The U.S. Supreme Court searched for where to draw the line on what speech restrictions are “content-based,” and presumptively invalid, without calling into question a host of long-held regulations.
The case argued Wednesday involves a rule in Austin, Texas, that prohibits businesses from advertising on digitized billboards or signs if they’re located off their premises but allows them if they’re on their property. The city says the law is necessary to prevent blight and traffic hazards.
Unlike “some of our decisions, this decision is going to affect every state and local official around America, and they spend a lot of money and a lot of time trying to figure out how to comply with the First Amendment implications of sign ordinances, Justice Brett Kavanaugh said.
The debate centered on the meaning of the court’s 2015 ruling in Reed v. Town of Gilbert, which struck down an Arizona city’s sign ordinance that treated political signs differently than charitable or religious ones.
The U.S. Court of Appeals for the Fifth Circuit interpreted that ruling to say that any time an official has to read a sign to know if it is prohibited, that regulation is “content-based” and subject to a high bar for localities to defend the need for such a distinction.
Kannon Shanmugam, arguing on behalf of billboard owners, said the Fifth Circuit’s rule is clear and easy to apply.
But Justice Stephen Breyer said the rule could call into question “every regulation on the books,” even those that have historically been allowed.
The justices seemed disinclined to define “content-based” so broadly to upset those norms.
“Down that road, madness lies,” Justice Elena Kagan said.
Not all justices were on the same page, though.
The law means “I can’t say certain things unless I’m at a certain location?” Justice Clarence Thomas said. “I don’t understand how that’s not content-based if I could say ‘Eat at Franklin’s’ if I’m at Franklin’s, but I can’t say it if I’m at McDonald’s,” Thomas said, referring to a popular barbecue spot in Austin.
Justice Neil Gorsuch said the issue was “a question of degree or a level of generality” with what should be considered “content.”
And to sort out that question of degree, the justice relied heavily on hypotheticals. Everything from how the law would apply to Breyer’s fried kale shop to Justice Samuel Alito’s signs, which are all written in Chinese.
But a series of hypotheticals from Gorsuch seemed to best exemplify the difficulty of defining “content” the way the Fifth Circuit has done.
“I just want to understand how this would cash out,"Gorsuch said. “Let’s say a sign just says ‘Black Lives Matter.’ I think we’d agree that that’s not an off-premises sign because it doesn’t identify a particular location.”
“But what if Black Lives Matter has a local office and it isn’t there?” Gorsuch asked. That’d still probably be OK because it isn’t advertising for anything, Shanmugam replied.
“How about if it says ‘Black Lives Matter, Do Something About It,’ anticipating an upcoming rally, but no information is provided?” Gorsuch continued. This “might be advertising,” Shanmugam said.
“And then what if it gives the date and the time of the rally?” Gorsuch asked. “At that point, it seems more clearly to be advertising a particular activity,” Shanmugam said.
The problem, Gorsuch said, is that “somebody’s going to have to read this and decide which side of the line these four examples fall on,” meaning they’d all fall within the Fifth Circuit’s test.
The case is Austin v. Reagan National Advertising, U.S., No. 20-1029.
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