Auspro Enterprises, LP v. Texas Department of Transportation ( 2016 )

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-14-00375-CV
Auspro Enterprises, LP, Appellant
v.
Texas Department of Transportation, Appellee
FROM THE DISTRICT COURT OF TRAVIS COUNTY, 345TH JUDICIAL DISTRICT
NO. D-1-GN-11-002740, HONORABLE TIM SULAK, JUDGE PRESIDING
OPINION
This case addresses the constitutionality of the Texas Highway Beautification Act.1
The United States Supreme Court recently struck down a similar sign regulation in Reed v. Town of
Gilbert, where the high court observed:
This type of ordinance may seem like a perfectly rational way to regulate signs,
but a clear and firm rule governing content neutrality is an essential means of
protecting the freedom of speech, even if laws that might seem “entirely reasonable”
will sometimes be “struck down because of their content-based nature.”2
In Reed, the Supreme Court refined its framework for analyzing “content based” regulations
of speech, holding, “A law that is content based on its face is subject to strict scrutiny regardless
1
Tex. Transp. Code Ch. 391.
2
135 S. Ct. 2218, 2231 (2015) (quoting City of Ladue v. Gilleo, 512 U.S. 43, 60 (1994)
(O’Connor, J., concurring)).
of the government’s benign motive, content-neutral justification, or lack of ‘animus toward the
ideas contained’ in the regulated speech.”3 With this holding and broad framework for determining
whether a government regulation of speech is “content based,” Reed has arguably transformed
First Amendment free-speech jurisprudence.
In Reed’s wake, our principal issue here is not whether the Texas Highway
Beautification Act’s outdoor-advertising regulations violate the First Amendment, but to what extent.
Based on our determination that, under Reed, certain provisions in Subchapters B and C of the Act
are facially content-based restrictions on speech that render those subchapters unconstitutional, we
will reverse the district court’s judgment and render judgment severing those unconstitutional
subchapters from the Texas Highway Beautification Act.
Background
The facts of this case are straightforward and undisputed. On July 7, 2011, Auspro
Enterprises, LP, placed a sign supporting Ron Paul’s 2012 presidential campaign on its property on
State Highway 71 West in Bee Cave, Texas. On July 12, the Texas Department of Transportation
sent a letter to Auspro explaining that its sign was “illegal” because all outdoor signs must be
permitted and, although there is a specific exemption under Department rules for political signs, the
3
Id. at 2222.
2
exemption only allows political signs to be displayed 90 days before and 10 days after an election.4
The Department’s letter ordered Auspro to remove the sign.
After Auspro failed to remove the sign, the Department brought an enforcement
action in Travis County District Court for injunctive relief and civil penalties. In response,
Auspro asserted that the Texas Highway Beautification Act and the Department’s implementing
rules violate, both facially and as applied, Auspro’s right to free speech under the U.S. and
Texas constitutions.5 The district court granted final judgment in the Department’s favor after a
bench trial on stipulated facts, specifically concluding, among other things, that the Act and the
Department’s rules were not unconstitutional as applied to Auspro.6
During Auspro’s appeal from the district court’s final judgment, the Supreme Court
granted certiori and heard oral argument in Reed, prompting this Court to grant Auspro’s motion to
abate this appeal pending the resolution of Reed. Following the Reed decision and with the benefit
of its instruction, we reinstated this appeal and allowed the parties to submit briefs regarding Reed’s
effect on our decision here.
4
The Department’s letter set forth, in their entirety, the Department rules requiring permits
for outdoor advertising and granting an exception for campaign signs. See 43 Tex. Admin. Code
§§ 21.143(1) (2011) (Tex. Dep’t Transp., Permit Required), 21.146(a)(9) (Exempt Signs); see also
Tex. Transp. Code § 391.005 (election-sign exemption).
5
See U.S. Const. amend. I (“Congress shall make no law . . . abridging the freedom of
speech . . . .”); Tex. Const. art. I, § 8 (“Every person shall be at liberty to speak, write, or publish his
opinions on any subject, being responsible for the abuse of that privilege; and no law shall ever be
passed curtailing the liberty of speech or of the press.”).
6
The judgment did not include a specific finding regarding Auspro’s facial challenge.
3
Analysis
Auspro brings three issues on appeal, but its principal contention post-Reed is
that the Texas Highway Beautification Act violates the First Amendment7 because it is a “content-
based” government regulation of speech that cannot survive strict scrutiny. The Department, in
turn, maintains that Reed does not inform our decision, arguing that the Texas Act actually favors
election signs and that, relatedly, we remain bound by the Texas Supreme Court’s 2003 decision
in Texas Department of Transportation v. Barber, which upheld the constitutionality of the Act.8
In the alternative, the Department maintains that our constitutional inquiry here is limited to
the election-sign exemption and that our sole remedy, should we determine that provision is
unconstitutional, is severing that provision from the Act.
Free-speech jurisprudence, Reed, and its aftermath
The First Amendment mandates that “Congress shall make no law . . . abridging
the freedom of speech.”9 The Supreme Court has interpreted this language to generally prohibit any
laws that regulate or restrict expression based on content: “[A]bove all else, the First Amendment
means that the government has no power to restrict expression because of its message, its ideas,
7
“Where, as here, the parties have not argued that differences in state and federal
constitutional guarantees are material to the case, and none is apparent, we limit our analysis to
the First Amendment and simply assume that its concerns are congruent with those of article I,
section 8.” Bentley v. Bunton, 94 S.W.3d 561, 579 (Tex. 2002).
8
111 S.W.3d 86 (Tex. 2003).
9
U.S. Const. amend. I.
4
its subject matter, or its content.”10 Such “content-based” regulations of speech “are presumptively
unconstitutional and may be justified only if the government proves that they are narrowly tailored
to serve compelling state interests.”11 Because this strict-scrutiny inquiry is almost impossible to
overcome—“It is rare that a regulation restricting speech because of its content will ever be
permissible”12 —the primary, and often dispositive, question in a free-speech analysis is whether the
law in question is content based or content neutral. Regulations deemed content neutral—i.e., that
regulate speech without regard to its content—are subject to the less exacting intermediate scrutiny,
which requires that the law in question not be “substantially broader than necessary to achieve the
government’s interest.”13 Reed is the Supreme Court’s most recent articulation of its standard for
determining whether a particular government regulation of speech is content based.
