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,

v.

Petitioner,

REAGAN NATIONAL ADVERTISING

OF AUSTIN, INC., et al.,

Respondents.

____________________

On Writ of Certiorari to the

United States Court of Appeals for the Fifth Circuit

____________________

BRIEF AMICUS CURIAE OF

PACIFIC LEGAL FOUNDATION

IN SUPPORT OF RESPONDENTS

____________________

DEBORAH J. LA FETRA

Counsel of Record

Pacific Legal Foundation

555 Capitol Mall, Suite 1290

Sacramento, California 95814

Telephone: (916) 419-7111

DLaFetra@pacificlegal.org

Counsel for Amicus Curiae Pacific Legal Foundation

i

QUESTION PRESENTED

Austin sign code provisions distinguish between

on-premises and off-premises messages based solely

on location. From this distinction, the sign code

establishes a technology-based rule about how a sign’s

message may be conveyed. On-premises messages

may be digitized, and off-premises messages may not.

Billboard companies sought permits to digitize 84

billboards—off-premises signs—and sued the city

when the permits were denied. The Fifth Circuit ruled

that the First Amendment invalidated the challenged

provisions, holding that the on-premises/off-premises

distinction is content-based under Reed v. Town of

Gilbert and fails the strict scrutiny test. The question

presented is:

Is the city code’s distinction between on- and offpremises messages a facially unconstitutional

content-based regulation under Reed?

ii

Table of Contents

QUESTION PRESENTED ...................................... i

TABLE OF AUTHORITIES................................... iii

INTEREST OF AMICUS CURIAE ........................ 1

INTRODUCTION AND SUMMARY OF

ARGUMENT...................................................... 2

ARGUMENT ........................................................... 4

I. THE ON-PREMISES VERSUS OFFPREMISES REGULATION IN THIS CASE IS

A CONTENT-BASED RESTRICTION ON

SPEECH ............................................................ 4

II. REED’S LOGIC APPLIES TO COMMERCIAL

SPEECH .......................................................... 12

CONCLUSION ...................................................... 15

iii

Table of Authorities

Page(s)

Cases

44 Liquormart, Inc. v. Rhode Island,

517 U.S. 484 (1996) ....................................... 4, 14

Americans for Prosperity Found. v. Bonta,

141 S. Ct. 2373 (2021) ....................................... 12

Ark. Writers’ Project, Inc. v. Ragland,

481 U.S. 221 (1987) ............................................. 8

Barr v. Am. Ass’n of Political Consultants,

140 S. Ct. 2335 (2020) ................................. 10, 13

Bruni v. City of Pittsburgh, Pa.,

141 S. Ct. 578 (2021) ........................................... 7

Central Hudson Gas & Elec. Corp. v. Pub.

Serv. Comm’n,

447 U.S. 557 (1980) ....................................... 4, 13

Citizens United v. Fed. Election Comm’n,

558 U.S. 310 (2010) ......................................... 1, 5

City of Cincinnati v. Discovery Network,

Inc., 507 U.S. 410 (1993) ..................................... 8

Clear Channel Outdoor, Inc. v. Director,

Dep’t of Finance of Baltimore City,

472 Md. 444 (2021) ...................................... 10, 11

Cohen v. California, 403 U.S. 15 (1971)................. 15

Contest Promotions, LLC v. City and County

of San Francisco, Cal.,

138 S. Ct. 2574 (2018) ......................................... 1

Covenant Media of S.C., LLC v. City of N.

