Not Reading the Signs: Supreme Court Examines Outdoor Signs (Again)

The US Supreme Court decided City of Austin v. Reagan National Advertising of Austin yesterday. The case got the Court back into deciding what kinds of outdoor signs can be regulated. You might think that driving down the highway, looking for South of the Border signs, or signs advertising fireworks, or guns or gold for sale, or the best barbecue in the South, are just good clean fun. You're mistaken.

They're First Amendment problems waiting to be solved.

In City of Austin, the Supreme Court took up whether localities could regulate "off-premises" advertising signs. Off-premises signs are the ones posted on property other than where the goods or services advertised by the sign are provided. So, if there's a fifty foot Golden Arches in front of your favorite McDonald's that's on-premises advertising. If you're on the highway and see a sign for "Fresh Vegetables, Next Exit," that's off-premises.

The City of Austin by regulation, in the same way Congress did with the Highway Beautification Act, prohibited off-premises signs except to allow already existing "non-conforming" signs. Owners of existing non-conforming signs could maintain the existing location of their signs, but couldn't increase the "degree of nonconformity." So, for example, no digitizing a non-conforming sign, or increasing its size. Austin allows, though, on-premises sign owners, to digitize their signs.

The challengers in the case, Reagan National Advertising of Austin and Lamar Advantage Outdoor Company, owned non-conforming signs. They chafed under the non-digitizing limitation of Austin's regulation. The Court didn't get into it much but, presumably, digital signs are easier to change and update and advertisers and customers think they're cooler. One supposes, then, you might charge more for the same side-of-the-road advertising space if your sign were digitized.

The advertisers argued that discriminating against off-premises advertising was essentially regulating the content of speech in the advertisement. After all, they argued, Austin was saying that because they were off-premises, their ability to speak was diminished because it couldn't be enhanced in the way on-premises advertisers could enhance their speech. If Austin allowed loud-speaker advertising for non-political messages, but prohibited it for political messages, that would be unlawful. In that same way, advertisers argued, permitting digitized signs on-premises but forbidding them off-premises denied certain speakers a method of speech that was permitted to others.

The US Supreme Court majority in response observed that Austin wasn't regulating the content of the signs. Austin didn't discriminate based on political or religious views or the content of the advertising at all. Since the regulation was, according to the majority, content-neutral, the regulation didn't violate the First Amendment.

Compare that to Reed v. Town of Gilbert, the last time the Supreme Court took up the First Amendment implications of advertising signs. In that case, the Supreme Court struck down local sign regulations. The Town of Gilbert had created 23 different categories of signs based on the content of those signs. The categorization included favorable treatment for some content over others. For example, the Town gave preferential treatment to "ideological signs," and less favorable treatment to "political" signs, and even less to "temporary directional messages" that pointed people to an event.

The regulations at issue in Reed regulated the content of speech by limiting sign size. That was impermissible.

Austin however did not "single out any topic or subject matter for differential treatment" when deciding that off-premises advertising signs could not be enlarged or improved. Moreover, Austin's sign regulation is the sort that affects many tens of thousands of signs and regulatory schemes all over the country. They are ordinary and historically permissible regulations of primarily commercial speech. For those reasons, the Court did not apply strict scrutiny to Austin's regulation and the regulation survived the advertisers' First Amendment challenge.

The case resulted in four different opinions. Justice Sotomayor's majority opinion garnered five votes. Justice Breyer joined Sotomayor's opinion and concurred. Justice Alito concurred in part and dissented in part. Justice Thomas, writing for himself and Justices Gorsuch and Barrett, dissented.  Peruse all of these at your leisure. Suffice for this summary to note that Justice Thomas would apply strict scrutiny to any sign limitation that contained any content regulation including the sort that regulated vendors hawking their wares far away from their shops.

Regulating road signs on the highways has safety implications. More generally, the regulations implicate what the world will look like as we pass through it on streets and roads. Hulking, rusting, looming, garish signs that block out mountains or valleys or oceans are small kicks to the shins of citizens and taxpayers who are already a little annoyed at how much time they spend in their cars. At least, that's the policy judgment that City of Austin regulators made.

The Supreme Court yesterday said it was all right for them to make that judgment. Fair enough. Policy makers and regulators are cautioned, though, to take care when enshrining those values in law. These regulations survived by only two votes.