Auspro Enterprises, LP v. Texas Department of Transportation

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

ON MOTION FOR REHEARING

NO. 03-14-00375-CV

Auspro Enterprises, LP, Appellant

v.

Texas Department of Transportation, Appellee

FROM THE DISTRICT COURT OF TRAVIS COUNTY, 345TH JUDICIAL DISTRICT

NO. D-1-GN-11-002740, HONORABLE TIM SULAK, JUDGE PRESIDING

OPINION

We withdraw our opinion and judgment dated August 26, 2016, substitute the

following opinion and judgment in their place, and deny the Department’s motion for rehearing.

This case addresses the constitutionality of the Texas Highway Beautification Act.1

The United States Supreme Court recently struck down a similar sign regulation in Reed v. Town of

Gilbert, where the high court observed:

This type of ordinance may seem like a perfectly rational way to regulate signs,

but a clear and firm rule governing content neutrality is an essential means of

1

Tex. Transp. Code Ch. 391.

protecting the freedom of speech, even if laws that might seem “entirely reasonable”

will sometimes be “struck down because of their content-based nature.”2

In Reed, the Supreme Court refined its framework for analyzing “content based” regulations

of speech, holding, “A law that is content based on its face is subject to strict scrutiny regardless

of the government’s benign motive, content-neutral justification, or lack of ‘animus toward the

ideas contained’ in the regulated speech.”3 With this holding and broad framework for determining

whether a government regulation of speech is “content based,” Reed has arguably transformed

First Amendment free-speech jurisprudence.

In Reed’s wake, our principal issue here is not whether the Texas Highway

Beautification Act’s outdoor-advertising regulations violate the First Amendment, but to what extent.

Based on our determination that, under Reed, certain provisions in Subchapters B and C of the Act

are facially content-based restrictions on speech that render those subchapters unconstitutional, we

will reverse the district court’s judgment and render judgment severing those unconstitutional

subchapters from the Texas Highway Beautification Act.

Background

The facts of this case are straightforward and undisputed. On July 7, 2011, Auspro

Enterprises, LP, placed a sign supporting Ron Paul’s 2012 presidential campaign on its property on

State Highway 71 West in Bee Cave, Texas. On July 12, the Texas Department of Transportation

2

135 S. Ct. 2218, 2231 (2015) (quoting City of Ladue v. Gilleo, 512 U.S. 43, 60 (1994)

(O’Connor, J., concurring)).

3

Id. at 2222.

2

sent a letter to Auspro explaining that its sign was “illegal” because all outdoor signs must be

permitted and, although there is a specific exemption under Department rules for political signs, the

exemption only allows political signs to be displayed 90 days before and 10 days after an election.4

The Department’s letter ordered Auspro to remove the sign.

After Auspro failed to remove the sign, the Department brought an enforcement

action in Travis County District Court for injunctive relief and civil penalties. In response,

Auspro asserted that the Texas Highway Beautification Act and the Department’s implementing

rules violate, both facially and as applied, Auspro’s right to free speech under the U.S. and

Texas constitutions.5 The district court granted final judgment in the Department’s favor after a

bench trial on stipulated facts, specifically concluding, among other things, that the Act and the

Department’s rules were not unconstitutional as applied to Auspro.6

During Auspro’s appeal from the district court’s final judgment, the United States

Supreme Court granted certiori and heard oral argument in Reed, prompting this Court to grant

Auspro’s motion to abate this appeal pending the resolution of Reed. Following the Reed decision

4

The Department’s letter set forth, in their entirety, the Department rules requiring permits

for outdoor advertising and granting an exception for campaign signs. See 43 Tex. Admin. Code

§§ 21.143(1) (2011) (Tex. Dep’t Transp., Permit Required), 21.146(a)(9) (Exempt Signs); see also

Tex. Transp. Code § 391.005 (election-sign exemption).

5

See U.S. Const. amend. I (“Congress shall make no law . . . abridging the freedom of

speech . . . .”); Tex. Const. art. I, § 8 (“Every person shall be at liberty to speak, write, or publish his

opinions on any subject, being responsible for the abuse of that privilege; and no law shall ever be

passed curtailing the liberty of speech or of the press.”).

6

The judgment did not include a specific finding regarding Auspro’s facial challenge.

3

and with the benefit of its instruction, we reinstated this appeal and allowed the parties to submit

briefs regarding Reed’s effect on our decision here.

Analysis

Auspro brings three issues on appeal, but its principal contention post-Reed is

that the Texas Highway Beautification Act violates the First Amendment because it is a “content-

based” government regulation of speech that cannot survive strict scrutiny.7 The Department, in

turn, maintains that Reed does not inform our decision, arguing that the Texas Act actually favors

election signs and that, relatedly, we remain bound by the Texas Supreme Court’s 2003 decision

in Texas Department of Transportation v. Barber, which held that the Texas Highway Beautification

Act is constitutional.8 In the alternative, the Department maintains that our constitutional inquiry

here is limited to the election-sign exemption and that our sole remedy, should we determine that

provision is unconstitutional, is severing that exemption from the Act.

Free-speech jurisprudence, Reed, and its aftermath

The First Amendment mandates that “Congress shall make no law . . . abridging

the freedom of speech.”9 The Supreme Court has interpreted this language to generally prohibit any

laws that regulate or restrict expression based on content: “[A]bove all else, the First Amendment

7

“Where, as here, the parties have not argued that differences in state and federal

constitutional guarantees are material to the case, and none is apparent, we limit our analysis to

the First Amendment and simply assume that its concerns are congruent with those of article I,

section 8.” Bentley v. Bunton, 94 S.W.3d 561, 579 (Tex. 2002).

8

See 111 S.W.3d 86 (Tex. 2003).

9

U.S. Const. amend. I.

4

means that the government has no power to restrict expression because of its message, its ideas,

its subject matter, or its content.”10 Such “content-based” regulations of speech “are presumptively

unconstitutional and may be justified only if the government proves that they are narrowly tailored

to serve compelling state interests.”11 Because this strict-scrutiny inquiry is almost impossible to

overcome—“It is rare that a regulation restricting speech because of its content will ever be

permissible”12—the primary, and often dispositive, question in a free-speech analysis is whether the

law in question is content based or content neutral. Regulations deemed content neutral—i.e., that

regulate speech without regard to its content—are subject to the less exacting intermediate scrutiny,

which requires that the law in question not be “substantially broader than necessary to achieve the

government’s interest.”13 Reed is the Supreme Court’s most recent articulation of its standard for

determining whether a particular government regulation of speech is content based.

