Sign and Advertising Regulation After City of Austin v. Reagan National Advertising: Lessons for Practitioners and Questions for Academics

The overlap between the practical and academic—and the overlap between law and planning—is embodied in the work of Professor Daniel R. Mandelker of Washington University in St. Louis. For well over a half-century, Professor Mandelker has been one of the preeminent scholars of land-use law. His work is, in many ways, why we have modern land-use law. Over the course of a monumental academic career, he has provided teaching and mentorship to innumerable lawyers and planners, including this author. Yet, in the course of his academic research, scholarship, and teaching, Professor Mandelker has always had a clear sense of the practical: Professor Mandelker understands, acknowledges, and teaches the ways that academic theory can materialize in our own communities, neighborhoods, and homes. Professor Mandelker’s appreciation for the real-world consequences of scholarship—and his ability to give greater meaning to the practicalities of land-use planning through his scholarship—makes him unique not just among legal scholars, but scholars everywhere.

Given Professor Mandelker’s long record of scholarly contributions relating to the First Amendment’s relationship with land use planning—which arises in the context of religious land uses, adult businesses, and outdoor signage and advertising—it is only appropriate that this article should cover a topic of both academic and practical importance in this area. Whether or not the nine justices of the U.S. Supreme Court knew that Professor Mandelker was retiring, they provided a fitting send-off for him. In City of Austin v. Reagan National Advertising, Inc.,¹ the Court bridged academia and practice in a decision that will impact the daily lives of every American and the way that each of us experiences the built environment, that is, in the way that we receive communication through outdoor signage. Although wrestling with weighty issues of First Amendment import, the Court reached the remarkably practical conclusion that local governments may continue their century-long practice of regulating on-premises and off-premises signs differently. As such, the Court’s decision, undoubtedly informed by Professor Mandelker’s work, affords states and local governments the leeway to determine the aesthetic character of each community and neighborhood in the United States. There can be no better send-off for Professor Mandelker.

This article proceeds in three parts. Section I of this article reviews the Court’s decision in City of Austin, providing background on the case itself and the Court’s central conclusions. Section II considers the key takeaways from the decision for planners and land-use lawyers. Finally, Section III addresses questions that remain after the decision, the answers to which will further advance the practice of sign regulation and aesthetic protections for states and local communities.

I. City of Austin: The Facts and the Outcome

A. Reed v. Town of Gilbert: The Prequel

An appropriate starting point for the relevant background of City of Austin might well be June 18, 2015. On that day, the Court announced its decision in Reed v. Town of Gilbert.² Reinforcing a doctrine that has existed since at least 1972,³ the Reed Court held that any law regulating the message, subject matter, or content of speech—whether facially or functionally⁴—is content based (rather than content neutral) and presumptively unconstitutional.⁵ In Reed, the Court reviewed a town-sign regulation that prescribed different size, height, locational, and temporal rules for “political,” “ideological,” and “temporary event” signs, respectively.⁶ Each category was defined with reference to the message conveyed by each type of sign.⁷ Although it resolved a split among the federal circuit courts of appeals,⁸ the Court’s decision in Reed cast significant doubt on the constitutionality of thousands of local sign regulations, as localities through the United States had for decades relied upon seemingly commonsense distinctions between signs’ messages to classify them for purposes of land-use regulation.⁹ Reed ensured that these distinctions, irrespective of local leaders’ neutral, non-censorial motives for adopting them, would likely be invalidated by the federal judiciary.¹⁰

One highly prevalent distinction not addressed by the Reed majority bore significant weight in localities’ post-Reed efforts to neutralize their codes: the regularly employed¹¹ distinction between on-premises and off-premises signs.¹² For over a century predating Reed, governments regulated outdoor signage on the basis of its location (i.e., whether a sign advertised an activity occurring on the same premises as the sign structure or whether it advertised an activity occurring elsewhere).¹³ This distinction supported the federal government’s most significant involvement in outdoor advertising, the 1965 Highway Beautification Act, which withholds federal transportation dollars from states that fail to adequately control off-premises billboards along federal-aid highways.¹⁴ Furthermore, the distinction was recognized by the Court’s 1981 decision in Metromedia, Inc. v. City of San Diego,¹⁵ in which a majority of the Justices appeared¹⁶ to endorse differential treatment between on- and off-premises signs.¹⁷

