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, LLC, ET AL.

__________

On Writ of Certiorari to the United States Court of

Appeals for the Fifth Circuit

__________

BRIEF OF PROTECT THE FIRST

FOUNDATION AS AMICUS CURIAE

SUPPORTING RESPONDENTS

__________

GENE C. SCHAERR

Counsel of Record

ERIK S. JAFFE

H. CHRISTOPHER BARTOLOMUCCI

HANNAH C. SMITH

KATHRYN E. TARBERT

JOSHUA J. PRINCE

ANNIKA M. BOONE*

SCHAERR|JAFFE LLP

1717 K Street, NW, Suite 900

Washington, DC 20006

(202) 787-1060

gschaerr@schaerr-jaffe.com

September 29, 2021

Counsel for Amicus Curiae

QUESTION PRESENTED

Is the city code’s distinction between on- and offpremise signs a facially unconstitutional contentbased regulation under Reed?

ii

TABLE OF CONTENTS

INTRODUCTION AND INTEREST OF AMICUS .... 1

STATEMENT .............................................................. 3

SUMMARY OF ARGUMENT ..................................... 4

ARGUMENT ................................................................ 5

I.

The Challenged Law Is Not Content-Neutral

Just Because it Discriminates Differently

Depending on a Sign’s Location............................ 5

II. Austin’s Content-Based Regulation Should Be

Subject to Strict or, at the Very Least, Exacting

Scrutiny, Neither of Which Austin Can Satisfy. 11

A. Content-Based Speech Restrictions Should Be

Subjected to Strict or, at Least, Exacting

Scrutiny. .......................................................... 12

B. Underinclusivity Demonstrates the

Disingenuousness of Austin’s Claimed

Interest. ........................................................... 13

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

iii

TABLE OF AUTHORITIES

Page(s)

Cases

Americans for Prosperity Foundation v. Bonta,

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

Carey v. Brown,

447 U.S. 455 (1980) .................................................. 8

City of Cincinnati v. Discover Network, Inc.,

507 U.S. 410 (1993) ................................................ 13

Iancu v. Brunetti,

139 S. Ct. 2294 (2019) .............................................. 9

Janus v. AFSCME, Council 31,

138 S. Ct. 2448 (2018) ............................................ 12

Loving v. Virginia,

388 U.S. 1 (1967) .............................................. 2, 5, 8

Matal v. Tam,

137 S. Ct. 1744 (2017) .......................................... 8, 9

McCullen v. Coakley,

573 U.S. 464 (2014) ................................................ 10

McCutcheon v. Fed. Election Comm'n,

572 U.S. 185 (2014). ......................................... 11, 12

Metromedia, Inc. v. City of San Diego,

450 U.S. 490 (1981) ................................................ 13

Police Dept. of Chicago v. Mosley,

408 U.S. 92 (1972) ............................................ 6, 7, 9

Reed v. Town of Gilbert,

576 U.S. 155 (2015). ....................................... passim

iv

Rosenberger v. Rector & Visitors of Univ. of Va.,

515 U.S. 819 (1995) .................................................. 9

Thomas v. Bright,

937 F.3d 721 (6th Cir. 2019) .................................. 13

Ward v. Rock Against Racism,

491 U.S. 781 (1989) ............................................ 6, 10

Other Authorities

Timothy Zick,

The Dynamic Relationship Between Freedom of

Speech and Equality, 12 Duke J. Const. L. & Pub.

Pol’y 13 (2017) .......................................................... 8

INTRODUCTION AND INTEREST OF AMICUS 1

Austin’s sign code prohibits signs from displaying

messages that “advertise[] a business, person, activity, goods, products, or services not located where the

sign was installed,” or that “directs persons to any location not on that site.” Reagan Br. 7. It categorizes

such signs as being “off-premise.” Even grandfathered

signs with off-premise content are subject to a variety

of restrictions, including loss of grandfathered status

if they are changed or improved in various ways. JA

95. Determination of whether a sign falls within these

restrictions turns directly on the content of that sign

and the relation of that content to the premises where

the sign is located.