The government regulation of speech addressed in Reed was a sign ordinance that

banned the display of outdoor signs in any part of the Town of Gilbert, Arizona without a permit.14

The ordinance included exemptions from the permit requirement for 23 different categories of

10

Police Dep’t v. Mosley, 408 U.S. 92, 95 (1972). Because Auspro’s speech here is

unquestionably noncommercial, this case, like Reed, does not implicate commercial-speech

considerations. Although laws that restrict only commercial speech are content based, such

restrictions need only withstand intermediate scrutiny. See Central Hudson Gas & Elec. Corp.

v. Public Serv. Comm’n of N.Y., 447 U.S. 557, 564 (1980).

11

Reed, 135 S. Ct. at 2226 (citing R.A.V. v. St. Paul, 505 U.S. 377, 395 (1992); Simon &

Schuster, Inc. v. Members of N.Y. State Crime Victims Bd., 502 U.S. 105, 115, 118, (1991)).

12

United States v. Playboy Entm’t Grp., Inc., 529 U.S. 803, 818 (2000).

13

See Ward v. Rock Against Racism, 491 U.S. 781, 799–800 (1989).

14

See Reed, 135 S. Ct. at 2224.

5

signs and, within those exemptions, imposed varying restrictions depending on the category.15 For

example, “ideological signs” were freely allowed with no restrictions, while “political signs” could

be displayed without a permit, but only within the 60 days preceding an election and the 15 days

following an election.16

The Reed plaintiffs—a small church and its pastor—challenged the constitutionality

of the ordinance after the Town repeatedly cited the church for failure to comply with the sign

ordinance’s exemption for “temporary directional signs,” generally defined as temporary signs

intended to direct passerby to a “qualifying event” of a non-profit organization.17 The church signs,

which were posted around town each Saturday to announce the time and location of the next day’s

service and then removed by Sunday afternoon, violated the ordinance’s requirement that temporary

directional signs be displayed for no more than twelve hours before the “qualifying event” and

for no more than one hour afterward.18 The Supreme Court, explaining that a regulation of speech

is content based if it “applies to particular speech because of the topic discussed or the idea or

message expressed,” held that the sign code was content based on its face.19 Specifically, the Court

noted that the ordinance defined “temporary directional signs” on the basis of the event being

15

Id. at 2224–25.

16

Id. “Ideological signs” are defined as “sign[s] communicating a message or ideas for

noncommercial purposes”; and “political signs” as “temporary sign[s] designed to influence the

outcome of an election called by a public body.” Id.

17

Id. at 2225. “Temporary directional signs relating to a qualifying event” are defined as

“signs directing the public to a meeting of a nonprofit group.” Id.

18

Id.

19

Id. at 2227.

6

advertised and “political signs” on the basis of whether the sign’s message “is designed to influence

the outcome of an election.”20 Ultimately, after deciding that the ordinance was a content-based

regulation subject to strict scrutiny, the Supreme Court determined the Town could not meet its

strict-scrutiny burden and struck down the sign ordinance.21

First Amendment jurisprudence has long analyzed “content-based” regulation of

speech under strict scrutiny. Reed’s significance in this area is its clarification of what constitutes

a content-based restriction on speech. Before Reed, many courts—including the Ninth Circuit in the

decision Reed reversed and the Texas Supreme Court in its 2003 Barber decision upholding the

Texas Act—relied on various arguments to deem as content neutral, and thus subject to only

intermediate scrutiny, statutes that, on their face, differentiated between categories of speech based

on topic or ideas expressed—i.e., were facially content based.22 Stated generally, these arguments

were based on considerations such as whether the regulations in question had been adopted or

motivated by “disagreement with the message conveyed” and whether there were justifications for

the regulation that were “unrelated to the content of the sign.”23 Reed emphatically rejected these

20

Id.

21

Id. at 2233; see Lamar Cent. Outdoor, LLC v. City of Los Angeles, 245 Cal. App. 4th

610, 621 (Cal. App. 2016) (“In Reed, the high court invalidated a town’s sign ordinance . . . .”);

Urja Mittal, The “Supreme Board of Sign Review”: Reed and Its Aftermath, 125 Yale L.J. Forum

359, 359 (2016) (“In Reed v. Town of Gilbert, the Court applied strict scrutiny and struck down an

Arizona sign ordinance as a content-based regulation of speech.”); Free Speech Doctrine After Reed

v. Town of Gilbert,129 Harv. L. Rev. 1981, 1984 (2016) (explaining Reed “invalidated” sign code).

22

See Reed v. Town of Gilbert, 707 F.2d 1057, 1071–72 (9th Cir. 2013), rev’d, 135 S. Ct.

2218; Barber, 111 S.W.3d at 94.

23

See Reed, 135 S. Ct. at 2226–29 (discussing underlying decision and amicius briefs);

Barber, 111 S.W.3d at 94; see also Brian J. Connolly, Environmental Aesthetics & Free Speech:

7

arguments, asserting that this type of analysis “skips the crucial first step in the content-neutrality

analysis: determining whether the law is content neutral on its face.”24 If the law is content-based

on its face, Reed explained, that is the end of the inquiry: “A law that is content based on its face is

subject to strict scrutiny regardless of the government’s benign motive, content-neutral justification,

or lack of ‘animus toward the ideas contained’ in the regulated speech.”25

In sum, as the Supreme Court explained in Reed, a law can be content based in either

of two ways: (1) by distinguishing speech by the topic discussed; and (2) where the government’s

purpose or justification for enacting the law depends on the underlying “idea or message

expressed”—i.e., the law is facially content neutral, but the motives in enacting it were content

based.26 “Both are distinctions drawn based on the message a speaker conveys, and, therefore, are

subject to strict scrutiny.”27 As noted, this framework marks a significant departure from the content-

neutrality analysis used by other courts, including the Texas Supreme Court, that would uphold

facially content-based restrictions as long as those restrictions could be justified on content-neutral

grounds and as long as the regulations were not adopted based on disagreement with the message.

Toward A Consistent Content Neutrality Standard for Outdoor Sign Regulation, 2 Mich. J. Envtl.

& Admin. L. 185, 197 (2012) (describing the split between federal circuit courts in determining

content neutrality).

24

Reed, 135 S. Ct. at 2228.

25

Id. (citing Cincinnati v. Discovery Network, Inc., 507 U.S. 410, 429 (1993)).

26

Id.

27

Id.

8

Having determined that the Town’s sign ordinance was content based, the Reed

opinion turned next to analyzing whether the Town could meet its strict-scrutiny burden of showing

that the ordinance furthers a compelling interest and is narrowly tailored to achieve that interest.28

The Town offered only two governmental interests in support of the distinctions the sign code draws:

preserving the Town’s aesthetic appeal and traffic safety. The Supreme Court, willing to assume for

argument’s sake that these asserted interests were compelling governmental interests, nevertheless

concluded that both “distinctions fail as hopelessly underinclusive”29—i.e., they were too limited

in their regulatory reach to address the interest at issue.30 As for the aesthetic interest specifically,

the Court noted that the Town could not “claim that placing strict limits on temporary directional

signs is necessary to beautify the Town while at the same time it allowed unlimited numbers

of other types of signs that create the same [aesthetic] problem.”31 The Supreme Court concluded

that the safety interest was likewise underinclusive, noting that it “offered no reason to believe that

directional signs pose a greater threat to safety than do ideological signs or political signs.”32 In light

28

See id. at 2231 (noting and describing burden (citing Arizona Free Enter. Club’s Freedom

Club PAC v. Bennett, 131 S. Ct. 2806, 2817 (2011)).

