142 S.Ct. 1464

Supreme Court of the United States.

CITY OF AUSTIN, TEXAS, Petitioner

v.

REAGAN NATIONAL ADVERTISING OF AUSTIN, LLC, et al.

No. 20-1029

|

Argued November 10, 2021

|

Decided April 21, 2022

Justice SOTOMAYOR delivered the opinion of the Court.

*1468 Like thousands of jurisdictions around the country, the City of Austin, Texas (City), regulates signs that advertise things that are not located on the same premises as the sign, as well as signs that direct people to offsite locations. These are *1469 known as off-premises signs, and they include, most notably, billboards. The question presented is whether, under this Court’s precedents interpreting the Free Speech Clause of the First Amendment, the City’s regulation is subject to strict scrutiny. We hold that it is not.

I

A

American jurisdictions have regulated outdoor advertisements for well over a century. [citations omitted] By some accounts, the proliferation of conspicuous patent-medicine advertisements on rocks and barns prompted States to begin regulating outdoor advertising in the late 1860s. [citations omitted] As part of this regulatory tradition, federal, state, and local governments have long distinguished between signs (such as billboards) that promote ideas, products, or services located elsewhere and those that promote or identify things located onsite. For example, this Court in 1932 reviewed and approved of a Utah statute that prohibited signs advertising cigarettes and related products, but allowed businesses selling such products to post onsite signs identifying themselves as dealers.  [citations omitted]

On-/off-premises distinctions, like the one at issue here, proliferated following the enactment of the Highway Beautification Act of 1965 (Act)…In the Act, Congress directed States receiving federal highway funding to regulate outdoor signs in proximity to federal highways, in part by limiting off-premises signs. [citation omitted] Under the Act, approximately two-thirds of States have implemented similar on-/off-premises distinctions. [citations omitted] The City represents, and respondents have not disputed, that “tens of thousands of municipalities nationwide” have adopted analogous on-/off-premises distinctions in their sign codes. [citations omitted]

The City of Austin is one such municipality. The City distinguishes between on-premises and off-premises signs in its sign code, and specially regulates the latter, in order to “protect the aesthetic value of the city and to protect public safety.” [citation omitted]

During the time period relevant to this dispute, the City’s sign code defined the term “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, or that directs persons to any location not on that site.” [citation omitted] This definition was materially analogous to the one used in the federal Highway Beautification Act and many other state and local codes referenced above. The code prohibited the construction of any new off-premises signs,…but allowed existing off-premises signs to remain as grandfathered “non-conforming signs.” [citation omitted] An owner of a grandfathered off-premises sign could “continue or maintain [it] at its existing location” and could change the “face of the sign,” but could not “increase the degree *1470 of the existing nonconformity,” “change the method or technology used to convey a message,” or “increase the illumination of the sign.” [citation omitted] By contrast, the code permitted the digitization of on-premises signs. [citation omitted]

B

Respondents, Reagan National Advertising of Austin, LLC (Reagan), and Lamar Advantage Outdoor Company, L. P. (Lamar), are outdoor-advertising companies that own billboards in Austin. In April and June of 2017, Reagan sought permits from the City to digitize some of its off-premises billboards. The City denied the applications. Reagan filed suit against the City in state court alleging that the code’s prohibition against digitizing off-premises signs, but not on-premises signs, violated the Free Speech Clause of the First Amendment. The City removed the case to federal court, and Lamar intervened as a plaintiff.²

After the parties stipulated to the pertinent facts, the District Court held a bench trial and entered judgment in favor of the City. [citation omitted] As relevant, the court held that the challenged sign code provisions were content neutral… [citation omitted] The court explained that “the on/off premises distinction [did] not impose greater restrictions for political messages, religious messages, or any other subject matter,” and “d[id] not require a viewer to evaluate the topic, idea, or viewpoint on the sign”; instead, it required the viewer only “to determine whether the subject matter is located on the same property as the sign.” [citation omitted] The court therefore held that the distinction was a facially content-neutral “regulation based on location.” [citation omitted] The court further found “no evidence in the record” that the City had applied the sign code provisions “differently for different messages or speakers” or that its stated concern for esthetics and safety was “pretext for any other purpose.” [citation omitted] Accordingly, the court reviewed the City’s on-/off-premises distinction under the standard of intermediate scrutiny applicable to content-neutral regulations of speech. [citation omitted] The court found that the distinction satisfied this standard. [citation omitted].

