As anticipated, the Supreme Court issued their ruling on Reagan v Austin. Insider has initial comments below on the ruling and you can expect more as we all get a chance to research the opinion in more detail.
From Richard Rothfelder, Rothfelder & Falick, LLP:
In a 6 to 3 decision, the Supreme Court on April 21st reversed the Fifth Circuit Court of Appeals’ decision in Reagan vs Austin, which held the Austin Sign Code violative of the First Amendment for distinguishing between on-premise and off-premise signs. The Supreme Court said the Court of Appeals went too far in finding the Austin Code content based and warranting a strict scrutiny review, merely because the sign inspector has to read the sign’s message to regulate it. Instead, the Supreme Court requires content based regulations to be those that discriminate based on “the topic discussed or the idea or message expressed.” And, the Court went on, the City’s on-premise/off-premise distinction merely informs the sign’s relative location, and it is therefore more like ordinary time, place, or manner restrictions, which don’t require application of strict scrutiny. Therefore, the holding of the Court of Appeals that the Austin Code is unconstitutional was reversed, and the case was remanded back to the lower court for further evaluation and proceedings, including under intermediate scrutiny.
The majority opinion was written by Justice Sotomayor, who was joined by Chief Justice Roberts, and Justices Breyer, Kagan, and Kavanaugh. Justice Alito concurred in the judgment, but dissented in part. Justices Tomas, Gorsuch, and Barrett dissented.
The majority, concurring, and dissenting opinions are long and nuanced. And, of course, they are monumental to the out of home advertising industry. Thus, further evaluation of the decision and its import will follow soon.
From OAAA President and CEO Anna Bager
The Court affirmed the structure and constitutionality of the on-premise, off-premise distinction. At the same time, they leave certain issues for the lower court to review.
From Marnie Cody and Richard Hamlin, Hamlin| Cody
I think the holding is spot on and not far off from my expectation. The opinion delivered by Justice Sotomayor and concurring opinion of Justice Bryer is well reasoned, provides a straight answer (no strict scrutiny), and makes sense of first amendment considerations muddied by the opinion in Reed. Contrary to an otherwise “bizarre result,” the opinion is practical and future application of Reed more manageable.
Six justices, including Justices Roberts, Alito and Kavanaugh from the “conservative” block approved the on-premises/off-premises distinction. One justice agreed with the result but thought Reed had gone too far. One justice agreed the distinction was “facially” constitutional but might not be when applied to specific situations.
On balance, the on-premises/off-premises distinction is here to stay for the foreseeable future. For those who have digital faces in place, we suggest using at least 10% of the slots for news bulletins and similar non-commercial purposes. Doing so over time will permit the industry to compare digital faces to traditional news media, which are also supported by advertising.
You can read the Austin v Reagan Supreme Court ruling here.
[wpforms id=”9787″]
Paid Advertisement
