The City of Austin has asked the Supreme Court to review the Fifth Circuit’s decision in favor of Reagan Advertising in a digital billboard dispute. Austin’s sign code says that on-premise signs can be digitized but off premise signs can’t be digitized. Reagan sought permits to digitize billboards. Reagan and Lamar Advertising sued Austin in state district court challenging the permit denials as an infringement of rights under the first amendment. The District court ruled against Reagan seeming to give preference to Metromedia over Reed v Gilbert. On appeal, The Fifth Circuit agreed with Reagan and Lamar that Austin’s digital billboard restrictions are invalid because the on-premise/off-premise distinction is content based under Reed v Gilbert. Here’s a link to Austin’s Supreme Court petition.
Insider’s take: Insider hears that a Municipal Lawyers Group and Scenic Texas have filed petitions in support of the city of Austin’s request. The Supreme Court only takes a small percentage of case requests. We’re not sure what the Supreme Court will do. Any of you lawyers have an opinion?
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No one can be certain, or even predict, whether the Supreme Court will hear a case. The Court’s Rule 10 says whether to hear a case is completely discretionary. The rule gives non-binding examples of reasons to hear a case. As applied to the Reagan case, the most common reasons are:
-A conflict between U.S. courts of appeal on important federal questions; or
-The supreme court thinks the there is an important question of federal law that it has not decided, but should decide.
If four justices decide the case is important enough to hear, the court will call for briefs. It happens rarely. According to Wikipedia, the court will give a full review to only about 1% of the petitions filed with it. It will dispose of another 1/2% without a full review. (https://en.wikipedia.org/wiki/Procedures_of_the_Supreme_Court_of_the_United_States#Selection_of_cases)
Prediction: the court will not hear this case. While the First Amendment issues involved in the on-premise/off-premise dichotomy are important, there are several pending cases that will give the court the opportunity to decide the issue — if it wants to do so. If it expresses an opinion, it will leave details such as digital v. static to be decided according to whatever decision it reaches on the larger issue.