Billboard Insider has previously reported that the Supreme Court has agreed to hear the appeal of the City of Austin to Reagan National’s and Lamar Outdoor’s successful First Amendment challenge to the on-premise/off-premise distinction in the Austin Sign Code. More specifically, in Reagan and Lamar vs Austin, the United States Court of Appeals for the Fifth Circuit held in 2020 that Austin’s permission for LED digital displays for on-premise structures, while prohibiting them for off-premise signs, was content based and violated the First Amendment. In so holding, the Fifth Circuit followed the 2015 decision of the Supreme Court in Reed vs Town of Gilbert, which held limits on small temporary religious signs were similarly unconstitutional. Next term, the High Court will address whether these constitutional challenges can be extended to the majority of municipal sign codes and state highway beautification acts across the country containing different restrictions for on-premise and off-premise signs.
Reagan alleged an almost identical constitutional challenge to the Sign Code of Cedar Park, a small community just northwest of Austin. Like in the Austin case, Reagan applied with Cedar Park to erect new off-premise signs equipped with LED digital displays, and to convert existing static off-premises signs to LED digital displays. And, like Austin, Cedar Park permitted such LED digital display for on-premise signs, but it prohibited them for off-premises signs. Most critically, however, unlike Austin, Cedar Park also prohibited “pylon signs,” regardless of the on-premise/off-premise distinction.
On August 6, 2021, the Firth Circuit ruled that this critical distinction in the Cedar Park Code afforded the City an independent content neutral ground for denying Reagan’s applications, thereby holding that Reagan lacked standing to sustain its First Amendment challenges. As the Court explained in Reagan National vs City of Cedar Park, “We are of course bound by this court’s decision in Reagan National vs City of Austin. Thus, if Cedar Park’s Sign Code discriminates between ‘on’ and ‘off’ premise content and permits new construction for only ‘on-premise’ signs, then prohibiting Reagan’s new signs based on this distinction violates the First Amendment. Whether or not this is the case, however, the Code, properly interpreted, prevents construction of new ‘pylon signs’ regardless of the on/off premises distinction…Reagan lacks standing to challenge the rejection of all five of its applications because its signs are not treated differently on the basis of their content.”
In short, the Fifth Circuit clearly confirmed that, if one has to read the content of the display to determine whether such a sign is permitted or prohibited, the regulations discriminate based on content in violation of the First Amendment. And, according to the Court, such content based discrimination is inherently present in the on-premise/off-premise distinction characterized by most municipal sign codes and state highway beautification acts. However, if the decision to deny the permit application is based on a content neutral ground, such as the type of physical structure, i.e., a pylon sign under the Cedar Park Code, or presumably a laundry list of height, size, and location regulations, the government’s action will be upheld as constitutional. Indeed, the Fifth Circuit cited several other content neutral reasons for Cedar Park’s denials of Reagan’s application, and it concluded “For all of these reasons, Reagan’s applications for LED conversions were denied under non-content-based regulations in the Sign Code, and the company lacks standing to challenge the Sign Code’s content-specific provisions.”
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