Regulations that turn on the content of speech are

particularly troubling and prone to abuse, even where

they are not overtly based on the viewpoint of the restricted speech. Often, a content restriction is merely

a proxy for viewpoint discrimination. Other times it

involves discrimination against topics, types of speech,

or speakers. All such forms of government discrimination offend the First Amendment. Accordingly, this

Court correctly subjects content-based regulations to

strict scrutiny. Reed v. Town of Gilbert, 576 U.S. 155,

163-164 (2015).

1 All parties have consented to the filing of this brief. No coun-

sel for a party authored any part of it, nor did any person or

entity, other than Amicus and its counsel, make a monetary contribution to fund its preparation or submission. Amicus is not

publicly traded and has no parent corporations. No publicly

traded corporation owns 10% or more of Amicus.

2

The restriction struck down in this case is without

doubt content based and is properly subject to strict or

exacting scrutiny. That the substance of the content

restriction depends upon the non-content fact of location, and varies with every location involved, does not

make it content neutral any more than the restrictions

on interracial marriage struck down in Loving were

race-neutral because they applied to persons of any

race and varied based on the race of their prospective

spouse. See Loving v. Virginia, 388 U.S. 1, 8 (1967).

Austin’s sign restriction variably regulates signs

based on whether their content relates to the premises

to which they are attached or to some other subject.

That such restriction allows varied content depending

on the premises involved is irrelevant to whether it

discriminates against all sorts of protected content, including advertisements involving social, political, or

economic activities of general public importance not

specifically related to the single premises on which the

sign is located.

Amicus Protect the First Foundation (“PT1”) is a

non-profit, nonpartisan organization that advocates

for protecting First Amendment rights in all applicable arenas and areas of law. PT1 is concerned about

all facets of the First Amendment and advocates on

behalf of people across the ideological spectrum, including people who may not even agree with the

organization’s views. This case involves issues of content discrimination and the proper standard of review

that are of particular interest to PT1 and its mission

to protect First Amendment rights and values.

3

STATEMENT

Respondent Reagan National Advertising owns

billboards that publish “off-premise” messages.

Reagan Br. 3. Austin allows Respondent’s signs to continue to display off-premise messages under the

exception for “grandfathered” signs that were legal

when erected. But even grandfathered signs are subject to limitations, and any changes to the signs that

would alter the “method or technology used to convey”

the signs’ messages, such as making a standard sign

digital, would eliminate their grandfathered status

and restrict the content of messages that may be published on the signs. JA 95. When Respondent applied

for permits to digitize its existing off-premise signs,

Austin rejected those applications. Reagan Br. 3.

4

SUMMARY OF ARGUMENT

I. Austin’s sign code is a content-based restriction

on speech. It distinguishes signs based on their messages: if a sign advertises a person or activity not

located on the premises, or directs consumers elsewhere, it is restricted. A sign advertising persons or

activities at, or directing consumers to, the sign’s location is not. The regulation does not lose its contentbased nature simply because it applies to all signs containing off-premise content. As shown by this Court’s

equal-protection cases, comprehensive and variable

application of discriminatory laws does not negate the

discrimination, it compounds it.

II. Because Austin’s sign code is content-based, it

should be subject to—and fail—strict scrutiny. But

even if the Court were to conclude that a lesser standard, such as exacting scrutiny, should apply, Austin’s

restriction would still fail because the city has identified no valid, specific, and genuine government

interest sufficient to survive heightened scrutiny. And

because Austin has offered no justification for why offpremise signs pose a greater threat to aesthetics and

traffic safety than on-premise signs, the regulation is

severely underinclusive, and thus not narrowly tailored to achieve any of Austin’s purported interests.

5

ARGUMENT

I. The Challenged Law Is Not Content-Neutral

Just Because it Discriminates Differently Depending on a Sign’s Location.

