Amicus Curiae Brief — City of Austin, Texas, Petitioner v. Reagan National Advertising of Austin, LLC, et al.

No. 20-1029

In the Supreme Court of the United States

CITY OF AUSTIN, TEXAS, PETITIONER

v.

REAGAN NATIONAL ADVERTISING OF AUSTIN, INC.,

ET AL.

ON WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

BRIEF FOR THE UNITED STATES

AS AMICUS CURIAE SUPPORTING PETITIONER

BRIAN H. FLETCHER

Acting Solicitor General

Counsel of Record

BRIAN M. BOYNTON

Acting Assistant Attorney

General

ERIC J. FEIGIN

Deputy Solicitor General

BENJAMIN W. SNYDER

Assistant to the Solicitor

General

MICHAEL S. RAAB

LINDSEY POWELL

Attorneys

Department of Justice

Washington, D.C. 20530-0001

SupremeCtBriefs@usdoj.gov

(202) 514-2217

QUESTION PRESENTED

Whether the differential treatment of on-premises

and off-premises signs in the City of Austin’s sign code

is a facially unconstitutional content-based regulation.

(I)

TABLE OF CONTENTS

Page

Interest of the United States....................................................... 1

Statement ...................................................................................... 2

Summary of argument ................................................................. 7

Argument....................................................................................... 9

I. The City’s limitations on off-premises signs are a

permissible regulation of the place and manner of

advertisements ............................................................... 10

A. The ordinance is content-neutral under this

Court’s time, place, or manner decisions .............. 11

B. The City’s ordinance serves significant

governmental interests and leaves ample

alternative channels for communication ............... 18

II. Any constitutional infirmities in the ordinance

would not justify its facial invalidation ........................ 23

Conclusion ................................................................................... 27

TABLE OF AUTHORITIES

Cases:

Board of Trustees v. Fox,

492 U.S. 469 (1989)........................................................ 23, 26

Cantwell v. Connecticut, 310 U.S. 296 (1940) ................. 8, 14

Central Hudson Gas & Electric Corp. v. Public

Service Commission, 447 U.S. 557 (1980) ........................ 23

City of Cincinnati v. Discovery Network, Inc.,

507 U.S. 410 (1992)............................................ 13, 18, 20, 24

City of Los Angeles v. Alameda Books, Inc.,

535 U.S. 425 (2002).............................................................. 12

City of Ladue v. Gilleo, 512 U.S. 43 (1994) ........................... 9

Clark v. Community for Creative Non-Violence,

468 U.S. 288 (1984).............................................................. 16

City of Renton v. Playtime Theatres, Inc.,

475 U.S. 41 (1986) ..................................................... 7, 12, 13

(III)

IV

Cases—Continued:

Page

Heffron v. International Society for Krishna

Consciousness, Inc., 452 U.S. 640 (1981) ......................... 20

Linmark Assocs. v. Township of Willingboro,

431 U.S. 85 (1977) ............................................................... 22

Los Angeles Police Dep’t v. United Reporting

Publishing Corp., 528 U.S. 32 (1999) ................................ 25

Members of the City Council v. Taxpayers for

Vincent, 466 U.S. 789 (1984) .............................................. 15

Metromedia, Inc. v. City of San Diego,

453 U.S. 490 (1981).....................................7, 9, 14, 19, 21, 24

Mitchell v. Wisconsin, 139 S. Ct. 2525 (2019)..................... 19

New York v. Ferber, 458 U.S. 747 (1982)............................. 25

Ohralik v. Ohio State Bar Ass’n, 436 U.S. 447 (1978) ....... 23

Packer Corp. v. Utah, 285 U.S. 105 (1932) ............................ 2

Police Dep’t v. Mosley, 408 U.S. 92 (1972) .......................... 13

R.A.V. v. City of St. Paul, 505 U.S. 377 (1992) ................... 13

Reed v. Town of Gilbert, 576 U.S. 155 (2015) ............. passim

Regan v. Time, Inc., 468 U.S. 641 (1984) .......... 10, 15, 18, 22

St. Louis Poster Advertising Co. v. St. Louis,

249 U.S. 269 (1919)................................................................ 2

Suffolk Outdoor Advertising Co. v. Hulse:

373 N.E. 2d 263 (N.Y. 1977) ............................................... 14

393 N.Y.S. 2d 416 (1977)..................................................... 14

439 U.S. 808 (1978).................................................... 7, 11, 13

Thomas Cusack Co. v. City of Chicago,

242 U.S. 526 (1917)................................................................ 2

United States v. O’Brien, 391 U.S. 367 (1968) .................... 15

United States v. Salerno, 481 U.S. 739 (1987) .................... 24

United States v. Stevens, 559 U.S. 460 (2010) .................... 25

United States v. Williams, 553 U.S. 285 (2008) ................. 25

V

Cases—Continued:

Page

Ward v. Rock Against Racism, 491 U.S. 781 (1989) .... 10, 19

Watchtower Bible & Tract Society of New York, Inc.

v. Village of Stratton, 536 U.S. 150 (2002)........................ 14

Constitution and statutes:

U.S. Const. Amend. I ................................................... passim

Federal Aid Highway Act of 1958,

Pub. L. No. 85-381, § 12, 72 Stat. 95 ................................... 3

Highway Beautification Act of 1965, Pub. L. No.