Yet whether the distinction between on-premises and off-premises signs was content neutral under Reed was wholly unclear.¹⁸ After all, a sign regulation that defines off-premises signage typically does so with relation to the sign’s message: to regulate an off-premises sign as such, an enforcement officer would be required to evaluate the sign’s content to determine whether or not it was truly off-premises.¹⁹ Sensing opportunity among the post-Reed confusion, billboard owners took to federal court to seek invalidation of state billboard laws and local sign codes. The result of these cases was a split among federal circuits.²⁰

B. Austin’s Sign Code and the Lower Courts’ Treatment of It

Austin, Texas, like countless other municipalities, regulated advertising signs that property owners may display.²¹ The city’s regulations distinguished between on-premises signs, or those that advertise some good or service provided at the same location where the sign is located, and off-premises signs.²² Off-premises signs advertise goods or services “not located on the same premises as the sign . . . [or] direct people to offsite locations.”²³

The instant dispute arose when an outdoor advertising company sought to digitize²⁴ some of its off-premises billboards.²⁵ Austin’s regulations prohibited new off-premises signs but allowed existing off-premises signs to remain.²⁶ Owners could change the faces and messages of these nonconforming off-premises signs but could not “change the method or technology used to convey a message” or “increase the illumination of the sign.”²⁷ In contrast, the city code allowed owners to digitize on-premises signs.²⁸

Billboard companies that sought and failed to receive permits to digitize their signs sued, contending that the city’s regulation violated Reed’s prohibition on laws that facially distinguish among messages. After the case was removed from state to federal court, the district court ruled in favor of Austin.²⁹ The court found the city’s distinction between on- and off-premises signs to be content neutral,³⁰ thus meriting intermediate scrutiny, which required the city to demonstrate that it had a substantial governmental interest and that the law would not unreasonably limit alternative avenues of communication.³¹ The district court predicated its finding of content neutrality on the grounds that Austin’s regulation was based on a sign’s location, rather than its message.³² Ultimately, the district court concluded that the city’s distinction between on- and off-premises signs passed constitutional muster.

The Fifth Circuit reversed.³³ The appellate court reasoned that because the on-premises/off-premises distinction required an enforcement official to review a sign’s content to determine whether the sign’s advertising message related to goods or services on the same site or elsewhere, the distinction was, in fact, content based.³⁴ Following from this conclusion, the Fifth Circuit applied strict scrutiny, requiring Austin to demonstrate a compelling governmental interest and least-restrictive means tailoring.³⁵ Like other sign regulations that have been put through the strict-scrutiny gauntlet, Austin’s code failed that test.

C. The Supreme Court’s Decision

In contrast to the Fifth Circuit’s decision, the Supreme Court concluded that the regulation was content neutral and therefore not subject to strict scrutiny.³⁶ The majority opinion, authored by Justice Sotomayor,³⁷ distinguished the Austin Code from the facts of Reed, noting that the regulations at issue in Reed “singled out specific subject matter for differential treatment.”³⁸ In Austin’s case, however, the Court observed that the regulations “do not single out any topic or subject matter for differential treatment.”³⁹ Rather, a sign was “treated differently based solely on whether it [was] located on the same premises as the thing being discussed or not.”⁴⁰

The City of Austin majority was also swayed by the longstanding utilization of the off-premises distinction. The majority pointed to, among other things, the 1932 case of Packer Corp. v. Utah, where the Court validated a Utah statute prohibiting advertisements for tobacco products but allowing businesses selling tobacco products to post signs on-site.⁴¹ The majority was also swayed by the federal government’s usage of the distinction in the Highway Beautification Act. As such, the Court indicated that it “has previously understood distinctions between on-premises and off-premises signs, like the one at issue in this case, to be content neutral.”⁴²