The government regulation of speech addressed in Reed was a sign ordinance that
banned the display of outdoor signs in any part of the Town of Gilbert, Arizona without a permit.14
The ordinance included exemptions from the permit requirement for 23 different categories of
signs and, within those exemptions, imposed varying restrictions depending on the category.15 For
10
Police Dep’t v. Mosley, 408 U.S. 92, 95 (1972). We note that because Auspro’s speech
here is unquestionably noncommercial, this case, like Reed, does not implicate commercial-speech
considerations.
11
Reed, 135 S. Ct. at 2226 (citing R.A.V. v. St. Paul, 505 U.S. 377, 395 (1992); Simon &
Schuster, Inc. v. Members of N.Y. State Crime Victims Bd., 502 U.S. 105, 115, 118, (1991)).
12
United States v. Playboy Entm’t Grp., Inc., 529 U.S. 803, 818 (2000).
13
See Ward v. Rock Against Racism, 491 U.S. 781, 799–800 (1989).
14
See Reed, 135 S. Ct. at 2224.
15
Id. at 2224–25.
5
example, “ideological signs” were freely allowed with no restrictions, while “political signs” could
be displayed without a permit, but only within the 60 days preceding an election and the 15 days
following an election.16
The Reed plaintiffs—a small church and its pastor—challenged the constitutionality
of the ordinance after the Town repeatedly cited the church for failure to comply with the sign
ordinance’s exemption for “temporary directional signs,” generally defined as temporary signs
intended to direct passerby to a “qualifying event” of a non-profit organization.17 The church signs,
which were posted around town each Saturday to announce the time and location of the next day’s
service and then removed by Sunday afternoon, violated the ordinance’s requirement that temporary
directional signs be displayed for no more than twelve hours before the “qualifying event” and
for no more than one hour afterward.18 The Supreme Court, explaining that a regulation of speech
is content based if it “applies to particular speech because of the topic discussed or the idea or
message expressed,” held that the sign code was content based on its face.19 Specifically, the Court
noted that the ordinance defined “temporary directional signs” on the basis of the event being
advertised and “political signs” on the basis of whether the sign’s message “is designed to influence
16
Id. “Ideological signs” are defined as “sign[s] communicating a message or ideas for
noncommercial purposes”; and “political signs” as “temporary sign[s] designed to influence the
outcome of an election called by a public body.” Id.
17
Id. at 2225. “Temporary directional signs relating to a qualifying event” are defined as
“signs directing the public to a meeting of a nonprofit group.” Id.
18
Id.
19
Id. at 2227.
6
the outcome of an election.”20 Ultimately, after deciding that the ordinance was a content-based
regulation subject to strict scrutiny, the Supreme Court determined the Town could not meet its
strict-scrutiny burden and struck down the sign ordinance.21
First Amendment jurisprudence has long analyzed “content-based” regulation of
speech under strict scrutiny. Reed’s significance in this area is its clarification of what constitutes
a content-based restriction on speech. Before Reed, many courts—including the Ninth Circuit in the
decision Reed reversed and the Texas Supreme Court in its 2003 Barber decision upholding the
Texas Act—relied on various arguments to deem as content neutral, and thus subject to only
intermediate scrutiny, statutes that, on their face, differentiated between categories of speech based
on topic or ideas expressed—i.e., were facially content based.22 Stated generally, these arguments
were based on considerations such as whether the regulations in question had been adopted or
motivated by “disagreement with the message conveyed” and whether there were justifications for
the regulation that were “unrelated to the content of the sign.”23 Reed emphatically rejected these
arguments, asserting that this type of analysis “skips the crucial first step in the content-neutrality
20
Id.
21
Id. at 2233.
22
See Reed v. Town of Gilbert, 707 F.2d 1057, 1071–72 (9th Cir. 2013), rev’d, 135 S. Ct.
2218; Barber, 111 S.W.3d at 94.
23
See Reed, 135 S. Ct. at 2226–29 (discussing underlying decision and amicius briefs);
Barber, 111 S.W.3d at 94; see also Brian J. Connolly, Environmental Aesthetics & Free Speech:
Toward A Consistent Content Neutrality Standard for Outdoor Sign Regulation, 2 Mich. J. Envtl.
& Admin. L. 185, 197 (2012) (describing the split between federal circuit courts in determining
content neutrality).
7
analysis: determining whether the law is content neutral on its face.”24 If the law is content-based
on its face, Reed explained, that is the end of the inquiry: “A law that is content based on its face is
subject to strict scrutiny regardless of the government’s benign motive, content-neutral justification,
or lack of ‘animus toward the ideas contained’ in the regulated speech.”25
In sum, as the Supreme Court explained in Reed, a law can be content based in either
of two ways: (1) by distinguishing speech by the topic discussed; and (2) where the government’s
purpose or justification for enacting the law depends on the underlying “idea or message
expressed”—i.e., the law is facially content neutral, but the motives in enacting it were content
based.26 “Both are distinctions drawn based on the message a speaker conveys, and, therefore, are
subject to strict scrutiny.”27 As noted, this framework marks a significant departure from the content-
neutrality analysis used by other courts, including the Texas Supreme Court, that would uphold
facially content-based restrictions as long as those restrictions could be justified on content-neutral
grounds and as long as the regulations were not adopted based on disagreement with the message.
Having determined that the Town’s sign ordinance was content based, the Reed
opinion turned next to analyzing whether the Town could meet its strict-scrutiny burden of showing
that the ordinance furthers a compelling interest and is narrowly tailored to achieve that interest.28
24
Reed, 135 S. Ct. at 2228.
25
Id. (citing Cincinnati v. Discovery Network, Inc., 507 U.S. 410, 429 (1993)).
26
Id.
27
Id.
28
See id. at 2231 (noting and describing burden (citing Arizona Free Enter. Club’s Freedom
Club PAC v. Bennett, 131 S. Ct. 2806, 2817 (2011)).