89-285, § 101, 79 Stat. 1028 (23 U.S.C. 131).................... 1, 3

18 U.S.C. 474 (1982) ............................................................ 15

18 U.S.C. 504 (1982) ............................................................ 15

23 U.S.C. 131 ....................................................................... 22

23 U.S.C. 131(a)..................................................................... 3

23 U.S.C. 131(b) .................................................................... 4

23 U.S.C. 131(c) ..................................................................... 4

23 U.S.C. 131(d) .................................................................... 4

23 U.S.C. 131(s) ..................................................................... 4

23 U.S.C. 131(t) ..................................................................... 4

Miscellaneous:

Austin City Code (2021):

§ 25-10-1(1)-(2) ................................................................ 4, 20

§ 25-10-1(A) ......................................................................... 22

§ 25-10-1(2) ............................................................................ 4

§ 25-10-3(11) (2016) ............................................................... 5

§ 25-10-103(1) ........................................................................ 4

§ 25-10-152(A) (2016) ............................................................ 5

§ 25-10-152(A)...................................................................... 22

§ 25-10-152(B) (2016) ............................................................ 5

§ 25-10-152(B)(2)(b) (2016) ................................................... 5

VI

Miscellaneous—Continued:

Page

Charles R. Taylor & Weih Chang, The History of

Outdoor Advertising Regulation in the United

States, 15 J. of Macromarketing 47 (1995) ..................... 2, 3

Frank Presbrey, The History and Development of

Advertising (1929) ................................................................ 2

Letter to the President of the Senate and to the

Speaker of the House Transmitting Bills to

Improve Highway Beauty, 1 Pub. Papers 582-583

(May 26, 1965) ....................................................................... 3

Highway Beautification: Hearings Before the

Subcomm. on H.R. 8487 and Related Bills of the

House Comm. On Public Works, 89th Cong. 1st

Sess. (1965) ............................................................................ 3

Virginia Sisiopiku, National Center for Transportation Systems Productivity and Management, Final

Report on Digital Advertising Billboards and

Driver Distraction (Apr. 2015),

http://nctspm.gatech.edu/sites/default/files/u63/

DigitalAdvertistingBillboardsandDriverDistraction_VirginiaSisiopiku.pdf ................................................. 21

In the Supreme Court of the United States

No. 20-1029

CITY OF AUSTIN, TEXAS, PETITIONER

v.

REAGAN NATIONAL ADVERTISING OF AUSTIN, INC.,

ET AL.

ON WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

BRIEF FOR THE UNITED STATES

AS AMICUS CURIAE SUPPORTING PETITIONER

INTEREST OF THE UNITED STATES

This case concerns the constitutionality of a municipal sign ordinance that distinguishes between signs connected to the activities conducted on-site and signs that

lack such a connection. The United States has a substantial interest in the resolution of issues concerning

the constitutional limits on sign regulation. The Department of Transportation, for example, implements

the Highway Beautification Act of 1965, Pub. L. No. 89285, § 101, 79 Stat. 1028 (23 U.S.C. 131), which encourages States to limit off-premises signs along certain major highways in the interest of promoting highway

safety and preserving natural beauty. Although the ordinance at issue here differs from the Highway Beautification Act, the analysis that the Court adopts in this

(1)

2

case may have ramifications for that Act, as well as

other federal regulations.

STATEMENT

1. Throughout the Nation’s history, governments

have regulated the location and features of outdoor advertisements. See, e.g., Charles R. Taylor & Weih

Chang, The History of Outdoor Advertising Regulation

in the United States, 15 J. of Macromarketing 47, 47

(1995) (discussing “municipal laws limiting the size of

signs” adopted “[f]ollowing the Revolutionary War”).

Following a “relatively calm period” of sign regulation

during “the first half of the nineteenth century,” the use

of outdoor signs rose “dramatically” by the time of the

Civil War. Id. at 48. “As the use of outdoor advertising

grew, so did abuses.” Ibid. Local governments responded with increasingly detailed sign regulations.

See Frank Presbrey, The History And Development Of

Advertising 500 (1929).

By the early 20th century, this Court had repeatedly

sustained such regulations against challenges brought

by the burgeoning billboard industry. In St. Louis

Poster Advertising Co. v. St. Louis, 249 U.S. 269 (1919),

and Thomas Cusack Co. v. City of Chicago, 242 U.S. 526

(1917), for example, this Court upheld local sign ordinances that billboard companies had attacked on various constitutional grounds. And in Packer Corp. v.

Utah, 285 U.S. 105 (1932), this Court rejected an equalprotection challenge to a Utah statute that prohibited

the “display on any bill board” of an “advertisement of

cigarettes, cigarette papers, cigars, chewing tobacco, or

smoking tobacco,” with an exception for a tobacconist to

“have a sign on the front of his place of business stating

that he is a dealer in such articles.” Id. at 107.

3

In 1958, against the backdrop of those decisions and

increased federal investment in the Nation’s roadways,

Congress passed what became known as the “Bonus

Act” as part of the Federal Aid Highway Act of 1958,

Pub. L. No. 85-381, § 12, 72 Stat. 95. See Taylor &

Chang 55. The Bonus Act authorized additional highwayrelated payments to States if they voluntarily undertook to regulate billboards near federal interstate highways in a manner consistent with congressionally prescribed standards. See Pub. L. No. 85-381, § 12, 72 Stat.

95. When the Bonus Act failed adequately to address

the proliferation of highway-adjacent billboards, Congress enacted the Highway Beautification Act of 1965,

Pub. L. No. 89-285, § 101, 79 Stat. 1028 (23 U.S.C. 131);

see Letter to the President of the Senate and to the

Speaker of the House Transmitting Bills to Improve

Highway Beauty, 1 Pub. Papers 582–583 (May 26, 1965);

Highway Beautification: Hearings Before the Subcomm. on H.R. 8487 and Related Bills of the House

Comm. on Public Works, 89th Cong. 1st Sess. 4 (1965)

(statement of John T. Connor, Secretary of Commerce).

The Highway Beautification Act, which remains in

force today, limits signs adjacent to certain major highways in order “to protect the public investment in

* * * highways, to promote the safety and recreational

value of public travel, and to preserve natural beauty.”

23 U.S.C. 131(a). The Act requires States, on penalty of

a ten-percent reduction of federal highway funds, to

provide for the “effective control of the erection and

maintenance * * * of outdoor advertising signs, displays, and devices” in designated areas—generally

within 660 feet of Interstate or “primary system” high-

4

ways and in nonurban areas visible from those highways. 23 U.S.C. 131(b); see 23 U.S.C. 131(t) (defining

“primary system” highways).

