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Supreme Court Eases Speech Regulations in Billboard Case (2)

April 21, 2022, 2:50 PMUpdated: April 21, 2022, 6:52 PM

The U.S. Supreme Court walked back one of its rulings that has caused headaches for local governments on rules for signs and billboards.

The court on Thursday upheld an Austin, Texas, ban prohibiting businesses from off-location advertising on digital billboards or signs, saying it doesn’t impermissibly restrict speech.

In attempting to clarify the court’s 2015 decision in Reed v. Town of Gilbert, the 5-4 majority refused to lower the bar for content-based restrictions. Such laws treat speech differently based on what something says and are presumptively unlawful.

Unlike the rules struck down in Reed, Austin’s “off-premise distinctions requires an examination of speech only in service of drawing neutral, location-based lines,” Justice Sonia Sotomayor wrote for the court. “It is agnostic as to content.”

The court said there are similar laws in thousands of cities and towns in two-thirds of states. And Justice Brett Kavanaugh noted at oral arguments in November that they “spend a lot of money and time” trying to figure out how to comply with free-speech implications.

Chief Justice John Roberts and Kavanaugh joined their more liberal colleagues in the decision.

‘Makes Clear’

University of Virginia law professor Frederick Schauer said the ruling “makes clear that the First Amendment does not stand in the way of most content-neutral regulations of outdoor advertising.”

A lower federal court had interpreted Reed v. Town of Gilbert broadly, saying that all laws are content-based if a regulator has to read the sign to know if it complies with the law.

That “is too extreme an interpretation of this Court’s precedent,” Sotomayor wrote for the court.

Such a rule could have called into question a host of other regulations, including nutritional information on packaging mandated by the Food and Drug Administration.

The principal dissent, written by Justice Clarence Thomas, said the court introduces ambiguity into Reed’s “bright-line rule,” making it “incoherent and unworkable.”

Thomas was joined by Justices Samuel Alito and Amy Coney Barrett. Justice Samuel Alito agreed with the result but said the majority went further than necessary in making its decision.

The case is City of Austin v. Reagan National Advertising, U.S., No. 20-1029.

(Updates with reaction from University of Virginia law professor Frederick Schauer and with information from the dissent starting in paragraph three.)

To contact the reporter on this story: Kimberly Strawbridge Robinson in Washington at krobinson@bloomberglaw.com

To contact the editors responsible for this story: Seth Stern at sstern@bloomberglaw.com; John Crawley at jcrawley@bloomberglaw.com