29

Id. at 2231.

30

See, e.g., Erznoznik v. City of Jacksonville, 422 U.S. 205, 214 (1975) (“This Court

frequently has upheld underinclusive classifications on the sound theory that a legislature may deal

with one part of a problem without addressing all of it.”).

31

Id.

32

Id. at 2232.

9

of its underinclusiveness, the Supreme Court held that the Town’s sign ordinance failed strict

scrutiny.33

Reed next addressed concerns that its holding would “prevent governments from

enacting effective sign laws,” noting that “not ‘all distinctions’ are subject to strict scrutiny, only

content-based ones are. Laws that are content neutral are instead subject to lesser scrutiny.”34 As

examples, the Court pointed to restrictions in the Town’s sign code regarding size, building

materials, lighting, moving parts, and portability.35 The Court further pointed to lower-court

decisions that have “long held that similar content-based sign laws receive strict scrutiny” and noted

“there is no evidence that the towns in their jurisdictions have suffered catastrophic effects.”36

Three of the justices filed separate opinions in Reed, addressing implications of the

majority opinion.37 Justice Alito proposed several regulations that he concluded would not be

considered content based, such as distinctions between on-premises and off-premises signs and time

33

See id.

34

Reed, 135 S. Ct. at 2228 (citing Clark v. Community for Creative Non-Violence, 468 U.S.

288, 295 (1984)).

35

Id.

36

Id. (citing Solantic, LLC v. Neptune Beach, 410 F.3d 1250, 1264–69 (11th Cir. 2005) (sign

categories similar to the town of Gilbert’s were content based and subject to strict scrutiny);

Matthews v. Town of Needham, 764 F.2d 58, 59–60 (1st Cir. 1985) (law banning political signs but

not commercial signs was content based and subject to strict scrutiny)).

37

Justice Alito filed a concurring opinion in which Justices Kennedy and Sotomayor

joined. Justice Breyer filed an opinion concurring in the judgment. Justice Kagan filed an opinion

concurring in the judgment in which Justices Ginsburg and Breyer joined.

10

restrictions on signs for one-time events.38 He also noted that, in addition to regulating signs put up

by private actors, “government entities may erect their own signs consistent with the principles that

allow governmental speech.”39 Justice Kagan, taking a different view in an opinion concurring in

the judgment only, emphasized that, “of course,” restrictions on one-time event signs would be

facially content-based in light of the majority’s decision because they would “single out specific

subject matter for differential treatment.”40 Any sign ordinance that restricts some categories of

speech while exempting others, Justice Kagan cautioned, is in “jeopardy” following the Court’s

decision and would likely be struck down.41 Indeed, a variety of sign codes previously considered

constitutional have been held to be unconstitutional content-based restrictions on speech based

on Reed, including Justice Alito’s example of a permissible ordinance distinguishing between on-

premise and off-premise signs,42 as well as an ordinance setting time limits on election signs.43

38

Id. at 2233 (Alito, J., concurring).

39

Id. (citing Pleasant Grove City v. Summum, 555 U.S. 460, 467–69 (2009) (holding that

city’s placement of monument in park was form of government speech, which is not subject to

scrutiny under Free Speech Clause)).

40

Id. at 2237 (Kagan, J., concurring); see id. at 2231 (explaining why event-based

restrictions are content based).

41

Id. at 2236 (Kagan, J., concurring).

42

See Thomas v. Schroer, 127 F. Supp. 3d 864 (W.D. Tenn. 2015) (rejecting Alito’s

concurrence and holding that on-premise/off-premise distinction was content based and unlikely to

survive strict scrutiny).

43

See Marin v. Town of Se, 136 F. Supp. 3d 548 (S.D.N.Y. 2015) (striking down sign ban

based on existence of exemptions, including election-sign exemption, that differentiated based on

content).

11

Relatedly, Reed has thus far been cited in cases striking down an anti-panhandling ordinance,44 an

anti-robocall statute,45 and a law banning “ballot selfies.”46

Reed and the Texas Highway Beautification Act

Born from a mid-1960s initiative to clean up the nation’s roads, the federal Highway

Beautification Act of 1965 requires states to regulate “outdoor advertising” “in areas adjacent to

the Interstate System” or risk losing ten percent of their federal highway funding.47 To comply, states

must exert “effective control” over outdoor advertising located inside an imaginary corridor

around the highway system that extends 660 feet beyond each side of the “the main traveled way.”48

“Effective control” means that the state must limit the signs and displays within the corridor to

“directional and official signs and notices”; “signs . . . advertising the sale or lease of property upon

which they are located”; “signs . . . advertising activities conducted on the property on which they

are located”; “signs lawfully in existence on October 22, 1965”; and “signs . . . advertising the

44

See Norton v. City of Springfield, 806 F.3d 411, 411 (7th Cir. 2015) (noting that Reed

“abolishe[d] any distinction between content regulation and subject-matter regulation” and made it

clear that “a speech regulation targeted at specific subject matter is content based even if it does not

discriminate among viewpoints within that subject matter”).

45

See Cahaly v. Larosa, 796 F.3d 399, 406 (4th Cir. 2015).

46

See Rideout v. Gardner, 123 F. Supp. 3d 218, 221, 236 (D.N.H. 2015) (law making it

“unlawful for voters to take and disclose digital or photographic copies of their completed ballots”).

47

See Highway Beautification Act of 1965, Pub. L. No. 89-285, 79 Stat. 1028 (codified as

amended at 23 U.S.C. § 131).

48

See 23 U.S.C. § 131(b).

12

distribution by nonprofit organizations of free coffee.”49 The federal act generally exempts areas that

the states have zoned as industrial and commercial.50

The Texas Legislature passed the Texas Highway Beautification Act in 1972

to comply with the federal act’s mandate that it do so or risk losing highway funds,51 but included

in it other highway-beautification provisions unrelated to the federal mandate, including laws

authorizing state-controlled right-of-way information signs, landscaping and scenic enhancement,

and junkyard control.52 The Act’s provisions regulating outdoor advertising essentially mirror the

federal act, banning all signs located (1) within 660 feet of a right-of-way if the advertising is visible

from the interstate, and (2) beyond 660 feet of a right-of-way if the advertising is visible from the

highway and erected for the purpose of having its message seen from the highway.53 The Act then

sets forth a number of exemptions to the ban, including exemptions for signs located in commercial

and industrial areas;54 signs advertising as for sale or for lease the property on which the sign is

located; signs advertising natural wonders or historic attractions; signs advertising activities that will

49

Id.