The Court of Appeals reversed. [citation omitted] The court opined that because the City’s on-/off-premises distinction required a reader to inquire “who is the speaker and what is the speaker saying,” “both hallmarks of a content-based inquiry,” the distinction was content based. [citation omitted] It reasoned that “[t]he fact that a government official ha[s] to read a sign’s message to determine the sign’s purpose [i]s enough to” render a regulation content based and “subject [it] to strict scrutiny.” [citation omitted]

***

*1471 Because the Court of Appeals determined that the City’s on-/off-premises distinction imposed a content-based restriction on speech, it reviewed that distinction under the onerous standard of strict scrutiny. Recognizing that strict scrutiny “is, understandably, a hard standard to meet” and that it “leads to almost certain legal condemnation,”…the court held that the City’s justifications for the distinction could not meet that standard, rendering it unconstitutional. [citations omitted]³

This Court granted certiorari. [citation omitted]

II

A regulation of speech is facially content based under the First Amendment if it “target[s] speech based on its communicative content”—that is, if it “applies to particular speech because of the topic discussed or the idea or message expressed.” [citation omitted] The Court of Appeals [noted] that if “[a] reader must ask: who is the speaker and what is the speaker saying” to apply a regulation, then the regulation is automatically content based. [citation omitted] This rule, which holds that a regulation cannot be content neutral if it requires reading the sign at issue, is too extreme an interpretation of this Court’s precedent. [In this case,] the City’s off-premises distinction requires an examination of speech only in service of drawing neutral, location-based lines. It is agnostic as to content. Thus, absent a content-based purpose or justification, the City’s distinction is content neutral and does not warrant the application of strict scrutiny.

A

[This is not a case of “a comprehensive sign code that “single[d] out specific subject matter for differential treatment.” [citation omitted]. In this case, enforcing the City’s challenged sign code provisions requires reading a billboard to determine whether it directs readers to the property on which it stands or to some other, offsite location…[T]he City’s provisions at issue here do not single out any topic or subject matter for differential treatment. A sign’s substantive message itself is irrelevant to the application of the provisions; there are no content-discriminatory classifications for political messages, ideological messages, or directional messages concerning specific events, including those sponsored by religious and nonprofit organizations. Rather, the City’s provisions distinguish based on location: A given sign is treated *1473 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…

B

This Court’s First Amendment precedents and doctrines have consistently recognized that restrictions on speech may require some evaluation of the speech and nonetheless remain content neutral.

Most relevant here, the First Amendment allows for regulations of solicitation—that is, speech “requesting or seeking to obtain something” or “[a]n attempt or effort to gain business.” [citation omitted] To identify whether speech entails solicitation, one must read or hear it first. Even so, the Court has reasoned that restrictions on solicitation are not content based and do not inherently present “the potential for becoming a means of suppressing a particular point of view,” so long as they do not discriminate based on topic, subject matter, or viewpoint. [citation omitted]

***

[This] Court has previously understood distinctions between on-premises and off-premises signs, like the one at issue in this case, to be content neutral. In 1978, the Court summarily dismissed an appeal “for want of a substantial federal question” where a state court had approved of an on-/off-premises distinction as a permissible time, place, and manner restriction under the Free Speech Clause. [citation omitted]

***

Underlying [our] cases and others is a rejection of the view that any examination of speech or expression inherently triggers heightened First Amendment concern. Rather, it is regulations that discriminate based on “the topic discussed or the idea or message expressed” that are content based. [citation omitted]  The sign code provisions challenged here do not discriminate on those bases.

***

III

This Court’s determination that the City’s ordinance is facially content neutral does not end the First Amendment inquiry. If there is evidence that an impermissible purpose or justification underpins a facially content-neutral restriction, for instance, that restriction may be content based. [citation omitted] Moreover, to survive intermediate scrutiny, a restriction on speech or expression must be “ ‘narrowly tailored to serve a significant governmental interest.’ ” [citation omitted]

The parties dispute whether the City can satisfy these requirements. This Court, however, is “a court of final review and not first view,” and it does not “[o]rdinarily ... decide in the first instance issues not decided below.” [citations omitted] “In particular, when we reverse on a threshold question, we typically remand for resolution of any claims the lower courts’ error prevented them from addressing.” Ibid. Because the Court of Appeals did not address these issues, the Court leaves them for remand and expresses no view on the matters.

* * *

For these reasons, the judgment of the Court of Appeals for the Fifth Circuit is reversed, and the case is remanded for further proceedings consistent with this opinion.

It is so ordered.

[concurring and dissenting opinions omitted]