U.s. Supreme Court Issues First Amendment Decisions Impacting Sign Regulations and Flag Policies

• Publication year: 2023
• Author: Written by Matthew Richardson, Scott Smith, and Ryan Stager

U.S. SUPREME COURT ISSUES FIRST AMENDMENT DECISIONS IMPACTING SIGN REGULATIONS AND FLAG POLICIES

Written by Matthew Richardson, Scott Smith, and Ryan Stager

LAWFUL OR LANDMINE? COURT RULES ON FREE SPEECH SNARES

Municipalities throughout the country regulate signs and set policy for flag-flying on public property. Done right, these are lawful functions of local government; done wrong, they can be First Amendment landmines. Two recent U.S. Supreme Court decisions refine the map to navigate this landscape. In the first case, the Court provides welcome clarity on local sign regulations that do (and do not) trigger strict scrutiny—a critical threshold distinction because regulations subject to strict scrutiny are presumptively unconstitutional. The second case highlights what not to do when allowing private groups to fly flags on public property.

CITY OF AUSTIN, TEXAS V. REAGAN NATIONAL ADVERTISING OF AUSTIN (SIGNS)

In this decision, the Supreme Court revisited Reed v. Town of Gilbert, Arizona.⁰¹ As a recap: in Reed, the Court struck down portions of the Gilbert, Arizona sign code that subjected ideological, political and directional signs to different rules with respect to size, location, and length of display time. The Court characterized this regulatory scheme as facially "content-based" because it subjected signs to different rules depending upon the message conveyed—whether ideological, political, or directional.⁰² Under the Court's First Amendment precedents, content-based restrictions are subject to "strict scrutiny" and are "presumptively unconstitutional ... [unless] the government proves they are narrowly tailored to serve a compelling government interest." In Reed, Gilbert failed to meet this standard.⁰³

The Court's recent decision in City of Austin, Texas v. Reagan National Advertising of Austin centered on provisions in Austin's sign code that allowed on-premises signs—but not off-premises signs—to be digitized.⁰⁴ The Court characterized off-premises signs as those that "advertise things that are not located on the same premises as the sign, as well as signs that direct people to offsite locations."⁰⁵ The plaintiff, which owned billboards throughout Austin, argued that the sign code's separate rules for off-premises and on-premises signs violated the Free Speech Clause of the First Amendment. The district court sided with Austin, finding that the on/off premises distinction giving wider latitude to on-site advertising was content-neutral under Reed. The distinction did not impose greater restrictions on political messages, religious messages, or any other subject matter, but only required city decision-makers, property

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owners, advertisers, and the public to determine whether the subject matter is located on the same property as the sign. The Fifth Circuit reversed, holding that the "the fact that a government official has to read a sign's message to determine the sign's purpose is enough to render a regulation content based and subject to strict scrutiny."⁰⁶ Taken to its extreme, this holding would require that a code allowing on-premises advertising...