PT1 agrees with Respondent that Austin’s distinction between signs containing on-premise messages

and off-premise messages is content-based because

the distinction depends on the communicative content

of the signs. Reagan Br. 17-22. Amicus writes to emphasize that, even though Austin’s restriction applies

equally to all signs containing off-premise messages,

and the content restricted necessarily varies in small

ways location-by-location, it is still a content-based restriction. That is because its application—or lack

thereof—turns on the sign’s message, not its location

alone. As shown by this Court’s equal-protection cases,

comprehensive and variable application of discriminatory laws does not negate the discrimination, it

compounds it. Austin’s attempt to escape that conclusion is akin to Virginia’s attempt to escape the

conclusion that its anti-miscegenation law discriminated against blacks by pointing out that it applied to

all mixed-race couples. Loving, 388 U.S. at 8.

1. A long line of this Court’s free speech cases supports the conclusion that Austin’s restriction is

content-based. This is so because application of the ordinance depends on a sign’s message—a sign directing

consumers to one location (away from the sign’s current site) is subject to the restriction, whereas a sign

directing consumers to another (to the sign’s own location) is not. And all signs discussing persons,

activities, or other topics that are not location-specific

in their nature are restricted at all locations.

6

It is hornbook law that governments have “no

power to restrict expression because of its message, its

ideas, its subject matter, or its content.” Police Dept.

of Chicago v. Mosley, 408 U.S. 92, 95 (1972) (internal

citations omitted). While governments may restrict

“the time, place or manner of protected speech,” even

those restrictions must be “justified without reference

to the content of the regulated speech.” Ward v. Rock

Against Racism, 491 U.S. 781, 791 (1989) (cleaned up).

Speech-limiting laws that do reference speech’s content are “presumptively unconstitutional.” Reed v.

Town of Gilbert, 576 U.S. 155, 163 (2015). Amicus thus

agrees with Respondent’s thorough discussion of what

constitutes content-based regulation and its application of this Court’s jurisprudence to this case. Reagan

Br. 17-22.

2. Despite the numerous cases establishing that

regulations based on the communicative impact of

speech are content based, Austin suggests that it gets

a pass because it does not discriminate against specific

viewpoints and does not single out particular “subject

matter” for restriction. Austin Br. 20. Such assertions

are wrong in fact and wrong in their narrow view of

the First Amendment.

As a factual matter, Austin’s claim not to discriminate based on viewpoint ignores the range of

viewpoints involved in signage. Even commercial

signs can have a viewpoint: “The best chicken sandwich is at Pete’s Diner” is a viewpoint that is

prohibited on any sign not attached to that diner.

Likewise, a sign on the building across from or leasing

to Pete’s Diner saying “Wendy’s chicken sandwich

puts Pete’s to shame” plainly expresses a viewpoint

7

yet is prohibited unless Wendy’s happens to be in the

building with a sign. That the regulation prohibits all

non-self-referential (and thus presumably favorable)

viewpoints does not mean it is viewpoint neutral; it

means that the discrimination is extensive and oppressive. A law that provides special treatment to a

narrow category of content or viewpoints (i.e., self-referential and self-promoting content and viewpoints),

but discriminates broadly against all other content

and viewpoints, is not saved by its breadth of discrimination; it is all the more condemned thereby.

Similarly, the regulation in this case discriminates

against broad categories of content involving subjects

that do not lend themselves to a premise-specific communication. Generally applicable statements such as

“Vote,” “Get Vaxxed,” or “Jesus Saves” are not specific

to a particular premise but involve persons or activities that occur throughout any geographic area.

Limiting exhortations to vote, vaccinate, or even pray

only to signs on polling places, doctor’s offices, or

churches, and directed towards those locations alone,

is as surely restrictive discrimination against the

more general content as any example in this Court’s

cases. Once again, the fact that such content is barred

from all but a few limited locations does not negate the

content-based nature of the restriction, it merely increases its severity.