The Act defines “effective control,” for those purposes, to mean that States must generally limit signs in

covered areas to (1) “directional and official” signs;

(2) signs “advertising the sale or lease of property upon

which they are located”; (3) signs “advertising activities

conducted on the property on which they are located”;

(4) landmark signs, or signs of “historic or artistic significance the preservation of which would be consistent

with the purposes of ” the Act; and (5) signs “advertising

the distribution by nonprofit organizations of free coffee.” 23 U.S.C. 131(c); see 23 U.S.C. 131(d) (allowing

States to enter into customized agreements with the

federal government about sign regulation in industrial

and commercial areas); see also 23 U.S.C. 131(s) (specialized restrictions for designated scenic byways). In

consultation with the federal Department of Transportation, every State has enacted sign controls that comply with the requirements of the Act.

2. This case concerns the “Land Management” regulations of the City of Austin, Texas, which include an

ordinance “for the regulation of signs within the City of

Austin and its extraterritorial jurisdiction” to “protect

the health, safety, and general welfare of the City and

its residents.” Austin City Code § 25-10-1(1)-(2) (2021).

The ordinance strives to “allow adequate opportunity

for free speech in the form of messages or images displayed on signs, while balancing that interest against

public safety and aesthetic concerns impacted by signs.”

Id. § 25-10-1(2) (2021).

The ordinance generally disallows new “off-premises”

signs, Austin City Code § 25-10-103(1) (2021), which are

5

defined under the applicable version of the ordinance as

those that “advertis[e] a business, person, activity,

goods, products, or services not located on the site

where the sign is installed, or that direct[] persons to

any location not on that site,” id. § 25-10-3(11) (2016);

see J.A. 52. Signs that advertise businesses, persons,

products, services, or activities offered on-premises, or

that do not advertise businesses, persons, products, services, or activities at all, are generally permitted. The

City allows for the continued use of off-premises signs

that were lawful at the time of their installation, and

permits owners to display new messages on such signs,

as long as any changes to an off-premises sign do not

increase the extent to which the sign fails to conform

to current sign-code requirements. Austin City Code

§§ 25-10-152(A) and (B) (2016); see J.A. 95-96. The sign

code also prohibits a “change [in] the method or technology used to convey a message” on an off-premises

sign. Austin City Code §§ 25-10-152(B)(2)(b) (2016); see

J.A. 96.

3. Respondents are commercial entities engaged in

the business of outdoor advertising. In 2017, they applied to the City of Austin for permits to digitize the advertising faces of dozens of existing billboards in and

around Austin. See Pet. App. 31a. Respondents designated all of the billboards as “off-premises” signs, see,

e.g., J.A. 155, 161, 166-167, but did not otherwise disclose the text or other content that they planned to display on the billboards once they were digitized, see Pet.

7; Pet. App. 35a. The City denied respondents’ applications on the ground that digitizing the advertising faces

of the billboards would “change the existing technology

used to convey off-premise commercial messages.” Pet.

App. 34a; see J.A. 28-29, 34-35.

6

Respondent Reagan National Advertising of Austin,

Inc., filed suit in federal district court, and respondent

Lamar Advantage Outdoor Company, L.P., subsequently intervened in the litigation, asserting that the

City’s treatment of off-premises signs was inconsistent

with the First Amendment. Both respondents sought

declaratory relief allowing them to digitize their signs.

See J.A. 13, 22-23. Reagan claimed that the ordinance

was unconstitutional both on its face and as applied to

Reagan, see J.A. 19-23, while Lamar asserted only a facial claim, see J.A. 10-12. Following a bench trial, the

district court determined that the parties continued to

have a live controversy notwithstanding intervening

amendments to the sign code, Pet. App. 39a-40a, but rejected respondents’ claims on the merits because the

sign code is content-neutral and permissible under intermediate scrutiny, id. at 53a.

The court of appeals reversed. Pet. App. 1a-27a.

Like the district court, the court of appeals found a continuing controversy, noting that the intervening amendments were substantively immaterial and that applicable state law rendered respondents’ entitlement to relief dependent on the constitutionality of the ordinance

in effect at the time they submitted their applications.

Id. at 6a-7a. On the merits, however, the court of appeals took the view that this Court’s decision in Reed v.

Town of Gilbert, 576 U.S. 155 (2015), mandated that the

sign ordinance be considered a content-based regulation of speech subject to strict scrutiny, which the ordinance could not survive. Pet. App. 19a-21a, 26a. Although acknowledging a divergence of views among its

sister circuits, id. at 15a-16a, the court held that strict

scrutiny applies because in addition to considering

“where the sign is installed,” one must “read the sign”

7

to determine whether it is on-premises or off-premises,

id. at 14a. And even though “most billboards display

commercial messages,” the court rejected the City’s

contention that the sign code should be subject to the

intermediate scrutiny applicable to regulations of commercial speech. Id. at 25a; see id. at 23a-25a.

SUMMARY OF ARGUMENT

This Court has long recognized that governments

may enact reasonable time, place, or manner regulations to reduce the harmful effects of outdoor advertising on roadway safety and community aesthetics. See,

e.g., Metromedia, Inc. v. City of San Diego, 453 U.S.

490, 502 (1981) (plurality opinion); Suffolk Outdoor Advertising Co. v. Hulse, 439 U.S. 808 (1978). The municipal sign ordinance at issue here—which generally limits outdoor advertisements for goods, services, or

events to the place where the advertised goods, services, or events are located—follows in that tradition

and is consistent with the First Amendment.