Charleston, 493 F.3d 421 (4th Cir. 2007) ........... 6

iv

Denver Area Educ. Telecomms. Consortium,

Inc. v. F.C.C., 518 U.S. 727 (1996) ...................... 8

F.C.C. v. League of Women Voters of

California, 468 U.S. 364 (1984) .......................... 8

Fla. Bar v. Went For It, Inc.,

515 U.S. 618 (1995) ........................................... 13

Forsyth Cty. v. Nationalist Movement,

505 U.S. 123 (1992) ......................................... 7, 8

H.J. Wilson Co., Inc. v. State Tax Comm’n of

State, 737 So. 2d 981 (Miss. 1998) ...................... 6

Hill v. Colorado,

530 U.S. 703 (2000) ......................................... 6, 7

Int’l Outdoor, Inc. v. City of Troy,

974 F.3d 690 (6th Cir. 2020) ............................. 14

La Tour v. City of Fayetteville,

442 F.3d 1094 (8th Cir. 2004) ............................. 7

McCullen v. Coakley,

573 U.S. 464 (2014) ............................................. 7

Metromedia v. City of San Diego,

453 U.S. 490 (1981) ............................................. 5

National Inst. of Family and Life Advocates

v. Becerra, 138 S. Ct. 2361 (2018) ..................... 15

Neighborhood Enters. v. City of St. Louis,

644 F.3d 728 (8th Cir. 2011) ............................... 6

Nike, Inc. v. Kasky,

539 U.S. 654 (2003) ............................................. 1

Parents Involved in Comm. Schools v.

Seattle Sch. Dist. No. 1,

551 U.S. 701 (2007) ........................................... 15

v

Reed v. Town of Gilbert, Arizona,

576 U.S. 155 (2015) ............................. 1–5, 13–14

Regan v. Time, Inc.,

468 U.S. 641 (1984) ............................................. 6

Sorrell v. IMS Health Inc.,

564 U.S. 552 (2011) ....................................... 1, 14

The Lamar Co., LLC v. Lexington-Fayette

Urban County Government,

No. 5:21-043-DCR, 2021 WL 2697127

(E.D. Ky. June 30, 2021) ................................... 12

Thomas v. Bright,

937 F.3d 721 (6th Cir. 2019) ............................... 5

United States v. Alvarez,

567 U.S. 709 (2012) ........................................... 14

W. Va. Bd. of Educ. v. Barnette,

319 U.S. 624 (1943) ............................................. 9

Wine & Spirits Retailers, Inc. v. Rhode

Island and Providence Plantations,

552 U.S. 889 (2007) ............................................. 1

Rules of Court

Sup. Ct. R. 37.3 ......................................................... 1

Sup. Ct. R. 37.6 ......................................................... 1

Other Authorities

Huijon, Eduardo, Jr., Local group honoring

veterans with billboards, CBS (July 1,

2021), https://www.cbs7.com/

2021/07/01/local-group-honoringveterans-with-billboards/ .................................... 9

vi

La Fetra, Deborah J., Kick It Up a Notch:

First Amendment Protection for

Commercial Speech, 54 Case W. Res. L.

Rev. 1205 (2004) ................................................ 15

Mandelker, Daniel R., Billboards, Signs,

Free Speech, and the First Amendment,

55 Real Prop. Tr. & Est. L.J. 367 (2020) .......... 11

Pymnts, Don’t Count Out Billboards—

Amazon, Facebook, and Google Haven’t

(Aug. 6, 2018),

https://www.pymnts.com/indepth/hmmm/2018/billboards-amazonfacebook-google-outdoor-advertising/ ................. 5

Watchfire, Use Your Digital Billboard to

Thank Workers on the Frontline of

Covid-19,

https://www.watchfiresigns.com/digitalbillboards/use-your-digital-billboard-tothank-workers-on-frontline-covid-19

(last visited Sept. 3, 2021) ................................... 9

Wright, Phil, Black Lives Matter billboard

coming to La Grande, The Observer

(Aug. 7, 2020),

https://www.lagrandeobserver.com/

news/local/black-lives-matter-billboardcoming-to-la-grande/article_dce55398d850-11ea-8d20-b3cea33a1dac.html ................... 9

Zagrodny Consalo, Karen, With the Best of

Intentions: First Amendment Pitfalls for

Government Regulation of Signage and

Noise, 46 Stetson L. Rev. 533 (2017) .......... 11, 12

1

INTEREST OF AMICUS CURIAE

Pacific Legal Foundation (PLF) was founded in

1973 and is widely recognized as the largest and most

experienced nonprofit legal foundation of its kind. 1

PLF litigates matters affecting the public interest at

all levels of state and federal courts and represents

the views of thousands of supporters nationwide. In

furtherance of PLF’s continuing mission to defend

individual and economic liberties, the Foundation

seeks to ensure that all speakers enjoy the full

protection of the First Amendment to the United

States Constitution. To that end, PLF has

participated in several cases before this Court and

others on matters affecting the public interest,

including content-based and commercial speech issues

arising under the First Amendment. See, e.g., Reed v.

