The Supreme Court on Wednesday holds a single hearing, an appeal by the city of Austin, Texas, seeking to revive a local law restricting billboard advertising. The case, though, could have a wider meaning as the courts deal with new technologies under the First Amendment.
The “live” audio (without video) can be heard at Quick Links on the Supreme Court’s homepage – supremecourt.gov – and at c-span.org/supremecourt and on C-Span Now App.
The case is City of Austin, Texas v. Reagan National Advertising (The hearing, starting at 10 a.m., is scheduled for 70 minutes.)
Background: Any American who travels by car or bus will be familiar with billboards along the nation’s streets and highways. One recent count by an advertising group indicated that there are more than 450,000 of these outdoor signs across the nation (producing $8.5 billion in ad revenue).
Based on concerns about risks to aesthetic appeal and public safety, billboards have been banned, restricted or regulated for generations by governments at all levels. Today, four states ban them altogether. Congress long ago banned them inside the borders of Washington, D.C. Congress also authorizes subsidies to states if they regulate billboards along the Interstate highway system, and all states do.
Because most of the messages on these often-huge signs are commercial in nature, the free-speech guarantees of the Constitution’s First Amendment provide fewer restrictions on government power to regulate them. The Supreme Court, in a lengthy series of decisions and orders going back at least to 1917, has found “commercial speech” to be of less cultural value than political expression, so it has permitted more limitations.
Under those constitutional principles, governments cannot discriminate in the actual message conveyed by commercial expression – that is, it cannot dictate the content of what is said in commercial activities. While it ruled in 1942 that the First Amendment provides no protection for commercial messages, it has since relaxed that view. Currently, to qualify for such protection, the message must be a legal one and can’t be misleading, it cannot run counter to a “substantial” government policy, and any restriction must clearly serve a government need and must be as narrow as possible.
For billboards, those decisions have allowed government to draw a distinction between these “off-premises” signs (they are located somewhere other than the business or activity that they promote), subject to much more stringent limitations, and “on-premises” signs (posted at the site to which they apply), subject to very few, or no, restrictions.
The city government of Austin, Texas, has long had sign ordinances that have targeted billboards for restriction. It will not allow any new ones to go up. And, more significantly for the case now before the Supreme Court, it has refused to allow the owners of existing billboards to “digitize” them.
A billboard with that feature has a changing message, blinking rapidly from one scene or message to another, with that feature operated remotely, away from the billboard’s site. The city apparently is worried that this feature can cause even more distraction to motorists, and will add visual clutter. (Anyone who has ever stood in New York City’s Times Square, at virtually any hour, will sense, immediately, what the city is worried about.)
So, when two billboard companies asked permission to digitize more than 80 signs affected by the restriction, the city refused. The city’s denial was not based at all on the messages the billboards would convey, but only on the location of the signs (off-premise) and on the change of technology.
The companies took the dispute to federal court, and won a sweeping victory in a federal appeals court. That court said that, if a court cannot figure out whether the city can refuse a permit without looking at the content of the message, that becomes a form of content regulation flatly forbidden by the First Amendment.
Examining the city’s denial of these digitizing permits, the appeals court noted that this refusal would apply to any sign that was “off-premises” whether it expressed a commercial or non-commercial message, and whether it was digital or static, so a court had to take a look at content and electronic expression to see what was being banned. That look, it concluded, was forbidden by the First Amendment and so it nullified the city ordinance.
The appeals court based those declarations on a 2015 Supreme Court decision (Reed v. Town of Gilbert), which struck down an Arizona town’s sign ordinance because it barred a church from putting up lawn signs directing the public to where it held worship, while allowing lawn signs for political and other messages. That, the Court declared, was forbidden “content-regulation.”
Arguing that this approach would sweep away much of the prevailing First Amendment doctrine on regulating commercial speech (and billboards, in particular), and would undermine sign ordinances at all levels of government, Austin’s city government took the issue on to the Supreme Court. The federal government has entered the case to support the city’s position, and the case has drawn a string of friend-of-court briefs on both sides of the constitutional question.
The question before the Court: Is it unconstitutional for a government to pass a law drawing a distinction between how it treats on-premises and off-premises signs?
Significance: With the issue worded that way, the broadest way to frame what is at stake, the Supreme Court will have to make a searching inquiry into nearly all of what it has said for more than a century about free speech in the commercial arena. The case at its core is, of course, only about regulating signs – just one form of expression among multitudes. And, given the ubiquity of billboards, the economic consequences could be huge.
However, the First Amendment on its own and as expanded by the Fourteenth Amendment’s liberty clause are written in terms that are not defined, forbidding laws “abridging the freedom of speech.” That phrase has to be translated, case by case, into constitutional principle no matter what the form of “speech.”
An interpretation on the limits that may apply to a sign ordinance, then, may sweep far more widely.
One potential lurking in this case is truly immense: will the Court find that it has to weigh the technology involved – the modern form of “digital” expression – in order to settle the range of government power to regulate that form? Must it see the case as Austin and the federal government do – that regulating digitization is not regulation of content?
If it finds that it must move into that realm, will what it concludes have any effect on the profoundly difficult question of how – constitutionally – might the federal government deal with the likes of Facebook, Twitter, TikTok, and so on? Is the First Amendment about to be engulfed in the ocean of digital expression?
It is the Court’s usual practice not to make constitutional declarations if it can decide cases without them, but the Austin case involves only a constitutional dispute, with implications well beyond what might or might not be visible to the people moving about that Texas city.
After Wednesday’s hearing, the Court’s next hearings will come in the week beginning Monday, November 29. During that week, the Justices will review the all-important Mississippi case in which that state is asking the Court to overrule its key precedents on abortion rights. Each case to be heard that week will be discussed in advance in this space.
