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

Supreme Court briefSep 29, 2021

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In the Supreme Court of the United States

CITY OF AUSTIN, TEXAS, PETITIONER

REAGAN NATIONAL ADVERTISING OF AUSTIN, LLC,

et al.,

On Writ of Certiorari

to the United States Court of Appeals

for the Fifth Circuit

BRIEF FOR THE INSTITUTE FOR JUSTICE AS

AMICUS CURIAE SUPPORTING RESPONDENTS

SAMUEL B. GEDGE

Counsel of Record

ROBERT MCNAMARA

PAUL M. SHERMAN

INSTITUTE FOR JUSTICE

901 North Glebe Road,

Suite 900

Arlington, VA 22203

(703) 682-9320

sgedge@ij.org

(i)

TABLE OF CONTENTS

Page

Interest of amicus curiae................................................... 1

Summary of argument ...................................................... 1

Argument ............................................................................ 3

I. Real-world examples highlight that Austin’s

off-premises ordinance is content-based ............. 3

A. Austin’s off-premises ordinance draws

peculiarly content-based lines ........................ 3

B. Austin’s arguments do not rehabilitate its

law ...................................................................... 9

II. Austin’s view of facial relief lacks merit ............ 13

Conclusion ......................................................................... 16

TABLE OF AUTHORITIES

Page

Cases:

Cahaly v. Larosa, 796 F.3d 399 (4th Cir. 2015) .......... 12

Cent. Radio Co. v. City of Norfolk,

811 F.3d 625 (4th Cir. 2016) ......................................... 1

Ibanez v. Fla. Dep’t of Bus. & Pro. Regul.,

Bd. of Acct., 512 U.S. 136 (1994) ............................... 14

Minn. Voters All. v. Mansky,

138 S. Ct. 1876 (2018) ................................................... 9

Neighborhood Enters. v. City of St. Louis,

644 F.3d 728 (8th Cir. 2011) ......................................... 1

Reed v. Town of Gilbert, 576 U.S. 155 (2015) ........ 2, 3, 8

Sec’y of State of Md. v. Joseph H. Munson Co.,

467 U.S. 947 (1984) ..................................................... 14

United States v. Alvarez, 567 U.S. 709 (2012) ............ 15

United States v. Playboy Ent. Grp.,

529 U.S. 803 (2000) ..................................................... 12

Wag More Dogs, LLC v. Cozart,

680 F.3d 359 (4th Cir. 2012) ....................... 1, 10, 11, 12

Statutory provisions:

18 U.S.C. § 704(b) (2006) ................................................ 14

Other authorities:

Anchor Point Bible Church, New billboard for our

community (Mar. 27, 2019),

https://tinyurl.com/2t998td2 ........................................ 4

Billboard stirs controversy in St. Augustine, Fox 35

Orlando (Apr. 12, 2016),

https://tinyurl.com/w243b3n8 ...................................... 6

Lisa Backus, Legal weed billboard creating a buzz

on I-91, Conn. Post (Jan. 22, 2019),

https://tinyurl.com/ywftfhps ........................................ 8

Jennifer Brinker, Billboard messages along St.

