19-50354
5th Cir.Aug 26, 2020Background
- Reagan National Advertising and Lamar Advantage sought permits in 2017 to digitize existing off-premises billboards; the City of Austin denied the applications under its Sign Code.
- Austin’s Sign Code allowed electronic (digital) signs for on-premises signs but prohibited changing the technology of nonconforming off-premises signs; preexisting off-premises signs were treated as nonconforming.
- Plaintiffs sued claiming the on‑premises/off‑premises distinction is a content-based restriction that violates the First Amendment; City removed the case to federal court.
- After the plaintiffs filed suit, Austin amended the Sign Code (redefining on/off‑premises and adding a noncommercial‑message substitution provision) but left the prohibition on digitalizing nonconforming off‑premises signs intact.
- The district court held the pre‑amendment Sign Code content neutral and applied intermediate scrutiny, entering judgment for the City; the Fifth Circuit reviewed and treated the pre‑amendment code as the operative law because applicants are evaluated under the law in effect when they applied.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Mootness / applicable ordinance | Plaintiffs: case not moot; applications were denied under the pre‑amendment code and Texas law requires evaluating permits under the law in effect when applied | City: post‑filing code amendments could moot or materially change the controversy | Court: Not moot; evaluate constitutionality of the prior ordinance (applications were decided under the old code) |
| Is the on‑premises/off‑premises distinction content‑based? | Reagan/Lamar: distinction depends on message content (it requires reading the sign to decide), so it is content‑based | City: the distinction is location‑based (time/place/manner) and thus content neutral | Court: Content‑based — to decide on/off requires reading the sign’s message; Reed controls; strict scrutiny applies |
| Does the commercial‑speech doctrine (Central Hudson) govern? | Plaintiffs: ordinance applies equally to noncommercial speech so Central Hudson does not apply; must analyze as fully protected speech | City: primarily affects billboards that mostly carry commercial messages, so Central Hudson should apply | Court: Central Hudson does not apply because the law regulates both commercial and noncommercial speech without distinction; strict scrutiny required |
| Does the ordinance survive strict scrutiny? | Plaintiffs: Austin cannot show the distinction furthers a compelling interest narrowly tailored | City: aesthetics and public safety are compelling interests justifying the restriction | Court: Ordinance fails strict scrutiny — City offered no evidence that off‑premises digital signs are worse than on‑premises ones and the rule is underinclusive; not narrowly tailored |
Key Cases Cited
- Reed v. Town of Gilbert, 576 U.S. 155 (facial content‑based restrictions trigger strict scrutiny)
- Central Hudson Gas & Electric Corp. v. Public Service Comm’n, 447 U.S. 557 (commercial‑speech framework)
- Ward v. Rock Against Racism, 491 U.S. 781 (content‑neutrality analysis and purpose‑based tests discussed)
- Metromedia, Inc. v. City of San Diego, 453 U.S. 490 (sign‑regulation precedent addressing commercial speech)
- Thomas v. Bright, 937 F.3d 721 (6th Cir.) (similar on/off‑premises analysis applying Reed)
- Solantic, LLC v. City of Neptune Beach, 410 F.3d 1250 (11th Cir.) (ordinance applying equally to commercial and noncommercial speech requires strict scrutiny)