Town of Gilbert, Arizona, 576 U.S. 155 (2015), Contest

Promotions, LLC v. City and County of San Francisco,

Cal., 138 S. Ct. 2574 (2018), Sorrell v. IMS Health

Inc., 564 U.S. 552 (2011); Citizens United v. Fed.

Election Comm’n, 558 U.S. 310 (2010); Wine & Spirits

Retailers, Inc. v. Rhode Island and Providence

Plantations, 552 U.S. 889 (2007); and Nike, Inc. v.

Kasky, 539 U.S. 654 (2003).

1 Pursuant to this Court’s Rule 37.3, all parties have consented

to the filing of this brief. Pursuant to Rule 37.6, Amicus Curiae

affirms that no counsel for any party authored this brief in whole

or in part, and no counsel or party made a monetary contribution

intended to fund the preparation or submission of this brief. No

person other than Amicus Curiae, its members, or its counsel

made a monetary contribution to its preparation or submission.

2

INTRODUCTION AND

SUMMARY OF ARGUMENT

Reagan National Advertising of Austin, Inc., and

Lamar Advantage Outdoor Company, L.P., own and

operate billboards, most of which are “off-premises”

signs displaying both commercial advertisements and

noncommercial content. The city’s Sign Code, which

applies to both commercial and noncommercial

speech, defines an “off-premises sign” as “a sign

advertising a business, person, activity, goods,

products, or services not located on the site where the

sign is installed, or that directs persons to any location

not on that site.” App. 2a–3a. On-premises non-digital

messages can be digitized, but off-premises nondigital messages cannot. App. 3a. The City’s stated

general purpose in adopting the Sign Code is to

protect the aesthetic value of the city and to protect

public safety. Id.

In Reed v. Town of Gilbert, 576 U.S. 155, 163

(2015), this Court held that a law is content-based

when it “target[s] speech based on its communicative

content;” that is, when it “applies to particular speech

because of the topic discussed or the idea or message

expressed.” To determine whether a law is contentbased, courts must “consider whether a regulation of

speech ‘on its face’ draws distinctions based on the

message a speaker conveys.” Id. If a law draws a

distinction “defining regulated speech by its function

or purpose” based on the message the speaker

conveys, then it is facially content-based and subject

to strict scrutiny. Id. Strict scrutiny applies in this

situation “regardless of the government’s benign

motive, content-neutral justification, or lack of

‘animus toward the ideas contained’ in the regulated

3

speech.” Id. at 165. Therefore, courts must consider

whether a law is facially content-based or contentneutral “before turning to the law’s justification or

purpose.” Id. at 166.

Using this analytical framework, the Fifth Circuit

correctly held that the City’s sign ordinance was

facially content-based and thus subject to strict

scrutiny under the First Amendment. App. 2a. It is

content-based because to determine whether a sign is

on-premises or off-premises under the city code, one

must read the sign and ask: does it advertise “a

business, person, activity, goods, products, or services

not located on the site where the sign is installed, or

that directs persons to any location not on that site”?

App. 2a–3a. The court also held that the contentbased restriction demanded strict scrutiny even

though most billboards display commercial messages

because the regulation facially applied with equal

force to both commercial and noncommercial

messages. App. 25a. Having determined that strict

scrutiny applied, the court held that the city’s asserted

justifications—aesthetics and public safety—were

insufficient

because

they

were

hopelessly

underinclusive and thus not narrowly tailored. App.

26a.

