The Supreme Court granted on June 28, 2021 the petition for writ of certiorari in Reagan National and Lamar Outdoor vs City of Austin, so that the High Court will now entertain the merits of the First Amendment dispute over Austin’s allegedly content-based sign code and regulation of digital signs. The case is appealed from the Firth Circuit Court of Appeals, which held on August 25, 2020 that Austin’s prohibition on the digitization of off-premise signs, while allowing it for on-premise, was a content based regulation that violated the Free Speech Clause of the Constitution. The Fifth Circuit joins a growing list of federal and state appellate courts across the Country applying the precedents from the Supreme Court’s 2015 decision in Reed vs Town of Gilbert to address municipal sign codes and state highway beautification acts that distinguish regulations based upon whether the sign advertising or identifying goods, services, or businesses is located on or off of the same premises where those goods, services, or businesses are offered or situated.

These definitions of so-called “on-premise” and ”off-premise” signs are considered content based, and as such, have led in the last five years to those holdings that numerous sign codes and the Highway Beautification Acts in Texas (Auspro vs TxDOT), Tennessee (Thomas vs Bright), and Kentucky (L.D. Management Co. vs Tennessee Transportation Cabinet ) violate the Constitution’s protection of Free Speech. However, other courts, such as the 2019 decision in Adams Outdoor Advertising vs PennDOT from the Third Circuit Court of Appeals, have decided this important constitutional issue differently. Even Justice Alito’s concurring opinion in Reed vs Gilbert, where he wrote “rules distinguishing between on-premise and off-premise signs” would not necessarily trigger strict scrutiny and violate the First Amendment, has been cited as contrary to these holdings. Thus, there is potential uncertainty and inconsistency in future appellate rulings on this critical constitutional issue, setting the stage for the Supreme Court to finally resolve the dispute.

On October 27, 2020, Amy Coney Barrett was sworn in as the third and most recent of President Trump’s nominations to the Supreme Court, joining Justices Kavanaugh and Gorsuch. The “new” Supreme Court is decidedly conservative, led by Chief Justice Roberts, Justices Alito and Thomas, and now Kavanaugh, Gorsuch, and Barrett, joining the other three Justices, Sotomayor, Breyer, and Kagan, who are generally considered judicially liberal.

The conservatives and liberals, however, got together and unanimously decided perhaps the Court’s most important First Amendment signage case on June 15, 2015 in Reed vs Town of Gilbert. The majority opinion, written by Justice Thomas and joined by Chief Justice Roberts, Justices Alito and Sotomayor, along with former Justices Scalia and Kennedy, held the Town of Gilbert’s regulations on Pastor Reed’s temporary signs advertising his church’s religious services were content-based restrictions on free speech that failed to survive strict scrutiny, thereby invalidating the regulations under the First Amendment.

President Trump’s nominees were not on the Court and did not participate in the Reed vs Town of Gilbert opinion. However, Justices Kavanaugh and Gorsuch participated and even wrote opinions in the Court’s next major First Amendment case, Barr vs American Association of Political Consultants, decided on July 6, 2020. In another decision where all nine Justices agreed on the judgment, Justice Kavanaugh wrote the majority opinion, holding that the Telephone Consumer Protection Act, which generally prohibits all robocalls to cell phones, except those made solely to collect a debt owed to the U.S. Government, was a content-based speech regulation failing to withstand strict scrutiny, and it therefore violated the First Amendment.

The judicial philosophy of Justice Barrett has been described as “originalist” or “textualist,” in the mold of her mentor Justice Scalia, as she explained during her nomination ceremony in the Rose Garden: “I clerked for Justice Scalia more than 20 years ago, but the lessons I learned still resonate. His judicial philosophy is mine too: a judge must apply the law as written. Judges are not policymakers, and they must be resolute in setting aside any policy views they might hold.” Judge Barrett joined the U.S. Court of Appeals for the Seventh Circuit on November 2, 2017, and while apparently not writing any major opinions on signage, she authored or joined several First Amendment opinions while on the Seventh Circuit that generally followed her conservative approach, including Acevedo vs Cook County Officers Electoral Board, Lett vs City of Chicago, Adams vs Board of Education of Harvey, and Smadi vs True. It is likely, therefore, that Justice Barrett will continue to apply these judicial principles, making her at least the sixth Justice on the new Court to find content-based restrictions on free speech subject to strict scrutiny and in violation of the First Amendment.

This Supreme Court continued to demonstrate its protection of the Free Speech Clause as recently as June 23, 2021, when it issued its decision in Mahanoy Area School District vs Levy. On an 8 to 1 vote, the Supreme Court ruled that a Pennsylvania school district had violated the First Amendment by punishing a student for vulgar social media messages sent while she was not on school grounds. The case represents the first time in more than 50 years that a high school student won a free-speech case in the Supreme Court, and emphasizes that courts should be skeptical of efforts to constrain off-campus speech. It is also, perhaps, a signal that the Supreme Court is scrutinizing alleged First Amendment violations, including those arising from content-based sign regulations.

While the majority of cases where the Supreme grants certioriari are reversed on appeal, the last several First Amendment cases to come before it have been affirmed. Therefore, coupled with this New Court’s conservative interpretation of the First Amendment and limits on government regulation, maybe the City of Austin should have been more careful what it asks for in appealing to the Supreme Court.

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