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. As discussed in more detail in Billboard Insider’s August 31, 2020 report, the Fifth Circuit Court of Appeals 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. In doing so, the Fifth Circuit joined 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 whether the sign advertising goods, services, or businesses is located on or off of the same premises where those goods, services, or businesses are offered or situated. As Austin argued in its petition, however, other courts have decided this important constitutional issue differently, potentially causing uncertainty and inconsistency in future appellate rulings, and setting the stage for the Supreme Court to finally resolve the dispute.
Billboard Insider also addressed the addition of Justice Amy Coney Barrett to the Supreme Court, and the New Supreme Court’s First Amendment Jurisprudence in its October 29, 2020 edition. Justice Barrett joins a conservative Court, in which at least five of the Justices, Roberts, Thomas, Alito, Kavanaugh, and Gorsuch, have found content-based regulations on free speech subject to strict scrutiny and in violation of 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 last week, when it issued its decision in Mahanoy Area School District vs Levy on June 23rd. 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.
Maybe the City of Austin should be more careful what it asks for.
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