In thousands of states, cities, and towns around the country, there are different rules for on-premise and off-premise advertising. What this means, essentially, is that billboards and other outdoor advertising that promote a business, and that are not located at the location of the business, are more heavily regulated.
In a recent decision written by Justice Sotomayor, the U.S. Supreme Court considered whether, under the Court's precedents interpreting the First Amendment, rules restricting off-premise advertising in Austin, Texas should be subject to "strict scrutiny." Indicating that it had no interest in interfering with an on-premise/off-premise distinction that had been around from the days of widespread advertising on the sides of barns, the Court held that using the higher "strict scrutiny" standard here was not required.
In Austin, Texas, there are special rules that apply to off-premise advertising, which is defined as, "a sign advertising a business, person, activity, goods, products, or services not located on the site where the sign is installed, or that directs persons to any location not on that site." The rules not only prohibit the construction of any new off-premise signs, but also prohibit billboard owners from changing "the method or technology used to convey a message."
Reagan National Advertising of Austin, an outdoor billboard company, applied to the City of Austin for a permit to digitize some of its off-premise billboards. Relying on the City's rules, the City denied the application. Reagan National Advertising sued, arguing that the rule against digitizing off-premise signs, but not on-premises ones, violates the First Amendment. After trial, the District Court ruled in favor of the City, holding that, since the off-premise advertising rules were content-neutral, only intermediate scrutiny was required, and the City's rule satisfied that standard. On appeal, the Court of Appeals reversed, holding that the City's rules were not content neutral and did not satisfy the "strict scrutiny" standard.
The key question that the Court was wresting with here was whether a law restricting off-premise advertising is content neutral. In other words, is the rule targeting speech "based on its communicative content"? If it's content neutral, then only "intermediate scrutiny" is required. On the hand, if the rule is not content neutral, then "strict scrutiny" is required (which is significant because it's much less likely that the City would be able to satisfy that standard).
What was difficult in this case was the fact that the City's rule wasn't completely content neutral, since in order to determine whether a billboard is an off-premise billboard, you'd need to look at the content of the billboard itself. In other words, you'd need to consider whether the billboard actually directs people to a location different from where the billboard is located.
The Court didn't really see this as a content-based restriction, however. The Court explained, "A given sign is treated differently based solely on whether it is located on the same premises as the thing being discussed or not." The Court thought this was a very different type of restriction than one that "single[s] out any topic or subject matter for differential treatment." The Court further explained, "it is regulations that discriminate based on 'the topic discussed or the idea or message expressed' that are content based . . . . The sign code provisions challenged here do not discriminate on those bases."
Justice Thomas (joined by Justices Gorsuch and Barrett) dissented, arguing that the City's rule did discriminate based on the message that the signs conveyed -- i.e., whether they promote an on- or off-site event, activity, or service."
City of Austin, Texas v. Reagan National Advertising of Austin, 2022 WL 1177494 (2022).
"it is regulations that discriminate based on 'the topic discussed or the idea or message expressed' that are content based"