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The Supreme Court reversed, finding that the Fifth Circuit’s rule was “too extreme.” The Court clarified that content-based restrictions are those that discriminate based on the topic discussed or the message expressed. The Fifth Circuit held that such a restriction must be content-based under the Supreme Court’s precedents, and especially the Court’s 2015 decision in Reed v. Put another way, the only way to tell if a sign qualifies as an “off-premises” sign is to read it to figure out what it is advertising and where that good or service is available. The Fifth Circuit Court of Appeals in the decision below decided that the ordinance’s distinction between on-premises and off-premises signs is content-based because it requires the City to read a sign before it can determine whether the ordinance applies.
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Laws or regulations that treat different kinds of speech differently based on the speech’s content are typically subjected to strict scrutiny, which means that the law is presumed to be invalid and only allowed to stand if the government can prove that it serves a compelling government interest and restricts as little speech as possible to achieve that interest. The major issue in the case was what level of scrutiny a court should apply in evaluating the ordinance’s constitutionality.
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Reagan National, which owns multiple billboards, challenged the ordinance, claiming it violated their free speech rights. Primarily aimed at billboards, the off-premises sign regulations were significantly more restrictive, and did not allow the erection of new signs or the digitization of existing signs. Off-premises signs are those that advertise goods or services that are not available in the same physical location as the sign itself. The Court considered whether an Austin ordinance violated the Free Speech Clause when it laid out different rules for “on-premises” versus “off-premises” signs. Reagan National Advertising of Austin, LLC, was decided on April 21 (the Court’s opinion is available here). Each of the cases will have important implications for local action relating to speech or religion. Local issues get a national stage this spring as the Supreme Court considers three separate cases examining whether municipal actions complied with local governments’ obligations under the First Amendment to the US Constitution.