8
The Town offered only two governmental interests in support of the distinctions the sign code draws:
preserving the Town’s aesthetic appeal and traffic safety. The Supreme Court, willing to assume for
argument’s sake that these asserted interests were compelling governmental interests, nevertheless
concluded that both “distinctions fail as hopelessly underinclusive”29—i.e., they were too limited
in their regulatory reach to address the interest at issue.30 As for the aesthetic interest specifically,
the Court noted that the Town could not “claim that placing strict limits on temporary directional
signs is necessary to beautify the Town while at the same time it allowed unlimited numbers
of other types of signs that create the same [aesthetic] problem.”31 The Supreme Court found the
safety interest likewise underinclusive, noting that it “offered no reason to believe that directional
signs pose a greater threat to safety than do ideological signs or political signs.”32 In light of its
underinclusiveness, the Court held that the Town’s sign ordinance failed strict scrutiny.33
Reed next addressed concerns that its holding would “prevent governments from
enacting effective sign laws,” noting that “not ‘all distinctions’ are subject to strict scrutiny, only
content-based ones are. Laws that are content neutral are instead subject to lesser scrutiny.”34 As
29
Id. at 2231.
30
See, e.g., Erznoznik v. City of Jacksonville, 422 U.S. 205, 214 (1975) (“This Court
frequently has upheld underinclusive classifications on the sound theory that a legislature may deal
with one part of a problem without addressing all of it.”).
31
Id.
32
Id. at 2232.
33
See id.
34
Reed, 135 S. Ct. at 2228 (citing Clark v. Community for Creative Non-Violence, 468 U.S.
288, 295 (1984)).
9
examples, the Court pointed to restrictions in the Town’s sign code regarding size, building
materials, lighting, moving parts, and portability.35 The Court further pointed to lower courts that
have “long held that similar content-based sign laws receive strict scrutiny” while “there is no
evidence that the towns in their jurisdictions have suffered catastrophic effects.”36
Three of the justices filed separate opinions in Reed addressing implications of the
majority opinion.37 Justice Alito proposed several regulations that he thought would not be
considered content based, such as distinctions between on-premises and off-premises signs and time
restrictions on signs for one-time events.38 He also noted that, in addition to regulating signs put up
by private actors, “government entities may erect their own signs consistent with the principles that
allow governmental speech.”39 Justice Kagan, taking a different view in an opinion concurring in
the judgment only, emphasized that, “of course,” restrictions on one-time event signs would be
facially content-based in light of the majority’s decision because they would “single out specific
35
Id.
36
Id. (citing Solantic, LLC v. Neptune Beach, 410 F.3d 1250, 1264–69 (11th Cir. 2005) (sign
categories similar to the town of Gilbert’s were content based and subject to strict scrutiny);
Matthews v. Town of Needham, 764 F.2d 58, 59–60 (1st Cir. 1985) (law banning political signs but
not commercial signs was content based and subject to strict scrutiny)).
37
Justice Alito filed a concurring opinion in which Justices Kennedy and Sotomayor
joined. Justice Breyer filed an opinion concurring in the judgment. Justice Kagan filed an opinion
concurring in the judgment in which Justices Ginsburg and Breyer joined.
38
Id. at 2233 (Alito, J., concurring).
39
Id. (citing Pleasant Grove City v. Summum, 555 U.S. 460, 467–69 (2009) (holding that
city’s placement of monument in park was form of government speech, which is not subject to
scrutiny under Free Speech Clause)).
10
subject matter for differential treatment.”40 Any sign ordinance that restricts some categories of
speech while exempting others, Justice Kagan cautioned, is now in “jeopardy” following the Court’s
decision and would likely be struck down.41 Indeed, a variety of sign codes previously considered
constitutional have been held to be unconstitutional content-based restrictions on speech based
on Reed, including Justice Alito’s example of a permissible ordinance distinguishing between on-
premise and off-premise signs,42 as well as an ordinance setting time limits on election signs.43
Relatedly, Reed has thus far been cited in cases striking down an anti-panhandling ordinance,44 an
anti-robocall statute,45 and a law banning “ballot selfies.”46
40
Id. at 2237 (Kagan, J., concurring); see id. at 2231 (explaining why event-based
restrictions are content based).
41
Id. at 2236 (Kagan, J., concurring).
42
See Thomas v. Schroer, 127 F. Supp. 3d 864 (W.D. Tenn. 2015) (rejecting Alito’s
concurrence and holding that an on-premise/off-premise distinction was content based and unlikely
to survive strict scrutiny).
43
See Marin v. Town of Se, 136 F. Supp. 3d 548 (S.D.N.Y. 2015) (striking down sign ban
based on existence of exemptions, including election-sign exemption, that differentiated based on
content).
44
See Norton v. City of Springfield, 806 F.3d 411, 411 (7th Cir. 2015) (noting that Reed
“abolishe[d] any distinction between content regulation and subject-matter regulation” and made it
clear that “a speech regulation targeted at specific subject matter is content based even if it does not
discriminate among viewpoints within that subject matter”).
45
See Cahaly v. Larosa, 796 F.3d 399, 406 (4th Cir. 2015).
46
See Rideout v. Gardner, 123 F. Supp. 3d 218, 221, 236 (D.N.H. 2015) (law making it
“unlawful for voters to take and disclose digital or photographic copies of their completed ballots”).
11
Reed and the Texas Highway Beautification Act
Born from a mid-1960s initiative to clean up the nation’s roads, the federal Highway
Beautification Act of 1965 requires states to regulate “outdoor advertising” “in areas adjacent to
the Interstate System” or risk losing ten percent of their federal highway funding.47 To comply, states
must exert “effective control” over outdoor advertising located inside an imaginary corridor
around the highway system that extends 660 feet beyond each side of the “the main traveled way.”48
“Effective control” means that the state must limit the signs and displays within the corridor to
“directional and official signs and notices”; “signs . . . advertising the sale or lease of property upon
which they are located”; “signs . . . advertising activities conducted on the property on which they
are located”; “signs lawfully in existence on October 22, 1965”; and “signs . . . advertising the
distribution by nonprofit organizations of free coffee.”49 The federal act generally exempts areas that
the states have zoned as industrial and commercial.50
The Texas Legislature passed the Texas Highway Beautification Act in 1972
to comply with the federal act’s mandate that it do so or risk losing highway funds,51 but included
47
See Highway Beautification Act of 1965, Pub. L. No. 89-285, 79 Stat. 1028 (codified as
amended at 23 U.S.C. § 131).
