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Friday, February 23, 2024 | Back issues
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Supreme Court Takes Up Battle Over Texas Billboard Rules

The justices will decide whether Austin’s ban on digital advertising on most billboards is a content-based restriction in violation of the First Amendment.

WASHINGTON (CN) — The Supreme Court agreed Monday to hear a dispute over whether Texas' capital city violated the First Amendment by regulating the location of digital billboards.

The city of Austin allows digital billboards on the property of businesses that are advertising their products, but prohibits them anywhere else, including on roadside signs. The rule is meant to preserve the city's skyline and prevent drivers from being distracted by changing advertisements.

Reagan National Advertising of Texas sued the city in 2017 to challenge the rule under the First Amendment after Austin denied two of its permit applications seeking to digitize two existing signs that had already been built off the site of one of its clients.

After a bench trial, a federal judge ruled against Reagan and found that Austin's sign code is a content-neutral restriction.

However, the Fifth Circuit reversed last year after finding that the ordinance's distinction between on-premises and off-premises signs is a content-based restriction. U.S. Circuit Judge Jennifer Elrod, a George W. Bush appointee, wrote that the code failed a First Amendment constitutionality test set out in Reed v. Town of Gilbert, a 2015 Supreme Court decision that held the restriction on location, among other rules governing signs, violated the free speech clause of the First Amendment.

Citing Justice Clarence Thomas' majority ruling in Reed, Elrod wrote city officials’ reading of digitized billboards in order to determine whether they should be classified as on-premises or off-premises makes the regulation subject to strict scrutiny.

“To determine whether a sign is ‘off-premises’ and therefore unable to be digitized, government officials must read it,” she wrote in the August 2020 ruling “This is an ‘obvious content-based inquiry’ and it ‘does not evade strict scrutiny’ simply because location is involved.”

Renea Hicks, an attorney who represents Austin, wrote in the city's petition to the Supreme Court that the New Orleans-based appeals court had taken Reed “beyond its limits.”

Reed does not establish a First Amendment principle that the mere act of having to read the words on a sign to decide the sign’s place in a local regulatory scheme makes the scheme ‘content-based,’” she wrote. “Reed takes care to avoid adopting such an extreme principle.”

She added that nothing in Austin's on-premises versus off-premises distinction "implicates or is concerned with the topic discussed on a billboard or the message being conveyed."

“The only thing that matters in what the sign says is whether it is being said in reference to a different location than the sign’s location. The sign’s ‘communicative content’ – urging support for a worthy cause, plumping for one air conditioning service or another, touting the health benefits of a herbal supplement – is irrelevant to the regulatory distinction drawn in Austin’s code," the petition states.

But J. Allen Smith, an attorney with SettlePou who represents Reagan National Advertising, wrote in an opposition brief that Austin's argument that its regulation should be deemed content-neutral because it has a neutral justification falls flat.

Reed expressly held that the government’s justification for a regulation is irrelevant if the regulation is content-based on its face,” Smith wrote.

Hicks said in a statement Monday that Austin welcomed the justices’ decision to hear the case.

“Cities all across the country, including Austin, must grapple with balancing the public policy needs of ensuring traffic safety and protecting local aesthetic values while also allowing ample room for free speech in advertising,” Hicks said. “We believe our ordinances do that and are pleased that the court now has given us an opportunity to explain why what we’ve done achieves the correct balance.”

Smith did not immediately respond to a request for comment.

Per its custom, the Supreme Court did not comment on its decision to take up the case.

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