Equally as important, the Court relied heavily on history and precedent in its analysis. The majority identified a relevant reliance interest: for the “last 50-plus years, federal, state, and local jurisdictions have repeatedly relied upon on-/off-premises distinctions to address the distinct safety and [a]esthetic challenges posed by billboards and other methods of outdoor advertising.”⁴³ Not eager to disturb the largely functional status quo of sign law, the Court held that “[t]he unbroken tradition of on-/off- premises distinctions counsels against the adoption of . . . [the advertising companies’] novel rule.”⁴⁴ The majority called its decision in City of Austin “commonsense” because the Court previously reviewed, but never questioned, the on-/off-premises distinction and “the Constitution does not require that bizarre result.”⁴⁵

The Court clarified other elements relating to the classification of off-premises signs and sign regulation generally. City of Austin confirmed that the mere fact that someone has to read a sign or examine expression on a sign does not trigger “heightened First Amendment concern.”⁴⁶ Instead, only when a regulation discriminates based on “the topic discussed or the idea or message expressed” is the regulation content based and subject to heightened First Amendment concern.⁴⁷ In addition, the Court rejected the advertising companies’ argument that the city code “defines off-premises signs based on their function or purpose.”⁴⁸ This argument relies on language in Reed, which provides that “some facial distinctions based on message are obvious . . . and others are more subtle, defining regulated speech by its function or purpose.”⁴⁹ The Court also clarified that just because a classification considers function or purpose does not always mean that classification is content based.⁵⁰

In contrast to other recent First Amendment cases that have cast doubt on long-standing practices,⁵¹ City of Austin stands apart as a remarkably practical decision that acknowledges and respects the need for certainty in local government management, planning, and regulation. In so doing, the Court has cleared up four decades of post-Metromedia confusion and confirmed a practical approach to a practical problem, thus affording planners and land-use lawyers the latitude to address the billboard—“a ‘large, immobile, and permanent structure’”⁵²—for the betterment of communities’ aesthetic interests nationwide.

II. Lessons for Planners and Land Use Lawyers

Although it may be easy for academics and practitioners to write off City of Austin as simply confirming a regulatory approach that has existed for decades—and therefore of relatively less importance than decisions that mandate changes in practice—the Court’s decision merits at least some evaluation of key lessons. The most immediate of these lessons is that states and local governments can regulate billboards qua billboards.⁵³ This conclusion was very much in doubt after Reed, where the Court did not address states’ and local governments’—and even the Highway Beautification Act’s—long-standing practice of distinguishing between on-premises and off-premises signage.⁵⁴ City of Austin confirms that the long-standing distinction between on-premises and off-premises signs is content neutral and, therefore, will not attract strict scrutiny. Although governments may choose alternative means of regulating the problems created by billboards, limiting the height, size, and lighting of signs,⁵⁵ they may also simply prohibit new off-premises billboards to avoid the blight associated with off-premises advertising in neighborhoods and communities. Moreover, land-use planners and lawyers need not sift through the five opinions of Metromedia to arrive at this conclusion.

Other conclusions follow. First, City of Austin reflects an approach to content-neutrality analysis that, while honoring Reed’s requirement that governments regulate speech on a content- neutral basis both facially and functionally, acknowledges that speech regulations capable of being justified without reference to content, but which might have some subsidiary relationship to content, are not necessarily constitutionally suspect. In City of Austin, the Court interpreted Austin’s prohibition on new billboards not as a regulation of subject matter, message, or content but rather as a regulation of the locational element of a sign.⁵⁶ In other words, the extent to which Austin’s sign code had some bearing on subject matter or content was of relatively minor import when one considers that the regulation was focused on ensuring that signs be accessory to one or more other land uses located on a parcel of property. In taking this approach, City of Austin rejects a doctrinaire interpretation of Reed that would have otherwise refused to tolerate a regulation that incidentally affected a sign’s subject matter, message, or content.⁵⁷ Although City of Austin applies to billboards, there is at least some potential that the decision might foretell the federal courts’ treatment of other forms of sign regulation—and speech regulation generally—that incidentally impact a sign’s subject matter. Sign regulations that might be saved by City of Austin’s more lenient approach might include, for example, regulations limiting the amount of time that one-time event-related signage may be displayed⁵⁸ or regulations on the placement and display of donation bins.⁵⁹