50

See id. § 131(d) (sign “may be erected and maintained . . . within areas adjacent to the

Interstate . . . which are zoned industrial or commercial under authority of State law, or in unzoned

commercial or industrial areas as may be determined by agreement between the several States and

the Secretary.”

51

See Highway Beautification Act, 62d Leg., 2d C.S., ch. 1, § 1, 1972 Tex. Gen. Laws 15

(current version at Tex. Transp. Code §§ 391.007–.255 (Subchapters A through I)).

52

See id. at §§ 2–12, 1972 Tex. Gen. Laws at 15–20 (current version at Tex. Transp. Code

§§ 391.091–.213 (Subchapters D through H)).

53

See Tex. Transp. Code § 391.031(a)(1)–(2).

54

See id. § 391.031(b)(4).

13

take place on the property where the sign is located; signs that have as their purpose the protection

of life and property;55 and, specifically implicated here, signs on private property that “relat[e] solely

to a public election.”56

Section 391.032 of the Act gives the Transportation Commission the authority to

regulate outdoor advertising in the commercial and industrial areas that are exempted from the

Act’s ban,57 which the Commission has done in Title 43 of the Texas Administrative Code.58 Those

rules, stated generally, require that all signs located within the same imaginary corridor as that in the

Act have a Department-issued permit or be subject to a fine and removal, unless the sign qualifies

under one of several exemptions.59 The rules’ exemptions include those set forth in the Act—e.g.,

election signs and signs with the purpose of protecting life or property—as well as those for public-

service signs, signs of nonprofits or other charitable organizations, neighborhood subdivision or

homeowners-association signs, and signs showing the names of ranches.60 Here, because Auspro’s

55

Id. § 391.031(b)(1)–(3), (5).

56

See id. § 391.005 (requiring, among other things, that the sign relate to a public election,

be located on private property and be erected no earlier than 90 days before an election and removed

within 10 days after the election); see also 43 Tex. Admin. Code § 21.146(9) (2011) (Tex. Dep’t

Transp., Exempt Signs), amended by 39 Tex. Reg. 7954 (current version at 43 Tex. Admin. Code

§ 21.146(a)(10)).

57

See id.§ 391.032(a).

58

See 43 Tex. Admin. Code §§ 21.141–.204 (Subchapter I, Div. 1, Signs).

59

See id. §§ 21.143 (Tex. Dep’t Transp., Permit Required), 21.198 (Order of Removal),

21.204 (Administrative Penalties).

60

See id. § 21.146 (Exempt Signs).

14

property was located in a commercial-zoned area, its sign was required to have a permit or qualify

for a permit exception, which it did not.

Under Reed’s standard for content neutrality—which simply asks whether the law

applies to particular speech because of the topic discussed or the idea or message expressed—the

Texas Act’s outdoor-advertising regulations are clearly content based. The Texas Supreme Court

acknowledged as much when it considered these same provisions of the Act in Barber: “The Act . . .

does make certain distinctions based on subject matter.”61 Specifically, as described above, most of

the Act’s exemptions depend entirely on the subject matter of the sign’s message:

• “erected solely for and relating to a public election”;62

• “advertising . . . a natural wonder or scenic or historic attraction”;63

• “advertising . . . the sale or lease of the property on which it is located”;64 and

• “advertising . . . activities conducted on the property on which it is located.”65

And at least one exemption in the Act is based on the function or purpose of the regulated

speech: “[O]utdoor advertising that has as its purpose the protection of life and property.”66

61

111 S.W.3d at 98 (referring to Tex. Transp. Code §§ 391.005, .031(b)).

62

Tex. Transp. Code § 391.005.

63

Id. § 391.031(b)(1).

64

Id. § 391.031(b)(2).

65

Id. § 391.031(b)(3).

66

Id. § 391.031(b)(5).

15

Because exemptions to the Department’s permitting rules—several of which are identical to Act

exemptions—are likewise based on the speech’s subject matter, function or purpose, and the speaker,

they too are content-based regulations of speech under Reed’s framework.

Like the Town of Gilbert’s sign ordinance, the Texas Act and the related

Department rules restrict speech in different ways based on the communicative content of the sign.67

For example, a sign advertising a presidential candidate’s fundraising event at the site where the sign

is displayed would be allowed at any time under the Texas Act,68 while a sign that merely expresses

the view that one should vote for that same presidential candidate would be banned during all but

the small window around an election.69 Likewise, and more to the point here, Auspro’s election sign

for Ron Paul is treated differently under the Department rules (promulgated under the Act) than are

signs conveying other messages and ideas, including, for example, a sign by a nonprofit organization

advertising an event by that organization.70 Under Reed’s framework, the Texas Act’s outdoor-

advertising regulations and associated Department rules are, on their face, content-based regulations

of speech.71

The Department asserts that Reed does not inform our decision here because

the Texas Act actually protects Auspro’s speech. The election-sign exemption does not prohibit

67

See Reed, 135 S. Ct. at 2227.

68

See Tex. Transp. Code § 391.031(b)(3) (generally exempting signs advertising “activities

conducted on the property on which [the sign] is located”).

69

See id. § 391.005 (allowing election signs only 100 days around election).

70

See 43 Tex. Admin. Code § 21.146(6), (10).

71

See Reed, 135 S. Ct. at 2227.

16

elections signs in violation of the First Amendment, the Department argues, but “allows

certain election speech that would otherwise be barred by the Act’s general, content-neutral

prohibition of signs visible from highways.” “Even if the exemption draws a content-based line,”

the Department continues, “that line would, if anything favor the very type of election speech that

Auspro advocates.” This argument misses the point of Reed.

First, there is little, if any, difference between the election-sign exemption examined

in Reed and the one at issue here.72 Both exempt election-related signs from a general ban on

signs within a certain number of days surrounding an election.73 More importantly, both exemptions

distinguish speech based on the subject matter of that speech. Signs relating to elections are

restricted as to date and size in ways that other non-election signs are not. Characterizing such an

exemption as “favorable” to protected speech does not change the fact that it is a distinction based

on content under Reed. If anything, it exposes the exemption as “a paradigmatic example of content-

based discrimination.”74 The Department’s insistence on looking beyond the face of the Act

despite its awareness that the election-sign “exemption draws a content-based line” ignores Reed’s

plainly stated holding that, “[a] law that is content based on its face is subject to strict scrutiny

regardless of the government’s benign motive, content-neutral justification, or lack of ‘animus

toward the ideas contained’ in the regulated speech.”75 The Texas Act, as both the Department and

72

See id. at 2225.

73

See Tex. Transp. Code § 391.005; Reed, 135 S. Ct. at 2225.

