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.”
Benjamin Snyder, the assistant to the U.S. solicitor general, argued Wednesday as an amicus curiae supporting Austin. Repeatedly Snyder would not give in as Gorsuch pushed him on the majoritarian speech point.
Sotomayor countered Gorsuch’s argument saying that generally wealthier people can speak more.
“My point is that it's not favoring the majority over a minority or one group other — other than basis of wealth, but that happens in speech, period. Wealthier people can speak more,” Sotomayor said.
Justice Elena Kagan warned against broadly defining how speech restrictions regulate specific content.
“Down that road, madness lies, and the court has never gone down that road,” the Obama appointee said.
Snyder argued the case did not make sense in terms of the First Amendment.
“It doesn't make any sense, in terms of the First Amendment values that we're trying to further," Sotomayor said, "to treat a law like this one — that has no inherent content that doesn't reflect any government approval or disapproval of particular messages — it doesn't make sense to subject that law to the same scrutiny that you would apply to a law that said you can have Republican signs but not Democratic signs.”
Justice Stephen Breyer conceded he agreed with the argument from Reagan that it was content-based but did not understand the remainder of the party's argument.
“My conclusion is this makes no sense,” the Clinton appointee said. “It does make sense in the context of where you're trying to do time, manner and circumstance. It does make sense in the context of where you're trying to see if it's viewpoint discrimination, but as to the rest of it. No.”
Shanmugam claimed this would be an easy case for the court where they only had to rule that Austin’s digitization ban was invalid. Justice Brett Kavanaugh pushed back on this point, however, arguing the broad implications a ruling could have.
“People will pay close attention to the opinion and, unlike some of our decisions, this decision is going to affect every state and local official around America," the Trump appointee said. "And they spend a lot of money and a lot of time trying to figure out how to comply with First Amendment implications of sign ordinances. So I’m just going to push back a little like, oh, this is a nice easy narrow case.”
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