Second, although City of Austin qualifies the Court’s decision in Reed, it does not by any stretch reverse or limit Reed. States and local governments would be well-advised to continue to heed the lessons of Reed, particularly as they relate to noncommercial speech. City of Austin does not suggest that a local government can re-establish facially content based categories of signs and create differential regulations for each such category.⁶⁰ Governments should continue to avoid distinctions between, for example, political, election, ideological, real estate, construction and other such categories of signs that are inherently related to content, and they should instead endeavor to regulate signs on non-speech elements such as height, size, area, lighting, setbacks and other such aspects.⁶¹

Third, City of Austin appears to cut against the conclusion that the long-standing constitutional distinction between commercial and noncommercial speech may be evaporating. Recent cases, along with dissents filed by some of the Justices, have suggested a blurring of the line between commercial and noncommercial speech, rejecting older case law that indicates that commercial speech should receive less First Amendment protection than noncommercial speech.⁶² Those older cases made clear that a governmental entity regulating speech may not advertently or inadvertently create a preference for commercial speech over noncommercial speech.⁶³ For example, if an ice cream shop owner wanted to post a sign advocating “Sally for Mayor,” a sign code that prohibited off-premises signage would prohibit that political message but allow a commercial message in contravention of this principle; to avoid this problem, regulators generally adopt general exceptions for noncommercial messages on signs.⁶⁴ The result of the foregoing conclusion is that prohibitions on off-premises signage may generally apply only to commercial billboards because noncommercial speech rarely has locational elements that tie it to a particular land use or parcel of property.⁶⁵ In finding that the off-premises distinction is content neutral, the City of Austin Court has necessarily afforded governments the ability to restrict commercial, off-premises billboards, but City of Austin does not reverse the long-standing proposition that government may not grant commercial speakers more speech rights than noncommercial speakers. Assuming off-premises billboard restrictions can necessarily only restrict commercial billboards, had the Court wanted to abolish the distinction between commercial and noncommercial speech, it would have presumptively concluded that the off-premises distinction was content based and presumptively unconstitutional.⁶⁶

Fourth, although the Court did not decide whether Austin’s off-premises sign regulation meets intermediate scrutiny, the Court seemingly endorsed the well-established conclusion that traffic safety and aesthetics are significant or substantial governmental interests underlying sign regulation.⁶⁷ Since the Court’s decisions in Metromedia and Members of City Council v. Taxpayers for Vincent,⁶⁸ which affirmed that both traffic safety and aesthetics are sufficiently important governmental imperatives,⁶⁹ states and local governments have relied upon these twin pillars in adopting and enforcing sign regulations. Courts have, even under intermediate scrutiny, conducted increasingly searching analyses of governmental interests and required governmental defendants to produce more evidence that a governmental interest responds to a real problem.⁷⁰ Although City of Austin does not itself weigh in on the evidentiary burdens of governments within the realm of sign regulation, it implicitly maintains that the duo of traffic safety and aesthetics will continue to be the basis on which governments rely in developing sign regulations.

Fifth, the outcome in City of Austin should be attributed to good lawyering and legal strategy by Austin’s counsel and amici in the case. The Fifth Circuit applied a hardline interpretation of Reed in determining that Austin’s billboard regulations were content based. Even in the face of a Supreme Court majority that has consistently expanded Reed’s black-letter approach to content neutrality, counsel for Austin was able to familiarize the topic of billboards and use practical arguments to convince the Court that the historical and practicalities of billboard regulation should not be undercut by a less-workable, purist approach to the content neutrality analysis.⁷¹ In an era of Supreme Court jurisprudence that, measured by polling data, is at times disconnected from on-the-ground interests,⁷² the City of Austin Court proved itself unwilling to upset over a hundred years’ worth of regulation and demonstrated sensitivity to the real-life safety, economic, and environmental impacts of signs. Austin’s lawyers, along with counsel for various amici, should be commended for presenting a relatable, yet constitutionally justifiable, case to the Court.

III. Remaining Questions

Although City of Austin answered one of the most significant questions to arise from Reed, the outcome and the opinion leave some questions unanswered. Three, in particular, stand out.