An on-premises/off-premises sign regulation like the

City’s ordinance is not a content-based regulation of

speech. The ordinance’s limit on the placement of signs

does not function to censor their content, but instead to

organize them based on their connection to a particular

site, thereby controlling the proliferation of distracting

and unsightly items. This Court has previously upheld

zoning restrictions that are similarly focused on the

non-communicative secondary effects associated with

the location of speech activity, where the contours of the

law did not reflect any unrelated content-based distinctions. See City of Renton v. Playtime Theatres, Inc.,

475 U.S. 41, 43 (1986) (upholding limitations on the location of “adult motion picture theaters”). And here,

the common distinction between on-premises and off-

8

premises signs tracks the special harms that the proliferation of off-premises signs has been known to cause.

Contrary to the court of appeals’ view, the need to

read a sign to determine whether it is in a permissible

location does not transform the City’s ordinance into a

suspect content-based law. This Court has recognized,

for example, that municipalities may place reasonable

limitations on the time, place, or manner of solicitation,

even though enforcing such regulations requires determining whether a speaker is engaging in solicitation as

opposed to other speech activity. See, e.g., Cantwell v.

Connecticut, 310 U.S. 296, 304-306 (1940). This Court’s

decision in Reed v. Town of Gilbert, 576 U.S. 155

(2015)—which invalidated a sign ordinance that discriminated among signs based solely on their ideological, political, or other content—does not call regulations

like the City’s ordinance into question. Instead, as

three of the six Justices in the majority made clear,

“[r]ules distinguishing between on-premises and offpremises signs” are “rules that would not be content

based” under Reed. Id. at 174, 175 (Alito, J., concurring) (emphasis added).

Such rules remain subject to significant constitutional scrutiny. They must satisfy the other constitutional requirements for time, place, and manner restrictions, which are aimed at unmasking inappropriate

laws that go too far in their restrictions. But the City’s

ordinance, while not as narrow in scope as the federal

Highway Beautification Act, satisfies those requirements. The restriction on off-premises signs directly

advances the City’s well-recognized interests in community safety and appearance by allowing signs in the locations with which they are most closely connected,

while limiting the scattered signs most likely to produce

9

distraction and visual blight. And the availability of onpremises signs—as well as numerous other media for

advertising activities, events, or goods—ensures that

the owner of a particular site has ample channels for

getting the word out.

Finally, even if this Court were to conclude that the

City’s ordinance is unconstitutional in some applications, the court of appeals nevertheless erred in holding

it facially unconstitutional. Respondents themselves

acknowledge that the City may apply an on-premises/offpremises distinction to signs with commercial messages, and they have not shown that the signs they seek

to digitize—let alone a substantial number of the signs

in Austin—would display only noncommercial messages. As a result, neither traditional nor “overbreadth” facial invalidation would be warranted here,

and the decision below—if not reversed outright—

should be vacated and remanded for further consideration.

ARGUMENT

“As with other media of communication, the government has legitimate interests in controlling the noncommunicative aspects” of billboards and their effect on the

surrounding community. Metromedia, Inc. v. City of

San Diego, 453 U.S. 490, 502 (1981) (plurality opinion).

Accordingly, courts have long recognized that governments may regulate the time, place, or manner of outdoor signs in order to mitigate the degree to which they

“obstruct views, distract motorists, displace alternative

uses for land, and pose other problems that legitimately

call for regulation.” City of Ladue v. Gilleo, 512 U.S.

43, 48 (1994). The ordinance at issue here, which organizes speech based on location, performs precisely that

10

function, and is accordingly a constitutionally permissible time, place, or manner regulation. This Court’s decision in Reed v. Town of Gilbert, 576 U.S. 155 (2015),

which held that certain other types of sign ordinances

are content-based and subject to strict scrutiny, preserves “[r]ules distinguishing between on-premises and

off-premises signs” as “rules that would not be contentbased,” id. at 174-175 (Alito, J., concurring). Moreover,

even if the City’s ordinance were constitutionally problematic in some applications, it could be validly applied

to most billboards, including those at issue here, because they are used at least in part to display commercial speech. The court of appeals thus erred in striking

the ordinance down on its face.

I. THE CITY’S LIMITATIONS ON OFF-PREMISES SIGNS

ARE A PERMISSIBLE REGULATION OF THE PLACE

AND MANNER OF ADVERTISEMENTS

This Court has long recognized that governments

may adopt “reasonable restrictions on the time, place,

or manner of protected speech.” Ward v. Rock Against

Racism, 491 U.S. 781, 791 (1989). “[T]o be constitutional, [such] regulation[s] must meet three requirements.” Regan v. Time, Inc., 468 U.S. 641, 648 (1984).

First, they must “not be based upon either the content

or subject matter of speech.” Ibid. (citation and internal quotation marks omitted). Second, they “must serve

a significant governmental interest.” Ibid. (citations

and internal quotation marks omitted). And third, they

“must leave open ample alternative channels for communication of the information.” Ibid. (citations and internal quotation marks omitted). The City’s sign ordinance is constitutionally permissible under that wellestablished framework.

11

A. The Ordinance Is Content-Neutral Under This Court’s

Time, Place, Or Manner Decisions

The City—like the federal government, a significant

majority of States, and numerous municipal governments

—permits advertisers to post signs advertising goods,

services, or events in places where those goods, services, or events are offered, but limits advertisers’ posting of such signs elsewhere. In drawing that distinction,

a government simply constrains a particular manner of

advertising (billboards and outdoor signs) outside of an

area defined by its relationship to the sign (the place

where the advertised goods, services, or events are offered). As such, laws distinguishing between on-premises

and off-premises signs are content-neutral regulations

of the place and manner of outdoor advertisements rather than content-based restrictions on speech. See

Reed, 576 U.S. at 175 (Alito, J., concurring); Suffolk

Outdoor Advertising Co. v. Hulse, 439 U.S. 808 (1978).

1. Under the City’s ordinance, the critical feature

that determines whether a sign is on-premises or offpremises is its location, not its content. Rather than

censoring sign-based speech or singling out particular

subjects for different treatment, the City has simply

organized the display of signs based on their connection

to a given property. “Eat at Joe’s” is a wholly permissible sign; the only relevant limitation is that it be displayed

on the property containing Joe’s, rather than elsewhere.

