The long battle between Reagan National Advertising and the city of Austin is approaching the final battleground – the United States Supreme Court. Lawyers on either side are due to make their case this morning over the city’s ban on off-site digital billboards. While the city allows individual businesses, such as bars and restaurants, to have digital signs, it bans digital billboards for anything else.
In 2017, Reagan and Lamar Advantage Outdoor Advertising applied for a total of 84 municipal permits to convert their regular billboards to digital. The city rejected their requests, noting that it would be a violation of the city code. The two companies sued the city, arguing that the distinction between on-site and off-site signs was a violation of the First Amendment.
Although the city won the first round of the Federal District Court, Reagan and Lamar prevailed on appeal to the 5th United States Court of Appeals.
The 5th Circuit wrote in its decision, “There are two substantive issues we need to address in determining which standard of review applies to Austin’s Sign Code. First, if the sign code distinction between on-site and off-site signs is content-based, and second, if the sign code is a regulation of commercial speech “, which would make it subject to a level of scrutiny inferior. But the court did not reach the second question because it ruled that the city’s bylaws are indeed “content-based regulation”, not subject to the exception of commercial speech.
The distinction is likely to feature prominently in the Supreme Court today.
The city argued in its brief: “The city of Austin has enacted a general code of signage to address the aesthetic scourge and traffic hazard issues posed by the proliferation of signs. For 38 years, the Sign Code has included a blanket ban on offsite signs – signs that advertise offsite activities. The offsite rule prohibits billboards, which advertise offsite activities. The code nevertheless authorizes the maintenance of non-compliant signs that were lawful when they were installed. But under the code, the degree of non-compliance of such signs cannot increase. The billboard companies operate billboards in Austin “which are grandfathered and therefore allowed to continue posting messages offsite. They sought to convert their billboards to digital signage, greatly increasing their cosmetic damage and their ability to distract drivers. Austin dismissed requests for digitization as prohibited by its sign code because digitization would increase the degree of non-compliance of billboards.
Although city officials must examine the signs to determine if they are on-site or off-site, the city argues that simply making this decision does not violate the First Amendment and that the court should reject the argument. billboard companies.
Lawyers for the two sign companies will argue, as they did in the Court of Appeal, that the city’s distinction between on-site and off-site signs amounts to a violation of the First Amendment. Arguments will revolve around a Supreme Court case called Reed v. City of Gilbert.
Michael Dreeben of the Washington, DC law firm O’Melveny & Myers and Austin attorney Renea Hicks will represent the city. Their arguments will be broadcast live from 9 a.m. Reagan and Lamar are represented by B. Russell Horton of George Brothers Kincaid & Horton in Austin and Kannon K. Shanmugam of Paul, Weiss in Washington, DC
Beyond the regulation of the signs of the city, this case could have far-reaching consequences. According to an amicus brief filed by 41 different organizations, including Scenic Texas, Scenic America, various chambers of commerce, business groups and environmental organizations, and the Texas Sign Association, the California Sign Association and the International Sign Association, a victory for Reagan will upset the regulatory sign across the country.
In summary, the groups said the distinction between onsite and offsite signage, which the city relies on to ban the digitization of billboards, “has been used for over a century, especially in law. Federal Highway Beautification 1965. Millions of businesses and communities have grown based on this basic tenet of Land Use Law. This court has upheld the distinction at least 10 times . Two circuits have now ruled that the distinction violates the First Amendment …. Three have gone the other way. Sign owners and communities across the country now face deep uncertainty and prolonged and costly disruption due to the split. “
It will now be for the Supreme Court to decide which party has correctly interpreted the law. A decision is expected in 2022.
Aligning with billboard companies is another impressive list of friends of the court. Those who have filed briefs on behalf of the billboard companies position include Americans for Prosperity Foundation, Pacific Legal Foundation, Washington Legal Foundation, Alliance Defending Freedom, Cato Institute, Institute for Justice, Out of Home Advertising Association of America and Institute for Free Speech.
Those interested in hearing the case can listen live on the Supreme Court’s website.
Photo made available via a Creative Commons license.
The Austin MonitorThe work of is made possible by donations from the community. While our reports cover donors from time to time, we make sure to separate commercial and editorial efforts while maintaining transparency. A full list of donors is available here, and our code of ethics is explained here.
Go back to today’s headlines
Read the latest whispers ›