Refining Reed: City of Austin Updates Test for Content-Based Speech Restrictions

Refining Reed: City of Austin Updates Test for Content-Based Speech Restrictions

Legal Sidebari

Refining Reed: City of Austin Updates Test for
Content-Based Speech Restrictions
May 2, 2022
The Supreme Court’s April 21, 2022, decision in City of Austin v. Reagan National Advertising of Austin,
LLC is the latest development in the Court’s free speech jurisprudence on content neutrality. Content
neutrality is important because it largely determines the level of scrutiny that a court would apply to a law
regulating speech in a First Amendment challenge, with content-neutral laws receiving less rigorous
scrutiny than content-based ones do. In this case, the Court held that the city’s restriction on “off-
premises” signs—signs advertising or directing readers to businesses or activities at another location—
was content neutral on its face because it regulated signs based on their location rather than their subject
matter or topic. This Sidebar provides a brief overview of how the Court’s standards for evaluating
content neutrality have changed over time. It then discusses the City of Austin decision and why the case
could have implications beyond sign ordinances, potentially paving the way for broader location- or
function-based regulation of speech, including online speech.
Background
The First Amendment generally prohibits the government from regulating speech based on the content or
viewpoint of the message expressed. Outside of certain areas, laws that are “content based” typically
receive strict judicial scrutiny, requiring the government to show that the challenged law is the “least
restrictive means” of serving a “compelling” governmental interest. In contrast, “content-neutral”
restrictions on speech—such as those that regulate only the time, place, or manner of speech without
reference to its content—typically receive intermediate scrutiny. Intermediate scrutiny generally requires
the government to show that the law is “narrowly tailored” (but not necessarily the least restrictive way)
to serve a “significant” governmental interest and leaves open “ample alternative channels for
communication.” Because laws rarely survive strict scrutiny, a key step in the First Amendment analysis
is to determine whether the law under consideration is content based or content neutral.
The Supreme Court has modified its standards for assessing content neutrality over time. During the
1980s, for example, the Court examined the text of the law, but the “controlling consideration” was the
government’s purpose. Under this test, even if a law reached only speech of a particular subject matter, it
sometimes received intermediate scrutiny if the government had a content-neutral purpose for enacting
the law. For example, the Court considered zoning restrictions aimed at the “secondary effects” of adult
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movie theatres on neighboring communities to be content neutral, even though they applied only to
businesses that showed that particular kind of speech.
The Court’s 2015 decision in Reed v. Town of Gilbert restated the difference between content-based and
content-neutral laws, placing more emphasis on the text of the law. Reed involved a local sign ordinance
whose restrictions varied depending on the topic of the sign. For example, the law imposed more onerous
restrictions on “temporary directional” signs than on “political” signs and more onerous requirements on
“political” signs than on “ideological” signs. The Court ruled that the ordinance was content based and
failed strict scrutiny. The Court held that a law is content based and “presumptively unconstitutional”
whenever it “applies to particular speech because of the topic discussed or the idea or message
expressed.” An “obvious” form of content discrimination, the Court observed, would be a law that, on its
face, “defin[es] regulated speech by particular subject matter.” However, the Court reasoned that laws that
define regulated speech by its “function or purpose” also involve “facial” content-based distinctions.
Significantly, the Court clarified that while a law’s discriminatory purpose can render a facially neutral
law content based, a facially content-based law is subject to strict scrutiny “regardless of the
government’s benign motive” or “content-neutral justification.” Three Justices concurred in the judgment
alone. Although they agreed that the ordinance was unconstitutional, they expressed reservations about
the majority’s “rigid” approach to content-based laws.
City of Austin Case
Like Reed, City of Austin involved a sign ordinance. Instead of distinguishing among signs based on
categories such as “political” or “ideological” speech, though, the ordinance prohibited the construction
of new off-premises signs—that is, signs advertising or directing readers to businesses or events at
another location. The ordinance also provided that existing off-premises signs could not be digitized. In a
lawsuit brought by two billboard operators, the U.S. Court of Appeals for the Fifth Circuit ruled that the
city’s distinction between on- and off-premises signs was content based and failed strict scrutiny. In order
to determine whether a sign was on- or off-premises, the court reasoned, “one must read the sign” and ask
if it relates to a business or activity at that location. In the court’s view, that need to examine the sign’s
content meant that the law was content based under Reed.
The Supreme Court reversed the Fifth Circuit’s decision, calling the appellate court’s reasoning “too
extreme an interpretation” of Reed. Justice Sotomayor wrote the majority opinion, joined by Chief Justice
Roberts and Justices Breyer, Kagan, and Kavanaugh. Relying on cases in which the Court upheld laws
regulating solicitation, the majority reasoned that its precedents “have consistently recognized that
restrictions on speech may require some evaluation of the speech and nonetheless remain content
neutral.” The Court also recounted the long history of regulations on outdoor advertisements in the
country, including a federal law incentivizing states to limit off-premises signs near federal highways.
As to Austin’s sign ordinance, the Court acknowledged that enforcement of the law required officials to
determine whether a sign “directs readers to the property on which it stands or to some other, offsite
location.” The Court observed, however, that unlike the ordinance in Reed, the city’s code did not “single
out any topic or subject matter for differential treatment,” and enforcement did not turn on the sign’s
“substantive message.” The “message on the sign matters,” the Court reasoned, “only to the extent that it
informs the sign’s relative location.” The Court concluded that such a “location-based regulation” was
content neutral on its face and subject to intermediate rather than strict scrutiny. However, the Court
remanded the case to the lower courts to consider whether there was any evidence the law might be
content based because of an “impermissible purpose” and to conduct the intermediate scrutiny analysis in
the first instance.
Although Justice Breyer joined the majority opinion, he wrote separately to reiterate his concerns with the
consequences of Reed’s rigorous content-based standard. Justice Alito dissented in part. In his view, the