74

Reed, 135 S. Ct. at 2230 (explaining ordinance’s more favorable treatment of some signs

based on content).

75

Id. at 2237.

17

the Texas Supreme Court have acknowledged, on its face draws distinctions based on the message

a speaker conveys—i.e., is content based on its face under the Reed analysis.

In what it considers a related argument regarding Reed’s import here, or rather lack

of import, the Department next suggests that the sign code in Reed and the Texas Act are inherently

different because, as the Texas Supreme Court noted in Barber, the Texas Act “allows all onsite

commercial speech and all onsite noncommercial speech” throughout the year.76 This is important,

the Department urges, because if Auspro had simply made “its election speech pertain[] to activities

on its premises, its sign would have complied with the Texas Act.” While this may be true,

the Department’s argument again overlooks the effect of Reed’s holding. The point of Reed is not

whether the regulation provides alternative avenues of speech, but whether it “applies to particular

speech because of the topic discussed or the idea or message expressed.”77 Moreover, the

Department’s suggestion that Auspro could have complied with the Act by simply changing its

sign to advertise a Ron Paul-related event on its premises—an example similar to that used in

Reed78—actually emphasizes the Act’s disparate treatment of content.

Finally, before addressing the Department’s remaining point, we note that we always

faithfully adhere to our obligation, as an intermediate appellate court, to defer to the Texas Supreme

76

Barber, 111 S.W.3d at 99 (emphasis omitted); see Tex. Transp. Code § 391.031(b)(3)

(exempting from ban signs advertising activities conducted on property on which it is located).

77

Reed, 135 S. Ct. at 2227.

78

See id., 135 S. Ct. at 2227 (“If a sign informs its reader of the time and place a book club

will discuss John Locke’s Two Treatises of Government, that sign will be treated differently from

a sign expressing the view that one should vote for one of Locke’s followers in an upcoming

election, and both signs will be treated differently from a sign expressing an ideological view rooted

in Locke’s theory of government.”).

18

Court’s decisions, and we are mindful that its decision to uphold the Act in Barber would likely be

dispositive of Auspro’s appeal here.79 In light of Reed’s changes to First Amendment jurisprudence,

however, we respectfully disagree with the Department’s assertion that we remain bound by Barber’s

holding that the Texas’s Highway Beautification Act “is content neutral and constitutes a valid

time, place, and manner restriction.”80 As we explain above, Barber acknowledged that the

Texas Highway Beautification Act:

does make certain distinctions based on subject matter. For example, the Act

exempts from regulation directional signs, signs pertaining to natural wonders or

scenic or historic attractions, signs for the sale of property on which they are located,

signs designed to protect life and property, and signs providing information about

the location of utility lines. The Act also exempts temporary signs relating to public

elections and signs relating to activities conducted on the property where the signs

are located.81

In light of Reed’s unequivocal holding, these distinctions render the Act’s sign ban content based

and presumptively invalid unless the government can meet its strict-scrutiny burden.82 We would

note further that the Barber majority, along with many other courts, construed pre-Reed precedent

as allowing “content-based regulations [to be treated] as content neutral if the regulations are

79

See, e.g., Swilley v. McCain, 374 S.W.2d 871, 875 (Tex. 1964) (“After a principle, rule

or proposition of law has been squarely decided by the Supreme Court, or the highest court of the

State having jurisdiction of the particular case, the decision is accepted as binding precedent by the

same court or other courts of lower rank when the very point is again presented in a subsequent suit

between different parties.”).

80

Barber, 111 S.W.3d at 90.

81

Id. at 93.

82

See Reed, 135 S. Ct. at 2226.

19

motivated by a permissible content-neutral purpose,”83 as long as “the Act does not endorse any

particular viewpoint.”84 In doing so, Barber reasoned that “the Act does not endorse any particular

viewpoint”; “the Texas Legislature did not adopt the Texas Highway Beautification Act because it

disagreed with any messages that might otherwise be conveyed”; and ultimately concluded that “the

Act is . . . content neutral because it is ‘justified without reference to the content of the regulated

speech.’”85 With regard to the election-sign exemption, the Barber majority explained that, although

“arguably content based,” it could be “deemed neutral” because it “serves purposes unrelated

to the content of expression.”86 As noted, Reed has explicitly rejected these same arguments and

analyses.87 In doing so, Reed has, at a minimum, eliminated the essential underpinnings of the

content-neutrality analysis on which Barber’s holding relied. As such, we must adhere to our

obligation to follow the United States Supreme Court on this First Amendment issue.88

83

Barber, 111 S.W.3d at 93 (relying on Ward, 491 U.S. at 784 and City of Renton

v. Playtime Theatres, Inc., 475 U.S. 41, 48 (1986)).

84

Id. at 98.

85

Id. at 100 (quoting City of Renton, 475 U.S. at 48).

86

Id.

87

See Reed, 135 S. Ct. at 2228.

88

See Barstow v. State, 742 S.W.2d 495, 501 n.2 (Tex. App.—Austin 1987, writ denied)

(“On questions of federal law . . . all courts in every state owe obedience to the Supreme Court of

the United States.”); see also Penrod Drilling Corp. v. Williams, 868 S.W.2d 294, 296 (Tex. 1993)

(Texas courts “are obligated to follow only higher Texas courts and the United States Supreme

Court.” (citing Barstow, 742 S.W.2d. at 501 n.2)).

20

We hold that, under Reed’s framework, the Texas Highway Beautification Act’s

outdoor-advertising regulations and related Department rules are content-based regulations of speech

subject to strict scrutiny.

Strict scrutiny

Under a strict-scrutiny analysis, which has been described as “‘strict’ in theory but

usually ‘fatal’ in fact,’”89 the government has the burden of proving that the restriction furthers a

compelling interest and is narrowly tailored to achieve that interest.90 Here, the Department has to

demonstrate that the Act’s differentiation between types of signs furthers a compelling governmental

interest and it is narrowly tailored to that end.91 The Department acknowledges that it cannot do

this, and we cannot disagree. For example, even assuming, as did the Supreme Court in Reed,92 that

aesthetic appeal and traffic safety are compelling governmental interests, the Act’s provisions are

underinclusive: election signs outside the 100-day window around an election would pose no greater

threat to safety and would not categorically be any uglier than the signs that are treated differently

89

Bernal v. Fainter, 467 U.S. 216, 219 n.6 (1987) (quoting Gerald Gunther, Foreword:

In Search of Evolving Doctrine on a Changing Court: A Model for a Newer Equal Protection,

86 Harv. L. Rev. 1, 8 (1972)); see Reed, 135 S. Ct. at 2236 (Kagan, J., concurring) (“After all, it

is the ‘rare case[] in which a speech restriction withstands strict scrutiny.” (quoting Williams–Yulee

v. Florida Bar, 135 S. Ct. 1656, 1666, (2015)); 2 Chester James Antieau & William J. Rich,

Modern Constitutional Law § 25.02, at 8 (2d ed. 1997) (noting strict scrutiny “create[s]

virtually insurmountable hurdles for the government seeking to defend its classifications”).

