City of Austin v. Reagan National Advertising of Austin, LLC

(Slip Opinion) OCTOBER TERM, 2021 1
Syllabus
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.
SUPREME COURT OF THE UNITED STATES
Syllabus
CITY OF AUSTIN, TEXAS v. REAGAN NATIONAL
ADVERTISING OF AUSTIN, LLC, ET AL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE FIFTH CIRCUIT
No. 20–1029. Argued November 10, 2021—Decided April 21, 2022
Like a great many jurisdictions around the country, the City of Austin,
Texas (City), specially 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. See City Code §25–10–102(1). These
are known as off-premises signs. The City’s sign code at the time of
this dispute prohibited construction of new off-premises signs. Ibid.
Grandfathered off-premises signs could remain in their existing loca-
tions as “nonconforming signs,” but could not be altered in ways that
increased their nonconformity. §§25–10–3(10), 25–10–152(A)–(B).
On-premises signs were not similarly restricted. §25–10–102(6).
Respondents, Reagan National Advertising of Austin, LLC, and La-
mar Advantage Outdoor Company, L. P., own billboards in Austin.
When Reagan sought permits to digitize some of its billboards, the City
denied its applications. Reagan filed suit in state court, alleging that
the City’s prohibition against digitizing off-premises signs, but not on-
premises signs, violated the First Amendment’s Free Speech Clause.
The City removed the case to federal court, and Lamar intervened.
The District Court held that the challenged sign code provisions were
content neutral under Reed v. Town of Gilbert, 576 U. S. 155, reviewed
the City’s on-/off-premises distinction under intermediate scrutiny,
and found that the distinction satisfied that standard. The Court of
Appeals reversed. It found the on-/off-premises distinction to be fa-
cially content based because a government official had to read a sign’s
message to determine whether the sign was off-premises. The court
then reviewed the City’s on-/off-premises distinction under strict scru-
tiny, and it held that the City failed to satisfy that onerous standard.
Held: The City’s on-/off-premises distinction is facially content neutral
2 CITY OF AUSTIN v. REAGAN NAT.
ADVERTISING OF AUSTIN, LLC
Syllabus
under the First Amendment. Pp. 6–14.
(a) Reed held that a regulation of speech is content based under the
First Amendment if it “target[s] speech based on its communicative
content,” i.e., if it “applies to particular speech because of the topic dis-
cussed or the idea or message expressed.” 576 U. S., at 163. The Court
of Appeals’ interpretation of Reed—to mean that a regulation cannot
be content neutral if its application requires reading the sign at is-
sue—is too extreme an interpretation of this Court’s precedent. Pp. 6–
12.
(1) In Reed, the town of Gilbert, Arizona, adopted a comprehensive
sign code that applied distinct size, placement, and time restrictions
to 23 different categories of signs, giving more favorable treatment to
some categories (such as ideological signs or political signs) and less
favorable treatment to others (such as temporary directional signs re-
lating to religious events, educational events, or other similar events).
The Court rejected the contention that the restrictions were content
neutral because they did not discriminate on the basis of particular
viewpoints, reasoning that “a speech regulation targeted at specific
subject matter is content based even if it does not discriminate among
viewpoints within that subject matter.” 576 U. S., at 169. Unlike the
sign code in Reed, the City’s sign ordinances here do not single out any
topic or subject matter for differential treatment. A sign’s message
matters only to the extent that it informs the sign’s relative location.
Thus, the City’s on-/off-premises distinction is more like ordinary time,
place, or manner restrictions, which do not require the application of
strict scrutiny. Cf. Frisby v. Schultz, 487 U. S. 474, 482. Pp. 6–8.
(2) This Court’s precedents and doctrines have consistently recog-
nized 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, and speech
must be read or heard to determine whether it entails solicitation. See
Heffron v. International Soc. for Krishna Consciousness, Inc., 452 U. S.
640. Moreover, the Court has previously understood distinctions be-
tween on-premises and off-premises signs to be content neutral. See
Suffolk Outdoor Advertising Co. v. Hulse, 439 U. S. 808 (order dismiss-
ing appeal); Members of City Council of Los Angeles v. Taxpayers for
Vincent, 466 U. S. 789. Underlying these cases and others is a rejec-
tion of the view that any examination of speech or expression inher-
ently triggers heightened First Amendment concern. Rather, content-
based regulations are those that discriminate based on “the topic dis-
cussed or the idea or message expressed.” Reed, 576 U. S., at 171.
Pp. 8–10.
(3) Reagan’s counterargument relies primarily on a sentence in
Reed recognizing that “[s]ome facial distinctions based on a message
Cite as: 596 U. S. ____ (2022) 3
Syllabus
are obvious, defining regulated speech by particular subject matter,
and others are more subtle, defining regulated speech by its function
or purpose.” 576 U. S., at 163. Reagan contends that the City’s sign
code defines off-premises signs on the basis of function or purpose and
is therefore content based and subject to strict scrutiny. This stretches
Reed’s “function or purpose” language too far. Reed held that subtler
forms of content discrimination cannot escape classification as content
based simply because they swap an obvious subject-matter distinction
for a function or purpose proxy. That does not mean that any classifi-
cation that considers function or purpose is always content based.