The Court should affirm for two reasons. First, the

sign code’s distinction in this case between onpremises and off-premises advertising requires

government officials to read the content of the sign to

know whether it advertises goods or services available

on that lot or on a different lot, and therefore whether

the law applies. As such, the content of the sign

determines how the speaker is regulated and courts

4

must apply the strict scrutiny analysis mandated by

Reed.

Second, strict scrutiny should apply to contentbased distinctions even if the burdened speech is

commercial in nature. In Central Hudson Gas & Elec.

Corp. v. Pub. Serv. Comm’n, 447 U.S. 557 (1980), this

Court held that restrictions on commercial speech

must satisfy intermediate scrutiny. Id. at 566. In

Reed, however, this Court held that a law must be

subject to strict judicial scrutiny if “‘on its face’ [the

law] draws distinctions based on the message a

speaker conveys.” 576 U.S. at 163. There is no

meaningful distinction that would make Reed’s

reasoning any less applicable to laws that distinguish

between commercial and noncommercial speech. But

this tension between Reed and Central Hudson need

not exist at all. This Court should dispense entirely

with Central Hudson’s vision of a bifurcated First

Amendment and treat commercial speech as on par

with all other forms of expression. See 44 Liquormart,

Inc. v. Rhode Island, 517 U.S. 484, 504, 522 (1996)

(Thomas, J., concurring) (there is no “philosophical or

historical basis for asserting that commercial speech

is of lower value than noncommercial speech.”)

(cleaned up).

ARGUMENT

I

THE ON-PREMISES VERSUS

OFF-PREMISES REGULATION IN THIS CASE

IS A CONTENT-BASED RESTRICTION ON

SPEECH

Some billboards are erected on the premises of a

business to attract customers to that site. Some

5

billboards advise readers to take the next exit to

patronize a business a few miles down the road. 2 Some

billboards advertise products and services that have

no physical location open to the public at all. 3 A

billboard ordinance that benefits on-site billboards

and burdens billboards advertising businesses on

other sites or advertising products and services that

have no physical site at all discriminates based on the

content of the billboard’s message. Reed, 576 U.S. at

163 (the ordinance “‘on its face’ draws distinctions

based on the message a speaker conveys.”). Cf.

Citizens United v. Fed. Election Comm’n, 558 U.S.

310, 340 (2010) (“Speech restrictions based on the

identity of the speaker are all too often simply a

means to control content.”).

Other than purely location-based restrictions,

e.g., limiting billboards within so many feet of

complicated intersections, the only way a regulator

can determine whether a particular sign complies

with an ordinance that distinguishes between onpremises and off-premises messages is by reading the

sign and identifying whether the content refers to the

location of the sign or some other place. See, e.g.,

Thomas v. Bright, 937 F.3d 721, 730 (6th Cir. 2019)

(to decide whether an on-premises exception to a

billboard ordinance should apply requires reading the

2 See Metromedia v. City of San Diego, 453 U.S. 490, 499 (1981)

(defining off-premises signs as those “which direct[] attention to

a business, commodity, service, entertainment, or attraction

sold, offered or existing elsewhere than upon the same lot where

such sign is displayed.”).

3 See Pymnts, Don’t Count Out Billboards—Amazon, Facebook,

and Google Haven’t, PYMNTS.com (Aug. 6, 2018),

https://www.pymnts.com/in-depth/hmmm/2018/billboardsamazon-facebook-google-outdoor-advertising/.

6

sign’s message and determining its meaning or

purpose); Neighborhood Enters. v. City of St. Louis,

644 F.3d 728, 736 (8th Cir. 2011) (whether the

definition of “sign” is content-based depends on

message conveyed); H.J. Wilson Co., Inc. v. State Tax

Comm’n of State, 737 So. 2d 981, 996 (Miss. 1998)

(sales and use tax violated First Amendment as a

content-based restriction where regulators had to

review the content of publications to determine if they

fit within the “newspaper” exemption). Cf. Regan v.

Time, Inc., 468 U.S. 641, 655–56 (1984) (statute’s color

and size requirements for currency reproductions did

not regulate content because officials did not have to

evaluate a message when deciding whether it violated

the statute).