Although the ordinance, which applies throughout the

City, is not as geographically focused as a law like the

Highway Beautification Act, which generally applies

only along interstate and primary highways, it operates

in relevant respects as a zoning law—a traditionally

content-neutral form of regulation.

12

In City of Renton v. Playtime Theatres, Inc., 475

U.S. 41 (1986), for example, the Court upheld a municipal ordinance prohibiting “adult motion picture theaters from locating within 1,000 feet of any residential

zone, single- or multiple-family dwelling, church, park,

or school” as a “ ‘content-neutral’ time, place, and manner regulation[].” Id. at 43, 49. The ordinance was effectively a “zoning regulation” that was properly

“deemed content neutral” because it was “aimed not at

the content of the films shown at adult theaters, but rather at the secondary effects of such theaters on the

surrounding community, namely, at crime rates, property values, and the quality of the city’s neighborhoods.” City of Los Angeles v. Alameda Books, Inc., 535

U.S. 425, 434 (2002) (plurality opinion) (discussing City

of Renton and applying it to another regulation on the

location of adult businesses); see City of Renton, 475

U.S. at 48.

The content neutrality of the ordinance here follows

a fortiori from City of Renton. Whereas the focus on

the secondary effects of “adult motion picture theaters”

led the municipality there to “treat[] theaters that

specialize in adult films differently from other kinds of

theaters,” 475 U.S. at 43, 47, the City of Austin’s onpremises/off-premises distinction targets the billboards

most likely to produce undesirable secondary effects

without singling out any particular type of business or

speech. Thus, even more than the ordinance in City of

Renton, the City’s sign rule does “not contravene the

fundamental principle that underlies [the] concern

about ‘content-based’ speech regulations: that ‘government may not grant the use of a forum to people whose

views it finds acceptable, but deny use to those wishing

to express less favored or more controversial views.’ ”

13

Id. at 48-49 (quoting Police Dep’t v. Mosley, 408 U.S. 92,

95-96 (1972)).

In particular, the City ordinance adheres to the

strict limitations of the secondary-effects doctrine because the distinction that it draws between on-premises

and off-premises signs carefully tracks the “associat[ion] with particular ‘secondary effects.’ ” R. A. V. v.

City of St. Paul, 505 U.S. 377, 389 (1992) (quoting City

of Renton, 475 U.S. at 48). The Court has made clear

that governments may not invoke the secondary-effects

doctrine to shield laws that disfavor specific categories

of speech that have the same secondary effects as more

favored ones. See, e.g., Reed, 576 U.S. at 171 (noting

that town’s content-based distinctions among signs did

not track their secondary effects on traffic safety and

aesthetics); City of Cincinnati v. Discovery Network,

Inc., 507 U.S. 410 (1992) (same for distinction between

newsracks distributing different types of materials).

Here, however, the special harms to safety and aesthetics caused by proliferating off-premises signs are clear,

well-recognized, and unrelated to any inherent value

judgment about the signs’ content. See, e.g., Discovery

Network, 507 U.S. at 425 n.20 (discussing Metromedia);

see also Pet. Br. 45-46; pp. 20-22, infra.

2. Even independent of the secondary-effects doctrine applied in cases like City of Renton and Alameda

Books, the ordinance here is permissible under this

Court’s decisions upholding time, place, or manner regulations more generally. Those decisions make clear

that a law need not treat speech as an indecipherable

hieroglyph in order to be considered content-neutral.

Perhaps most pertinently, the Court in Suffolk Outdoor Advertising Co. v. Hulse, 439 U.S. 808 (1978),

14

found no substantial First Amendment question to review in a state decision upholding as a valid time, place,

and manner regulation a paradigmatic on-premises/offpremises ordinance that barred billboards advertising

“a business, commodity, service, entertainment, or attraction sold, offered or existing elsewhere than upon

the same lot where such [sign] is displayed.” See Suffolk Outdoor Advertising Co. v. Hulse, 373 N.E.2d 263

(N.Y. 1977); Suffolk Outdoor Advertising Co., Inc. v.

Hulse, 393 N.Y.S.2d 416, 421 (1977) (Shapiro, J., dissenting) (quoting text of challenged ordinance). And

although such a summary order would not on its own

receive the same weight as a decision of this Court following plenary review, see Metromedia, 453 U.S. at

488-489 (plurality opinion), here it is illustrative of a

more widely accepted principle.

This Court has repeatedly recognized, for example,

“that ‘a State may protect its citizens from fraudulent

solicitation by requiring a stranger in the community,

before permitting him publicly to solicit funds for any

purpose, to establish his identity and his authority to act

for the cause which he purports to represent.’ ” Watchtower Bible & Tract Society of New York, Inc. v. Village

of Stratton, 536 U.S. 150, 162-163 (2002) (quoting Cantwell v. Connecticut, 310 U.S. 296, 306 (1940)). Such laws

remain content-neutral, “non-discriminatory legislation” regarding “the times, the places, and the manner

of soliciting” even though their enforcement may depend on evaluating a speaker’s message to determine

whether he is engaged in solicitation or instead visiting

a home for some other purpose. Cantwell, 310 U.S. at

304. The State is therefore “free to regulate the time

and manner of solicitation generally, in the interest of

public safety, peace, comfort or convenience,” id. at 306-

15

307, notwithstanding that such regulations will apply

only to solicitation speech.

The Court addressed a similarly specific law in Regan v. Time, Inc., which involved a First Amendment

challenge to federal statutes that prohibited publishers

from printing photographs of United States currency at

certain sizes or in anything other than black and white

ink. See 468 U.S. at 645-646; see also 18 U.S.C. 474, 504

(1982). The Court upheld those size and color requirements as “a valid time, place, and manner regulation,”

even though determining the law’s application to a particular photograph would require examining the photograph to determine whether it depicted United States

currency. Regan, 468 U.S. at 656 (plurality opinion); id.

at 704 (Stevens, J., concurring in the judgment in part

and dissenting in part) (agreeing that the size and color

requirements were permissible “restrictions on the

manner of printing”).

