Interpretation of Billboard Laws Subsequent to HBA

Since the passage of the HBA in 1965, billboard litigation has largely centered on challenges to state and local billboard laws. Some of these decisions may have implications for the HBA today.

Metromedia v. City of San Diego, 453 U.S. 490 (1980)

In 1980, the United States Supreme Court in Metromedia v. City of San Diego, 453 U.S. 490 (1980) specifically declined the opportunity to reach any decision as to the constitutionality of the HBA. The Court in Metromedia instead addressed the constitutionality of a City of San Diego, California ordinance that allowed on-premise signs, prohibited off-premise signs, and prohibited noncommercial signs, with certain exceptions. The Court held the ordinance invalid where it gave greater protection to commercial speech and less protection to noncommercial speech.

Reed v. Town of Gilbert, 576 U.S. 155 (2015)

In 2015, the United States Supreme Court issued its decision in Reed v. Town of Gilbert, 576 U.S. 155 (2015), which has had a profound effect on the jurisprudence of billboard regulation. Although the Court in Reed did not address the HBA, its rationale for concluding that the Town’s sign code violated the Constitution might, in the future, have repercussions for the constitutionality of some aspects of the HBA.

In Reed, the Court found that on its face, the Town’s sign code was a content-based regulation of speech, and therefore, the Court had no need to consider the government’s justifications or purposes for enacting the Code to determine whether it is subject to strict scrutiny– a test that requires the Government to prove that the restriction furthers a compelling interest and is narrowly tailored to achieve that interest. Although the Town offered two governmental interests to support the various distinctions in its code i.e., aesthetic appeal and traffic safety, the Court held that in regard to aesthetics, the Town’s position was undermined because the code allows unlimited proliferation of larger ideological signs while strictly limiting the number, size, and duration of smaller directional ones. And with regard to traffic safety, the Court ruled that the Town offered no reason to believe that directional signs pose a greater threat to safety than do ideological or political signs.

In Reed, according to Emily Jessup, First Amendment Law Review Chief Staff Editor, “the majority departed from previous standards in setting out a new test, or order of events, for determining content neutrality that genuinely changed the analysis. Courts must now consider first ‘whether a law is content-neutral on its face before turning to the law’s justification or purpose.’”[1]

Ms. Jessup continues:

“This holding demonstrated a significant departure from the previous content-neutrality analysis where the intent of the governmental regulation played a key role in determining whether an ordinance was content-neutral. The two-part test and content-neutrality standard set forth in the majority is in conflict with the previous understanding of how government ordinances are scrutinized after First Amendment challenges. In his concurrence, Justice Alito claims that “[p]roperly understood, today’s decision will not prevent cities from regulating signs in a way that fully protects public safety and serves legitimate esthetic [sic] objectives.”[2]

As a result, “many sign regulations with inoffensive and harmless purposes, including the Highway Beautification Act, will no longer survive as content-based and ‘[t]here is a possibility that the distinctions between commercial and noncommercial, and between on-premise and off-premise signs, are content based, as well.”[3]

City of Austin v. Reagan Advertising (2021)

More recently, and importantly, the United States Supreme Court has accepted for review a billboard case that originated in Texas that may provide the Court with the opportunity to address the HBA. See Reagan National Advertising of Austin, Inc., v. City of Austin, 972 F.3d 696 (5th Cir., 2020) (Cert. granted, June 28, 2021), No. 20-1929. In Reagan, The City of Austin’s billboard regulation, in part, allows on-premises, non-digital signs to be digitized, but off-premises, non-digital signs cannot. Sign companies sued the City, claiming the distinction between on-premises and off-premises signs was an unconstitutional content-based speech restriction. The 5th Circuit Court of Appeals held that the Austin Sign Code “is a content-based regulation that is not subject to the commercial speech exception, strict scrutiny applies, and the City has not satisfied that standard.” 972 F.3d at 702.

In the City of Austin’s Petition for a Writ of Certiorari in the Supreme Court, the City argued that the Fifth Circuit decision took the concept of content-based regulation beyond the limits expressed in Reed, and also, that the validation of on-premise/off-premise distinctions found in Metromedia was not overturned by Reed. Thus, Austin’s code provisions should not have been subject to strict scrutiny but rather intermediate scrutiny, which, according to the City of Austin, the code would have survived. The Supreme Court has set oral argument for November 10, 2021.


[1] Emily Jessup, When “Free Coffee” Violates the First Amendment: The Federal Highway Beautification Act After Reed v. Town of Gilbert, 16 First Amend. L. Rev.73, 80 (2017) (citation omitted).

[2] Id. (citing Reed v. Town of Gilbert, 135 S.Ct. 2218, 2233-34 (Alito, J., concurring).

[3] Jessup, 16 First Amend. L. Rev. 73 at 87 (footnote omitted).

As a result, many sign regulations with inoffensive and harmless purposes, including the Highway Beautification Act, will no longer survive as content-based and ‘[t]here is a possibility that the distinctions between commercial and noncommercial, and between on-premise and off-premise signs, are content based, as well.”[3]


[1] Emily Jessup, When “Free Coffee” Violates the First Amendment: The Federal Highway Beautification Act After Reed v. Town of Gilbert, 16 First Amend. L. Rev.73, 80 (2017) (citation omitted).

[2] Id. (citing Reed v. Town of Gilbert, 135 S.Ct. 2218, 2233-34 (Alito, J., concurring).

[3] Jessup, 16 First Amend. L. Rev. 73 at 87 (footnote omitted).