By: Brian J. Connolly, Shareholder, Otten Johnson Robinson Neff + Ragonetti, P.C.
This article is reprinted with permission. The original appeared on Rocky Mountain Sign Law, www.rockymountainsignlaw.com.
On Monday, the U.S. Supreme Court granted the City of Austin, Texas’s petition for writ of certiorari in a case that may determine the legal fate of states’ and local governments’ efforts to restrict billboard advertising.
In the case, which we reported on previously, Austin denied permits to two billboard companies that were seeking to convert existing, static billboards to digital signs. The billboard companies challenged, and the city removed to federal court. The district court rejected the billboard companies’ challenge. The Fifth Circuit Court of Appeals reversed, holding that the city’s sign code, which prohibited the erection of new off-premises advertising signs (i.e. signs that advertise goods and services that are not available on the property on which the sign is located) and further prohibited technological changes to nonconforming signs, violated the First Amendment.
The appeals court concluded that the regulation was content based. Content based laws implicate the Supreme Court’s 2015 ruling in Reed v. Town of Gilbert, where the Court determined that laws that regulate the message or subject matter of signs are constitutionally suspect. The appeals court’s holding in the City of Austin case was premised upon the fact that the off-premises advertising restriction related specifically to the content of a sign. Under the sign code, if the sign’s message related to goods and services on the property where the sign was located, it would be permissible; if the message addressed other matters, it would be prohibited. This, the court found, was impermissible.
The case presents the first opportunity for the Supreme Court to review the First Amendment limitations on restrictions of off-premises advertising since its 1981 decision in Metromedia v. City of San Diego. There, in a splintered decision that resulted in five separate opinions, the Court appeared to rule that bans on off-premises advertising would be constitutional, so long as they did not prohibit off-premises noncommercial speech. Since that time, however, the high Court has articulated a stricter standard for assessing content neutrality, and has further heightened the evidentiary standards applicable to governmental entities that limit or restrict speech.
Although we cannot predict how the Supreme Court will rule, the Court’s acceptance of the case suggests that at least four justices saw fit to review the rules applicable to off-premises advertising. If the Court determines that the city’s billboard regulations are indeed content based, it will have a profound effect on the means by which signs and outdoor advertising are regulated. Nearly every state has laws prohibiting off-premises billboards in some respect, and many local governments rely on the on-/off-premises distinction to avoid a proliferation of advertising in their communities. A ruling in favor of the city would affirm this method of billboard regulation, which has existed in most states since the 1960s.
Otten Johnson lawyers provided input on amicus briefing submitted to the Supreme Court as part of the petition for writ of certiorari stage.
City of Austin v. Reagan Nat’l Adver. of Tex., Inc., No. 20-1029 (2021).
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*TML joined IMLA, the Kentucky League of Cities, Louisiana Municipal Association, Michigan Municipal League, and the Tennessee Municipal Attorneys Association in a brief supporting the City of Austin’s Petition for Writ of Certiorari. That brief can be found here.