64 F.4th 287
5th Cir.2023Background
- Austin’s 2016 Sign Code barred construction of new off-premises signs and prevented existing (grandfathered) off-premises signs from changing their method/technology (including digitization); on-premises signs may be digital.
- Reagan National and Lamar (billboard owners) applied to digitize existing off-premises billboards; the City denied permits and the owners sued claiming First Amendment violations.
- The district court treated the Sign Code as content neutral and upheld it under intermediate scrutiny; a Fifth Circuit panel reversed, finding the on-/off-premises distinction content based and invalid under strict scrutiny.
- The U.S. Supreme Court reversed the Fifth Circuit, holding the Sign Code facially content neutral (a location-based time/place/manner restriction) and remanded for intermediate-scrutiny review unless an impermissible purpose is shown.
- On remand this panel held the digitization ban survives intermediate scrutiny (significant interests: traffic safety and aesthetics; regulation is reasonably tailored), and affirmed the district court; Judge Elrod concurred in part and dissented in part.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Waiver of intermediate-scrutiny challenge | Reagan/Lamar did not brief intermediate scrutiny on initial appeal but challenged the Code generally at trial. | Austin: plaintiffs waived any intermediate-scrutiny argument on appeal. | No waiver—Supreme Court remand and intervening clarification permit consideration of intermediate-scrutiny arguments. |
| Is the Sign Code content-based under Reed? | The on-/off-premises distinction requires examining message purpose and is content-based. | The distinction is location-based (time/place/manner) and content-neutral. | Supreme Court: facially content neutral; this panel applies that conclusion. |
| Proper level of scrutiny | Plaintiffs: strict scrutiny applies if content-based. | City: intermediate scrutiny applies to content-neutral, location-based restrictions. | Intermediate scrutiny governs (per Supreme Court remand) absent evidence of impermissible purpose. |
| Is the digitization ban narrowly tailored to significant interests (safety, aesthetics)? | Ban is underinclusive and unsupported by empirical evidence; not narrowly tailored (invokes Discovery Network analogy). | City: safety/aesthetics are substantial; common-sense and legislative judgment suffice; gradual phase-out is a legitimate aim (Metromedia support). | Panel: ban survives intermediate scrutiny—substantial interests exist and the regulation reasonably fits those interests. |
| Precedent applicability (Metromedia, Discovery Network) | Discovery Network shows underinclusivity invalidates the fit here. | Metromedia supports on-/off-premises distinctions and deference to local judgments. | Court relied on Metromedia, distinguished Discovery Network, and found Metromedia’s logic persuasive for sign regulation. |
Key Cases Cited
- City of Austin v. Reagan Nat’l Advert. of Austin, LLC, 142 S. Ct. 1464 (2022) (Supreme Court holding Austin’s on-/off‑premises distinction facially content neutral and remanding for intermediate-scrutiny review)
- Reed v. Town of Gilbert, 576 U.S. 155 (2015) (establishing framework for determining content‑based regulations)
- Metromedia, Inc. v. City of San Diego, 453 U.S. 490 (1981) (upholding off‑premises commercial billboard restrictions based on safety and aesthetics)
- Ward v. Rock Against Racism, 491 U.S. 781 (1989) (standard for assessing narrow tailoring of time/place/manner restrictions)
- City of Cincinnati v. Discovery Network, Inc., 507 U.S. 410 (1993) (invalidating a regulation where the distinction drawn bore no meaningful relation to the asserted interests)
- Adams Outdoor Advert. Ltd. P’ship v. City of Madison, Wisconsin, 56 F.4th 1111 (7th Cir. 2023) (upholding a municipal prohibition on digitizing off‑premises commercial signs under intermediate scrutiny)