SCOTUS Case Could Upend Sign Regulations (Again)

Oral arguments in City of Austin v. Reagan National Advertising, Inc., are Wednesday, November 10, 2021.

The U.S. Supreme Court will hear oral argument next week in the case of City of Austin v. Reagan National Advertising, Inc. In that case, the Court is being asked to determine whether the Austin, Texas, sign code's distinction between on–and off–premises signage — a distinction used by states and local governments across the United States — is permissible under the First Amendment. If the Court finds the distinction impermissible, its decision will upend much of modern sign regulation, and will force governments to reconsider their approaches to billboard controls. A decision in favor of the city will validate a regulatory technique that has been in use for nearly 100 years. The Court's decision on the case is expected in June 2022.

APA filed in an amicus curiae brief in the case. While APA did not take a position in the case, however, we support ensuring that the rationales for sign regulation — community functionality, economic development, traffic safety, and aesthetic beautification — remain available to local governments, and we encourage the Court to adopt clear rules for the regulation of billboards.

CASE BACKGROUND

In short, Austin denied permits to two billboard companies seeking to convert static billboards to digital faces, relying on its sign code's prohibitions on (1) new off-premises signs (i.e. signs that advertise business or services not located on the property on which the sign is located) and (2) changes in technology of nonconforming signs. After the city prevailed at trial, the federal Fifth Circuit Court of Appeals found that Austin's code violated the First Amendment. The appeals court concluded that the regulation was content based.

Content based laws implicate the Supreme Court's 2015 ruling in Reed v. Town of Gilbert, where the Court determined that laws that regulate the message or subject matter of signs must be subjected to "strict scrutiny" analysis. That analysis requires the government to demonstrate a compelling interest in regulating signs and further show that the challenged regulation is the least restrictive means of achieving that interest.

The Fifth Circuit's holding in City of Austin reasoned that the off-premises advertising restriction related specifically to the content of a sign. Under the sign code, if the sign's message related to goods and services on the property where the sign was located, it would be permissible; if the message addressed other matters, it would be prohibited. This, the court found, was impermissible, because a code enforcement officer would be required to read the sign's message in order to enforce the code.

It is difficult to predict how the Supreme Court will rule, although oral argument may provide some hints. The justices have not reviewed a sign regulation case since Reed, seven years ago. In that case, Justice Alito authored a concurrence, joined by Justices Sotomayor and Kennedy, indicating that the distinction between on-premises and off-premises signs would be constitutional. In separate concurrences in the judgment, Justices Kagan and Breyer seemed to agree with that position, while the majority opinion — which Justice Thomas authored and Chief Justice Roberts joined — did not join in that view. Since Reed, three new justices have joined the Court, and there is no telling whether the justices who participated in Reed have changed their minds on the topic.

Important for planners

Planners who work in sign regulation should follow the results of this case closely, to ensure that any new sign regulations and enforcement of existing sign regulations is consistent with changes in applicable law.

APA works to advance planning through the judicial process by filing amicus curiae (friend of the court) briefs in selected cases of national importance.

additional sign regulation resources

Learn about this and other recent land use law implicatons for planners from Brian Connolly and members of APA's amicus committee in this Land Use Law Update.

Content-Neutral Sign Regulation | Research KnowledgeBase Collection

Setting Up Your Community for Sign Code Success | Zoning Practice

Sign Regulations Post-Reed | Planning

APA's Amicus Briefs

Top image: Times Square in New York City. Gettyimages/ASKA


About the Author
Brian J. Connolly is a land use planner and lawyer with the firm of Otten Johnson Robinson Neff + Ragonetti, P.C., in Denver, Colorado, and an adjunct professor at the University of Colorado School of Law and the University of Denver Sturm College of Law. This article was adapted from blog posts by the author on Rocky Mountain Sign Law.

November 8, 2021

By Brian Connolly