Louis highways promote pro-life theme,

St. Louis Rev. (Mar. 8, 2019),

https://tinyurl.com/kw95hwjk ..................................... 7

Owen Daugherty, Florida billboards call on US to

stop ‘locking up’ kids to mark World Children’s

Day, The Hill (Nov. 20, 2019),

https://tinyurl.com/45e78y7a ....................................... 6

Joseph Flaherty, Marijuana Foes Strike Back in

Phoenix’s Pot Billboard Battle,

Phoenix New Times (Dec. 13, 2017),

https://tinyurl.com/x8bp3ty4 ....................................... 8

Justin Todd Herod, This is so cool! Never have I

. . . , Facebook (June 11, 2021),

https://tinyurl.com/dfasp4bw ...................................... 4

Taylor Holland, When a cigar becomes a whale, a

sign becomes art, Washington Examiner

(Sept. 26, 2012), https://tinyurl.com/2a5tcawd ........ 12

Marc E. Isserles, Overcoming Overbreadth: Facial

Challenges and the Valid Rule Requirement,

48 Am. U. L. Rev. 359 (1998) ..................................... 14

Tom Jackman, Arlington’s Wag More Dogs Mural

comes down, Washington Post (Sept. 25, 2012),

https://tinyurl.com/35fhmh49 .................................... 10

Lexington billboard promotes atheism,

WAVE News (Sept. 18, 2012),

https://tinyurl.com/r2245h43 ....................................... 5

Joe Moylan, 2nd Amendment billboard wars

underway in Weld County, Greeley Tribune

(Apr. 24, 2019), https://tinyurl.com/4aa5ms9m.......... 6

Paradise Church, Congratulations church the

billboard is up . . . , Facebook (Aug. 25, 2020),

https://tinyurl.com/n4j2ptzf ......................................... 5

Mike Schell, ACLU’s ‘Abortion is legal in Ohio’

billboard takes aim at Lebanon, WXIX

(July 12, 2021), https://tinyurl.com/2jupkkkj............. 7

Wicomico Presbyterian Church, Breath of Life

(Apr. 30, 2019), https://tinyurl.com/95923zdy ............ 6

(1)

INTEREST OF AMICUS CURIAE

The Institute for Justice is a public-interest law firm

dedicated to defending the essential foundations of a free

society, including free speech and the free exchange of

ideas. As part of our First Amendment practice, we often

litigate whether challenged laws are content-based or

content-neutral. See, e.g., Cent. Radio Co. v. City of Norfolk, 811 F.3d 625 (4th Cir. 2016); Wag More Dogs, LLC

v. Cozart, 680 F.3d 359 (4th Cir. 2012); Neighborhood Enters. v. City of St. Louis, 644 F.3d 728 (8th Cir. 2011). We

also often address arguments about facial and as-applied

relief like those pressed by the City of Austin here. For

these reasons, the Institute for Justice has an interest in

the proper resolution of this case.1

SUMMARY OF ARGUMENT

First Amendment doctrine can be complex, but Austin’s off-premises law is unmissably content-based. The

ordinance applies to commercial speech and noncommercial speech alike. And the content-based distinctions are

stark. For example, a billboard advocating for or against

abortion rights would not be a disfavored “off-premises”

sign. See Pet. Br. 39 (noting that under Austin’s law, signs

expressing “beliefs or views . . . are often not off-premises

at all, because they do not advertise off-premises activities”). But for a billboard publicizing an abortion-rights

rally, the analysis would be different; unlike the ideological billboard, the rally billboard would “advertis[e] a[n]

. . . activity . . . not located on the site where the sign is

installed” and in turn trigger off-premises designation.

In accordance with Rule 37.6, no counsel for a party authored this

amicus brief in whole or in part and no person other than the Institute

for Justice, its members, or its counsel have made any monetary contributions intended to fund the preparation or submission of this

brief. All parties have consented to the filing of this brief.

J.A. 52. A billboard urging readers to support a prochoice candidate? That would be an off-premises sign

also; it “advertis[es] a . . . person” located elsewhere. See

J.A. 52. But one subjecting that same candidate to criticism? Possibly not, since attack ads typically are not understood as “advertising” the person attacked. See J.A.

52.

In short, Austin’s definition of off-premises signs is

“replete with content-based distinctions.” Reed v. Town

of Gilbert, 576 U.S. 155, 174 (2015) (Alito, J., concurring).

That makes it a straightforward candidate for strict scrutiny, and Austin’s arguments do not counsel otherwise. As

its top-line theory, Austin maintains (Br. 38) that its law

singles out off-premises signs based not on their content

but on “the lack of nexus between the sign and its location.” But that is descriptively wrong; it is true that Austin favors signs whose content has a “locational nexus” to

their host site, but it also favors ones with no nexus to any

site at all—for example, ones praising or criticizing a religion or policy or philosophy. Pet. Br. 19, 39. Even were

the ordinance as Austin describes it, moreover, a law that

seeks to align a sign’s content with its location presents

obvious opportunities for the government to intrude on

“the free exchange of ideas.” Pet. Br. 41. The experience

of one of amicus’s clients—a doggy-daycare owner forced

to replace a mural of cartoon dogs with one of birds—illustrates that danger vividly.

Austin’s broader theory of facial relief—which parses

commercial speech versus noncommercial—is likewise

without merit, not least because Austin acknowledges

that nothing in its off-premises law depends on whether a

billboard’s message is commercial or noncommercial.