First, and perhaps most significantly, what other areas of sign regulation—and speech regulation more broadly—might be susceptible to a City of Austin-like legal analysis? The most obvious form of sign regulation that might bring about lower-court applications of City of Austin elsewhere is event-based sign regulation. To prevent community clutter, many local governments require the removal of signs advertising a particular event within a certain time period after the event occurs.⁷³ Because one of the sign categories at issue in Reed was “temporary event signs,” local governments have largely moved away from sunsetting event signs after an event occurs. Yet the circuit split resolved by City of Austin included the decision of the D.C. Circuit in Act Now to Stop War and End Racism Coalition v. District of Columbia, in which the court held that a regulation requiring the removal of event signs after the event occurred was constitutional, despite Reed.⁷⁴ And the analysis in City of Austin seems well-suited to such regulations, which, although potentially characterized as content based to the extent an enforcement officer must review the sign’s message to identify a particular event, are essentially temporal restrictions on speech.

Beyond signs, as noted by Justice Thomas in his dissent, the City of Austin decision draws parallels to the Court’s 2000 decision in Hill v. Colorado,⁷⁵ where the majority upheld a state law prohibiting certain protest activities within close proximity to health care facilities. There, the state prohibited knowingly approaching a person “for the purpose of passing a leaflet or handbill to, displaying a sign to, or engaging in oral protest, education, or counseling” of the other person.⁷⁶ In determining that the law was content neutral, the Court stated that “[w]e have never held, or suggested, that it is improper to look at the content of an oral or written statement in order to determine whether a rule of law applies to a course of conduct.”⁷⁷ Subsequent cases have eroded the leeway provided by Hill to enforcement officers, yet City of Austin seems to imply at least some room for continued evaluation of speech’s subject matter or message in order to enforce particular content-neutral regulations.

Post-City of Austin case law suggests that the decision has impacted other speech regulations. For example, lower courts have, relying on City of Austin, upheld regulations of charitable donation bins,⁷⁸ employment status of canvassers,⁷⁹ and buffer zones around reproductive health care clinics.⁸⁰

A second question that arises from City of Austin is how will courts evaluate sign regulations under intermediate scrutiny? As noted above, the federal judiciary has imposed increasingly strict evidentiary requirements when evaluating speech regulations under intermediate scrutiny. In cases involving regulations of speech under the First Amendment, courts have increasingly sought evidence that affirmatively demonstrates the existence of an actual problem and have also required a narrower ends-means tailoring than was historically tolerated.⁸¹ Perceived or unproven problems are insufficient to support content-neutral speech regulations, just as underinclusive or overinclusive regulations will not satisfy intermediate scrutiny. This treatment of speech regulations under intermediate scrutiny has been applied in cases involving regulations of door-to-door solicitation,⁸² panhandling,⁸³ signs,⁸⁴ and other areas.

With respect to billboard regulations, governmental defendants will still need to show that signs pose a threat to traffic safety and aesthetics and how prohibitions on billboards—absent prohibitions on other types of signs—advance state and local government efforts to advance those interests. This showing may be particularly challenging in light of the fact that states and local governments have other means, which are arguably more direct, to advance these interests, such as simply restricting large, tall, or bright signs that clearly deteriorate aesthetic character or contribute to driver distraction.⁸⁵ City of Austin provides a path for courts to uphold off-premises sign regulations, but governments will still need to adhere to evidentiary standards requiring them to identify problems with specificity and develop regulatory responses that directly address those problems.

A third, and natural, question is: is City of Austin simply a blip in the Supreme Court’s otherwise-steady march toward an increasingly strict content-neutrality standard? The Court’s pre- and post-Reed decisions have unrelentingly pushed the law toward a black-letter standard, even where underlying regulations might have been intended as neutral, commonsense attempts to address real problems.⁸⁶ The strictures of the Reed approach have stupefied regulators, who have relied in the past upon an ability to categorize speech and regulate based on those categories and who now must creatively adopt regulations based solely on non-speech elements. City of Austin walks back Reed’s strict approach to content neutrality, but the extent to which City of Austin reflects a major shift in the Court’s free speech jurisprudence is likely limited. Nevertheless, to the extent that City of Austin represents a change in the Justices’ attitudes to at least accommodate some commonsense regulatory responses to practical, everyday problems, it might be a welcome relief to planners, land-use lawyers, and other regulatory agencies.

