From barbecue restaurants to highway beautification, Justices mull implications of sign-ordinance case

Oral arguments were held Nov 10 before the US Supreme Court regarding the First Amendment challenge to the city of Austin, TX, billboard sign ordinance. The challenge is to Austin’s ordinance that treats signs differently depending on whether or not they have a connection to the site where they are located. The U.S. Court of Appeals for the 5th Circuit ruled that the ordinance violates the First Amendment, but during over 90 minutes of oral argument in City of Austin v. Reagan National Advertising of Texas, 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.

One of the key issues in the case is whether the onsite/offsite distinction can survive constitutional scrutiny. CSA joined in an amicus brief, along with ISA and several other state sign associations, to urge the court to retain the traditional distinction. Justice Stephen Breyer said their decision calls into question “every regulation on the books,” even those that have historically been allowed. “Down that road, madness lies,” Justice Elena Kagan commented.

Justice Brett Kavanaugh could hold the deciding vote, but he, too, appeared conflicted. On the one hand, he (like Justice Gorsuch) asked 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 to 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.”

A decision is expected by summer.