Decision is Expected by June 2022
On November 10, the U.S. Supreme Court heard oral arguments in City of Austin v. Reagan National Advertising, a case that considers whether billboard restrictions violate the First Amendment rights of advertising companies.
The justices expressed concerns about the sweeping implications of the case on the national landscape, raising questions about highway safety, the legacy of the Highway Beautification Act, and the potential costs of overturning longstanding scenic laws.
Specific points raised included:
- The importance of the case and its impact on cities and states across the country
“…unlike some of our decisions, this decision is going to effect every state and local official around America, and they spend a lot of money and a lot of time trying to figure out how to comply with the First Amendment implications of sign ordinances.”- Justice Brett Kavanaugh
- The impact on the Highway Beautification Act
“Well, one thing you’d certainly have to disturb is the Highway Beautification Act, right?… There are five sign provisions, and under your [Reagan’s] theory, I suppose they would be unconstitutional. You can have directional and official signs, content-based, throw it out, right?… Let’s take another one, signs advertising the sale or lease of property upon which they are located. Does that survive strict scrutiny?… Landmark signs or signs of historic or artistic significance?”- Chief Justice John Roberts
- Respect for the Long Historic Legacy of Scenic Laws
[To Austin] “…this is a kind of distinction [on-premise vs. off-premise] that is historically rooted, still common in jurisdictions all over America, and that that somehow indicates some acceptance of this, consistent with the First Amendment… how does that historical practice and the commonality of the restrictions and the precedent affect whether we decide the threshold question of content-based or content neutrality?”- Justice Kavanaugh
- Implications Beyond Billboards
“What would be the effect of adopting the Respondents’ test or the — the Fifth Circuit’s, the test that’s attributed to the Fifth Circuit, the ‘if you have to read it, it’s content-based’ test on federal regulations? Justice Breyer mentioned some of those. Start with regulations that require disclosure. Those are all content-based.” -Justice Samuel Alito
[To Reagan] “Could you address the… many, many federal regulations that require disclosure of information? … I believe there are some that prohibit something being labeled as — as a particular thing unless certain requirements are met… What would be the effect — I want to understand where — what we would be buying if we bought the, if you have to read it, it’s content-based argument? -Justice Alito
[To Government] “You want to know whether — whether a law is content-based, you have to read it. Every law is written in English. And if you go look at the statute books, which there are hundreds of, most of them deal with what somebody should say. That’s what securities law is about. That’s what energy law is about in half of it… And that’s true of railroad regulation, airline regulation, energy regulation, you name it.”– Justice Stephen Breyer
“The whole SEC is content-based. And what about the infinite number of FDA rules that say you better disclose how much sodium there is? That’s not content, sodium?… And we can go on through the whole U.S. Code.” – Justice Breyer
- “Off-Premise” is a Workable, Common Sense Distinction
[To Reagan] “Your client has billboards. They are off-premises in the conventional sense of the term. They are not in front of a building. Austin doesn’t say you have to take them down. It just says you can’t digitize them. An enforcement officer could determine whether you’re in compliance or not in compliance without reading what is on the billboard. If everything on the billboard were written in Chinese and the enforcement officer can’t read Chinese, the enforcement officer could still say you’re in violation because they’re digitized.”- Justice Alito
[To Reagan] “Lots of municipalities have these laws that say you can’t have illuminated signs unless the illumination is for your address or for your name so that people can identify. There are some laws that sort of scream out not to worry in terms of any First Amendment values. Now we can do two things with those laws. As I understood what you said to the Chief Justice, you said: Well, don’t worry because the strict scrutiny analysis can be different. And I guess I would say…, I think he said, that’s the thing to worry about, is diluting the strict scrutiny analysis. The thing not to worry about is drawing some kind of sensible line which takes laws like this one and puts it on the other side of the content-neutral, content-based divide.”- Justice Elena Kagan
“Bright lines are always attractive to people, but human nature is not bright lines. Life is all gray. You have to read things to know anything about them. You have to read a sign to see if it’s covered by the First Amendment. And you have to read it to know whether it’s obscenity or not. Directional signs, as Justice Breyer said earlier, you have to read it to see if it’s directional. And yet, I think it’s illogical and contrary to any common sense to think that a regulation that says states can put up signs — only states can put up directional signs on highways, that that’s content-based. It — just not logical. And so I think what Justice Breyer’s trying to get at is that history teaches us that there are certain types of functions, not purposes, but functions like on- and off-premises that don’t have a possibility or a direct effect on speech in the same way as a regulation that says only the religious — as in Reed, that only religion can do X, politics can do Y, and this can do Z.”- Justice Sonia Sotomayor
“My own kale shop, I sell fried kale, and right outside I want a big picture of kale that lights up, okay? It’s mine. This is my shop. I want to decorate it the way I want, strong interest. I don’t have the same interest in what the billboard 40 miles outside the town says about my kale shop.”- Justice Breyer
- Billboard Restrictions Do Not Discriminate against Any Group or Viewpoint
[To Government] “These big billboards, you’ve got to be — have a lot of money to put a sign on them…It’s not favoring the majority over a minority or one group other — other than basis of wealth, but that happens in speech, period.”- Justice Sotomayor
Discussions Point to an Uncertain Outcome
While the examples cited above seemed to favor Austin’s position, the justices also challenged some of the city’s assertions. They raised questions about the city’s assertion that its ban on off-premise digital signs is content-neutral, and how First Amendment scrutiny could apply to different messages.
Scenic America is cautiously optimistic that the Court will overturn the Fifth Circuit’s opinion, but the outcome is far from certain. A decision is expected in the first half of 2022.
Audio Recording and Transcript of Austin v. Reagan
An audio recording of the oral arguments is posted on the Supreme Court’s website at this link.
The transcript is posted on the Supreme Court’s website at this link.
More About Austin v. Reagan
Scenic America’s summary of key facts about City of Austin v. Reagan can be found here.
A summary of the Scenic and developer community Amici Brief can be found here.