ARGUMENT

I. Real-world examples highlight that Austin’s offpremises ordinance is content-based.

As respondent’s brief ably demonstrates, Austin’s offpremises ordinance is content-based because it “draws

distinctions based on the message” conveyed. Reed v.

Town of Gilbert, 576 U.S. 155, 163 (2015). Much like the

Town of Gilbert’s sign code in Reed, Austin’s law creates

a baroque hierarchy of speech under which, for example,

a billboard criticizing religion gets more favorable treatment than one publicizing a nearby place of worship. Austin’s arguments to the contrary misportray its law, and its

focus on “locational nexus” reduces to content discrimination by another name.

A. Austin’s off-premises ordinance draws

peculiarly content-based lines.

Austin’s off-premises ordinance applies to commercial

speech and noncommercial speech alike (Pet. Br. 8-9), and

it singles out so-called off-premises signs for special restrictions based on the message conveyed. Signs that “advertis[e] a business, person, activity, goods, products, or

services not located on the site where the sign is installed”

are off-premises signs. J.A. 52. So, too, are signs that “direct[] persons to any location not on that site.” J.A. 52. On

the other hand, signs advertising “businesses, persons,

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

not off-premises signs and enjoy lighter restrictions. U.S.

Br. 5. And unusually, signs “that do not refer to any premises at all” enjoy favored status as well—for example,

ones with purely ideological messages. Pet. Br. 10, 39; see

generally Cert. Reply Br. 12 (“[T]he City’s interpretation

is the one that counts.”).

In this way, Austin’s law reflects a hierarchy of content that is if anything more convoluted than that in Reed.

A billboard identifying a place of worship, for instance,

would likely qualify as a disfavored off-premises sign, either because it “advertis[es] a[n] . . . activity . . . not located on the site where the sign is installed” or because it

“direct[s] persons to any location not on that site.”

Figure A2

Figure B3

Anchor Point Bible Church, New billboard for our community

(Mar. 27, 2019), https://tinyurl.com/2t998td2.

Justin Todd Herod, This is so cool! Never have I . . . , Facebook

(June 11, 2021), https://tinyurl.com/dfasp4bw.

Figure C4

By contrast, billboards simply criticizing, questioning,

or commenting on religion likely would not be considered

off-premises signs. Unlike a billboard advertising a

church or a mosque, such issue-oriented billboards often

“do not refer to any premises at all,” meaning they are not

subject to the special restrictions reserved for off-premises signs. See Pet. Br. 10.

Figure D5

Paradise Church, Congratulations church the billboard is up . . . ,

Facebook (Aug. 25, 2020), https://tinyurl.com/n4j2ptzf.

Lexington billboard promotes atheism, WAVE News (Sept. 18,

2012), https://tinyurl.com/r2245h43.

Figure E6

Figure F7

Nor are Austin’s content-based lines unique to religious speech. A billboard advocating for or against gun

control8 or immigration9 in the abstract probably would

not be regulated as an off-premises sign. In the federal

Wicomico Presbyterian Church, Breath of Life (Apr. 30, 2019),

https://tinyurl.com/95923zdy.

Billboard stirs controversy in St. Augustine, Fox 35 Orlando (Apr.

12, 2016), https://tinyurl.com/w243b3n8.

Joe Moylan, 2nd Amendment billboard wars underway in Weld

County, Greeley Tribune (Apr. 24, 2019),

https://tinyurl.com/4aa5ms9m.

Owen Daugherty, Florida billboards call on US to stop ‘locking

up’ kids to mark World Children’s Day, The Hill (Nov. 20, 2019),

https://tinyurl.com/45e78y7a.

government’s words, it would “not advertise businesses,

persons, products, services, or activities at all.” U.S. Br. 5

(characterizing Austin’s code). But adjust the content and

the regulatory treatment changes with it. Say that instead of advocating gun control in general, a billboard

were to instead tout a specific pro-gun-control candidate.

In Austin, that change in content would change the regulatory classification. Now, the sign would “advertis[e]

a . . . person . . . not located on the site where the sign is

installed,” thus triggering restriction as an off-premises

sign. J.A. 52; see also C.A. Oral Arg. 26:51-27:39. Adjust

the content a third time and the analysis changes yet

again: while a billboard praising the candidate fits neatly

within Austin’s definition of off-premises sign, one condemning her does not. Few English speakers, after all,

would say that an attack ad “advertis[es]” the person attacked.