48
See 23 U.S.C. § 131(b).
49
Id.
50
See id. § 131(d) (sign “may be erected and maintained . . . within areas adjacent to the
Interstate . . . which are zoned industrial or commercial under authority of State law, or in unzoned
commercial or industrial areas as may be determined by agreement between the several States and
the Secretary.”
51
See Highway Beautification Act, 62d Leg., 2d C.S., ch. 1, § 1, 1972 Tex. Gen. Laws 15
(current version at Tex. Transp. Code §§ 391.007–.255 (Subchapters A through I)).
12
in it other highway-beautification provisions unrelated to the federal mandate, including laws
authorizing state-controlled right-of-way information signs, landscaping and scenic enhancement,
and junkyard control.52 The Act’s provisions regulating outdoor advertising essentially mirror the
federal act, banning all signs located (1) within 660 feet of a right-of-way if the advertising is visible
from the interstate, and (2) beyond 660 feet of a right-of-way if the advertising is visible from the
highway and erected for the purpose of having its message seen from the highway.53 The Act then
sets forth a number of exemptions to the ban, including exemptions for signs located in commercial
and industrial areas;54 signs advertising as for sale or for lease the property on which the sign is
located; signs advertising natural wonders or historic attractions; signs advertising activities that will
take place on the property where the sign is located; signs that have as their purpose the protection
of life and property;55 and, specifically implicated here, signs on private property that “relat[e] solely
to a public election.”56
Section 391.032 of the Act gives the Transportation Commission the authority to
regulate outdoor advertising in the commercial and industrial areas that are exempted from the
52
See id. at §§ 2–12, 1972 Tex. Gen. Laws at 15–20 (current version at Tex. Transp. Code
§§ 391.091–.213 (Subchapters D through H)).
53
See Tex. Transp. Code § 391.031(a)(1)–(2).
54
See id. § 391.031(b)(4).
55
Id. § 391.031(b)(1)–(3), (5).
56
See id. § 391.005 (requiring, among other things, that the sign relate to a public election,
be located on private property and be erected no earlier than 90 days before an election and removed
within 10 days after the election); see also 43 Tex. Admin. Code § 21.146(9) (2011) (Tex. Dep’t
Transp., Exempt Signs), amended by 39 Tex. Reg. 7954 (current version at 43 Tex. Admin. Code
§ 21.146(a)(10)).
13
Act’s ban,57 which the Commission has done in Title 43 of the Texas Administrative Code.58 Those
rules, stated generally, require that all signs located within the same imaginary corridor as that in the
Act have a Department-issued permit or be subject to a fine and removal, unless the sign qualifies
under one of several exemptions.59 The rules’ exemptions include those set forth in the Act—e.g.,
election signs and signs with the purpose of protecting life or property—as well as those for public-
service signs, signs of nonprofits or other charitable organizations, neighborhood subdivision or
homeowners-association signs, and signs showing the names of ranches.60 Here, because Auspro’s
property was located in a commercial-zoned area, its sign was required to have a permit or qualify
for a permit exception, which it did not.
Under Reed’s standard for content neutrality—which simply asks whether the law
applies to particular speech because of the topic discussed or the idea or message expressed—the
Texas Act’s outdoor-advertising regulations are clearly content based. The Texas Supreme Court
acknowledged as much when it considered these same provisions of the Act in Barber: “The Act . . .
does make certain distinctions based on subject matter.”61 Specifically, as described above, most of
the Act’s exemptions depend entirely on the subject matter of the sign’s message:
57
See id.§ 391.032(a).
58
See 43 Tex. Admin. Code §§ 21.141–.204 (Subchapter I, Div. 1, Signs).
59
See id. §§ 21.143 (Tex. Dep’t Transp., Permit Required), 21.198 (Order of Removal),
21.204 (Administrative Penalties).
60
See id. § 21.146 (Exempt Signs).
61
Barber, 111 S.W.3d at 98 (referring to Tex. Transp. Code §§ 391.005, .031(b)).
14
• “erected solely for and relating to a public election”;62
• “advertising . . . a natural wonder or scenic or historic attraction”;63
• “advertising . . . the sale or lease of the property on which it is located”;64 and
• “advertising . . . activities conducted on the property on which it is located.”65
And at least one exemption in the Act is based on the function or purpose of the regulated
speech: “[O]utdoor advertising that has as its purpose the protection of life and property.”66
Because exemptions to the Department’s permitting rules—several of which are identical to Act
exemptions—are likewise based on the speech’s subject matter, function or purpose, and the speaker,
they too are content-based regulations of speech under Reed’s framework.
Like the Town of Gilbert’s sign ordinance, the Texas Act and the related
Department rules restrict speech in different ways based on the communicative content of the sign.67
For example, a sign advertising a presidential candidate’s fundraising event at the site where the sign
is displayed would be allowed at any time under the Texas Act,68 while a sign that merely expresses
the view that one should vote for that same presidential candidate would be banned during all but
62
Tex. Transp. Code § 391.005.
63
Id. § 391.031(b)(1).
64
Id. § 391.031(b)(2).
65
Id. § 391.031(b)(3).
66
Id. § 391.031(b)(5).
67
See Reed, 135 S. Ct. at 2227.
68
See Tex. Transp. Code § 391.031(b)(3) (generally exempting signs advertising “activities
conducted on the property on which [the sign] is located”).
