By Richard Rothfelder, Partner, Rothfelder Falick
The much anticipated Supreme Court oral argument in Reagan National vs City of Austin case was held on November 10th, and it lived up to expectations. Scheduled for 70 minutes, but actually lasting 99, the argument was an exciting roller coaster, characterized by robust questioning from the Justices, demonstrating challenges to the arguments of both parties.
The attorney for Austin, Michael Dreeban, and for the Department of Justice, Benjamin Snyder, started by attempting to draw distinctions from this case and the Court’s 2015 decision in Reed vs Town of Gilbert, which held that temporary religious signage was content based, subject to strict scrutiny, and violated the First Amendment. Perhaps the most conservative Justice on the Court, Clarence Thomas, who rarely asks questions during oral arguments, was rather surprisingly the first Justice to jump in with questions, and he did so with a hypothetical question designed to exploit the distinction in on vs off-premise advertising by reference to a well-known Austin restaurant. Specifically, Justice Thomas asked why under Austin’s ordinance it was permissible to say “eat at Franklin’s Barbeque” while one was on the premises at Franklin’s, while it would be prohibited to say the same thing when down the street at McDonald’s or another premise. In another unusual twist, the second question came from Justice Breyer, one of the Court’s liberals: Isn’t a directional sign, one that directs the driver to the establishment like Franklin’s another mile or two down the highway and commonly considered off-premise advertising, automatically content based? Justice Breyer initially seemed to be challenging Austin’s position, as the Fifth Circuit held in the underlying case that once a regulation was determined as content based, it was subject to strict scrutiny and almost always held unconstitutional. However, during later questioning, Justice Breyer, along with fellow liberal Justices Sotomayor and Kagan, focused on the practicalities and history of the beneign use of on-premise signs, as opposed to viewpoint discrimination like Republican vs Democrat or religious vs atheist messages, signaling sympathy for Austin’s position.
Reagan’s attorney, Kannon Shanmugan, reiterated that Austin’s ordinance permitting digital illumination for on-premise but prohibiting it for off-premise signs was controlled by the Court’s decision in Reed, thereby rendering it similarly content based and unconstitutional under a strict scrutiny test. However, Mr. Shanmugan went on to argue that, even under the Court’s intermediate scrutiny analysis, the Austin ordinance was still irrational and unconstitutional. Chief Justice Roberts asked Mr. Shanmugan about the effect this decision may have on the Highway Beautification Act, which has the same types of exemptions for on-premise signs as contained in the Austin ordinance based on whether the sign’s message references goods, services, or businesses located on or off of the same premises as the sign. Mr. Shanmugan suggested that, even though it was content based, the HBA might survive a constitutional challenge and strict scrutiny analysis through demonstration of sufficient governmental interest.
The three Trump appointees to the Court, Justices Barrett, Gorsuch, and Kavanaugh, were also active in their questioning of the attorneys. These three conservative Justices asked about alternative means for regulating signage, such as the size, height, and placement of signs, rather than their content. Justice Kavanaugh accurately summed up the significance of this case, predicting that communities across the nation will likely be revising their sign ordinances based on the Court’s opinion.
In short, the Supreme Court Justices are obviously engaged and even intrigued by this case, but it’s difficult to predict from their questioning during oral argument how they will ultimately rule in their decision. We’ll have to stay tuned to the release of that decision, probably in mid-2022.
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