Insider asked some out of home attorneys to comment on yesterday’s oral arguments, before the Supreme Court, in Reagan v City of Austin.
Richard Hamlin and Marnie Cody, Hamilin Cody Law
We both listened to the argument and discussed it among ourselves. Our reaction:
Trying to predict the result from the questions is like reading tea leaves. We have the impression that Justices Kagan and Sotomayor favor the city. Justice Breyer asked difficult questions of both sides. He pointed out that all regulation is “content-based.” The SEC limits what people can say to investors. The FDA imposes similar limits on advertising drugs.
We did not hear one very strong argument. It would go like this: Digital signs are like television and newspapers in their ability to deliver messages. Like other media, advertising supports digital boards and make it possible to offer news and non-commercial messages. When cities restrict digital boards, they are restricting the ability of people to reach an audience that may not have access to computers and television. Contrary to what J. Kagan (or perhaps Sotomayor) said, billboards allow presenting messages to people who are not wealthy, but those messages need advertising to support them.
Marnie and I don’t agree on every issue. I have difficulty with the commercial/non-commercial distinction that Central Hudson recognizes. To use the example that one of the justices provided, if Black Lives Matter wants to advertise an event and the sale of sweatshirts to support its efforts, is that commercial speech? If Exxon posts copy that says it supports research for renewable energy, is that non-commercial?
I also have difficulty with the idea that on-premise and off-premise advertising should be treated differently. Why should a business be able to say it is here, in this building, but not be able to say it is just a mile away? A “fix” that depends on payment or non-payment doesn’t help much. If a religious group wants to promote its views, does it matter whether it pays to use a board?
Conclusion: Back to the first point. Divining a result from the argument and the questions is like divining the result from tea leaves. The issues are complex and nuanced. We suspect the decision will be influenced as much by the individual justices’ philosophy as anything else. No prediction this time.
Richard Rothfelder, Rothfelder Falick
The Justices were engaged, and the questioning was robust, but ultimately it’s too difficult to predict winners and losers from the oral argument. Reagan seemed to score points when Justice Thomas, who rarely asks questions during oral argument, was the first to jump in, and he did so with the following softball hypothetical designed to exploit the content based and constitutionally suspect distinction between on and off-premise signs under the Austin ordinance: Why should one be permitted to say while on the premises of well-known Austin restaurant Franklin’s Barbeque “eat at Franklin’s,” while he is prohibited from saying the same thing when down the street at McDonald’s or other premises? 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. The only thing I know with any certainty is that I need a Franklin’s Barbeque chopped beef sandwich.
Jennifer Sloane, Sloane Law Office
After listening to just over an hour of legal arguments before the United States Supreme Court in the case of City of Austin, Texas v. Reagan National Advertising of Texas, Inc., I came away feeling as though the industry has no reason to fear a decision in this case.
While the industry argued that this was an easy decision to make, as the Austin sign code was clearly a content-based regulation, the Supreme Court Justices pointed to the broader issues at stake. They seemed to realize that their decision in Reed vs. Town of Gilbert was not clear and that various jurisdictions around the country have reached vastly different opinions while interpreting that decision. My impression was that the Court saw this as an opportunity for them to clarify Reed while deciding the Austin case.
As the Reed Court pointed out, “[s]ome facial distinctions based on a message are obvious, defining regulated speech by particular subject matter, and others are more subtle, defining regulated speech by its function or purpose. Both are distinctions drawn based on the message a speaker conveys, and, therefore, are subject to strict scrutiny.” In Reed, however, different than in Austin, the restrictions in the sign code depended entirely upon the communicative content of the sign. In Austin, you have a sign code that is not just based on content, but is also based on location. I believe the Court in deciding Austin will make that distinction.
In talking with my clients, I know a large fear was whether the Court’s decision in Austin would negate the industry supportive Reed decision and take the wind out of the sails of all those litigants currently using Reed to their benefit in obtaining sign locations in legal challenges to sign codes. I say keep going, as I don’t anticipate the Supreme Court’s decision (not expected until June) to change the benefits of the Reed decision for our industry, and I expect them to adopt a “read the sign” test to determine whether an ordinance is a content-based regulation subject to strict scrutiny, as a means of deciding Austin while at the same time clarifying Reed.
Insider’s thoughts: It was fascinating to listen in to the discussion. The Justices were definitely interested and their questions were on point with the facts of the case. As to where they end up, I agree that very little was telegraphed, except for maybe one or two who will be on the side of the City. I was impressed by the opening from Kannon Shanmugan, arguing on behalf of the billboard owners and a portion of the opening is provided below.
The City of Austin denied Respondents’ application to convert its existing signs to digital signs, and it did so on the ground that the signs advertised off-premises activities. Under this Court’s decision in Reed, Austin’s distinction between signs advertising on-premises and off-premises activities is content-based.
That distinction turns on the subject matter, function, and purpose of the content of the messages on the signs, and it has the effect of prioritizing certain messages from certain speakers and limiting, if not prohibiting, others.
Under any standard of review, however, this is an easy case. A through line of this Court’s First Amendment cases is that whatever the standard of review, a regulatory distinction between different types of speech has to bear some relation to the governmental interest asserted. Here, the challenged restriction, Austin’s prohibition on the digitization of the small number of off-premises signs, flunks any standard of review. It verges on the irrational for Austin to permit digital on-premises signs without any limitation but to prohibit the digitization of the small number of grandfathered off-premises signs.
You can read a transcript of the reagan v austin oral arguments here.
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