15
the small window around an election.69 Likewise, and more to the point here, Auspro’s election sign
for Ron Paul is treated differently under the Department rules (promulgated under the Act) than are
signs conveying other messages and ideas, including, for example, a sign by a nonprofit organization
advertising an event by that organization.70 Under Reed’s framework, the Texas Act’s outdoor-
advertising regulations and associated Department rules are, on their face, content-based regulations
of speech.71
The Department asserts that Reed does not inform our decision here because
the Texas Act actually protects Auspro’s speech. The election-sign exemption does not prohibit
elections signs in violation of the First Amendment, the Department argues, but “allows
certain election speech that would otherwise be barred by the Act’s general, content-neutral
prohibition of signs visible from highways.” “Even if the exemption draws a content-based line,”
the Department continues, “that line would, if anything favor the very type of election speech that
Auspro advocates.” This argument misses the point of Reed.
First, there is little, if any, difference between the election-sign exemption examined
in Reed and the one at issue here.72 Both exempt election-related signs from a general ban on
signs within a certain number of days surrounding an election.73 More importantly, both exemptions
distinguish speech based on the subject matter of that speech. Signs relating to elections are
69
See id. § 391.005 (allowing election signs only 100 days around election).
70
See 43 Tex. Admin. Code § 21.146(6), (10).
71
See Reed, 135 S. Ct. at 2227.
72
See id. at 2225.
73
See Tex. Transp. Code § 391.005; Reed, 135 S. Ct. at 2225.
16
restricted as to date and size in ways that other non-election signs are not. Characterizing such an
exemption as “favorable” to protected speech does not change the fact that it is a distinction based
on content under Reed. If anything, it exposes the exemption as “a paradigmatic example of content-
based discrimination.”74 The Department’s insistence on looking beyond the face of the Act
despite its awareness that the election-sign “exemption draws a content-based line” ignores Reed’s
plainly stated holding that “[a] law that is content based on its face is subject to strict scrutiny
regardless of the government’s benign motive, content-neutral justification, or lack of ‘animus
toward the ideas contained’ in the regulated speech.”75 The Texas Act, as both the Department and
the Texas Supreme Court have acknowledged, on its face draws distinctions based on the message
a speaker conveys—i.e., is content based on its face under the Reed analysis.
In what it considers a related argument regarding Reed’s import here, or rather lack
of import, the Department next suggests that the sign code in Reed and the Texas Act are inherently
different because, as the Texas Supreme Court noted in Barber, the Texas Act “allows all onsite
commercial speech and all onsite noncommercial speech” throughout the year.76 This is important,
the Department urges, because if Auspro had simply made “its election speech pertain[] to activities
on its premises, its sign would have complied with the Texas Act.” While this may be true,
the Department’s argument again overlooks the effect of Reed’s holding. The point of Reed is not
74
Reed, 135 S. Ct. at 2230 (explaining ordinance’s more favorable treatment of some signs
based on content).
75
Id. at 2237.
76
Barber, 111 S.W.3d at 99 (emphasis omitted); see Tex. Transp. Code § 391.031(b)(3)
(exempting from ban signs advertising activities conducted on property on which it is located).
17
whether the regulation provides alternative avenues of speech, but whether it “applies to particular
speech because of the topic discussed or the idea or message expressed.”77 Moreover, the
Department’s suggestion that Auspro could have complied with the Act by simply changing its
sign to advertise a Ron Paul-related event on its premises—an example similar to that used in
Reed78—actually emphasizes the Act’s disparate treatment of content.
Finally, before addressing the Department’s remaining point, we note that we always
faithfully adhere to our obligation, as an intermediate appellate court, to defer to the Texas Supreme
Court’s decisions, and we are mindful that its decision to uphold the Act in Barber would likely be
dispositive of Auspro’s appeal here.79 In light of Reed’s changes to First Amendment jurisprudence,
however, we respectfully disagree with the Department’s assertion that we remain bound by Barber’s
holding that the Texas’s Highway Beautification Act “is content neutral and constitutes a valid
time, place, and manner restriction.”80 As we explain above, Barber acknowledged that the
Texas Highway Beautification Act:
77
Reed, 135 S. Ct. at 2227.
78
See id., 135 S. Ct. at 2227 (“If a sign informs its reader of the time and place a book club
will discuss John Locke’s Two Treatises of Government, that sign will be treated differently from
a sign expressing the view that one should vote for one of Locke’s followers in an upcoming
election, and both signs will be treated differently from a sign expressing an ideological view rooted
in Locke’s theory of government.”).
79
See, e.g., Swilley v. McCain, 374 S.W.2d 871, 875 (Tex. 1964) (“After a principle, rule
or proposition of law has been squarely decided by the Supreme Court, or the highest court of the
State having jurisdiction of the particular case, the decision is accepted as binding precedent by the
same court or other courts of lower rank when the very point is again presented in a subsequent suit
between different parties.”).
80
Barber, 111 S.W.3d at 90.
18
does make certain distinctions based on subject matter. For example, the Act
exempts from regulation directional signs, signs pertaining to natural wonders or
scenic or historic attractions, signs for the sale of property on which they are located,
signs designed to protect life and property, and signs providing information about
the location of utility lines. The Act also exempts temporary signs relating to public
elections and signs relating to activities conducted on the property where the signs
are located.81
In light of Reed’s unequivocal holding, these distinctions render the Act’s sign ban content based
and presumptively invalid unless the government can meet its strict-scrutiny burden.82 We would
note further that the Barber majority, along with many other courts, construed pre-Reed precedent
as allowing “content-based regulations [to be treated] as content neutral if the regulations are
motivated by a permissible content-neutral purpose,”83 as long as “the Act does not endorse any
particular viewpoint.”84 In doing so, Barber reasoned that “the Act does not endorse any particular
viewpoint”; “the Texas Legislature did not adopt the Texas Highway Beautification Act because it
disagreed with any messages that might otherwise be conveyed”; and ultimately concluded that “the
Act is . . . content neutral because it is ‘justified without reference to the content of the regulated
speech.’”85 With regard to the election-sign exemption, the Barber majority explained that, although
“arguably content based,” it could be “deemed neutral” because it “serves purposes unrelated
81
Id. at 93.
82
See Reed, 135 S. Ct. at 2226.
83
Barber, 111 S.W.3d at 93 (relying on Ward, 491 U.S. at 784 and City of Renton
v. Playtime Theatres, Inc., 475 U.S. 41, 48 (1986)).
