Reagan National Advertising and their co-petitioners Lamar Advantage Outdoor own some billboards and shit. On these billboards, they display commercial and non-commercial messages alike.
In the city of Austin, they have a rule that differentiates whether a sign is permitted based on whether the sign is connected to the property it happens to sit on. Like, let’s say there was a billboard for McDonalds, but it’s on McDonald’s property—that’s AOK. But if there’s just some rando billboard not on McDonald’s property, yet it is advertising McDonald’s, well, it’s a fucking eyesore. Take that shit down—or in this case, if it’s not already up, you can’t put it up.
Reagan had some old style signs they wanted to convert to the new digital signs which can change messages routinely, much easier than the old wallpaper style shit we’re so used to.
Austin’s rule though, was that no new signs could be put up on a property that wasn’t the property of the people advertising on the sign, which these digital signs would violate. Old signs built and put up before the regulation were grandfathered in, though. So that meant this was an odd situation. He wanted to convert the signs, not put up new ones. Although to be fair, the conversion is effectively a new sign.
So Reagan was like, “Woah, you assholes. This violates my first amendment freedom of speech. If the people who own this business want the sign up, and we have a buyer to put messages on the sign, a rule that stifles us just because the buyer doesn’t own the property is some grade A bullshit. If the area is zoned for the sign, and the sign isn’t indecent, it fucking goes up.”
Austin was like, “We’re just trying to prevent our beautiful and weird city from a million fucking signs littering the landscape, and making it look like a shithole.”
But Reagan was like, “We already had these signs up, assholes. We’re just converting them.”
Part of the complaint here is also that, if the ruling is about whether the sign’s message is related to the premises it sits on, means that some overpaid assholes in the Austin courts will effectively have to read every fucking sign application, and become a “Supreme Board of Sign Review” as justice Kagan actually called it in a previous case, “Reed v. Town of Gilbert,” which ruled a town could not make different rules based on the messages temporary signs conveyed.
So the city was like, “You really don’t want to read every fucking sign, do you? Just give us our judgement, and let us have our ruling.”
In opening arguments, counsel for Austin explained their position pretty well.
Michael R. Dreeben
This case involves a fundamental question about the meaning of content-based regulation under the First Amendment.
The Fifth Circuit interpreted this Court’s decision in Reed to mean that any time that an officer must read a sign to apply the law, the law is content-based. That holding is wrong and should be reversed.
A law is content-based on its face when the text of the law singles out specific subject matter for differential treatment.
The law in Reed did that by distinguishing ideological, political, and directional signs. A rule regulating off-premises advertising does not.
The off-premises rule is an empty vessel that applies to all subjects and topics.
It turns on the relationship of a sign to its location, not the content of its message. The Fifth Circuit’s rigid rule does not further First Amendment values.
Austin’s law does not skew the marketplace for speech or suppress any ideas.
But the Fifth Circuit’s rule would have untenable effects.
Many ordinances can be applied only by looking at what a sign says.
Temporary event signs are a perfect example.
Strict scrutiny of such laws is unwarranted. Now Respondent offers a new theory, arguing that any sign code provision tied to the function or purpose of speech is content-based on its face.
But many neutral laws are tied to function.
Sign regulation is inherently functional.
Signs function to present information.
And the regulation of solicitation is based on the function of soliciting. So long as these rules are even-handed, they are facially content-neutral. First Amendment review still applies, but the right standard is intermediate, not strict, scrutiny.
Because the Fifth Circuit applied the wrong standard, its judgment should be reversed. I welcome the Court’s questions.
Once it was Austin’s turn, their lead counsel opened with this rebuttal.
Kannon K. Shanmugam
The City of Austin denied Respondents’ application to convert its existing signs to digital signs, and it did so on the ground that the signs advertised off-premises activities. Under this Court’s decision in Reed, Austin’s distinction between signs advertising on-premises and off-premises activities is content-based. That distinction turns on the subject matter, function, and purpose of the content of the messages on the signs, and it has the effect of prioritizing certain messages from certain speakers and limiting, if not prohibiting, others. The fact that Austin’s regulation does not prohibit speech on an entire subject and that the application of the regulation depends on a factor in addition to the sign’s content does not render it content-neutral.
A district court felt the city of Austin had indeed made a decent argument, as they don’t want to deal with this shit day after day after day, and ruled in their favor. But the 5th circuit was like, “Maybe y’all aren’t familiar with the first amendment, so let us help you. The fact that you’re saying what is on the sign matters, means its content-based, and thus…well…first amendment. Overturned, bitches!”
In a 6:3 apolitical ruling however, SCOTUS sided with Austin. They ruled that they weren’t limiting content in their ruling, which would be a violation of free speech. Instead, this was merely limiting where you could put a fucking sign or not, based on whether what the sign was advertising, was related to the property it was on. Essentially saying a business has a right to put up a sign on their property, but fuck those billboard assholes who want to put signs up everywhere, that shit is hideous.
Justices Thomas, Barrett, and Gorsuch dissented, arguing that this rule from previous case “Reed” is being misinterpreted. At first, it was purely about content. Now you assholes are making it about some new standard that can be fudged about however courts see fit. What the fuck was wrong with “content-based” in a very literal sense? We can’t even…with you assholes.
Hear oral arguments and read about the case at the links below.
https://www.oyez.org/cases/2021/20-1029
The Logical Libertarian™ 