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

Supreme Court of the United States · 2022 · Constitutional Law

Constitutional LawFirst AmendmentFree Speech ClauseContent neutralitySign regulationFirst AmendmentFree Speech Clausecontent-based

Facts

Austin's sign code defined an off-premises sign as a sign advertising or directing people to a business, person, activity, goods, products, services, or location not on the same site as the sign. The code prohibited new off-premises signs but allowed existing off-premises signs to remain as grandfathered nonconforming signs, while restricting changes that would alter the method or technology used to convey a message; by contrast, on-premises signs could be digitized. Reagan National Advertising sought permits in 2017 to digitize some of its off-premises billboards, and the City denied the applications. Reagan and Lamar then sued, alleging that treating off-premises signs differently from on-premises signs violated the First Amendment.

Issue

Whether Austin's on-/off-premises sign distinction is facially content based under the First Amendment and therefore subject to strict scrutiny. More specifically, the question was whether a regulation becomes content based merely because officials must read a sign to determine whether it refers to activity on the same premises.

Rule

A speech regulation is facially content based if it targets speech based on its communicative content, meaning it applies to particular speech because of the topic discussed or the idea or message expressed. A regulation is not automatically content based merely because one must read the speech to apply it; where speech is examined only to draw a neutral, location-based line, and absent a content-based purpose or justification, the regulation is facially content neutral and strict scrutiny does not apply.

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Phoenix adopts a sign ordinance allowing digital displays for signs that identify or advertise activities occurring on the same parcel, but barring digital conversion of grandfathered signs that advertise businesses or events located elsewhere. Mesa Outdoor Media, which owns several roadside billboards in Phoenix, is denied a permit to digitize one billboard advertising a concert venue across town.

If Mesa argues the ordinance is facially content based solely because an official must read the billboard to see whether it refers to an offsite location, which is the strongest response?

Explanation. A regulation is facially content based when it applies because of the topic discussed or the idea or message expressed. But the majority held that a rule is not automatically content based merely because officials must read the sign to determine whether it refers to activity on the same premises or elsewhere. Where the speech is examined only to draw a neutral, location-based line, strict scrutiny does not automatically apply.