IV. Conclusion

In the realm of speech regulation—and particularly for planners and land-use lawyers—Reed has presented a series of challenges and legal questions that have proven difficult to resolve. As local governments have continued to find content-neutral ways to regulate signs in order to address their attendant impacts, the Court’s ruling in City of Austin provided a welcome break from the Reed-initiated sea change and will allow continued use of a long-standing tool to address the very real traffic safety and aesthetic impacts of billboards. The decision provides much-needed certainty to regulators and billboard companies that have come to rely on the practice of regulating on-premises and off-premises signs differently. Importantly, City of Austin clears up a forty-year-old confusion over whether the regulation of billboards is content neutral and puts communities on the path to aesthetic quality, functionality, and safety.

Endnotes

1. 142 S. Ct. 1464 (2022).

2. 576 U.S. 155 (2015).

3. Police Dep’t of Chicago v. Mosley, 408 U.S. 92, 95 (1972).

4. 576 U.S. at 163–64 (“Some facial distinctions based on a message are obvious, defining regulated speech by particular subject matter, and others are more subtle, defining regulated speech by its function or purpose. Both are distinctions drawn based on the message a speaker conveys, and, therefore, are subject to strict scrutiny.”).

5. Id. at 163, 171 (“Because the Town’s Sign Code imposes content-based restrictions on speech, those provisions can stand only if they survive strict scrutiny, ‘which requires the Government to prove that the restriction furthers a compelling interest and is narrowly tailored to achieve that interest.’”).

6. Id. at 159–61.

7. Id.

8. Compare Reed v. Town of Gilbert, 707 F.3d 1057, 1062 (9^th Cir. 2013), with Neighborhood Enters., Inc. v. City of St. Louis, 644 F.3d 728, 736–37 (8th Cir. 2011).

9. Brian J. Connolly & Alan C. Weinstein, Sign Regulation After Reed: Suggestions for Coping with Legal Uncertainty, 47 Urb. Law. 569, 587–88 (2015).

10. 576 U.S. at 165.

11. See Brief of Amicus Curiae Int’l Municipal Lawyers Ass’n at 6–7, City of Austin, Texas v. Reagan Nat’l Adver., 142 S. Ct. 1464 (2021) (No. 20-1029).

12. Connolly & Weinstein, supra note 10, at 592.

13. City of Austin v. Reagan Nat’l Advert., Inc., 142 S. Ct. 1464, 1469 (2022).

14. 23 U.S.C. § 131 (2022).

15. 453 U.S. 490 (1981).

16. The Metromedia decision has been rightly criticized for its confusing nature, as it contained five separate opinions, none of which garnered a majority. See id. at 569 (Rehnquist, J., dissenting) (referring to the decision as “a virtual Tower of Babel, from which no definitive principles can be clearly drawn”).

17. Id. at 511.

18. Connolly & Weinstein, supra note 10, at 592. Although Justice Alito suggested the continuing constitutional viability of the distinction in his concurrence, 567 U.S. at 175, it was not clear whether that position would have been supported by a majority of the Court.

19. Id. at 593; see also Thomas v. Bright, 937 F.3d 721, 730 (6th Cir. 2019); City of Austin, Texas Code § 25-10-4(9) (2022) (“OFF-PREMISE SIGN means a sign that displays any message directing attention to a business, product, service, profession, commodity, activity, event, person, institution, or other commercial message which is generally conducted, sold, manufactured, produced, offered, or occurs elsewhere than on the premises where the sign is located. For purposes of this definition, any portion of a lawfully permitted special event where public streets have been closed to traffic in accordance with Title 14 (Use of Streets and Public Property) shall be considered a single premises.”).

20. Compare id., and Reagan Nat’l Adver. of Austin, Inc. v. City of Austin, 972 F.3d 696, 706–07 (5th Cir. 2020), with Act Now to Stop War and End Racism Coal. & Muslim Am. Soc’y Freedom Found. v. District of Columbia, 846 F.3d 391, 404 (D.C. Cir. 2017), and Contest Promotions, LLC v. City & County of San Francisco, 874 F.3d 597, 601 (9th Cir. 2017).