84
Id. at 98.
85
Id. at 100 (quoting City of Renton, 475 U.S. at 48).
19
to the content of expression.”86 As noted, Reed has explicitly rejected these same arguments and
analyses.87 In doing so, Reed has, at a minimum, eliminated the essential underpinnings of the
content-neutrality analysis on which Barber’s holding relied. As such, we must adhere to our
obligation to follow the United States Supreme Court on this First Amendment issue.88
We hold that, under Reed’s framework, the Texas Highway Beautification Act’s
outdoor-advertising regulations and related Department rules are content-based regulations of speech
subject to strict scrutiny.
Strict scrutiny
Under a strict-scrutiny analysis, which has been described as “‘strict’ in theory but
usually ‘fatal’ in fact,’”89 the government has the burden of proving that the restriction furthers a
86
Id.
87
See Reed, 135 S. Ct. at 2228.
88
See Barstow v. State, 742 S.W.2d 495, 501 n.2 (Tex. App.—Austin 1987, writ denied)
(“On questions of federal law . . . all courts in every state owe obedience to the Supreme Court of
the United States.”); see also Penrod Drilling Corp. v. Williams, 868 S.W.2d 294, 296 (Tex. 1993)
(Texas courts “are obligated to follow only higher Texas courts and the United States Supreme
Court.” (citing Barstow, 742 S.W.2d. at 501 n.2)).
89
Bernal v. Fainter, 467 U.S. 216, 219 n.6 (1987) (quoting Gerald Gunther, Foreword:
In Search of Evolving Doctrine on a Changing Court: A Model for a Newer Equal Protection,
86 Harv. L. Rev. 1, 8 (1972)); see Reed, 135 S. Ct. at 2236 (Kagan, J., concurring) (“After all, it
is the ‘rare case[] in which a speech restriction withstands strict scrutiny.” (quoting Williams–Yulee
v. Florida Bar, 135 S. Ct. 1656, 1666, (2015)); 2 Chester James Antieau & William J. Rich,
Modern Constitutional Law § 25.02, at 8 (2d ed. 1997) (noting strict scrutiny “create[s]
virtually insurmountable hurdles for the government seeking to defend its classifications”).
20
compelling interest and is narrowly tailored to achieve that interest.90 Here, the Department has to
demonstrate that the Act’s differentiation between types of signs furthers a compelling governmental
interest and it is narrowly tailored to that end.91 The Department acknowledges that it cannot do
this, and we cannot disagree. For example, even assuming, as did the Supreme Court in Reed,92 that
aesthetic appeal and traffic safety are compelling governmental interests, the Act’s provisions are
underinclusive: election signs outside the 100-day window around an election would pose no greater
threat to safety and would not categorically be any uglier than the signs that are treated differently
under the Act.93 And with the possible exception of the exemption for signs regarding the protection
of life and property,94 the Act’s remaining content-based exemptions are similarly underinclusive.95
For the same reasons, the related Department rules likewise cannot meet such an exacting standard.
Accordingly, the Act’s sign regulations and related Department permitting rules fail strict scrutiny.96
90
Reed, 135 S. Ct. at 2231 (citing Bennett, 131 S. Ct. at 2817 (quoting Citizens United
v. Federal Election Comm’n, 558 U.S. 310, 340 (2010))).
91
See id.
92
See id.
93
See id.
94
See Tex. Transp. Code § 391.031(b)(5). Nevertheless, virtually every court and legal
commentator that has discussed this topic, including the Supreme Court, has insisted that strict-
scrutiny review is effectively fatal. See supra n. ___.
95
See Tex. Transp. Code § 391.031(b)(1)–(3); Reed, 135 S. Ct. at 2231.
96
See Reed, 135 S. Ct. at 2232 (holding that Town’s sign code failed strict scrutiny because
exceptions were underinclusive).
21
Remedy
Having determined that the government restrictions on speech at issue here
fail strict scrutiny, we must now determine the appropriate remedy. The Department maintains that
rather than grant Auspro its requested relief of declaring the entire Texas Highway Beautification
Act unconstitutional, we are limited to severing the election-sign exemption from the Act. This is
so, the Department contends, because Auspro’s opening brief to this Court targeted only the election-
sign exemption, which the Department asserts means that Auspro has waived any broader challenge
to the Act and, thus, the remedy to declare the entire Act unconstitutional.97 The Department
relatedly invokes Texas’s broad severability statute, urging that because we can remedy the Act’s
unconstitutionality by simply severing the election-sign exemption, we must do so.98 We disagree
that Auspro’s opening brief is so limited,99 but we do agree that Texas’s severability doctrine dictates
that we preserve portions of the Texas Act.
97
See Tex. R. App. P. 38.1(i), (j) (issues not raised in opening brief are waived); Salazar
v. Phillips & Luckey Co., No. 03-11-00441-CV, 2013 WL 4516021, at *4 (Tex. App.—Austin
Aug. 21, 2013, no pet.) (mem. op.) (“‘[A]n appellate court has no discretion to consider an issue not
raised in an appellant’s brief.’” (quoting Canton–Carter v. Baylor Coll. of Med., 271 S.W.3d 928,
930 (Tex. App.—Houston [14th Dist.] 2008, no pet.))).
98
See Tex. Gov’t Code § 311.032.
99
Auspro’s initial brief to this Court asserts, “The Texas Highway Beautification Act . . .
turn[s] the[] fundamental constitutional principles [that regulation based on the content of speech
is subject to strict scrutiny] on their head by banning signs related to elections from appearing on
private property along the State’s highways and interstates for three fourths of the year, while signs
relating to other topics have no similar restriction.” Although explicitly singling out the election-
sign exemption, the gravamen of this assertion is that the Act violates the constitutional prohibition
against content-based regulations of speech because, on its face, it “draws distinctions based on the
message a speaker conveys.” Reed, 135 S. Ct. at 2227. This is a facial challenge to the Act.
