compelling, Reagan argues that the ordinance is not narrowly tailored to further Austin’s interest in safety. Id. at 34–35. Reagan finds that Austin has not presented evidence that differential treatment between digitized on-premises and off-premises signs furthers the government’s stated interests, nor has Austin presented evidence that off-premises signs are distracting. Id. at 35–36. Reagan points out that Austin undermines its credibility by regulating only off-premises digital signs and not potentially distracting on-premises digital signs in its sign code. Id. at 36. According to Reagan, Austin also has not shown that its ban on new digitized signs is narrowly tailored to serve its safety and aesthetic interests. Id. at 44. Because the ordinance focuses only on off-premises signs, Reagan maintains that the ordinance is underinclusive and not narrowly tailored. Id. For the same reasons, Reagan argues that the ordinance would also fail under if the Court subjected it to intermediate scrutiny. Id. at 42. Intermediate scrutiny requires that Austin show that its code advances its governmental interest in a “direct and material way” through evidence extending beyond “mere speculation or conjecture,” and Reagan maintains that Austin fails to meet this burden. Id. at 43.