The Court has upheld laws as content-neutral, notwithstanding the need to read (or listen to) speech in

order to determine their application, in adjacent First

Amendment contexts as well. The ban on draft-card

burning upheld in United States v. O’Brien, 391 U.S.

367 (1968), for example, would not apply to burning a

card of identical shape and size but with different writing. See id. at 370. And although O’Brien does not directly concern sign ordinances, the Court has applied it

to evaluate an ordinance regulating the time, place, and

manner of sign posting where—as in this case—the

“text of the ordinance is neutral * * * concerning any

speaker’s point of view” and the ordinance has apparently “been applied * * * in an evenhanded manner.”

Members of the City Council v. Taxpayers for Vincent,

16

466 U.S. 789, 804-805 (1984); see, e.g., Clark v. Community for Creative Non-Violence, 468 U.S. 288, 298-299

n.8 (1984) (discussing Taxpayers for Vincent). As such

decisions demonstrate, the need for a literate enforcer

does not in itself classify a regulation as content-based.

3. The court of appeals’ contrary conclusion rested

on an overreading of this Court’s decision in Reed. That

decision did not implicitly overrule prior decisions of

this Court or otherwise herald “a drastic change in First

Amendment jurisprudence.” Pet. App. 9a (citation omitted). Indeed, even the court of appeals recognized that

Reed “did not profess to be creating new First Amendment law.” Ibid. And it did not do so.

The municipal ordinance that Reed classified as

content-based (and invalidated) did not regulate the

connection between a sign and the property on which it

is located, but instead directly discriminated among

specifically described categories of speech based on

subject-matter. In particular, the ordinance “identifie[d] various categories of signs based on the type of

information they convey[ed], then subject[ed] each category to different restrictions.” 576 U.S. at 159; see id.

at 159-161. The restrictions thus “depend[ed] entirely

on the communicative content of the sign,” id. at 164

(emphasis added), and “[i]deological messages [we]re

given more favorable treatment than messages concerning a political candidate, which [we]re themselves

given more favorable treatment than messages announcing an assembly of like-minded individuals,” id. at

169.

As three of the six Justices who joined the majority

opinion in Reed expressly made clear, classification of

the ordinance there as content-based does not suggest

that an ordinance like the one at issue here is content-

17

based as well. Justice Alito, joined by Justices Kennedy

and Sotomayor, identified a non-exhaustive list of “reasonable sign regulations” that should not be treated as

“content based” under a “[p]roper[] underst[anding]” of

the majority opinion to which their votes were essential.

576 U.S. at 174, 175 (Alito, J., concurring). The list specifically included “[r]ules distinguishing between onpremises and off-premises signs.” Id. at 175. That explicit caveat recognizes that the general necessity of

reading a sign in order to determine whether it is “onpremises” or “off-premises” does not transform such a

rule from a content-neutral time, place, or manner restriction into a suspect content-based classification.

The court of appeals dismissed the relevance of the

concurrence’s clarification by positing that it might refer solely to construction-related requirements, such as

“a regulation that defines an off-premises sign as any

sign within 500 feet of a building,” whose enforcement

would not require reading any given sign. Pet. App. 13a

(brackets and citation omitted). But the concurrence

listed rules that “distinguish between freestanding

signs and those attached to buildings” in a category of

their own, separate from the on-premises/off-premises

distinction. Reed, 576 U.S. at 174 (Alito, J., concurring).

And the concurrence’s list of “rules that would not be

content based” under Reed also included rules “imposing time restrictions on signs advertising a one-time

event,” which would be impossible to enforce without

reading the signs to see if they in fact advertise such an

event. Id. at 174-175. Such rules are nonetheless content-neutral, because the critical aspect of their application turns not on the content of a sign, but instead on

the connection between a sign and an event.

18

On-premises/off-premises rules like the one at issue

in this case, which turn on the connection between a sign

and activities occurring at the location where it sits, are

likewise content-neutral. Neither type of rule “[l]imit[s]

speech based on its ‘topic’ or ‘subject,’ ” or otherwise

regulates a sign’s content as such. Reed, 576 U.S. at

174 (Alito, J., concurring). Each instead operates to

identify signs, whatever they advertise, whose installation or long-term proliferation would produce disproportionate harms. See Discovery Network, 507 U.S. at

429-430 (recognizing that a “selective ban on newsracks” could be classified “as content neutral,” and potentially upheld as a permissible “time, place, or manner restriction,” if justified by particularized harms); p.

13, supra.

Such regulations do not, of course, receive a free

pass under the First Amendment. Although a need to

read speech to determine the applicability of a rule does

not in itself disqualify the rule from classification as a

content-neutral time, place, or manner regulation, the

rule would be valid only if it satisfies the limitations that

the First Amendment imposes on such regulations.

Those significant requirements ensure that governments do not go too far in their restrictions on signs.

B. The City’s Ordinance Serves Significant Governmental

Interests And Leaves Ample Alternative Channels For

Communication

The City of Austin’s rule does not exceed the permissible boundaries of a content-neutral time, place, or

manner regulation. It both “serve[s] a significant governmental interest” and “leave[s] open ample alternative channels for communication of the information.”

Regan, 468 U.S. at 648 (citation and internal quotation

marks omitted).

19

1. This Court has recognized “that the twin goals”

that the City’s sign ordinance “seeks to further—traffic

safety and the appearance of the city—are substantial

governmental goals.” Metromedia, 453 U.S. at 507-508

(plurality opinion); see id. at 541 (Stevens, J., dissenting

in part). Indeed, the traffic-safety interest asserted by

the City is not merely substantial but compelling, and

could support an appropriately tailored sign ordinance

even under strict scrutiny. See Mitchell v. Wisconsin,

139 S. Ct. 2525, 2535 (2019) (“We have called highway

safety a ‘compelling interest.’ ”) (citation omitted); cf.

