WASHINGTON (CN) — Arguments were heavy with hypotheticals Wednesday as a case concerning billboards drove at what makes a speech restriction content-based.
The case began in Austin, Texas, where billboards are regulated based on their location. Reagan National Advertising sued the city in 2017 after bringing two unsuccessful applications to digitize its preexisting signs. While Austin says digital signs can reside only on the property of a business where the products were advertised, Reagan called the decision discriminatory.
A federal judge sided with the city, finding that Austin’s sign code is a content-neutral restriction, but the Fifth Circuit reversed, sending the case onto the Supreme Court this morning.
Michael R. Dreeben, a partner at O’Melveny & Meyers who represents the city of Austin, focused on the 2015 precedent in Reed v. Town of Gilbert, which says cities can impose content-based restrictions on signs. Dreeben argued that the Fifth Circuit misinterpreted Reed to mean that if a sign must be read to apply the law, then the law is content-based. Asking the justices to reverse, he said that a law is only content-based if it treats signs differently based on their content.
“The off-premises rule is an empty vessel that applies to all subjects and topics,” Dreeben said. “It turns on the relationship of a sign to its location, not the content of its message.”
Justice Clarence Thomas boiled down the case in one sentence and seemed unconvinced that this did not lead to content-based regulation.
“In other words, I can't say certain things unless I'm at a certain location,” the Bush appointee said.
Justice Sonia Sotomayor seemed to agree with the city’s claim, however, that the focus was not on what the signs said but where they were placed.
“I think it's illogical and contrary to any common sense to think that a regulation that says only states can put up directional signs on highways, that that's content-based,” the Obama appointee said. “It’s just not logical.”
Kannon K. Shanmugam, an attorney at Paul Weiss, argued that Austin’s law regulates speech by its purpose, which in turn regulates speech based on its content.
“Austin's distinction between signs advertising on-premises and off-premises activities is content-based,” Shanmugam said. “That distinction turns on the subject matter function and purpose of the content of the messages on the sides, and it has the effect of prioritizing certain messages from certain speakers and limiting, if not prohibiting, others.”
Sotomayor claimed that Shanmugam was taking their precedent in Reed out of context because on- and off-premises functions don’t have a direct effect on speech like regulations on religious or political speech do.
“Reed was clear for everybody,” Sotomayor said. “It was 9-0 on the result. But you can't read a line out of context.”
Justice Neil Gorsuch latched on to the argument from Reagan claiming Austin’s law would favor majoritarian speech.
“Say there are 1,000 Christian churches in an area and 12 mosques,” the Trump appointee said. “By definition, a rule that favors location-based speech over nonpremises speech is going to favor the majoritarian voice there.”





