Two outdoor advertising companies challenged a provision of the City of Austin sign code that prohibited changes to a grandfathered billboard because it was an off-premise sign. The City had modified its sign code to define an off-premise sign to mean “a sign advertising a business, person, activity, goods, products, or services not located on the site where the sign is installed.” The City Code prohibited the construction of any new off-premise signs, but allowed pre-existing off-premise signs to remain as grandfathered uses. However, grandfathered signs could not be modified to change the method or technology used to convey a message. When Reagan National Advertising of Austin sought to digitize some of its grandfathered, off-premise billboards the City denied those applications. Reagan National filed suit claiming the code’s prohibition on digitizing off-premise signs but not on-premise signs violated the First Amendment.
The Supreme Court had to resolve whether the Austin sign code provision was content neutral in its application to the Reagan National billboard. Under prior First Amendment rulings, anytime a sign code requires the government to read and interpret the content of a sign, a much more stringent level of legal scrutiny applies that in many instances renders the sign code provision unconstitutional under the First Amendment. Reed v. Town of Gilbert, 576 U.S. 155 (2015). However, in this instance the Court concluded that the challenged sign code only requires reading a billboard to determine whether it directs the reader to the property on which it stands or to some other, offsite location. Since the Austin sign code did not discriminate based on the topic discussed or the idea or message expressed it did not trigger a level of legal scrutiny that would have voided the regulation. Instead, the Court applied intermediate scrutiny and thereby ruled the Austin sign was facially content neutral. The Court did remand the case back to the lower courts to determine whether there was a constitutionally impermissible purpose or justification that underpins Austin’s facially content-neutral restriction that may be content based.