Some courts hold that the length of time spent

reading the sign determines whether it should be

regulated, the so-called “cursory examination” factor

derived from Hill v. Colorado, 530 U.S. 703, 707

(2000). Hill was a “sidewalk counselor” case and this

Court noted that “it is unlikely that there would often

be any need to know exactly what words were spoken

in order to determine whether ‘sidewalk counselors'

are engaging in ‘oral protest, education, or

counseling”’ in violation of the statute “rather than

pure social or random conversation.” Id. at 721. Yet

“‘[c]ursory examination”’ of content “to exclude casual

conversation from the coverage of a regulation of

picketing would be problematic.” Id. at 722. Cases

relying on Hill to implement a cursory examination

test include Covenant Media of S.C., LLC v. City of N.

Charleston, 493 F.3d 421, 434 (4th Cir. 2007) (“To the

extent that the Sign Regulation required looking

generally at what type of message a sign carries to

determine where it can be located, this ‘kind of cursory

7

examination’ did not make the regulation content

based.”), and La Tour v. City of Fayetteville, 442 F.3d

1094, 1096 (8th Cir. 2004) (“It takes some analysis to

determine if a sign is ‘political,’ but one can tell at a

glance whether a sign is displaying the time or

temperature.”).

Yet even in the context of sidewalk counselors,

this Court has backed away from its comments in Hill,

rendering this line of cases suspect. In McCullen v.

Coakley, 573 U.S. 464, 479 (2014), the Court held that

a law establishing a buffer zone around an abortion

clinic—though unconstitutional—was not contentbased. Id. at 480. The Massachusetts statute at issue

made it a crime to “knowingly stand on a ‘public way

or sidewalk’ within 35 feet of an entrance or driveway”

of abortion clinics. Id. at 469. Clinic employees and

visitors were exempt. The statute did not require

enforcement authorities to examine the content of the

message conveyed by individuals to determine

whether the individual violated the law. Id. at 479. An

individual would violate the law not based on what

they said within the 35 feet, but solely based on their

standing within the 35 feet. Id. at 480. (“[P]etitioners

can violate the Act merely by standing in a buffer

zone, without displaying a sign or uttering a word.”).

Accordingly, the law was content-neutral. The act

would be content-based if enforcement authorities

had to examine the content of a speaker’s message to

determine whether they violated the law. Id. See also

Bruni v. City of Pittsburgh, Pa., 141 S. Ct. 578 (2021)

(Thomas, J., respecting denial of certiorari) (noting

that Hill is “incompatible” with McCullen and Reed).

Hill also contrasts with Forsyth Cty. v. Nationalist

Movement, 505 U.S. 123, 134 (1992), involving a

regulation requiring parade organizers to pay a

8

variable fee depending on the costs of security

anticipated by the event. Because the county officials

had to assess the communicative nature of the parade

to determine the amount of the fee, the regulation was

content-based. Id. 4

As the court below correctly held, a “cursory

examination” factor cannot be a legitimate factor in

deciding whether a regulation is content-based and

therefore subject to strict scrutiny. App. 16a (“It takes

no more than a cursory reading to figure out if a sign

supports Candidate A or Candidate B. But a law

allowing advertising for Candidate A and not

Candidate B would surely be content based.”). In City

of Cincinnati v. Discovery Network, Inc., 507 U.S. 410,

429 (1993), the Court struck down an ordinance as

content-based where it discriminated between

newsracks containing commercial materials and

newsracks containing newspapers, a situation that

required enforcement officers to look—briefly—at the

substance of the material in the rack to determine if

the ordinance applied. The level of scrutiny to be

applied to a speech restriction surely cannot turn on

whether the regulators take five seconds to read the

speech or five minutes. See Denver Area Educ.

