City of Austin v. Reagan National Advertising of Austin, LLC

(Slip Opinion) OCTOBER TERM, 2021 1 Syllabus NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337. SUPREME COURT OF THE UNITED STATES Syllabus CITY OF AUSTIN, TEXAS v. REAGAN NATIONAL ADVERTISING OF AUSTIN, LLC, ET AL. CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT No. 20–1029. Argued November 10, 2021—Decided April 21, 2022 Like a great many jurisdictions around the country, the City of Austin, Texas (City), specially regulates signs that advertise things that are not located on the same premises as the sign, as well as signs that direct people to offsite locations. See City Code §25–10–102(1). These are known as off-premises signs. The City’s sign code at the time of this dispute prohibited construction of new off-premises signs. Ibid. Grandfathered off-premises signs could remain in their existing loca- tions as “nonconforming signs,” but could not be altered in ways that increased their nonconformity. §§25–10–3(10), 25–10–152(A)–(B). On-premises signs were not similarly restricted. §25–10–102(6). Respondents, Reagan National Advertising of Austin, LLC, and La- mar Advantage Outdoor Company, L. P., own billboards in Austin. When Reagan sought permits to digitize some of its billboards, the City denied its applications. Reagan filed suit in state court, alleging that the City’s prohibition against digitizing off-premises signs, but not on- premises signs, violated the First Amendment’s Free Speech Clause. The City removed the case to federal court, and Lamar intervened. The District Court held that the challenged sign code provisions were content neutral under Reed v. Town of Gilbert, 576 U. S. 155, reviewed the City’s on-/off-premises distinction under intermediate scrutiny, and found that the distinction satisfied that standard. The Court of Appeals reversed. It found the on-/off-premises distinction to be fa- cially content based because a government official had to read a sign’s message to determine whether the sign was off-premises. The court then reviewed the City’s on-/off-premises distinction under strict scru- tiny, and it held that the City failed to satisfy that onerous standard. Held: The City’s on-/off-premises distinction is facially content neutral 2 CITY OF AUSTIN v. REAGAN NAT. ADVERTISING OF AUSTIN, LLC Syllabus under the First Amendment. Pp. 6–14. (a) Reed held that a regulation of speech is content based under the First Amendment if it “target[s] speech based on its communicative content,” i.e., if it “applies to particular speech because of the topic dis- cussed or the idea or message expressed.” 576 U. S., at 163. The Court of Appeals’ interpretation of Reed—to mean that a regulation cannot be content neutral if its application requires reading the sign at is- sue—is too extreme an interpretation of this Court’s precedent. Pp. 6– 12. (1) In Reed, the town of Gilbert, Arizona, adopted a comprehensive sign code that applied distinct size, placement, and time restrictions to 23 different categories of signs, giving more favorable treatment to some categories (such as ideological signs or political signs) and less favorable treatment to others (such as temporary directional signs re- lating to religious events, educational events, or other similar events). The Court rejected the contention that the restrictions were content neutral because they did not discriminate on the basis of particular viewpoints, reasoning that “a speech regulation targeted at specific subject matter is content based even if it does not discriminate among viewpoints within that subject matter.” 576 U. S., at 169. Unlike the sign code in Reed, the City’s sign ordinances here do not single out any topic or subject matter for differential treatment. A sign’s message matters only to the extent that it informs the sign’s relative location. Thus, the City’s on-/off-premises distinction is more like ordinary time, place, or manner restrictions, which do not require the application of strict scrutiny. Cf. Frisby v. Schultz, 487 U. S. 474, 482. Pp. 6–8. (2) This Court’s precedents and doctrines have consistently recog- nized that restrictions on speech may require some evaluation of the speech and nonetheless remain content neutral. Most relevant here, the First Amendment allows for regulations of solicitation, and speech must be read or heard to determine whether it entails solicitation. See Heffron v. International Soc. for Krishna Consciousness, Inc., 452 U. S. 640. Moreover, the Court has previously understood distinctions be- tween on-premises and off-premises signs to be content neutral. See Suffolk Outdoor Advertising Co. v. Hulse, 439 U. S. 808 (order dismiss- ing appeal); Members of City Council of Los Angeles v. Taxpayers for Vincent, 466 U. S. 789. Underlying these cases and others is a rejec- tion of the view that any examination of speech or expression inher- ently triggers heightened First Amendment concern. Rather, content- based regulations are those that discriminate based on “the topic dis- cussed or the idea or message expressed.” Reed, 576 U. S., at 171. Pp. 8–10. (3) Reagan’s counterargument relies primarily on a sentence in Reed recognizing that “[s]ome facial distinctions based on a message Cite as: 596 U. S. ____ (2022) 3 Syllabus are obvious, defining regulated speech by particular subject matter, and others are more subtle, defining regulated speech by its function or purpose.” 576 U. S., at 163. Reagan contends that the City’s sign code defines off-premises signs on the basis of function or purpose and is therefore content based and subject to strict scrutiny. This stretches Reed’s “function or purpose” language too far. Reed held that subtler forms of content discrimination cannot escape classification as content based simply because they swap an obvious subject-matter distinction for a function or purpose proxy. That does not mean that any classifi- cation that considers function or purpose is always content based. Reagan’s reading of Reed would contravene numerous precedents and cast doubt on the Nation’s history of regulating off-premises signs. Pp. 11–12. (b) This Court’s determination that the City’s on-/off-premises dis- tinction is facially content neutral does not end the First Amendment inquiry. Evidence that an impermissible purpose or justification un- derpins a facially content-neutral restriction may mean that the re- striction is nevertheless content based. Moreover, to survive interme- diate scrutiny, a restriction on speech or expression must be “ ‘narrowly tailored to serve a significant governmental interest.’ ” Ward v. Rock Against Racism, 491 U. S. 781, 791. Because the Court of Appeals did not address these issues, the Court leaves them for re- mand and expresses no view on the matters. Pp. 13–14. 972 F. 3d 696, reversed and remanded. SOTOMAYOR, J., delivered the opinion of the Court, in which ROBERTS, C. J., and BREYER, KAGAN, and KAVANAUGH, JJ., joined. BREYER, J., filed a concurring opinion. ALITO, J., filed an opinion concurring in the judg- ment in part and dissenting in part. THOMAS, J., filed a dissenting opin- ion, in which GORSUCH and BARRETT, JJ., joined. Cite as: 596 U. S. ____ (2022) 1 Opinion of the Court NOTICE: This opinion is subject to formal revision before publication in the preliminary print of the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Wash- ington, D. C. 20543, of any typographical or other formal errors, in order that corrections may be made before the preliminary print goes to press. SUPREME COURT OF THE UNITED STATES _________________ No. 20–1029 _________________ CITY OF AUSTIN, TEX