In fact, Austin’s law raises endless questions that can

be resolved only by scrutinizing content at a granular

level. Consider a billboard declaring, “Choose Life No

Matter What.”10 That is likely not an off-premises sign; to

borrow again from the federal government’s formulation,

it does “not advertise businesses, persons, products, services, or activities at all.” U.S. Br. 5. But the analysis

might well be different for a billboard declaring that

“Abortion Is Legal in All of Texas,”11 which publicizes “a

Jennifer Brinker, Billboard messages along St. Louis highways

promote pro-life theme, St. Louis Rev. (Mar. 8, 2019),

https://tinyurl.com/kw95hwjk.

Cf. Mike Schell, ACLU’s ‘Abortion is legal in Ohio’ billboard

takes aim at Lebanon, WXIX (July 12, 2021),

https://tinyurl.com/2jupkkkj.

service[] not located on the site where the sign is installed.” The examples go on. A billboard advocating for

or against the legalization of marijuana?12 Probably not

an off-premises sign. One declaring that marijuana is legal in a neighboring State?13 Probably off-premises, advertising as it does a product located not just on a different tract of land, but in another jurisdiction altogether.

Simply, Austin’s sign code suffers the precise defects

that drove the Court’s analysis in Reed. As in Reed, a

“[c]hurch’s signs inviting people to attend its worship services” in Austin “are treated differently from signs conveying other types of ideas”—ones quoting religious

texts, for example, or praising a creed or condemning it.

576 U.S. at 164; see also pp. 5-6, supra. Reed’s hypothetical philosophy signs would receive haphazardly different

treatment in Austin too. A billboard “inform[ing] its

reader of the time and place a book club will discuss John

Locke’s Two Treatises of Government” would be a disfavored off-premises sign. 576 U.S. at 164. One “expressing

the view that one should vote for one of Locke’s followers

in an upcoming election” would be an off-premises sign as

well. Id. One highlighting that same candidate’s weaknesses, however, might not be. See p. 7, supra. And as for

one “expressing an ideological view rooted in Locke’s theory of government”? Surely not. 576 U.S. at 164; see also

Pet. Br. 39.

Joseph Flaherty, Marijuana Foes Strike Back in Phoenix’s Pot

Billboard Battle, Phoenix New Times (Dec. 13, 2017),

https://tinyurl.com/x8bp3ty4.

Lisa Backus, Legal weed billboard creating a buzz on I-91, Conn.

Post (Jan. 22, 2019), https://tinyurl.com/ywftfhps.

If anything, Austin’s ordinance magnifies the faults

identified in Reed. For all their shortcomings, the content-based distinctions in the Town of Gilbert were relatively clear. Not so in Austin, which, as detailed above,

distinguishes between (1) signs publicizing people, activities, and things located on other premises, and (2) signs

that “do not refer to any premises at all.” Pet. Br. 10. That

jigsaw distinction—notably absent from the federal Highway Beautification Act (see U.S. Br. 4)—is intractably

content-based, “introduces confusing line-drawing problems,” and merits the most searching judicial review.

Minn. Voters All. v. Mansky, 138 S. Ct. 1876, 1889 (2018).

B. Austin’s arguments do not rehabilitate its law.

Austin offers no legal standard under which its law

would be content-neutral while the Town of Gilbert’s

would remain content-based.

1. Austin contends, foremost, that its “off-premises

rule regulates all subjects and viewpoints equally” and

simply “[r]egulat[es] signs differently based on a locational nexus.” Br. 38, 41. But that account of the law is

descriptively inaccurate. Under Austin’s off-premises ordinance, countless billboards may bear messages with no

nexus to their location and still avoid being classified as

off-premises signs. Ones expressing “beliefs or views,”

for instance, “are often not off-premises” signs “because

they do not advertise off-premises activities.” See Pet. Br.

39. Meanwhile, a neighboring billboard that urges passers-by to vote for a candidate with those same views or

beliefs—or to attend a rally espousing those views or beliefs—would be regulated differently. Whatever might be

said of ordinances in other cities (or, for that matter, of

the Highway Beautification Act), Austin’s off-premises

ordinance does not simply “operate[] based on the relationship between the sign and its location.” Pet. Br. 12.

