Auspro Enterprises, LP v. Texas Department of Transportation
03-14-00375-CV
Tex. App.Oct 21, 2015Background
- Texas sign code generally prohibits signs within 660 feet of a highway but carves out exemptions for certain categories of signs.
- Election-related signs are exempt only if erected no more than 90 days before the election (Tex. Transp. Code § 391.005; 43 Tex. Admin. Code § 21.146(a)(10)).
- Nonprofit service club, charitable association, and religious organization signs are exempt without any time limitation (43 Tex. Admin. Code § 21.146(a)(6)).
- Appellant (AusPro Enterprises) challenges the differential treatment as content-based under the First Amendment; amicus (Marion B. Brechner First Amendment Project) supports appellant.
- Amicus argues that enforcing the 90-day rule requires examining sign content to determine which election is referenced, and thus the provisions trigger strict scrutiny under recent Supreme Court precedent.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the sign code’s different time limits for election signs vs. nonprofit/religious signs are content-based | The 90-day restriction on election signs but not on nonprofit/religious signs is facially content-based and thus subject to strict scrutiny | (Not argued by state in brief) | The provision is content-based under Reed because it treats signs differently based on the message conveyed |
| Whether distinguishing between imminent elections (within 90 days) and more distant elections is content-based | Determining whether a sign refers to an upcoming election requires examining its message, so the rule is content-based | (Not argued by state in brief) | The provision is content-based under McCullen because enforcement requires reading the sign to decide if a violation occurred |
Key Cases Cited
- Reed v. Town of Gilbert, 135 S. Ct. 2218 (2015) (facial content-based sign regulation triggers strict scrutiny)
- McCullen v. Coakley, 134 S. Ct. 2518 (2014) (a law is content-based if enforcement requires examining message content)
- Survivors Network of Those Abused by Priests, Inc. v. Joyce, 779 F.3d 785 (8th Cir. 2015) (applying McCullen test to conclude certain speech restrictions were content-based)