Reed, 576 U.S. at 173 (“A sign ordinance narrowly tailored to the challenges of protecting the safety of pedestrians, drivers, and passengers * * * well might survive

strict scrutiny.”).

The City’s limitation on “offsite advertising is directly related to th[ose] stated objectives” and is not

“broader than is necessary to meet [the City’s] interests.” Metromedia, 453 U.S. at 511-512 (plurality opinion); see id. at 541 (Stevens, J., dissenting in part); see

also Ward, 491 U.S. at 791 (recognizing that time, place,

or manner regulations are permissible if, inter alia,

they are “narrowly tailored to serve a significant governmental interest”) (citation omitted). Because signs

are designed and displayed specifically to attract attention, they pose “real and substantial hazards to traffic

safety” based on their potential to draw drivers’ attention away from the road. Metromedia, 453 U.S. at 509

(plurality opinion) (citation omitted). And even signs

that are designed or positioned in such a way that they

will not distract drivers can still, “by their very nature,

* * * be perceived as an ‘esthetic harm.’ ” Id. at 510

(citations omitted).

20

The most straightforward way of mitigating those

harms is to limit the proliferation of distracting and unsightly signs. And allowing on-premises signs while

limiting off-premises ones is a natural way to “allow adequate opportunity for free speech in the form of messages or images displayed on signs, while balancing that

interest against public safety and aesthetic concerns

impacted by signs.” Austin Code § 25-10-1(1)-(2) (2021);

see p. 4, supra. Rather than permitting the proliferation of signs advertising the activities on a property in

any number of locations anywhere in the City, the ordinance here allows such advertisements in the single location where they have the most utility and least potential to distract. The most natural and logical place for a

large outdoor “Eat at Joe’s” sign is the property where

people can and do eat at Joe’s. Joe has neither a First

Amendment right to place equally obtrusive signs at

multiple locations, see Heffron v. International Society

for Krishna Consciousness, Inc., 452 U.S. 640, 647

(1981) (“[T]he First Amendment does not guarantee the

right to communicate one’s views at all times and places

or in any manner that may be desired.”), nor a practical

reason why a different location would be more appropriate for such a sign.

In addition to providing the most natural home for a

sign, on-premises placement has other potential benefits as well. On-premises signs have the particular utility of identifying the site and informing visitors that

they have reached their destination. See Discovery

Network, 507 U.S. at 425 n.20 (discussing Metromedia).

On-premises signs also are likely to be more in keeping

with the adjacent property—and thus to detract less

from a given neighborhood’s appearance—than offpremises signs. And on-premises signs are less likely

21

than off-premises signs to change their content in ways

that might reinvigorate their potential to distract.

While only the operator of the property will choose the

content of an on-premises sign, the suppliers of content

for off-premises signs like respondents’ billboards will

often change from month to month or even week to

week. See Metromedia, 453 U.S. at 511 (plurality opinion) (observing that off-premises signs with “periodically changing content” may “present[] a more acute

problem than do[] onsite” signs); id. at 541 (Stevens, J.,

dissenting in part).

The digitization limitation that is the specific focus of

respondents’ challenge here is consistent with the

justifications for an on-premises/off-premises distinction. Although the Department of Transportation has

not interpreted the Highway Beautification Act to

prohibit digital billboards and has instead left it to individual States to decide whether to distinguish between

digital and nondigital signs, some researchers have

concluded that the features of digital signs, including

their ability to cycle easily and rapidly through

discordant advertisements, heighten the risk of distraction and increase visual blight. See, e.g., Virginia Sisiopiku, National Center for Transportation Systems

Productivity and Management, Final Report on Digital

Advertising Billboards and Driver Distraction 87

(Apr. 2015), http://nctspm.gatech.edu/sites/default/files/

u63/DigitalAdvertisingBillboardsandDriverDistraction

VirginiaSisiopiku.pdf (reporting that “crash data analysis” of approximately 450 crashes at 18 study sites in

Alabama and Florida “revealed that the presence of digital billboards increased the overall crash rates in areas

of billboard influence compared to control areas downstream of the digital billboard locations”). Limiting the

22

use of digital technology in off-premises signs could

thus directly advance the substantial governmental interests that undergird on-premises/off-premises distinctions more generally. *

2. The City’s ordinance also “leave[s] open ample alternative channels for communication of the information.” Regan, 468 U.S. at 648 (citation and internal

quotation marks omitted). Advertisers seeking to reach

City residents remain free to publish newspaper advertisements, run television or radio spots, buy online advertising space targeted to particular consumers, send

physical or electronic mailings, call or visit peoples’

homes, and so on. Moreover, the City permits onpremises signs that advertise businesses, products, services, and events in the places where they are actually

located—the scenario in which outdoor advertising has

the most potential for comparative advantage over

other forms of advertising because it directly identifies

the precise spot where people can obtain the thing advertised. Cf. Linmark Assocs. v. Township of Willingboro, 431 U.S. 85, 93 (1977) (discussing the advantages

of on-premises “For Sale” signs).

Unlike the federal Highway Beautification Act—which regulates only a narrow corridor of predominantly on-premises signs

along major highways, see 23 U.S.C. 131—the City’s ordinance applies to an entire metropolitan area and includes a broad exception

for preexisting off-premises signs. Austin Code §§ 25-10-1(A), 2510-152(A) (2021). But the court of appeals’ decision in this case did

not rely on any potential feature of the City’s ordinance that might

distinguish it from other on-premises/off-premises rules. Respondents have not, for example, claimed that the exemption for preexisting off-premises signs renders the City ordinance fatally underinclusive—indeed, their own ability to maintain and operate the billboards at issue depends on that exception.

*

23

The City’s distinction between those signs and offpremises signs like respondents’ accordingly satisfies

all of the prerequisites for a permissible content-neutral

time, place, or manner regulation. The court of appeals

erred in concluding otherwise, based on its misapprehension of the proper framework for the constitutional

inquiry. Its judgment should accordingly be reversed.

