April 21, 2022

Supreme Court Decides City of Austin, Texas v. Reagan National Advertising of Austin, LLC

On April 21, 2022, the U.S. Supreme Court decided City of Austin, Texas v. Reagan National Advertising of Austin, LLC, et al., No. 20-1029, holding that a city ordinance regulating offsite advertising is not subject to strict scrutiny under the First Amendment because the regulation is content-neutral.

Austin’s city code regulating outdoor advertisements distinguishes between signs that are physically on the premises of the place being advertised and “offsite signs” that are away from the premises being advertised. The city prohibits constructing any new offsite signs, “but allowed existing off-premises signs to remain as grandfathered ‘non-confirming signs,’” so long as the pre-existing offsite signs were not altered to “increase the degree of the existing nonconformity.” Based on that provision, Austin rejected an advertising company’s applications to digitize several pre-existing offsite signs. The ad company sued, alleging a First Amendment violation. The district court upheld the city’s action, but the Fifth Circuit reversed, holding that the regulation fails strict scrutiny.

The Supreme Court reversed by a 6-3 vote, holding that the regulation is not subject to strict scrutiny. The Court analyzed whether the regulation was “facially content based under the First Amendment,” which required determining whether the ordinance “‘target[s] speech based on its communicative content’ — that is, if it ‘applies to particular speech because of the topic discussed or the idea or message expressed.'” The Court explained that “restrictions on speech may require some evaluation of the speech and nonetheless remain content neutral.” Here, the city regulation is “content neutral” and “does not warrant the application of strict scrutiny” because it “requires an examination of speech only in service of drawing neutral, location-based lines. It is agnostic as to content.”

Justice Sotomayor authored the opinion of the Court. Justice Breyer filed a concurring opinion, and Justice Alito filed an opinion concurring in the judgment but dissenting in part. Justice Thomas filed a dissenting opinion, joined by Justices Gorsuch and Barrett.

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