21. City of Austin v. Reagan Nat’l Advert., Inc., 142 S. Ct. 1464, 1469 (2022).

22. 142 S. Ct. at 1469.

23. Id.

24. In this context, “digitize” means to convert an existing billboard that has a static face with a large, changeable-message computer screen that can be changed at will from a remote location. Changing static billboards to digital sign faces can greatly increase profitability to billboard companies, as it permits the cycling of multiple advertising messages in a given time period. See, e.g., Facts About the Billboard Industry, Scenic Am., https://www.scenic.org/sign-control/billboard-info/billboard-industry (last viewed Nov. 13, 2022).

25. 142 S. Ct. at 1470.

26. Id. at 1469–70.

27. Id.

28. Id. at 1470.

29. Reagan Nat’l Adver. of Austin, Inc. v. City of Austin, 377 F. Supp. 3d 670 (W.D. Tex. 2019).

30. Id. at 681.

31. Id. at 682.

32. Id. at 681–82.

33. Reagan Nat’l Adver. of Austin, Inc. v. City of Austin, 972 F.3d 696, 702 (5th Cir. 2020).

34. Id. at 704.

35. Id. at 710.

36. City of Austin v. Reagan Nat’l Advert., Inc., 142 S. Ct. 1464, 1469 (2022).

37. Notably, Justice Sotomayor was a member of the Reed majority.

38. 142 S. Ct. at 1471 (quoting Reed v. Town of Gilbert, 576 U.S. 155, 169 (2015)).

39. Id. at 1472.

40. Id. at 1472–73.

41. Id. at 1469 (citing Packer Corp. v. Utah, 285 U.S. 105, 107, 110 (1932)).

42. Id. at 1473.

43. Id. at 1475.

44. Id.

45. Id.

46. Id. at 1474.

47. Id. (quoting Reed v. Town of Gilbert, 576 U.S. 155, 171 (2015)) (internal quotes omitted).

48. Id. (quoting Brief for Respondent) (internal quotes omitted).

49. Id. (quoting Reed, 576 U.S. at 163) (internal quotes omitted).

50. Id.

51. See, e.g., Iancu v. Brunetti, 139 S. Ct. 2294 (2019) (invalidating Lanham Act prohibition on registration of scandalous trademarks); Free Speech Coal. v. Atty. Gen., 825 F.3d 149 (3d Cir. 2016) (invalidating statute containing protections to avoid child pornography); Cahaly v. Larosa, 796 F.3d 399 (4th Cir. 2016) (invalidating statute regulating political robocalls).

52. Metromedia, Inc. v. City of San Diego, 453 U.S. 490, 502 (1981) (internal citations omitted).

53. City of Austin v. Reagan Nat’l Advert., Inc., 142 S. Ct. 1464, 1472–73 (2022). (“[T]he City’s provisions distinguish based on location: 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 message on the sign matters only to the extent that it informs the sign’s relative location. The on-/off-premises distinction is therefore similar to ordinary time, place, or manner restrictions.”).

54. See, e.g., Int’l Outdoor v. City of Troy, 974 F.3d 690, 707-08 (6th Cir. 2020); Thomas v. Bright, 937 F.3d 721, 730 (6th Cir. 2019).

55. See, e.g., Brief of the Am. Plan. Ass’n as Amicus Curiae in Support of Neither Party, City of Austin v. Reagan Nat’l Adver., 142 S. Ct. 1464 (2022) (No. 20-1029).

56. 142 S. Ct. at 1472–73.

57. Cf. 142 S. Ct. at 1483 (Thomas, J., dissenting).

58. See, e.g., Act Now to Stop War and End Racism Coal. v. District of Columbia, 846 F.3d 391, 403 (D.C. Cir. 2017) (holding that the District’s durational restrictions on the display of event-based signage “does not target the ‘communicative content’ of those signs, such as by distinguishing among various events by topic, but uniformly restricts the duration that event notices may remain physically affixed to public lampposts. The rule’s clutter-minimizing rationale does not depend on the content of a sign’s message.”) (internal citations omitted).

59. See Nat’l Fed. of the Blind of Tex., Inc. v. City of Arlington, Civil Action No. 3:21-CV-2028-B, 2022 WL 4125094 (N.D. Tex. Sept. 9, 2022).

