In Appeals Court cites Reagan v Austin in Denying Adams Lawsuit Billboard Insider reported on the Seventh Circuit Court of Appeal decision in Adams Outdoor vs City of Madison, holding that the permission afforded in the Madison Sign Code for digital on-premise signs while denied for off-premise was not content based, thereby complying with the First Amendment under an intermediate scrutiny standard. Sound familiar? It should, as Adams had closely followed the playbook previously written by Reagan National in its challenge to the off-premise digital prohibitions contained in the Austin Sign Code. Indeed, in 2017, shortly after the Supreme Court’s 2015 decision in Reed vs Town of Gilbert, Adams filed 26 applications to erect or convert to digital off-premise signs, which were prohibited by Madison. When the applications were denied, Adams filed suit in federal court, arguing that the Reed Court’s invalidation of the temporary religious signage contained in the Gilbert Sign Code as content based should be extended to the on-premise vs off-premise distinction. Of course, Reagan had made the same argument when Austin denied its applications for conversions of its off-premise signs to digital. When the Fifth Circuit Court of Appeals agreed in its 2020 decision in Reagan National vs City of Austin, Adams amended it suit to rely upon the decision. Thereafter, the Supreme Court granted certiorari in Reagan, and the Adams Court held its appeal to await the High Court’s final ruling in Reagan.
You know the rest of the story. As the Adams Court observed, “the Court has now reversed the Firth Circuit, explaining that nothing in Reed altered its earlier precedents applying intermediate scrutiny to billboard ordinances and upholding on-/off-premise sign distinctions as ordinary content-neutral ‘time, place, or manner’ speech restrictions. That resolves this case.” The Adams Court went on to explain the Supreme Court’s decision last year in Reagan vs Austin rejected “the Firth Circuit’s interpretation of Reed, particularly it’s ‘need to read’ rule for determining when a speech regulation is content based and thus subject to strict scrutiny. As the Court explained, the Firth Circuit’s rule-‘that a regulation cannot be content neutral if it requires reading the sign at issue’-was ‘too extreme an interpretation of this Court’s precedent.’ The Court reiterated the long-standing principle in its caselaw that a speech regulation is considered content based only ‘if it targets speech based on its communicative content’-that is if it ‘applied to particular speech because the topic discussed or the idea or message expressed. ‘ “
The Supreme Court also remanded Reagan’s case back to the Firth Circuit for further proceedings, including an analysis of whether the Austin Sign Code’s distinctions for digital on- and off-premise signs could withstand intermediate scrutiny. According to the Adams Court, at least, there is no meaningful argument such a “digital-sign ban flunks intermediate scrutiny.” The Seventh Circuit in Adams went on to explain “prohibiting digital signs serves Madison’s stated interests in promoting traffic safety and preserving visual aesthetics. It’s well established that these are significant governmental interests,” thereby upholding the constitutionality of the ordinance.
I suspect Reagan will ultimately realize a similar result in its appeal. In fact, lower courts are likely to continue making the types of rulings in Adams vs Madison, after the Supreme Court’s decision in Reagan vs Austin.
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