That the challenged regulation is both content and

viewpoint discriminatory is confirmed by examining

what constitutes discrimination in the Equal Protection context. Mosley, 408 U.S. at 95 (“Because Chicago

treats some picketing differently from others, we analyze this ordinance in terms of the Equal Protection

8

Clause.”); Timothy Zick, The Dynamic Relationship

Between Freedom of Speech and Equality, 12 Duke J.

Const. L. & Pub. Pol’y 13, 45–48 (2017) (noting claims

under the First Amendment and Equal Protection

Clause are on “separate but related tracks—with official discrimination acting as the joist connecting the

two”; noting this Court’s early content-based cases

were viewed as Equal Protection claims) (citing Carey

v. Brown, 447 U.S. 455 (1980)).

3. Contrary to Petitioner’s suggestion that it regulates equally all off-premise signage, Equal Protection

jurisprudence confirms that the “mere fact” that a

statute “equally” applies invidious classifications is

not enough to make it nondiscriminatory. In Loving,

for example, the Court was rightly unpersuaded by the

claim that Virginia’s anti-miscegenation statute was

constitutional because it applied to all races equally.

388 U.S. at 8.

This same equal protection principle condemning

multilateral discrimination has been recognized in the

First Amendment context as well. In Matal v. Tam,

this Court recognized that a law restricting a variable

category of viewpoints (namely, the viewpoints of disparagement and giving offense) does not cease to be

unconstitutional viewpoint discrimination simply because it prohibits all forms of disparagement equally.

137 S. Ct. 1744, 1763 (2017). (“Our cases use the term

‘viewpoint’ discrimination in a broad sense, * * * and

in that sense, the disparagement clause discriminates

on the bases of ‘viewpoint.’ To be sure, the clause evenhandedly prohibits disparagement of all groups. It

applies equally to marks that damn Democrats and

Republicans, capitalists and socialists, and those

9

arrayed on both sides of every possible issue. * * * But

in the sense relevant here, that is viewpoint discrimination: Giving offense is a viewpoint.”); id. at 1766

(Kennedy, J., concurring in part and concurring in the

judgment) (“A subject that is first defined by content

and then regulated or censored by mandating only one

sort of comment is not viewpoint neutral. To prohibit

all sides from criticizing their opponents makes a law

more viewpoint based, not less so.”). And in Iancu v.

Brunetti, the Court reinforced that holding. 139 S. Ct.

2294, 2301 (2019) (citing Tam, 137 S. Ct. at 1751,

1766-1767).

Where the Constitution prohibits classification and

preferential treatment of a protected characteristic or

activity, multilateral and multi-valent application of

discriminatory laws cannot save the statute from increased scrutiny. The First Amendment prohibits

preferential treatment of, and statutory classifications

turning on, the communicative content of speech and

hence discrimination that turns on such content triggers heightened scrutiny under both First

Amendment and Equal Protection principles. See Mosley, 408 U.S. at 95; Reed, 576 U.S. at 136.

Some regulations—such as those making distinctions based on the speech’s subject matter or

viewpoint—are “obvious[ly]” content-based. Reed, 576

U.S. at 170; see Mosley, 408 U.S. at 95 (subject matter); Rosenberger v. Rector & Visitors of Univ. of Va.,

515 U.S. 819, 829 (1995) (viewpoint). Austin’s restrictions, by expressly turning on the content of a

sign, fall into this category. But even if one imagined

that the variable application of Austin’s restriction—

the specific content that is restricted changes based on

10

location—were somehow viewpoint and content neutral on its face, it would not change the result. Even a

facially neutral regulation may still be content based

if it “cannot be ‘justified without reference to the content of the regulated speech.’” Reed, 576 U.S. at 164

(quoting Ward, 491 U.S. at 791).