90

Reed, 135 S. Ct. at 2231 (citing Bennett, 131 S. Ct. at 2817 (quoting Citizens United

v. Federal Election Comm’n, 558 U.S. 310, 340 (2010))).

91

See id.

92

See id.

21

under the Act.93 And with the possible exception of the exemption for signs regarding the protection

of life and property,94 the Act’s remaining content-based exemptions are similarly underinclusive.95

For the same reasons, the related Department rules likewise cannot meet such an exacting standard.

Accordingly, the Act’s sign regulations and related Department permitting rules fail strict scrutiny.96

Remedy

Having determined that the government restrictions on speech at issue here

fail strict scrutiny, we must now determine the appropriate remedy. The Department maintains that

rather than grant Auspro its requested relief of declaring the entire Texas Highway Beautification

Act unconstitutional, we are limited to severing the election-sign exemption from the Act. This is

so, the Department contends, because Auspro’s opening brief to this Court targeted only the election-

sign exemption, which the Department asserts means that Auspro has waived any broader challenge

to the Act and, thus, the remedy to declare the entire Act unconstitutional.97 The Department

93

See id.

94

See Tex. Transp. Code § 391.031(b)(5). Nevertheless, virtually every court and legal

commentator that has discussed this topic, including the Supreme Court, has insisted that strict-

scrutiny review is effectively fatal. See supra n. ___.

95

See Tex. Transp. Code § 391.031(b)(1)–(3); Reed, 135 S. Ct. at 2231.

96

See Reed, 135 S. Ct. at 2232 (holding that Town’s sign code failed strict scrutiny because

exceptions were underinclusive).

97

See Tex. R. App. P. 38.1(i), (j) (issues not raised in opening brief are waived); Salazar

v. Phillips & Luckey Co., No. 03-11-00441-CV, 2013 WL 4516021, at *4 (Tex. App.—Austin

Aug. 21, 2013, no pet.) (mem. op.) (“‘[A]n appellate court has no discretion to consider an issue not

raised in an appellant’s brief.’” (quoting Canton–Carter v. Baylor Coll. of Med., 271 S.W.3d 928,

930 (Tex. App.—Houston [14th Dist.] 2008, no pet.))).

22

relatedly invokes Texas’s broad severability statute, urging that because we can remedy the Act’s

unconstitutionality by simply severing the election-sign exemption, we must do so.98 We disagree

that Auspro’s opening brief is so limited,99 but we do agree that Texas’s severability doctrine dictates

that we preserve portions of the Texas Act.

The applicable severability provision of the Code Construction Act provides:

if any provision of the statute or its application to any person or circumstance is held

invalid, the invalidity does not affect other provisions or applications of the statute

that can be given effect without the invalid provision or application, and to this end

the provisions of the statute are severable.100

This severability provision is similar to the doctrine previously adopted by the Texas Supreme Court:

“When . . . part of a statute is unconstitutional, that fact does not authorize the courts

to declare the remainder void also, unless all the provisions are connected in

subject-matter, dependent on each other, operating together for the same purpose, or

otherwise so connected together in meaning that it cannot be presumed the legislature

would have passed the one without the other. . . . If, when the unconstitutional

portion is stricken out, that which remains is complete in itself, and capable of being

98

See Tex. Gov’t Code § 311.032.

99

Auspro’s initial brief to this Court asserts, “The Texas Highway Beautification Act . . .

turn[s] the[] fundamental constitutional principles [that regulation based on the content of speech

is subject to strict scrutiny] on their head by banning signs related to elections from appearing on

private property along the State’s highways and interstates for three fourths of the year, while signs

relating to other topics have no similar restriction.” Although explicitly singling out the election-

sign exemption, the gravamen of this assertion is that the Act violates the constitutional prohibition

against content-based regulations of speech because, on its face, it “draws distinctions based on the

message a speaker conveys.” Reed, 135 S. Ct. at 2227. This is a facial challenge to the Act.

100

Tex. Gov’t Code § 311.032(c) (applicable to statutes without a severability provision).

23

executed in accordance with the apparent legislative intent, wholly independent of

that which was rejected, it must stand.101

In short, the purpose of severability is to sever a statute’s problematic portions while leaving the

remainder intact whenever possible—i.e., to “limit the solution to the problem”102—but whatever

we do, our primary focus must be on the intent of the legislature.103

Dependent as it is on Reed and Auspro’s underlying claim, our decision here is

necessarily limited to government regulation of noncommercial speech, specifically Texas’s

regulation of outdoor advertising in the Texas Highway Beautification Act.104 But as briefly noted

above, the Texas Act includes several provisions that, while related to highway beautification, do

not constitute government regulation of speech. For example, the Act includes the Legislature’s

101

Western Union Tele. Co. v. State, 62 Tex. 630, 634 (1884); see Rose v. Doctors Hosp.,

801 S.W.2d 841, 844 (Tex. 1990) (citing Western Union, 62 Tex. at 634, for severability test).

102

Ayotte v. Planned Parenthood of N. New England, 546 U.S. 320, 328 (2006).

103

Rose, 801 S.W.2d at 850 (Phillips, C.J., dissenting); see Geeslin v. State Farm Lloyds,

255 S.W.3d 786, 797 (Tex. App.—Austin 2008, no pet.) (citing Minnesota v. Mille Lacs Band of

Chippewa Indians, 526 U.S. 172, 191 (1999) (“Unless it is evident that the legislature would not

have enacted those provisions which are within its power, independently of that which is not, the

invalid part may be dropped if what is left is fully operative as a law.”)); see also Ayotte, 546 U.S.

at 329 (“We prefer . . . to sever its problematic portions while leaving the remainder intact.”).

104

See, e.g., Free Speech Coal., Inc. v. Attorney Gen. U.S., 825 F.3d 149, 176 n.7 (3rd Cir.

2016) (noting that Reed did not abolish distinction between commercial and noncommercial speech);

Geft Outdoor LLC v. Consolidated City of Indianapolis, 2016 WL 2941329, at *10 (S.D. Ind.

May 10, 2016) (determining that Reed’s holding is limited to noncommercial speech (citing Contest

Promotions, LLC v. City & Cty. of S.F., 2015 WL 4571564, at *4 (N.D. Cal. July 28, 2015) (“Reed

does not concern commercial speech, . . . .”)).