Telecomms. Consortium, Inc. v. F.C.C., 518 U.S. 727,

810 (1996) (Kennedy and Ginsburg, JJ., concurring in

4 See also Ark. Writers’ Project, Inc. v. Ragland, 481 U.S. 221, 230

(1987) (enforcement authorities must read content of message to

decide whether magazine should be taxed); F.C.C. v. League of

Women Voters of California, 468 U.S. 364, 383 (1984) (statute

forbade any noncommercial educational broadcasting station

that receives a grant from the Corporation for Public

Broadcasting to “engage in editorializing,” and “enforcement

authorities must necessarily examine the content of the

message” to decide if violation has occurred).

9

part, concurring in the judgment in part, and

dissenting in part) (a “glance” that gives “the

government the benefit of the doubt when it restricts

speech, is an unusual approach to the First

Amendment, to put it mildly.”). When it comes to

speech, especially via symbolism and imagery, a few

seconds can convey complex thoughts and emotions.

See W. Va. Bd. of Educ. v. Barnette, 319 U.S. 624, 632–

33 (1943) (“Symbolism is a primitive but effective way

of communicating ideas. The use of an emblem or flag

to symbolize some system, idea, institution, or

personality, is a short cut from mind to mind.”).

Because they are most frequently viewed by drivers

en route to other destinations, billboards are designed

to be viewed and understood in just a few seconds.

That is, billboard content is intended to be fully

communicated and understood with a cursory

examination.

The on-premises versus off-premises distinction

also sweeps in a considerable amount of speech that

lacks any locational component at all. A billboard that

says “Thank You Essential Workers” 5 or “Black Lives

Matter” 6 or that honors veterans 7 does not point to the

physical land on which it is placed or to any other plot

5 Watchfire, Use Your Digital Billboard to Thank Workers on the

Frontline of Covid-19, https://www.watchfiresigns.com/digitalbillboards/use-your-digital-billboard-to-thank-workers-onfrontline-covid-19 (last visited Sept. 3, 2021).

6 Phil Wright, Black Lives Matter billboard coming to La Grande,

The Observer (Aug. 7, 2020), https://www.lagrandeobserver.com/

news/local/black-lives-matter-billboard-coming-to-lagrande/article_dce55398-d850-11ea-8d20-b3cea33a1dac.html.

7 Eduardo Huijon, Jr., Local group honoring veterans with

billboards, CBS (July 1, 2021), https://www.cbs7.com/

2021/07/01/local-group-honoring-veterans-with-billboards/.

10

of land. Because these signs make no reference to the

land on which they sit, they are “off-premises” by

definition and thereby subject to greater regulation

than on-premises signs.

Austin limits billboard digitization to limit the

number of “non-conforming” signs in the city; offpremises messages cannot be digitized; on-premises

messages can. App. 3a. If Joe digitizes a billboard on

his own property that says “Eat at Joe’s Place,” Austin

has no problem with that. But the City outlawed Joe’s

ability to digitize the same billboard if it says

“Neighbors helping neighbors: Eat at Mary’s Place.”

This is equivalent to the content-based law in Barr v.

Am. Ass’n of Political Consultants that permitted

robocalls saying “Please pay your government debt”

but forbade robocalls saying “Please donate to our

political campaign.” 140 S. Ct. 2335, 2346 (2020)

(“That is about as content-based as it gets.”).

The content-based nature of the premises

distinction is also demonstrated when the regulation

is not one of location or size or animation, but rather

of taxation. See Clear Channel Outdoor, Inc. v.

Director, Dep’t of Finance of Baltimore City, 472 Md.

444 (2021), petition for writ of certiorari pending

docket no. 21-219 (filed Aug. 12, 2021) (asking

whether a tax singling out off-premises billboards is

subject to heightened scrutiny under the First

Amendment.). In Clear Channel, the Maryland Court

of Appeals upheld a tax on “outdoor advertising

displays” (billboards) that exempted on-premises

messages. Baltimore City Code art. 28, § 29-1-2

(2020). Lacking even the usual interests that underlie

zoning and sign codes, the tax targeting off-premises

11

speech highlights the content-based nature of the

distinction. 8

The inability to regulate based on an on-premises

versus off-premises message does not mean that

municipalities are entirely foreclosed from regulating

billboards. There are many content-neutral ways to

regulate billboards, including the digital billboards

that are at the heart of the dispute in this case. For

example, cities may limit nighttime luminance;

lengthen the time that each message appears so that

motorists are unlikely to see changing messages on a

single sign; prohibit message sequencing and

animated displays; allow billboards only on

straightaways or other areas where driver

concentration is not as high as freeway on- and offramps, interchanges, or sharp curves; and establish

legibility and readability standards based on drivers’

sight distance and prevailing speed. Daniel R.