Even accepting Austin’s framing, moreover, a rule requiring a nexus between content and location is self-evidently content-based. And the resulting potential for censorship is real. Take dog-lover Kim Houghton (one of our

former clients), who faced the converse of Austin’s offpremises law in Arlington, Virginia. In 2010, she opened

Wag More Dogs, a doggy daycare in the Shirlington

neighborhood. In preparation for the grand opening, she

painted one side of the building—abutting a dog park—

with a whimsical mural of dogs, bones, and paw prints:

Figure G14

For that, Arlington threatened to shut her down. In the

county’s view, the mural’s canine theme “identif[ied] the

products or services available on the premises or advertis[ed] a use conducted thereon,” meaning the painting

was not a work of art but an illegal “business sign.” Wag

More Dogs, LLC v. Cozart, 680 F.3d 359, 362 (4th Cir.

2012) (quoting sign ordinance). Put differently, the mural

Tom Jackman, Arlington’s Wag More Dogs Mural comes down,

Washington Post (Sept. 25, 2012), https://tinyurl.com/35fhmh49.

displayed too great a locational nexus with its host structure. The ordinance’s scope, one official stressed, was unmistakably content-based:

For the mural to NOT be considered a sign, it may

depict anything you like EXCEPT something to do

with dogs, bones, paw prints, pets, people walking

their dogs, etc. In other word[s] . . . , the mural can

not . . . show anything that has any relationship

with your business. If it does, then it becomes a

sign.

Id. at 363.

With little choice, Kim Houghton acceded to Arlington’s demands. At first, she masked her mural with tarps.

Id. at 364 (“[Arlington] subsequently issued Wag More

Dogs a final certificate of occupancy . . . under the condition that the tarps remain in place over the painting.”).

And when the Fourth Circuit ultimately exercised “pragmatic judgment” and upheld the ordinance as contentneutral, id. at 365, she whitewashed the dogs and substituted a species with no nexus to her store: birds.

Figure H

Pre-Reed, Kim Houghton’s experience was far from

unique. Elsewhere in Arlington, a tobacconist substituted

a mural of a man smoking a blue whale in place of a cigar.

“It doesn’t make a lot of sense,” the store manager said,

“but the county made us do it.” Taylor Holland, When a

cigar becomes a whale, a sign becomes art, Washington

Examiner (Sept. 26, 2012), https://tinyurl.com/2a5tcawd.

These examples spotlight both the virtue of Reed’s

bright-line standard and the shortcomings of Austin’s alternative. Contrary to Austin’s view (Br. 41), “[r]egulating signs differently based on a locational nexus” can absolutely “hinder the free exchange of ideas.” In its Wag

More Dogs opinion, in fact, the Fourth Circuit deployed

reasoning much like Austin’s here. The government’s benign “objectives,” the court remarked, “mitigate any concern” with its “cursory examination” of a speaker’s message or with its “looking generally at what type of message a sign carries to determine where it can be located.”

680 F.3d at 368-69 (citations omitted); see also Cahaly v.

Larosa, 796 F.3d 399, 405 (4th Cir. 2015) (abrogating Wag

More Dogs’s reasoning in light of Reed).

2. Austin also suggests (Br. 14, 47) that strict scrutiny

is unwarranted because its law does not ban off-premises

signs outright but merely prevents their being digitized.

But because “[t]he distinction between laws burdening

and laws banning speech is but a matter of degree,” a

“content-based burden[] must satisfy the same rigorous

scrutiny as . . . content-based bans.” United States v.

Playboy Ent. Grp., 529 U.S. 803, 812 (2000). Austin

acknowledges that its digitization rule amounts to a “restriction” on speech (Br. 45), and because that restriction

is content-based, it calls for strict scrutiny.

3. Austin contends (Br. 12) that the court of appeals’

“read-the-sign approach” is “unworkable.” Yet Austin,

for its part, presents no workable alternative. It maintains that its ordinance is content-neutral because “it operates based on the relationship between the sign and its

location.” Br. 12. But besides portraying the ordinance inaccurately (see pp. 9-10, supra), that characterization is

just an elegant way of avoiding the word content. The offpremises ordinance does not regulate the relationship between sign—as a physical object—and location; it regulates the relationship between the sign’s content and its

location, and in so doing, it cements an arbitrary pecking

order of messages. Whatever Austin’s motives, a law that

applies in this way merits strict scrutiny. And whatever

its criticisms of the court of appeals’ “rigid and formulaic

approach” (Br. 32), Austin presents no alternative that

would excuse its law as content-neutral while holding the

Town of Gilbert’s content-based.