24

program for state controlled right-of-way information logo signs;105 regulations controlling junkyards

and automobile graveyards along the State’s highways;106 and the Transportation Commission’s

legislative authority to acquire property along the State’s highways “to restore, preserve, or enhance

scenic beauty” or to provide public rest areas.107 Because these provisions in the Texas Act are not

government regulations of speech, neither Reed nor our decision here affect their validity.108 Also,

the provisions in Subchapter I are not affected by our decision here because they authorize the

State to regulate commercial speech along certain specified highways, specifically off-premise signs

displaying messages regarding “goods, services, or merchandise.”109 Regarding our severability

analysis, it is worth noting that these provisions of the Act, although related to highway

105

See Tex. Transp. Code §§ 391.091–.099 (Subchapter D, Specific Information Logo Signs)

(creating programs for signs in State’s right-of-way that contain logos of participating businesses);

see also Walker v. Texas Div., Sons of Confederate Veterans, Inc., 135 S. Ct. 2239, 2249–50 (2015)

(holding Texas’s speciality license plates are government speech, thus not subject to scrutiny under

Free Speech Clause (relying on Pleasant Grove, 555 U.S. at 471)).

106

See Tex. Transp. Code §§ 391.121–.127 (Subchapter E, Regulation of Junkyards and

Automobile Graveyards) (prohibiting junkyards/automobile graveyards within 1,000 feet of highway

unless junkyard is properly screened from view or in industrial area).

107

See id. §§ 391.151–.152 (Subchapter F, Acquisition for Scenic Enhancement or Public

Accommodation), 391.181–.184 (Subchapter G, Acquisitions by Commission).

108

Although Subsection H authorizes the State to regulate outdoor advertising on State

Highway 288, it does not include any content-based provisions. See id. §§ 391.211–.213.

109

Id. § 391.251(2)–.252; see Central Hudson, 447 U.S. at 563–64 (describing commercial

speech as “expression related solely to the economic interests of the speaker and its audience”

and holding that content-based restrictions on commercial speech need only withstand intermediate

scrutiny); see also Pruett v. Harris Cty. Bail Bond Bd., 249 S.W.3d 447, 456 (Tex. 2008)

(“Commercial speech is generally afforded less constitutional protection than other forms of

constitutionally guaranteed expression.” (citing Central Hudson, 447 U.S. at 563)).

25

beautification, were not mandated by the federal Highway Beautification Act.110 Further, because

these provisions are complete in themselves—i.e., they would not be affected by the invalidity of the

sign-ban regulations of Subchapters B and C—and are capable of being executed as the Legislature

intended in the absence of the Act’s outdoor-advertising regulations, Texas’s severability doctrine

mandates that they be preserved.111

Turning to the regulations of speech that are at issue here, those can be found

in Subchapters B and C of the Act.112 Within those subchapters, there are several individual

sections that, under Reed and our analysis here, are unconstitutional content-based restrictions on

noncommercial speech.113 As such, severing only the election-sign exemption, as the Department

asks us to limit our remedy, would not cure the constitutional infirmities caused by the remaining

content-based exemptions. In fact, severing only the election-sign exemption would not even

remedy Auspro’s harm because the Act would still ban Auspro’s election campaign sign—all year,

110

See 23 U.S.C. § 131(a)–(t).

111

See Western Union, 62 Tex. at 634; see also Tex. Gov’t Code § 311.032 (courts should

sever unconstitutional aspects and save balance of law if “other provisions or applications of the

statute . . . can be given effect without the invalid provision or application”).

112

See Tex. Transp. Code §§ 391.031–.037 (Subchapter B, “Regulation of Outdoor

Advertising Generally”), 391.061–.070 (Subchapter C, “License and Permit for Outdoor

Advertising”), 391.211–.213.

113

The Act’s definition of “outdoor advertising” is so broadly worded that it plainly

encompasses both commercial and noncommercial content: “‘Outdoor advertising’ means an

outdoor sign, display, light, device, figure, painting, drawing, message, plaque, poster, billboard,

or other thing designed, intended, or used to advertise or inform if any part of the advertising

or information content is visible from the maintraveled way of the interstate or primary system.”

Tex. Transp. Code § 391.001(10); see Central Hudson, 447 U.S. at 563 (describing commercial

speech as “expression related solely to the economic interests of the speak and its audience”).

26

every year—while allowing other categories of signs at all times, all based on their content. In other

words, even with the election-sign exemption invalidated, the Act would still treat speech differently

based on the content of that speech.

To resolve the Act’s constitutional problems, all of the content-based provisions

must be severed—including at least sections 391.031(b), 391.037,114 391.061(c), and 391.070.115

This would leave standing, with respect to the substantive provisions of the Act’s ban on outdoor

advertising, only section 391.031(a)’s prohibition against signs within the imaginary federal corridor

and two exemptions: one for signs erected in industrial or commercial areas (subject to state

permitting rules); and the other for signs erected before October 22, 1965.116

Would this leave standing a law—i.e., the Legislature’s ban on outdoor

advertising—that is “complete in itself”?117 Perhaps. But what is not so easily answered in the

affirmative is the second prong of the severability question: Is the remaining law “capable of

114

Section 391.037 involves advertising by certain county agricultural fairs. See id.

§ 391.037. Reed noted that speech restrictions based on the identity of the speaker are often content

based and subject to strict scrutiny. See Reed, 135 S. Ct. at 2230 (citing Citizens United, 558 U.S.

at 340; Turner Broadcasting Sys., Inc. v. Federal Commc’ns Comm’n, 512 U.S. 622, 658 (1994)).

115

Section 391.070 creates an exception for certain nonprofit organizations. See

Tex. Transp. Code § 391.070; supra n. __.

116

See Tex. Transp. Code § 391.031(a).

117

Western Union, 62 Tex. at 634; see Tex. Gov’t Code § 311.032 (courts should sever

unconstitutional aspects and save balance of law if “other provisions or applications of the statute . . .

can be given effect without the invalid provision or application”).

27

being executed in accordance with the apparent legislative intent, wholly independent of that which

was rejected”?118

The Department suggests that because the original version of the Texas Act did not

include the election-sign exemption, severing that exemption would do no harm to the Legislature’s

intent in enacting the ban on outdoor advertising. But the 1972 Texas Act included the sign-ban

exemptions now codified in section 391.031.119 And certain of these original exemptions seem

to be directed at protecting traditional rights enjoyed by property owners—e.g., allowing an owner

to advertise the sale or lease of the property; to promote or advertise activities taking place on

the property; and to warn about issues affecting life and property. To that extent, these exceptions

express the Legislature’s intent to protect those rights, and a blanket ban on all outdoor advertising

would potentially alter that intent. These arguments also completely ignore the possibility that a

complete ban on all signs, while likely content neutral, could raise other free-speech and property-

rights concerns.120 At a minimum, though, we cannot know whether the Legislature would have

enacted a complete ban on outdoor advertising. Moreover, given that the federal Highway

Beautification Act—the primary impetus for the Texas Act and, in fact, the law on which the Texas

Act “is conditioned”121—seems to share the same constitutional flaws as does the Texas Act under

118

Western Union, 62 Tex. at 634.

