Chemerinsky: SCOTUS clarifies First Amendment debate over content regulation of signs

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U.S. Supreme Court Chemerinsky: SCOTUS clarifies First Amendment debate over content regulation of signs

By Erwin Chemerinsky

May 2, 2022, 8:41 am CDT

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Erwin Chemerinsky. Photo by Jim Block.

For decades, a central inquiry in free speech analysis has been whether government regulation is content-based or content-neutral. Content-based government regulations of speech generally must meet strict scrutiny. To be constitutional, they must be narrowly tailored to achieve a compelling government purpose. By contract, content-neutral regulations have only to meet intermediate scrutiny, being substantially related to achieve an important government purpose.

Therefore, a great deal of First Amendment litigation focuses on whether a particular law or regulation should be deemed content-based or content-neutral. The U.S. Supreme Court’s decision on April 21 in City of Austin v. Reagan National Advertising provides important guidance on how it is to be determined whether a law is content-based.

The facts

The case involved an Austin, Texas, ordinance regulating digital signs on buildings. The city allowed digital signs for businesses operating on the premises of a building, but it generally prohibited signs for off-premises activities. The city’s sign code defined the term “off-premise sign” to mean “a sign advertising a business, person, activity, goods, products or services not located on the site where the sign is installed, or that directs persons to any location not on that site.” The code prohibited the construction of any new off-premises signs but allowed existing off-premises signs to remain as grandfathered “nonconforming signs.” The city said its goal is to “protect the aesthetic value of the city and to protect public safety.”

The U.S. Court of Appeals for the 5th Circuit found the Austin ordinance to be an unconstitutional restriction on speech. The 5th Circuit explained that the city’s on-/off-premises distinction required a reader to ask, “who is the speaker and what is the speaker saying … both hallmarks of a content-based inquiry.” It reasoned, “the fact that a government official has to read a sign’s message to determine the sign’s purpose is enough to” render a regulation as content based and “subject it to strict scrutiny.”

The 5th Circuit justified its decision based on the Supreme Court’s ruling in Reed v. Town of Gilbert (2015). In Reed, the court struck down a municipal ordinance that regulated the presence of outdoor signs but had 23 categories of exceptions. For example, under the ordinance, political signs could be quite large and remain up throughout the election season, while signs giving directions to events had to be small and could be posted only for a short time. The court unanimously declared this unconstitutional. The court said, “on its face, the Sign Code is a content-based regulation of speech.” The 5th Circuit said the Austin ordinance was likewise content-based: The sign was allowed if its message was about businesses on the premises, but it wasn’t allowed if the sign was about off-premises businesses.

Supreme Court finds the Austin regulation is content-neutral

In a 6-3 decision, the Supreme Court reversed the 5th Circuit and found that the Austin regulation of digital signs is content-neutral. The court remanded the case for the application of that standard. Justice Sonia Sotomayor wrote the opinion for the court, which stressed that a government regulation is content-based if it discriminates based on “the topic discussed or the idea or message expressed.” In other words, a law is content-based if the regulation of speech is based on the subject matter (the topic discussed) or the viewpoint (the ideology of the message). If the law applies to all speech, regardless of the subject matter and the viewpoint, then it is content-neutral and need only meet intermediate scrutiny.

The court explicitly distinguished Reed v. Town of Gilbert, explaining that what was allowed under the ordinance in that case depended on the topic of the sign. Political messages were treated differently and more favorably than signs for gatherings for other activities, such as for religious worship.

The high court rejected the 5th Circuit’s conclusion that a regulation cannot be content-neutral if it requires reading the sign at issue. Justice Sotomayor wrote, “Unlike the regulations at issue in Reed, the city’s off-premises distinction requires an examination of speech only in service of drawing neutral, location-based lines. It is agnostic as to content.” The court explained, “A sign’s substantive message itself is irrelevant to the application of the provisions; there are no content-discriminatory classifications for political messages, ideological messages, or directional messages. … Rather, the city’s provisions distinguish based on location: A given sign is treated differently based solely on whether it is located on the same premises as the thing being discussed or not.” The court thought of the Austin regulation as being akin to a time, place or manner restriction concerning speech.

The court did not declare the Austin ordinance unconstitutional but remanded the case to determine whether it was permissible under intermediate scrutiny. It will be interesting to see, on remand, whether the on-premises/off-premises distinction is found to contribute to aesthetics or public safety. Is a sign for businesses on the premises more likely to be attractive or less likely to be distracting?

Concurring and dissenting opinions

Justice Stephen Breyer wrote a concurring opinion in which he recognized Reed v. Town of Gilbert as binding precedent but said, “I write separately because I continue to believe that the court’s reasoning in Reed was wrong.” Justice Breyer criticized Reed’s use of strict scrutiny. He urged the court to avoid the use of strict scrutiny and instead to use a proportionality analysis, and said he “would weigh the First Amendment harms that a regulation imposes against the regulatory objectives that it serves.” He would uphold the city of Austin’s regulation because it causes no “disproportionate harm.”

Justice Samuel Alito concurred in the judgment in part and dissented in part. He said the challengers failed to meet their burden for a facial attack on a statute: demonstrating “no set of circumstances exists under which the [law] would be valid or show that the law lacks a plainly legitimate sweep.” Nor, according to Justice Alito, were the requirements for a successful overbreadth challenge met.

Justice Clarence Thomas, joined by Justices Neil Gorsuch and Amy Coney Barrett, dissented. They maintained that under Reed, the Austin ordinance was content-based. If the content of the ad was for a business on the premises, the ad was allowed; if the content as for some other business, it wasn’t permitted. That, the dissent contended, was a content-based restriction that warranted strict scrutiny. The dissent said the court “misinterprets Reed’s clear rule for content-based restrictions and replaces it with an incoherent and malleable standard.”

Why it matters

The dissent would apply strict rules to any regulation that draws a distinction among speech based on the content of the message. The Austin regulation does that because advertisements for businesses that are on the premises are allowed, but advertisements for other activities are not allowed.

The majority defines “content-based” more narrowly. For the court, a law is content-based if it is a subject-matter restriction, focused on the topic of the speech, or a viewpoint restriction, focused on the ideology of the message. If it is neither, it is content-neutral and only intermediate scrutiny is used. In this way, perhaps the greatest significance of the case is in what the court didn’t do: It did not adopt the dissent’s broad approach for finding that laws are content-based and must meet strict scrutiny.

Town of Reed v. Gilbert caused great confusion in the lower courts. City of Austin v. Reagan National Advertising provides important clarification and guidance.

Erwin Chemerinsky is dean of the University of California at Berkeley School of Law. He is an expert in constitutional law, federal practice, civil rights and civil liberties, and appellate litigation. He’s the author of several books, including The Case Against the Supreme Court (Viking, 2014) and The Religion Clauses: The Case for Separating Church and State, written with Howard Gillman (Oxford University Press, 2020). His latest book is Presumed Guilty: How the Supreme Court Empowered the Police and Subverted Civil Rights (Liveright, 2021).

This column reflects the opinions of the author and not necessarily the views of the ABA Journal—or the American Bar Association.

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