II. Austin’s view of facial relief lacks merit.

Separately, Austin suggests that the ordinance’s

breadth should be its saving grace. As the parties agree,

Austin’s off-premises ordinance applies to commercial

and noncommercial speech alike; while it is attuned

keenly to a sign’s content, it is indifferent to whether that

content is commercial advertising. See, e.g., Pet. App. 23a.

That indiscriminate scope, Austin contends, should insulate the law from facial invalidation. Whatever might be

said of the law’s application to noncommercial speech (so

the argument goes), the law is constitutional as to speech

that counts as commercial. Because those applications to

commercial speech are inoffensive, Austin continues (Br.

50-52), the law cannot be facially invalid.

Austin is wrong. To start (and as respondent’s brief

elaborates (at 42-45, 47)), it is far from clear that the offpremises ordinance would be constitutional even if written to cover commercial speech alone. More fundamentally, Austin’s invitation for the courts to slice, dice, and

salvage its law misperceives the judiciary’s role. Respondent’s facial challenge is “predicated on a constitutional infirmity in the terms of the statute itself.” Marc E.

Isserles, Overcoming Overbreadth: Facial Challenges

and the Valid Rule Requirement, 48 Am. U. L. Rev. 359,

391 (1998). By its terms and as authoritatively construed,

Austin’s off-premises ordinance imposes special burdens

on certain signs based on their content. In doing so, it is

blind to whether a particular sign conveys speech that is

commercial or noncommercial. Pet. Br. 51. So whether a

class of commercial speech could validly be restricted under a differently written law is beside the point. No matter how flawed, most facially invalid statutes will at times

blunder into speech or conduct that would not be privileged under a differently formulated rule of law. But if in

doing so a statute “operates on a fundamentally mistaken

premise,” the prospect that it may hit upon a stoppedclock right answer “is little more than fortuitous” and

does not immunize it from facial challenge. Sec’y of State

of Md. v. Joseph H. Munson Co., 467 U.S. 947, 966 (1984).

The federal Stolen Valor Act illustrates the point.

Much like Austin’s off-premises ordinance, the Stolen

Valor Act defined a set of regulated speech without regard to its commercial or noncommercial characteristics.

18 U.S.C. § 704(b) (2006). Of that speech, a subset—falsehoods in commercial advertisements—plainly would not

be protected under the First Amendment. Ibanez v. Fla.

Dep’t of Bus. & Pro. Regul., Bd. of Acct., 512 U.S. 136,

142 (1994). In Alvarez, however, the Court’s plurality did

not hold the Act facially valid on the strength of those potential applications to misleading commercial speech. Rather, the plurality applied strict scrutiny to the rule of law

Congress chose to enact—one blind to any line between

commercial and noncommercial speech and by its terms

reaching “false statement[s] made at any time, in any

place, to any person.” United States v. Alvarez, 567 U.S.

709, 722 (2012); see also U.S. Br. at i, Alvarez, 567 U.S.

709 (No. 11-210) (“The question presented is whether 18

U.S.C. 704(b) is facially invalid under the Free Speech

Clause of the First Amendment.”).

The same principles apply here. The City of Austin

might well be able to enact a valid law singling out offpremises commercial speech for a digitization ban. Then

again, it might not. See Resp. Br. 42-45, 47. Either way,

the ordinance it passed is not so limited. Pet. App. 23a; see

also Cert. Reply Br. 11 (insisting, despite all textual cues

to the contrary, that the city’s 2017 amendment “clearly

encompass[es] commercial and noncommercial speech”).

The Court’s inquiry, in turn, is bounded by the ordinance

as it is written. In that ordinance, nothing looks to

whether a billboard’s message is commercial or noncommercial. The law instead embodies a blanket rule applicable to all signs and regulating all messages based on an

intricate set of content-based distinctions. Because Austin has not justified those distinctions under the appropriate level of scrutiny (or even tried), the court of appeals

was correct to hold the law invalid.

CONCLUSION

The judgment of the court of appeals should be affirmed.

Respectfully submitted.