On April 21, in a victory for scenic beauty, the U.S. Supreme Court ruled 6-3 in favor of the City of Austin over Reagan National Advertising, affirming the constitutionality of the longstanding distinction between content displayed on signs that are located on-premises and off-premises.
With this ruling, the Supreme Court overturned the decision of the Fifth Circuit Court of Appeals, which determined that the City of Austin violated Reagan’s First Amendment rights by denying its request to convert static advertising signs to digital billboards—a decision that had the potential to undo significant portions of the 1965 Highway Beautification Act.
“This is a big win for Scenic America, Scenic Texas, and all of our allies and a victory for common sense,” said Scenic America President Mark Falzone. “The Supreme Court’s ruling puts a stop to this latest attempt by the outdoor advertising industry to chip away at the sacred legacy of the Highway Beautification Act, and it affirms a city’s right to have a say on what its streetscapes look like.”
In the majority opinion, authored by Sonia Sotomayor, the Court noted:
“…federal, state, and local governments have long distinguished between signs (such as billboards) that promote ideas, products, or services located elsewhere and those that promote or identify things located onsite… tens of thousands of municipalities nation- adopted analogous on-/off-premises distinctions in their sign codes.
“In this case, enforcing the City’s challenged sign code provisions requires reading a billboard to determine whether it directs readers to the property on which it stands or to some other, offsite location…the City’s provisions at issue here do not single out any topic or subject matter for differential treatment… The on-/off-premises distinction is therefore similar to ordinary time, place, or manner restrictions.”
…It is the dissent that would upend settled understandings of the law. Where we adhere to the teachings of history, experience, and precedent, the dissent would hold that tens of thousands of jurisdictions have presumptively violated the First Amendment, some for more than half a century, and that they have done so by use of an on-/off-premises distinction this Court has repeatedly reviewed and never previously questioned. For the reasons we have explained, the Constitution does not require that bizarre result.”
The Supreme Court heard oral arguments in the case on November 10, 2021. Scenic America and its chapters and affiliates joined an amici curiae brief in support of Austin, which argued for personal property rights as well as scenic interests.
On the majority opinion, Sotomayor was joined by Stephen Breyer, Elena Kagan, Brett Kavanaugh, and John Roberts. Samuel Alito filed a concurring opinion, and Breyer also filed his own concurring opinion. Clarence Thomas filed a dissent, joined by Neil Gorsuch and Amy Comey Barrett. The opinions can be viewed here.
With this ruling now in place, Scenic America recognizes that communities across the country may have questions about how to address signage issues moving forward to avoid legal actions while protecting local interests and concerns.
And while the decision represents a significant step in the right direction, Scenic America acknowledges that the issue may not be fully resolved. In its decision, the Supreme Court remanded part of the case to the Fifth Circuit Court of Appeals to potentially consider if the digital billboard ban survives another constitutionality test known as intermediate scrutiny. However, the U.S. District Court for the Western District of Texas, which originally reviewed the case, already ruled in favor of the City of Austin on this question. It is unclear whether or not the Fifth Circuit Court of Appeals will revisit it.
In another promising development, the U.S. Supreme Court declined on May 2 to take up a related question regarding taxes for off-premises billboards in Cincinnati and Baltimore. Last year, the Ohio Supreme Court determined that Cincinnati’s billboard tax violated the First Amendment, while the Maryland Supreme Court found that a very similar tax in Baltimore did not.
“Scenic America is here to help towns and cities as they consider the impact of this decision on their own signage ordinances, now and in the future,” said Falzone. “For nearly 40 years, we have been fighting to protect the scenic beauty and visual qualities of our communities, and we are here to help any town, city, or resident that faces issues like this in the future.”
