The First Amendment and Restrictions on “Off-Site” Signs

The Court is considering, in City of Austin v. Reagan National Advertising , whether certain kinds of limits on “off-site” signs are unconstitutionally content-based; the Fifth Circuit said they are unconstitutional, but other courts are split. I thought I’d pass along an amicus brief we just filed on behalf of the Cato Institute, cosigned by Ilya Shapiro and Trevor Burrus (Cato) and drafted by my students Elizabeth Anastasi, Daniel McDonald Meeter, and Aris Prince, and me, with a very useful suggestion by Simon Ruhland. (Thanks also, as always, to Scott & Cyan Banister, whose support makes the Clinic possible.) Summary of Argument The City of Austin’s sign code is content-based: Austin’s sign code restricts the placement of digital signs based on their content by restricting “off-premises” signs “advertising a business, person, activity, goods, products, or services not located on the site where the sign is installed, or that direct[] persons to any location not on that site.” J.A. 52. Enforcing the sign code thus “require[s] enforcement authorities to examine the content of the message that is conveyed to determine whether a violation has occurred.” McCullen Coakley , 573 U.S. 464, 479 (2014)(citations omitted). This “examine the content of the message conveyed” test is consistent with the majority and the concurrence in Reed Town of Gilbert —which conclude that a restriction is content-based if it “depend[s] . . . on the communicative content of the sign[s],” 576 U.S. 155, 164 (2015)—and with this Court’s earlier cases. Austin’s sign code improperly […]

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