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sign code “clearly discriminate[d]” based on content, but the Fifth Circuit erred by invalidating the
challenged provision in all its applications.
Justice Thomas, the author of the majority opinion in Reed, dissented on broader grounds, joined by
Justices Gorsuch and Barrett. In the dissent’s view, the city’s ordinance was content based because it
turned on a sign’s message—specifically, whether a sign “promote[d] an on- or off-site event, activity, or
service.” The dissent opined that the majority had “implicitly rewrit[ten] Reed’s bright-line rule,” turning
it into an “unworkable” rule that deems laws content neutral if they are “based on a sufficiently general or
broad category of communicative content.”
Potential Consequences for First Amendment Law
Depending on how lower courts interpret City of Austin, the decision could make subtle or sweeping
changes to First Amendment law. City of Austin reaffirmed at least some aspects of the Reed test for
evaluating whether a law is content based or content neutral. The majority appeared to agree that a law is
content based if it regulates speech based on its subject matter, topic, or viewpoint, and it did not disrupt
Reed’s holding that facially content-based laws receive strict scrutiny. Thus, the decision’s ramifications
for First Amendment law may be more limited than they might have been had the Court affirmed the Fifth
Circuit’s decision or returned to its pre-Reed approach of lesser scrutiny for laws with a content-neutral
justification.
The point of disagreement between the Court and the dissenting Justices was over whether classifications
that depend on a sign’s “message” necessarily make a law facially content based. The majority held that
some laws requiring a regulator to consider a sign’s message may nonetheless be content neutral, while
the dissenting Justices would have held that the need to consider the sign’s message makes the law
content based and thus subject to strict scrutiny. That difference points to the next set of issues that lower
courts may have to address and could have significant consequences for legislatures seeking to regulate
speech based on its physical location, proximity to the speaker, or other characteristics apart from its
subject matter, topic, or viewpoint.
Given the Court’s acknowledgement that a sign’s “message” mattered for purposes of determining
compliance with Austin’s code, lower courts must likely hold that at least some laws are content neutral
under City of Austin even if they turn on the message expressed. If courts interpret that rule narrowly, they
may apply intermediate scrutiny to laws with a “location-based and content-agnostic on-/off-premises
distinction” similar to the particular law in City of Austin. Even this narrow interpretation, however, could
signal an expansion of the types of distinctions that qualify as content-neutral time, place, or manner
restrictions on speech, particularly if extended outside of the context of sign ordinances. For example,
would City of Austin allow a state to prohibit pregnancy resource centers from posting signs about any
off-premises entities or activities? Would Congress have more leeway to regulate online speech across all
topics because an internet user has posted it on another person’s website or social media page as opposed
to the user’s own site or page? City of Austin suggests that such laws—at least on their face—would
distinguish speech based on its physical or virtual location rather than its content and thus could receive
intermediate scrutiny. Under that test, such laws would still need to be narrowly tailored to advance a
significant government interest and leave open ample alternative channels for communication.
Alternatively, courts could give City of Austin a broader interpretation, applying it to identify other kinds
of message-based distinctions that could be considered content neutral and thus subject to intermediate
scrutiny. Justice Thomas’s dissent highlighted, for example, the Court’s statement that the off-premises
restriction did not turn on a sign’s “substantive message,” a point that may invite lower courts to identify
other kinds of messages as non-substantive. In particular, the dissent questioned whether restrictions on
“editorializing” or “anonymous” speech would evade strict scrutiny review under the Court’s decision
because they do not single out a particular topic or subject matter. For example, if Congress were to ban

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“anonymous” speech on social media platforms or prohibit those platforms from removing posts “created
by third parties,” could a court consider those laws to be facially content neutral under City of Austin
because they are “agnostic as to content” (i.e., subject matter or topic)? City of Austin raises additional
questions about when Congress or states may regulate speech based on its “function or purpose.” Reed
stated that facial distinctions based on speech’s “function or purpose” are content based and subject to
strict scrutiny. However, City of Austin appeared to limit this passage to instances where the legislature
clearly used a “‘function or purpose’ proxy” to “achieve[] the same result” as a content-based
classification, stating that not every “classification that considers function or purpose is always content
based.”
Lastly, while City of Austin focused on the code’s location-based distinctions, the lawsuit also concerned a
restriction on the manner of speech in the form of Austin’s prohibition on digitizing off-premises signs.
The constitutionality of this restriction remains to be seen because the Supreme Court remanded the case
to the lower courts to consider that issue instead of applying intermediate scrutiny in the first instance.
The courts below may consider whether the city’s technology-based distinction—which Justice Alito
opined was not content based on its own—was narrowly tailored to advance a significant governmental
interest. Resolution of such questions may help to inform options for regulating other forms of technology
used to convey speech, such as algorithms and bots—both of which have been the subject of First
Amendment debate.

Author Information

Victoria L. Killion

Legislative Attorney

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