Under even an erroneously favorable assumption

of facial neutrality, Austin’s restriction must be

deemed content-based. To apply the ordinance, an

Austin official must “examine the content of the message that is conveyed to determine whether a violation

has occurred.” McCullen v. Coakley, 573 U.S. 464, 479

(2014). That is, an official cannot determine whether

a sign violates the restriction without examining at

least part of the sign’s message: its “function or purpose.” See Reed, 576 U.S. at 163. If a sign’s “function”

is to direct consumers to a noncontiguous location, the

sign is in violation; if the sign’s function is to direct

consumers to a contiguous location, it is permissible.

Because these distinctions are “drawn on the message” of the signs, ibid., the restriction is contentbased.

4. Finally, Petitioner is incorrect in seeking to categorize the challenged regulation as merely a timeplace-manner restriction. Austin Br. 43. Permissible

time-place-manner rules do not turn on the content of

the speech but apply to all speech regardless of the

communicative content. Thus, limits on the volume of

sound never once ask what is being said, but address

noise in all circumstances. See Ward, 491 U.S. at 791.

That Austin necessarily must ask what a sign says before deciding whether it is in the proper place or

11

communicates in the proper manner, renders this entire line of cases inapplicable.

For example, a digital sign saying, “Turn Now for

Burgers Here,” “Enjoy Our New Butterfly Exhibit,” or

“Come In and Cheer for Austin FC” can be installed

anywhere in the city (as long as it is on-premises),

while a digital sign that says “Turn in 1 Mile for Burgers,” “Visit Our New Butterfly Exhibit Downton,” or

“Head to Q2 Stadium to Cheer for Austin FC,” respectively, cannot be installed anywhere in the city—even

if both the first sign and the second sign shared the

same location. Because the restriction applies differently to different messages in the same location, the

restriction is not a mere restriction of place.

II. Austin’s Content-Based Regulation Should

Be Subject to Strict or, at the Very Least, Exacting Scrutiny, Neither of Which Austin Can

Satisfy.

The remaining question is what form of heightened

scrutiny should apply here. PT1 agrees with Respondent that, because Austin’s sign ordinance is a contentbased restriction, it must meet the rigorous demands

of strict scrutiny. Reed, 576 U.S. at 163. If the Court

nonetheless were to conclude strict scrutiny is not applicable here, Amicus urges the Court to review the

regulation under exacting scrutiny to protect the core

speech rights at issue. See McCutcheon v. Fed. Election Comm'n, 572 U.S. 185, 197 (2014). Under either

standard, Austin fails to meet its constitutional burden—largely because of the severe underinclusiveness

of Austin’s ordinance.

12

A. Content-Based

Speech

Restrictions

Should Be Subjected to Strict or, at Least,

Exacting Scrutiny.

This Court has applied exacting scrutiny in a variety of contexts in which it lacked consensus on, or

rejected, strict scrutiny. For example, exacting scrutiny applies “in the context of commercial speech, an[]

area where the government has traditionally enjoyed

greater-than-usual power to regulate speech.” 2 Janus

v. AFSCME, Council 31, 138 S. Ct. 2448, 2477 (2018).

It was also applied recently by several Justices where

there was no consensus whether even stricter scrutiny

should apply. Americans for Prosperity Found. v.

Bonta, 141 S. Ct. 2373, 2383 (2021). To the extent

there is uncertainty or reluctance in this case, therefore, this Court should apply exacting scrutiny to

“limitations on core First Amendment rights” that are

not otherwise subject to strict scrutiny. McCutcheon,

572 U.S. at 197.

Under exacting scrutiny, government regulation of

speech will not stand unless it promotes a sufficiently

important government interest and is narrowly tailored to that interest. Americans for Prosperity

Found., 141 S. Ct. at 2383-2385. The challenged regulation in this case cannot survive such exacting

scrutiny, much less strict scrutiny.

2 As the court of appeals correctly held, Austin’s ordinance

should not be treated as commercial speech because it “applies

with equal force to both commercial and noncommercial messages.” Pet.App. 25a.