119

See Highway Beautification Act, 62d Leg., 2d C.S., ch. 1, § 4, 1972 Tex. Gen. Laws 15,

16 (current version codified at Tex. Transp. Code § 391.031).

120

See, e.g., Gilleo, 512 U.S. at 55 (noting dangers to freedom of speech posed by content-

neutral prohibition of all signs).

121

See Tex. Transp. Code § 391.002(a) (“This Chapter is conditioned on th[e Highway

Beautification Act of 1965].”).

28

Reed,122 we cannot say with any certainty what the Texas Legislature will want in terms of a ban on

highway signs in the absence of a federal act requiring one. Should the federal act be declared

unconstitutional—a possibility suggested by the United States’ amicus brief in Reed123—Congress

and other state legislatures would be faced with deciding whether to enact sign restrictions and, if

so, how to comply with Reed. That is the sole province of the Legislative Branch.

Finally, we think it is worth noting that this Court—in the opinion accompanying

the judgment that was later reversed by the Texas Supreme Court in Barber—addressed and rejected

this same suggestion by the Department that we could remedy any constitutional flaws in the Act

by eliminating all exemptions, leaving a total ban on outdoor advertising.124 Our response was to

invoke the Supreme Court’s reasoning in City of Ladue v. Gilleo:

“[T]he City might theoretically remove the defects in its ordinance by simply

repealing all of the exemptions. If, however, the ordinance is also vulnerable

because it prohibits too much speech, that solution would not save it. Moreover,

if the prohibitions in Ladue’s ordinance are impermissible, resting our decision

on its exemptions would afford scant relief for respondent Gilleo. She is primarily

concerned not with the scope of the exemptions available in other locations, such as

122

See, e.g., Brief for the United States as Amicus Curiae Supporting Petitioners, Reed

v. Town of Gilbert, 135 S. Ct. 2218 (2015) (No. 13-502) (urging Supreme Court to consider

nuanced application of strict scrutiny to facially content-based restrictions because of likely adverse

consequences to certain statutes, including federal highway beautification act, that included content-

based provisions).

123

Id. at 11, 26, 33; see also Reed, 135 S. Ct. at 2239 (Kagan, J., concurring) (noting

that “thousands of towns have such [sign ordinances], many of them ‘entirely reasonable’” and

expressing concern that Reed would require courts “to invalidate [them] one after the other”).

124

See Barber v. Texas Dep’t of Transp., 49 S.W.3d 12, 25 (Tex. App.—Austin 2001), rev’d

111 S.W.3d at 86.

29

commercial areas and on church property; she asserts a constitutional right to display

an antiwar sign at her own home.”125

And as we did then, we conclude today, “The same might be said of the Texas Highway

Beautification Act.”126

On motion for rehearing

The Department’s motion for rehearing asserts that our remedy is unnecessarily broad

because it “prohibit[s] state regulations on commercial speech” that were not implicated in Reed or

in the underlying facts of this case. The Department urges us to leave standing Subchapters B and

C and sever only the State’s ability to apply those subchapters to noncommercial speech.

While we have acknowledged that Reed’s holding seems to affect only restrictions

of noncommercial speech,127 the plain language of the Texas Act defines “outdoor advertising”

so broadly that the Act’s restrictions on speech apply to both commercial and noncommercial

speech.128 That the Legislature intended to encompass—and thus regulate—both commercial and

noncommercial speech under Subchapters B and C is confirmed by comparison to the language

of Subchapter I, which clearly and unambiguously limits that subchapter to the regulation of

125

Barber, 49 S.W.3d at 25 (quoting Gilleo, 512 U.S. at 53).

126

Id.

127

See supra at 5; see also, e.g., Free Speech Coal., Inc., 825 F.3d at 176 n.7 (noting that

Reed did not abolish distinction between commercial and noncommercial speech); Geft Outdoor

LLC, 2016 WL 2941329, at *10 (Reed limited to noncommercial speech).

128

See Tex. Transp. Code § 391.001(10) (defining “outdoor advertising” as, in part, “other

thing designed, intended, or used to advertise or inform”).

30

commercial speech.129 Whatever the desirability of rendering a judgment that merely severs the

Act’s application to noncommercial speech, such a remedy would essentially rewrite the Act contrary

to its plain language with no indication that the Legislature would have intended such a resulting

regulatory scheme.130 Moreover, such a severance would present the risk of substituting one set of

constitutional problems for another.131

Finally, we note that our opinion here does not hold that the State lacks the

power to regulate billboards along Texas highways. Rather, our opinion holds that under Reed the

Texas Highway Beautification Act’s outdoor-advertising regulations and related Department rules

are, as written, unconstitutional “content-based” regulations (as defined by Reed) of noncommercial

speech because they do not pass strict-scrutiny analysis. The Legislature may see fit to amend the

Act in an attempt to conform to Reed or to amend it such that it regulates only commercial speech

129

See Tex. Transp. Code § 391.251(2) (defining “advertising” as “a message seeking to

attract the public or to direct the attention of the public to any goods, services, or merchandise”);

Central Hudson, 447 U.S. at 563 (describing commercial speech as “expression related solely to the

economic interests of the speaker and its audience”).

130

See Western Union, 62 Tex. at 634 (“If, when the unconstitutional portion is stricken out,

that which remains is complete in itself, and capable of being executed in accordance with the

apparent legislative intent, wholly independent of that which was rejected, it must stand.”); see also

Rose, 801 S.W.2d at 844 (citing Western Union, 62 Tex. at 634, for severability test).

131

See Metromedia, Inc. v. City of San Diego, 453 U.S. 490, 536–39 (1981) (Brennan, J.,

concurring) (explaining that giving governmental unit discretion to decide whether speech is

commercial or noncommercial threatens “noncommercial speech in the guise of regulating

commercial speech”); Metromedia, Inc. v. City of San Diego, 32 Cal. 3d. 180, 190 (Cal. 1982)

(declining to enjoin sign ordinance’s application to commercial speech because of the “serious

constitutional problems” presented by such a remedy (citing Brennan’s concurrence in Metromedia,

453 U.S. at 536–39).

31

within the applicable constitutional bounds. In short, it is for the Legislature, not this Court, to

clarify its intent regarding the Texas Highway Beautification Act in the wake of Reed.

Conclusion

Guided by Reed, we are compelled to reverse the district court’s judgment and

render judgment severing Subchapters B and C132 from the Texas Highway Beautification Act as

unconstitutional content-based restrictions of speech.

__________________________________________

Jeff Rose, Chief Justice

Before Chief Justice Rose, Justices Pemberton and Field

Reversed and Rendered on Motion for Rehearing

Filed: December 8, 2016

132

Tex. Transp. Code §§ 391.031–.070.

32