SIGN OF THE TIMES – IN U.S. SUPREME COURT
November 16, 2021
November 15, 2021
Last Wednesday, the U.S. Supreme Court heard oral arguments in the case of our very own Reagan Outdoor Advertising trying to be able to convert their non-conforming billboards to electronic in Austin, Texas. The court’s eventual decision could have significant implications for the future of how signs are regulated, and even for the business model for billboard companies.
The crux of the matter, in a bit of an oversimplification, is that the city of Austin allows for non-conforming on-premise signs to be converted to electronic, but not non-conforming off-premise signs. In the ruling by the U.S. Fifth Circuit Court of Appeals, the essential decision was that because of First Amendment protections, signs cannot be treated differently and regulated by their content. In other words, if you have to read the sign to figure out how to regulate it, you can’t do that.
What intrigued me about the oral arguments and comments before the SCOTUS (Supreme Court Of The United States) was that the attorney for Reagan was not really arguing for that decision. He essentially was saying all the court had to do was say that it wasn’t fair to treat the signs differently and overrule the Austin code. I think the reason for him not arguing much in favor of the 5th circuit ruling was that if it is upheld, it has the potential to seriously alter the business model for all billboard companies. Think about it – if, as the 5th circuit said, you cannot regulate signs by their content, then any sign could have off-premise advertising, not just those so defined. The monopoly of billboard companies for such advertising would essentially be gone.
To that end, I just recently saw a couple of on-premise electronic signs in a local community that were not only advertising their own business, but also flashed up messages for another business in town – off-premise advertising! Not allowed by the local code! But very easy to do with electronic signs. And if the SCOTUS upholds the 5th circuit rationale, well….
How will the court rule? Based on the questions and comments from the justices during the oral arguments, Amy Howe of SCOTUSblog
wrote, “the Supreme Court was closely divided on this question. Although some justices appeared to agree with the 5th Circuit, other justices were clearly concerned that upholding the 5th Circuit’s decision could have repercussions far beyond the ordinance that they were considering.
“Justice Brett Kavanaugh could hold the deciding vote, and he too appeared conflicted. On the one hand, he (like Gorsuch) asked Snyder why the city couldn’t address its safety and aesthetic concerns by restricting the placement, size, and number of signs, rather than restricting “anything that has to do, arguably, with the words that are written on the sign.” On the other hand, he emphasized … that these kinds of ordinances “have been around for a long time,” and that a ruling for Reagan National would impose significant burdens on “a lot of local jurisdictions around America.”
Here’s Howe’s entire entry about the court session.
A decision is not expected until probably spring or even summer. It could cause local and state codes and ordinances to have to be completely redefined for billboards and off-premise advertising!