13

B. Underinclusivity Demonstrates the Disingenuousness of Austin’s Claimed Interest.

Here, Austin claims the ordinance is justified by

the city’s interest in aesthetics 3 and public safety.

However, the ordinance is grossly underinclusive

when it comes to those purported goals. And that under-inclusivity reveals that the city’s purported

interests are not substantial enough to constitute the

kind of genuine, specific, and proven interest necessary to withstand heightened scrutiny. See Reed, 576

U.S. at 172.

Underinclusive restrictions cast doubt on whether

the government truly weighs an interest as heavily as

it claims, or whether that asserted concern is a guise

for otherwise improper efforts to restrict viewpoints,

subjects, or speech in general. As this Court held in

Reed, “a law cannot be regarded as protecting an interest of the highest order, and thus as justifying a

restriction on truthful speech, when it leaves appreciable damage to that supposedly vital interest

3 Aesthetic interests are not sufficiently important to with-

stand exacting or strict scrutiny. As the Sixth Circuit noted in

Thomas v. Bright, this Court has never found an interest in public aesthetics to be compelling. See Thomas v. Bright, 937 F.3d

721, 733 (6th Cir. 2019) (citing Metromedia, Inc. v. City of San

Diego, 450 U.S. 490, 507–508 (1981); City of Cincinnati v. Discover Network, Inc., 507 U.S. 410, 525–529 (1993)). And while

this Court has recognized aesthetics as a “substantial” interest

sufficient to withstand intermediate scrutiny, Metromedia, Inc.,

450 U.S. at 507–508, it should not hold that it is a “sufficiently

important” interest to outweigh the significant First Amendment

rights at issue in this case. The beautification of a city surely does

not outweigh its residents’ First Amendment right to free speech.

See Thomas, 937 F.3d at 733.

14

unprohibited.” Id. at 172 (citation and internal quotation marks omitted).

Here, the aesthetics and safety claims advanced by

the city mirror those advanced by the government—

and rejected by the Court—in Reed, 576 U.S. at 171.

And here, as in Reed, the city allows a potentially limitless number of signs containing on-premise content

that would have the same allegedly negative effects as

restricted signs with off-premise content. This Court

rejected the claimed interests offered for the “hopelessly underinclusive” regulation in Reed, id. at 172,

and it should do the same here. There is no suggestion

that signs with on-premise messaging, whether digital

or otherwise, pose any less of a problem to aesthetics

or safety than identical signs discussing off-premise

topics. Ibid. (Town of Gilbert failed to identify different safety risks between permissible and

impermissible signs).

Because Austin’s ordinance shares the same flaws

at the law in Reed, it should share the same fate. Both

laws are underinclusive, and neither is sufficiently

tailored to the compelling interests the governments

assert. The Court’s precedent does not permit cities to

restrict constitutionally protected rights because of

purported interests that do not closely and accurately

align with the regulations supposedly serving those

interests. For regulations like Austin’s to survive, they

must be narrowly tailored and have a close fit to the

alleged problem at hand. Neither is true here.

15

CONCLUSION

This Court should hold that Austin’s sign code constitutes a viewpoint- or content-based restriction and

therefore is subject to strict scrutiny. Because Austin

has not tailored its regulation to its claimed, though

doubtful, government interests, this Court should hold

it violates the First Amendment.

Respectfully submitted,

GENE C. SCHAERR

Counsel of Record

ERIK S. JAFFE

H. CHRISTOPHER BARTOLOMUCCI

HANNAH C. SMITH

KATHRYN E. TARBERT

JOSHUA J. PRINCE

ANNIKA M. BOONE*

SCHAERR|JAFFE LLP

1717 K Street, NW, Suite 900

Washington, DC 20006

(202) 787-1060

gschaerr@schaerr-jaffe.com

Counsel for Amicus Curiae

September 29, 2021

* Not yet admitted to the D.C. bar.

Practicing under the supervision of

D.C. Bar members pursuant to

Rule 49(c)(8).