22
The applicable severability provision of the Code Construction Act provides:
if any provision of the statute or its application to any person or circumstance is held
invalid, the invalidity does not affect other provisions or applications of the statute
that can be given effect without the invalid provision or application, and to this end
the provisions of the statute are severable.100
This severability provision is similar to the doctrine previously adopted by the Texas Supreme Court:
“When . . . part of a statute is unconstitutional, that fact does not authorize the courts
to declare the remainder void also, unless all the provisions are connected in
subject-matter, dependent on each other, operating together for the same purpose, or
otherwise so connected together in meaning that it cannot be presumed the legislature
would have passed the one without the other. . . . If, when the unconstitutional
portion is stricken out, that which remains is complete in itself, and capable of being
executed in accordance with the apparent legislative intent, wholly independent of
that which was rejected, it must stand.101
In short, the purpose of severability is to sever a statute’s problematic portions while leaving the
remainder intact whenever possible—i.e., to “limit the solution to the problem”102—but whatever
we do, our primary focus must be on the intent of the legislature.103
100
Tex. Gov’t Code § 311.032(c) (applicable to statutes without a severability provision).
101
Western Union Tele. Co. v. State, 62 Tex. 630, 634 (1884); see Rose v. Doctors Hosp.,
801 S.W.2d 841, 844 (Tex. 1990) (citing Western Union, 62 Tex. at 634, for severability test).
102
Ayotte v. Planned Parenthood of N. New England, 546 U.S. 320, 328 (2006).
103
Rose, 801 S.W.2d at 850 (Phillips, C.J., dissenting); see Geeslin v. State Farm Lloyds,
255 S.W.3d 786, 797 (Tex. App.—Austin 2008, no pet.) (citing Minnesota v. Mille Lacs Band of
Chippewa Indians, 526 U.S. 172, 191 (1999) (“Unless it is evident that the legislature would not
have enacted those provisions which are within its power, independently of that which is not, the
invalid part may be dropped if what is left is fully operative as a law.”)); see also Ayotte, 546 U.S.
at 329 (“We prefer . . . to sever its problematic portions while leaving the remainder intact.”).
23
Dependent as it is on Reed and Auspro’s underlying claim, our decision here is
necessarily limited to government regulation of speech, specifically Texas’s regulation of outdoor
advertising in the Texas Highway Beautification Act. But as briefly noted above, the Texas Act
includes several provisions that, while related to highway beautification, do not constitute
government regulation of speech. For example, the Act includes the Legislature’s program for state
controlled right-of-way information logo signs;104 regulations controlling junkyards and automobile
graveyards along the State’s highways;105 and the Transportation Commission’s legislative authority
to acquire property along the State’s highways “to restore, preserve, or enhance scenic beauty”
or to provide public rest areas.106 Because these provisions in the Texas Act are not government
regulations of speech, neither Reed nor our decision here affect their validity.107 Also, the provisions
in Subchapter I are not affected by our decision here because they authorize the State to regulate
commercial speech along certain specified highways, specifically off-premise signs displaying
104
See Tex. Transp. Code §§ 391.091–.099 (Subchapter D, Specific Information Logo Signs)
(creating programs for signs in State’s right-of-way that contain logos of participating businesses);
see also Walker v. Texas Div., Sons of Confederate Veterans, Inc., 135 S. Ct. 2239, 2249–50 (2015)
(holding Texas’s speciality license plates are government speech, thus not subject to scrutiny under
Free Speech Clause (relying on Pleasant Grove, 555 U.S. at 471)).
105
See Tex. Transp. Code §§ 391.121–.127 (Subchapter E, Regulation of Junkyards and
Automobile Graveyards) (prohibiting junkyards/automobile graveyards within 1,000 feet of highway
unless junkyard is properly screened from view or in industrial area).
106
See id. §§ 391.151–.152 (Subchapter F, Acquisition for Scenic Enhancement or Public
Accommodation), 391.181–.184 (Subchapter G, Acquisitions by Commission).
107
Although Subsection H authorizes the State to regulate outdoor advertising on State
Highway 288, it does not include any content-based provisions. See id. §§ 391.211–.213. As such,
it is not affected by our holding here.
24
messages regarding “goods, services, or merchandise.”108 Regarding our severability analysis, it is
worth noting that these provisions of the Act, although related to highway beautification, were not
mandated by the federal Highway Beautification Act.109 Further, because these provisions are
complete in themselves—i.e., they would not be affected by the invalidity of the sign-ban regulations
of Subchapters B and C—and are capable of being executed as the Legislature intended in the
absence of the Act’s outdoor-advertising regulations, Texas’s severability doctrine mandates that
they be preserved.110
Turning to the regulations of speech that are at issue here, those can be found
in Subchapters B and C of the Act.111 Within those subchapters, there are several individual
sections that, under Reed and our analysis here, are unconstitutional content-based restrictions on
speech. As such, severing only the election-sign exemption, as the Department asks us to limit our
remedy, would not cure the constitutional infirmities caused by the remaining content-based
exemptions. In fact, severing only the election-sign exemption would not even remedy Auspro’s
108
Id. § 391.251(2)–.252; see Central Hudson Gas & Elec. Corp. v. Public Serv. Comm’n,
447 U.S. 557, 563, (1980) (describing commercial speech as “expression related solely to the
economic interests of the speaker and its audience”); see also Pruett v. Harris Cty. Bail Bond Bd.,
249 S.W.3d 447, 456 (Tex. 2008) (“Commercial speech is generally afforded less constitutional
protection than other forms of constitutionally guaranteed expression.” (citing Central Hudson,
447 U.S. at 563)).
109
See 23 U.S.C. § 131(a)–(t).
110
See Western Union, 62 Tex. at 634; see also Tex. Gov’t Code § 311.032 (courts should
sever unconstitutional aspects and save balance of law if “other provisions or applications of the
statute . . . can be given effect without the invalid provision or application”).
111
See Tex. Transp. Code §§ 391.031–.037 (Subchapter B, “Regulation of Outdoor
Advertising Generally”), 391.061–.070 (Subchapter C, “License and Permit for Outdoor
Advertising”), 391.211–.213.