Mandelker, Billboards, Signs, Free Speech, and the

First Amendment, 55 Real Prop. Tr. & Est. L.J. 367,

408 n.199 (2020). These types of content-neutral

regulations provide a means for state and federal laws

to limit signs in areas where such driver distractions

are determined to adversely affect the public.

Many municipalities have already demonstrated

the ability to amend their sign ordinances to comply

with Reed. See Karen Zagrodny Consalo, With the Best

of Intentions: First Amendment Pitfalls for

Government Regulation of Signage and Noise, 46

Stetson L. Rev. 533, 544–45 (2017) (citing Atlanta,

Ga., Mun. Land Dev. Code § 16-28A). For example,

rather than limiting the type of speech advanced by

Amicus Pacific Legal Foundation urges this Court to grant

certiorari in the Clear Channel case.

8

12

signs, Atlanta’s amended sign code regulates the size,

lighting, materials, proliferation, and aspects of

signage based primarily upon the size and shape of

the sign. Id. See also The Lamar Co., LLC v.

Lexington-Fayette Urban County Government, No.

5:21-043-DCR, 2021 WL 2697127 (E.D. Ky. June 30,

2021) (noting that Lexington sought to “align the sign

regulations with the spirit of Reed and conducted a

line-by-line review of the Old Sign Regulations”)

(cleaned up). Government officials may not want to

engage in review and revision of their sign

regulations, but administrative convenience does not

outweigh constitutional rights. See Americans for

Prosperity Found. v. Bonta, 141 S. Ct. 2373, 2387

(2021) (describing the “weakness” of a state’s interest

in administrative convenience compared to a burden

on First Amendment rights).

Because a sign code’s distinction between onpremises and off-premises messages is content-based,

it must be analyzed under strict scrutiny. With many

content-neutral alternatives available to Austin, the

challenged sign code fails strict scrutiny and must be

held to violate the First Amendment.

II

REED’S LOGIC APPLIES

TO COMMERCIAL SPEECH

It was only happenstance that the temporary

directional sign in Reed pointed to a church service

rather than a commercial enterprise such as a

farmer’s market. Because the church sign did not

implicate commercial speech, the Court did not opine

on it. The resulting combination of Reed’s requirement

of strict scrutiny for content-based speech restrictions

13

and Central Hudson’s flexible multi-factor test under

an intermediate level of scrutiny, 9 creates a fractured

First Amendment doctrine that lacks a principled

foundation.

In Reed, this Court warned of “the danger of

censorship presented by a facially content-based

statute,” since government officials may “wield such

statutes to suppress disfavored speech.” 576 U.S. at

167. See also Am. Ass’n of Political Consultants, 140

S. Ct. at 2346 (citing Reed for the flat statement that

“[c]ontent-based laws are subject to strict scrutiny”

without adding qualifiers as to the type of speech); id.

at 2364 (Gorsuch & Thomas, JJ., concurring) (“The

statute is content-based because it allows speech on a

subject the government favors (collecting its debts)

while banning speech on other disfavored subjects

(including political matters).”). 10 The Court explained

that even seemingly innocuous distinctions drawn by

the sign code could be used by “a Sign Code

compliance manager who disliked [a] Church’s

substantive teachings . . . to make it more difficult for

the Church to inform the public of the location of its

services.” Id. at 167–68. Precisely the same concerns

are present in the commercial context, as illustrated

here. Some content-based commercial speech

9 Central Hudson, 447 U.S. at 566; Fla. Bar v. Went For It, Inc.,

515 U.S. 618, 623 (1995) (“we engage in ‘intermediate’ scrutiny

of restrictions on commercial speech, analyzing them under the

framework set forth in” Central Hudson). For the reasons set

forth by Respondents, Austin’s sign code also fails intermediate

scrutiny. Respondents’ Brief at 42–45.

