on Nov 10, 2021
at 6:42 pm
The Supreme Court heard oral argument on Wednesday in a challenge to a Texas city’s ordinance that treats signs differently depending on whether they have a connection to the site where they are located. The U.S. Court of Appeals for the 5th Circuit ruled that the ordinance violates the First Amendment, but during over 90 minutes of oral argument in City of Austin v. Reagan National Advertising of Texas, the Supreme Court was closely divided on this question. Although some justices appeared to agree with the 5th Circuit, other justices were clearly concerned that upholding the 5th Circuit’s decision could have repercussions far beyond the ordinance that they were considering.
Lawyer Michael Dreeben argued on behalf of the city of Austin, whose sign ordinance permits signs that advertise “on premises” businesses or activities – that is, businesses or activities with a connection to the site where the sign is located, but bars new “off premises” signs, which lack such a connection. The city’s ordinance also bans the owners of pre-existing off-premises signs – but not the owners of on-premises signs – from converting them to digital signs. Dreeben told the justices that the 5th Circuit was wrong when it interpreted the Supreme Court’s 2015 ruling in Reed v. Town of Gilbert, holding that an Arizona town could not impose different restrictions on the display of temporary signs based on their messages, “to mean that any time that an officer must read a sign to apply the law,” the law regulates speech based on its content. Such laws are subject to the most demanding constitutional test, known as strict scrutiny.
Austin’s off-premises rule, Dreeben argued, “is an empty vessel that applies to all subjects and topics.” The rule hinges, he explained, “on the relationship of a sign to its location, not the content of its message.”
Justice Clarence Thomas was skeptical. Offering one of the many hypotheticals advanced during the morning, he referred to a famous Austin barbecue restaurant, Franklin Barbecue, and noted that a sign could not promote the restaurant unless it was at the restaurant. “I don’t understand,” Thomas concluded, “how that’s not content-based.”
Justice Neil Gorsuch asked Benjamin Snyder, an assistant to the U.S. solicitor general who argued on behalf of the United States in support of the city, about the likelihood that the city’s ordinance favored popular viewpoints over unpopular ones. For example, Gorsuch said, if there are 1,000 Christian churches and 12 mosques in a city, and off-premises signs are prohibited, the ordinance will wind up favoring the churches.
Snyder countered that the question before the court was whether the ordinance regulates speech based on its content, rather than how the ordinance works in practice, and that the ordinance “doesn’t have any inherent content of its own.” But Gorsuch was unmoved, and he pressed Snyder about whether Austin could have adopted other measures – such as regulating the size or brightness of signs – to address the safety and aesthetic concerns underlying the ordinance. When Snyder responded that such measures are “not nearly as effective,” Gorsuch scoffed. “That can’t be the test — how effective a law is at suppressing speech,” he said. “The First Amendment is always pretty inefficient, we’d agree, wouldn’t we?”
Lawyer Kannon Shanmugam represented Reagan National Advertising, a family-owned outdoor advertising company with billboards in and around Austin. The company sued to challenge the city’s ordinance after it was denied permits to convert existing billboards to digital displays, which would allow them to change the images that are shown every few seconds. Shanmugam stressed that the court only had to decide the narrow question of whether the city’s ban on converting existing off-premises billboards to digital signs violates the First Amendment.
Justice Sonia Sotomayor suggested that there are some functions, including the distinction between on- and off-premises, “that don’t have a possibility of a direct result on speech in the same way” as the regulation in Reed, which established a hierarchy for the treatment of signs based on whether their content was political, ideological, or religious.
Justice Samuel Alito also expressed doubt, noting that the issue for Shanmugam’s clients was the ban on digitizing their off-premises billboards. “An enforcement officer,” he observed, “could determine whether you’re in compliance or not in compliance without reading what is on the billboard.” In fact, Alito continued, an enforcement officer could make that decision even if the billboard were in Chinese and he couldn’t read Chinese, because the key question is whether the billboard was digitized.
Shanmugam countered that the “critical fact” in whether his clients can digitize their signs is whether they advertise on- or off-premises activities. Because they advertise off-premises activities, Shanmugam emphasized, they cannot be digitized.
Even if some justices appeared unconvinced that the application of Austin’s sign ordinance had nothing to do with the content of the signs, the justices were equally concerned that leaving the 5th Circuit’s decision in place would have, as Dreeben put it, “untenable effects.”
Alito, for example, noted that federal regulations requiring various types of corporate disclosure are “all content-based.” Snyder indicated that the precise impact of the court’s ruling would “obviously depend on the court’s opinion,” but that a ruling for the companies could “certainly raise a host of really difficult questions about things that have long been considered settled.”
And Chief Justice John Roberts noted that one significant effect of a ruling for Reagan National would likely be the federal Highway Beautification Act. “Under your theory,” he said to Shanmugam, “I suppose” that five provisions of the act dealing with signs “would be unconstitutional.”
Shanmugam conceded that the provisions to which Roberts referred would be regarded as content-based and would therefore be reviewed under the strict-scrutiny test. But he suggested that based on the precise government interests and how the regulation operated, the provisions might nonetheless be able to pass constitutional muster.
Shanmugam’s response to Roberts led Justice Elena Kagan to frame the dilemma before the court. She acknowledged that “formally one can understand” the city’s ordinance as content-based, “even though I think,” she added, “the court has defined that term more narrowly.” Although Shanmugam had assured the court that the “strict scrutiny analysis can be different,” so that other laws, like the Highway Beautification Act, could still survive, “that’s the thing to worry about,” Kagan posited – “diluting the strict scrutiny analysis.” The other option, Kagan suggested, would be to draw “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 Brett Kavanaugh could hold the deciding vote, and he too appeared conflicted. On the one hand, he (like Gorsuch) asked Snyder why the city couldn’t address its safety and aesthetic concerns by restricting the placement, size, and number of signs, rather than restricting “anything that has to do, arguably, with the words that are written on the sign.” On the other hand, he emphasized to Shanmugam that these kinds of ordinances “have been around for a long time,” and that a ruling for Reagan National would impose significant burdens on “a lot of local jurisdictions around America.”
A decision is expected by summer.
This article was originally published at Howe on the Court.