25
harm because the Act would still ban Auspro’s election campaign sign—all year, every year—while
allowing other categories of signs at all times, all based on their content. In other words, even with
the election-sign exemption invalidated, the Act would still treat speech differently based on the
content of that speech.
To resolve the Act’s constitutional problems, all of the content-based provisions
must be severed—including at least sections 391.031(b), 391.037,112 391.061(c), and 391.070.113
This would leave standing, with respect to the substantive provisions of the Act’s ban on outdoor
advertising, only section 391.031(a)’s prohibition against signs within the imaginary federal corridor
and two exemptions: one for signs erected in industrial or commercial areas (subject to state
permitting rules); and the other for signs erected before October 22, 1965.114
Would this leave standing a law—i.e., the Legislature’s ban on outdoor
advertising—that is “complete in itself”?115 Perhaps. But what is not so easily answered in the
affirmative is the second prong of the severability question: Is the remaining law “capable of
112
Section 391.037 involves advertising by certain county agricultural fairs. See id.
§ 391.037. Reed noted that speech restrictions based on the identity of the speaker are often content
based and subject to strict scrutiny. See Reed, 135 S. Ct. at 2230 (citing Citizens United, 558 U.S.
at 340; Turner Broadcasting Sys., Inc. v. Federal Commc’ns Comm’n, 512 U.S. 622, 658 (1994)).
113
Section 391.070 creates an exception for certain nonprofit organizations. See
Tex. Transp. Code § 391.070; supra n. __.
114
See Tex. Transp. Code § 391.031(a).
115
Western Union, 62 Tex. at 634; see Tex. Gov’t Code § 311.032 (courts should sever
unconstitutional aspects and save balance of law if “other provisions or applications of the statute . . .
can be given effect without the invalid provision or application”).
26
being executed in accordance with the apparent legislative intent, wholly independent of that which
was rejected”?116
The Department suggests that because the original version of the Texas Act did not
include the election-sign exemption, severing that exemption would do no harm to the Legislature’s
intent in enacting the ban on outdoor advertising. But the 1972 Texas Act included the sign-ban
exemptions now codified in section 391.031.117 And certain of these original exemptions seem
to be directed at protecting traditional rights enjoyed by property owners—e.g., allowing an owner
to advertise the sale or lease of the property; to promote or advertise activities taking place on
the property; and to warn about issues affecting life and property. To that extent, these exceptions
express the Legislature’s intent to protect those rights, and a blanket ban on all outdoor advertising
would potentially alter that intent. These arguments also completely ignore the possibility that a
complete ban on all signs, while likely content neutral, could raise other free-speech and property-
rights concerns.118 At a minimum, though, we cannot know whether the Legislature would have
enacted a complete ban on outdoor advertising. Moreover, given that the federal Highway
Beautification Act—the primary impetus for the Texas Act and, in fact, the law on which the Texas
Act “is conditioned”119—seems to share the same constitutional flaws as does the Texas Act under
116
Western Union, 62 Tex. at 634.
117
See Highway Beautification Act, 62d Leg., 2d C.S., ch. 1, § 4, 1972 Tex. Gen. Laws 15,
16 (current version codified at Tex. Transp. Code § 391.031).
118
See, e.g., Gilleo, 512 U.S. at 55 (noting dangers to freedom of speech posed by content-
neutral prohibition of all signs).
119
See Tex. Transp. Code § 391.002(a) (“This Chapter is conditioned on th[e Highway
Beautification Act of 1965].”).
27
Reed,120 we cannot say with any certainty what the Texas Legislature will want in terms of a ban on
highway signs in the absence of a federal act requiring one. Should the federal act be declared
unconstitutional—a possibility suggested by the United States’ amicus brief in Reed121—Congress
and other state legislatures would be faced with deciding whether to enact sign restrictions and, if
so, how to comply with Reed. That is the sole province of the Legislative Branch.
Finally, we think it is worth noting that this Court—in the holding later reversed by
the supreme court in Barber—addressed and rejected this same suggestion by the Department that
we could remedy any constitutional flaws in the Act by eliminating all exemptions, leaving a total
ban on outdoor advertising.122 Our response was to invoke the Supreme Court’s reasoning in City
of Ladue v. Gilleo:
“[T]he City might theoretically remove the defects in its ordinance by simply
repealing all of the exemptions. If, however, the ordinance is also vulnerable
because it prohibits too much speech, that solution would not save it. Moreover,
if the prohibitions in Ladue’s ordinance are impermissible, resting our decision
on its exemptions would afford scant relief for respondent Gilleo. She is primarily
concerned not with the scope of the exemptions available in other locations, such as
120
See, e.g., Brief for the United States as Amicus Curiae Supporting Petitioners, Reed
v. Town of Gilbert, 135 S. Ct. 2218 (2015) (No. 13-502) (urging Supreme Court to consider
nuanced application of strict scrutiny to facially content-based restrictions because of likely adverse
consequences to certain statutes, including federal highway beautification act, that included content-
based provisions).
121
Id. at 11, 26, 33; see also Reed, 135 S. Ct. at 2239 (Kagan, J., concurring) (noting
that “thousands of towns have such [sign ordinances], many of them ‘entirely reasonable’” and
expressing concern that Reed would require courts “to invalidate [them] one after the other”).
122
See Barber v. Texas Dep’t of Transp., 49 S.W.3d 12, 25 (Tex. App.—Austin 2001), rev’d
111 S.W.3d at 86.
28
commercial areas and on church property; she asserts a constitutional right to display
an antiwar sign at her own home.”123
And as we did then, we conclude today, “The same might be said of the Texas Highway
Beautification Act.”124
Conclusion
Guided by Reed, we are compelled to reverse the district court’s judgment and
render judgment severing Subchapters B and C125 from the Texas Highway Beautification Act as
unconstitutional content-based restrictions on speech.
__________________________________________
Jeff Rose, Chief Justice
Before Chief Justice Rose, Justices Pemberton and Field
Reversed and Rendered
Filed: August 26, 2016
123
Barber, 49 S.W.3d at 25 (quoting Gilleo, 512 U.S. at 53).
124
Id.
125
Tex. Transp. Code §§ 391.031–.070.
29