10 American Association demonstrates that Reed is firmly

established as a key First Amendment precedent, rejecting any

suggestion that it should be narrowed or overruled. 140 S. Ct. at

2347 n.5.

14

restrictions may be subject to strict scrutiny when the

government prevents the public from receiving certain

truthful information by “quieting truthful speech with

a particular viewpoint that it fears might persuade.”

See Sorrell, 564 U.S. at 563–64 (cleaned up); 44

Liquormart, Inc., 517 U.S. at 523. Here, Austin’s

ordinance distinguishes on its face between billboards

that operate in reference to the place where they are

physically located and billboards that operate in

reference to some other place, or to no physical

location at all (such as online businesses). Only

billboards with content related to the business at that

physical location can digitize in compliance with the

law; signs with content beyond the location cannot.

Further, where a regulation draws content-based

distinctions purely as a line-drawing mechanism,

Reed reached the reasonable conclusion that contentbased distinctions are the last place a municipality

should turn, not the first. 576 U.S. at 163. Reed’s

principle placing content-based discrimination as a

last resort is no less powerful when the speech at issue

is commercial. As the Sixth Circuit explained: “It

follows that the intermediate-scrutiny standard

applicable to commercial speech under Central

Hudson, . . . applies only to a speech regulation that is

content-neutral on its face. That is, a regulation of

commercial speech that is not content-neutral is still

subject to strict scrutiny under Reed.” Int’l Outdoor,

Inc. v. City of Troy, 974 F.3d 690, 703 (6th Cir. 2020).

The only principled way to protect speech is to

protect speech. See United States v. Alvarez, 567 U.S.

709, 750 (2012) (Alito, J., dissenting) (noting that the

Court has found it necessary to protect false

statements of fact in order to prevent chilling fully

15

protected speech). 11 There is no carve-out of the First

Amendment’s protection for professional speech

because “the dangers associated with content-based

regulations of speech are also present in the context of

professional speech” and professional speech is “a

difficult category to define with precision.” National

Inst. of Family and Life Advocates v. Becerra, 138 S.

Ct. 2361, 2371–72, 2374–75 (2018). So, too, do

restrictions on commercial speech present dangers of

favoritism and overall diminishment of information

and so, too, is the category difficult to define. 12

Although commercial speech has been treated

differently—and badly—in some of this Court’s

rulings, modern First Amendment doctrine should

place it on an equal footing with other protected

speech.

CONCLUSION

The decision below should be affirmed.

11 Cf. Parents Involved in Comm. Schools v. Seattle Sch. Dist. No.

1, 551 U.S. 701, 748 (2007) (“The way to stop discrimination on

the basis of race is to stop discriminating on the basis of race”).

12 Speech is often made with more than one motivation, making

such categorizations near impossible. See Cohen v. California,

403 U.S. 15, 26 (1971) (“[M]uch linguistic expression serves a

dual communicative function.”); Deborah J. La Fetra, Kick It Up

a Notch: First Amendment Protection for Commercial Speech, 54

Case W. Res. L. Rev. 1205, 1207 (2004) (“With greater frequency

and subtlety, new technologies and innovative marketing

strategies introduce corporate profit-motive into what otherwise

would be fully-protected speech. The current commercial speech

doctrine cannot predictably resolve disputes resulting from these

new modes of expression.”)

16

DATED: September 2021.

Respectfully submitted,

DEBORAH J. LA FETRA

Counsel of Record

Pacific Legal Foundation

555 Capitol Mall, Suite 1290

Sacramento, California 95814

Telephone: (916) 419-7111

DLaFetra@pacificlegal.org

Counsel for Amicus Curiae Pacific Legal Foundation