60. 142 S. Ct. at 1473.

61. See, e.g., Reed v. Town of Gilbert, 576 U.S. 155, 174–75 (2015) (Alito, J., concurring).

62. See, e.g., Sorrell v. IMS Health Inc., 564 U.S. 552, 571–72 (2011) (applying content-neutrality analysis to commercial speech regulation); Lorillard Tobacco Co. v. Reilly, 533 U.S. 525, 575 (Thomas, J., concurring in the judgment) (urging elimination of the commercial speech doctrine); Int’l Outdoor v. City of Troy, 974 F.3d 690, 704 (6th Cir. 2020).

63. Metromedia, Inc. v. City of San Diego, 453 U.S. 490, 513 (1981) (“The fact that the city may value commercial messages relating to onsite goods and services more than it values commercial communications relating to offsite goods and services does not justify prohibiting an occupant from displaying its own ideas or those of others.”).

64. See Connolly & Weinstein, supra note 10, at 617.

65. See id.

66. See, e.g., Int’l Outdoor, 974 F.3d at 704 (finding that content-neutrality principles apply with respect to commercial speech).

67. See City of Austin v. Reagan Nat’l Advert., Inc., 142 S. Ct. 1464, 1475 (2022).

68. 466 U.S. 789 (1984).

69. See Metromedia, Inc. v. City of San Diego, 453 U.S. 490, 507–08 (1981) (“Nor can there be substantial doubt that the twin goals that the ordinance seeks to further—traffic safety and the appearance of the city—are substantial governmental goals.”).

70. See, e.g., Aptive Envt’l LLC v. Town of Castle Rock, 959 F.3d 961, 990 (10th Cir. 2020); Reynolds v. Middleton, 779 F.3d 222, 229 (4th Cir. 2015).

71. Brief for Petitioner at 15–17, City of Austin v. Reagan Nat’l Adver., 142 S. Ct. 1464 (2022) (No. 20-1029).

72. See, e.g., Domenico Montanaro, Poll: Majorities Oppose Supreme Court’s Abortion Ruling and Worry About Other Rights, Nat’l Pub. Radio (June 27, 2022), https://www.npr.org/2022/06/27/1107733632/poll-majorities-oppose-supreme-courts-abortion-ruling-and-worry-about-other-righ; Leah Field, 10 Years Later, Americans Stand Opposed to Citizens United, The Hill (Jan. 17, 2020), https://thehill.com/blogs/congress-blog/politics/478882-10-years-later-americans-stand-opposed-to-citizens-united.

73. Act Now to Stop War and End Racism Coal. v. Dist. of Columbia, 846 F.3d 391, 301 (D.C. Cir. 2017).

74. Id. at 403.

75. 530 U.S. 703 (2000).

76. Id. at 707.

77. Id. at 721.

78. Nat’l Fed. of the Blind of Tex., Inc. v. City of Arlington, Civil Action No. 3:21-CV-2028-B, 2022 WL 4125094 (N.D. Tex. Sept. 9, 2022).

79. Mobilize the Message LLC v. Bonta, 50 F.4th 928 (9th Cir. 2022).

80. Turco v. City of Englewood, 621 F. Supp. 3d 537 (D.N.J. Aug. 12, 2022).

81. See, e.g., McCullen v. Coakley, 573 U.S. 464, 494 (2014).

82. See, e.g., Aptive Env’t LLC v. Town of Castle Rock, 959 F.3d 961, 990 (10th Cir. 2020).

83. See, e.g., Reynolds v. Middleton, 779 F.3d 222, 229 (4th Cir. 2015).

84. See, e.g., L.D. Mgmt. Co. v. Gray, 988 F.3d 836, 839 (6th Cir. 2021).

85. See, e.g., Aptive Env’t LLC, 959 F.3d at 999.

86. See Barr v. Am. Ass’n of Pol. Consultants, Inc., 140 S. Ct. 2335 (2020); Nat’l Inst. of Family & Life Advocates v. Becerra, 138 S. Ct. 2361 (2018); Matal v. Tam, 137 S. Ct. 1744 (2017).