UPDATE: A decision in City of Austin v. Reagan National Advertising, Inc., was announced April 21, 2022.
The U.S. Supreme Court ruled that the City of Austin, Texas' off-premises sign regulations were permissible under the First Amendment. The Court's ruling ensures that state billboard laws and thousands of local sign regulations that distinguish between on-premises (i.e. signs whose messages relate to an activity occurring on the same property where the sign is located) and off-premises signs (i.e. billboards) will remain intact and constitutional. The decision validates a regulatory technique that has been in use for nearly 100 years.
APA filed in an amicus curiae brief in the case. While APA did not take a position in the case, however, we supported ensuring that the rationales for sign regulation — community functionality, economic development, traffic safety, and aesthetic beautification — remain available to local governments, and we encouraged the Court to adopt clear rules for the regulation of billboards.
In short, Austin denied permits to two billboard companies seeking to convert static billboards to digital faces, relying on its sign code's prohibitions on (1) new off-premises signs (i.e. signs that advertise business or services not located on the property on which the sign is located) and (2) changes in technology of nonconforming signs. After the city prevailed at trial, the federal Fifth Circuit Court of Appeals found that Austin's code violated the First Amendment. The appeals court concluded that the regulation was content based.
Content based laws implicate the Supreme Court's 2015 ruling in Reed v. Town of Gilbert, where the Court determined that laws that regulate the message or subject matter of signs must be subjected to "strict scrutiny" analysis. That analysis requires the government to demonstrate a compelling interest in regulating signs and further show that the challenged regulation is the least restrictive means of achieving that interest.
The Fifth Circuit's holding in City of Austin reasoned that the off-premises advertising restriction related specifically to the content of a sign. Under the sign code, if the sign's message related to goods and services on the property where the sign was located, it would be permissible; if the message addressed other matters, it would be prohibited. This, the court found, was impermissible, because a code enforcement officer would be required to read the sign's message in order to enforce the code.
Important for planners
Planners who work in sign regulation should follow the results of this case closely, to ensure that any new sign regulations and enforcement of existing sign regulations is consistent with changes in applicable law.
APA works to advance planning through the judicial process by filing amicus curiae (friend of the court) briefs in selected cases of national importance.
Top image: Times Square in New York City. Gettyimages/ASKA
About the Author
Brian J. Connolly is a land use planner and lawyer with the firm of Otten Johnson Robinson Neff + Ragonetti, P.C., in Denver, Colorado, and an adjunct professor at the University of Colorado School of Law and the University of Denver Sturm College of Law. This article was adapted from blog posts by the author on Rocky Mountain Sign Law