II. ANY CONSTITUTIONAL INFIRMITIES IN THE

ORDINANCE WOULD NOT JUSTIFY ITS FACIAL

INVALIDATION

Even if the City’s ordinance were unconstitutional in

some of its applications, the court of appeals erred in

deeming it facially unconstitutional. At the very least,

therefore, this Court should vacate the court of appeals’

judgment that the sign ordinance’s distinction between

on-premises and off-premises signs is unconstitutional

in all of its applications, see Pet. App. 27a, and remand

for consideration of the as-applied claim of respondent

Reagan (the only respondent that has asserted such a

claim).

A. “ ‘[C]ommercial speech [enjoys] a limited measure

of protection” under the First Amendment, “commensurate with its subordinate position in the scale of First

Amendment values,’ and is subject to ‘modes of regulation that might be impermissible in the realm of noncommercial expression.’ ” Board of Trustees v. Fox, 492

U.S. 469, 477 (1989) (quoting Ohralik v. Ohio State Bar

Ass’n, 436 U.S. 447, 456 (1978)). A regulation of commercial speech is thus valid so long as it advances a

“substantial” government interest, and “reasonabl[y]

fit[s]” that interest. Id. at 480; see Central Hudson Gas

& Electric Corp. v. Public Service Commission, 447

U.S. 557, 566 (1980) (holding that a regulation of com-

24

mercial speech is valid if it “directly advances” a “substantial” government interest and is “not more extensive than is necessary to serve that interest”). That

less-stringent standard has long been understood to allow distinctions between on-premises and off-premises

commercial signs.

In Metromedia, Inc. v. City of San Diego, seven Justices (including five Justices who joined the relevant

section of Justice White’s opinion) agreed that “offsite

commercial billboards may be prohibited while onsite

commercial billboards are permitted.” 453 U.S. at 512

(plurality opinion); see id. at 541 (Stevens, J., dissenting

in part) (joining Parts I-IV of Justice White’s opinion);

see also Discovery Network, 507 U.S. at 425 n.20

(“[S]even Justices in the Metromedia case were of the

view that San Diego could completely ban offsite commercial billboards for reasons unrelated to the content

of those billboards.”). Respondents do not ask this

Court to revisit that determination. To the contrary,

they have acknowledged (Br. in Opp. 9) that the City’s

distinction between on-premises and off-premises signs

would be constitutional “[u]nder Metromedia, * * * as

long as the targeted speech is commercial speech.”

As a result, respondents cannot prevail on a facial

challenge to the ordinance under the standard this

Court applies in most settings. Such “[a] facial challenge to a legislative Act is, of course, the most difficult

challenge to mount successfully, since the challenger

must establish that no set of circumstances exists under

which the Act would be valid.” United States v. Salerno,

481 U.S. 739, 745 (1987). And although this Court has

relaxed that standard in some First Amendment contexts to allow facial “overbr[eadth]” challenges when “a

25

substantial number of [a law’s] applications are unconstitutional,” United States v. Stevens, 559 U.S. 460, 473

(2010) (citation omitted), respondents cannot prevail

under that standard either.

This Court has “vigorously enforced the requirement that a statute’s overbreadth be substantial, not

only in an absolute sense, but also relative to the statute’s plainly legitimate sweep,” in order for it to be facially invalid. United States v. Williams, 553 U.S. 285,

292 (2008) (emphasis omitted). Respondents have

shown neither form of substantiality here. The court

below recognized that “most billboards display commercial messages,” Pet. App. 25a, and the record does

not demonstrate that a “substantial” number of the

signs to which the ordinance applies carry only noncommercial messages. Although respondents’ billboards

have apparently displayed some amount of noncommercial speech in the past, see id. at 52a n.11, the record

does not show that such speech is sufficiently predominant to justify the “strong medicine” of the overbreadth

doctrine, which this Court has repeatedly emphasized is

appropriate “only as a last resort.” Los Angeles Police

Dep’t v. United Reporting Publishing Corp., 528 U.S.

32, 39 (1999) (quoting New York v. Ferber, 458 U.S. 747,

769 (1982)).

B. The decision below struck down the City’s ordinance in its entirety without applying either standard

that this Court has described for facial challenges. The

court of appeals instead took the view (Pet. App. 25a)

that because the ordinance “applies with equal force to

both commercial and noncommercial messages,” the facial validity of the statute would stand or fall based on a

single undifferentiated application of strict scrutiny.

See id. at 23a-25a. That was error.

26

This Court has explained that when a law applies to

both commercial and “some noncommercial speech,” its

application to commercial speech may be “found to be

valid,” unless “substantial overbreadth nonetheless

makes it unenforceable” altogether. Fox, 492 U.S. at

482, 486; see id. at 469-481 (describing standard to be

applied in assessing the regulation’s application to commercial speech on remand). The decision below cannot

be squared with that approach. The court of appeals

should instead have recognized that the ordinance is at

the very least constitutional as applied to commercial

speech under Metromedia; that the trial record does

not show that a substantial number of off-premises

signs will focus on non-commercial messages; and that

respondents accordingly were not entitled to a declaration that the ordinance is facially unconstitutional.

Thus, if necessary, the judgment should be vacated on

that alternative ground and remanded for further consideration of any properly preserved as-applied challenge.

27

CONCLUSION

The judgment of the court of appeals should be

reversed or, in the alternative, vacated and remanded

for further proceedings.

Respectfully submitted.

BRIAN H. FLETCHER

Acting Solicitor General

BRIAN M. BOYNTON

Acting Assistant Attorney

General

ERIC J. FEIGIN

Deputy Solicitor General

BENJAMIN W. SNYDER

Assistant to the Solicitor

General

MICHAEL S. RAAB

LINDSEY POWELL

Attorneys

AUGUST 2021