Reagan’s reading of Reed would contravene numerous precedents and
cast doubt on the Nation’s history of regulating off-premises signs.
Pp. 11–12.
(b) This Court’s determination that the City’s on-/off-premises dis-
tinction is facially content neutral does not end the First Amendment
inquiry. Evidence that an impermissible purpose or justification un-
derpins a facially content-neutral restriction may mean that the re-
striction is nevertheless content based. Moreover, to survive interme-
diate scrutiny, a restriction on speech or expression must be
“ ‘narrowly tailored to serve a significant governmental interest.’ ”
Ward v. Rock Against Racism, 491 U. S. 781, 791. Because the Court
of Appeals did not address these issues, the Court leaves them for re-
mand and expresses no view on the matters. Pp. 13–14.
972 F. 3d 696, reversed and remanded.
SOTOMAYOR, J., delivered the opinion of the Court, in which ROBERTS,
C. J., and BREYER, KAGAN, and KAVANAUGH, JJ., joined. BREYER, J., filed
a concurring opinion. ALITO, J., filed an opinion concurring in the judg-
ment in part and dissenting in part. THOMAS, J., filed a dissenting opin-
ion, in which GORSUCH and BARRETT, JJ., joined.
Cite as: 596 U. S. ____ (2022) 1
Opinion of the Court
NOTICE: This opinion is subject to formal revision before publication in the
preliminary print of the United States Reports. Readers are requested to
notify the Reporter of Decisions, Supreme Court of the United States, Wash-
ington, D. C. 20543, of any typographical or other formal errors, in order that
corrections may be made before the preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES
_________________
No. 20–1029
_________________
CITY OF AUSTIN, TEXAS, PETITIONER v.
REAGAN NATIONAL ADVERTISING
OF AUSTIN, LLC, ET AL.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE FIFTH CIRCUIT
[April 21, 2022]
JUSTICE SOTOMAYOR delivered the opinion of the Court.
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 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 reg-
ulation is subject to strict scrutiny. We hold that it is not.
I
A
American jurisdictions have regulated outdoor advertise-
ments for well over a century. See C. Taylor &
W. Chang, The History of Outdoor Advertising Regulation
in the United States, 15 J. of Macromarketing 47, 48
(Spring 1995). By some accounts, the proliferation of con-
spicuous patent-medicine advertisements on rocks and
barns prompted States to begin regulating outdoor adver-
tising in the late 1860s. Ibid.; F. Presbrey, The History and
2 CITY OF AUSTIN v. REAGAN NAT.
ADVERTISING OF AUSTIN, LLC
Opinion of the Court
Development of Advertising 500–501 (1929). 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 deal-
ers. Packer Corp. v. Utah, 285 U. S. 105, 107, 110.
On-/off-premises distinctions, like the one at issue here,
proliferated following the enactment of the Highway Beau-
tification Act of 1965 (Act), 23 U. S. C. §131. 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. See §§131(b)–(c) (al-
lowing exceptions for “signs, displays, and devices advertis-
ing the sale or lease of property upon which they are lo-
cated” and “signs, displays, and devices . . . advertising
activities conducted on the property on which they are lo-
cated”). Under the Act, approximately two-thirds of States
have implemented similar on-/off-premises distinctions.
See App. A to Reply to Brief in Opposition (collecting stat-
utes); Brief for State of Florida et al. as Amici Curiae 7, n. 3
(same). The City represents, and respondents have not dis-
puted, that “tens of thousands of municipalities nation-
wide” have adopted analogous on-/off-premises distinctions
in their sign codes. Brief for Petitioner 19; see also App. B
to Reply to Brief in Opposition (collecting examples of ordi-
nances); Brief for State of Florida et al. as Amici Curiae 8,
n. 4 (same).
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 pub-
lic safety.” App. 39.
Cite as: 596 U. S. ____ (2022) 3
Opinion of the Court
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, prod-
ucts, or services not located on the site where the sign is
installed, or that directs persons to any location not on that
site.” Austin, Tex., City Code §25–10–3(11) (2016). 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, §25–10–102(1),
but allowed existing off-premises signs to remain as grand-
fathered “non-conforming signs,” §25–10–3(10). 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 of the
existing nonconformity,” “change the method or technology
used to convey a message,” or “increase the illumination of
the sign.” §§25–10–152(A)–(B). By contrast, the code per-
mitted the digitization of on-premises signs. §25–10–102(6)
(permitting “electronically controlled changeable-copy
sign[s]”).1
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
——————
1 The City subsequently amended its sign code. The parties agree that
the amendments do not affect this dispute. Reply to Brief in Opposition
11–12; Brief for Respondent Reagan 9.
4 CITY OF AUSTIN v. REAGAN NAT.
ADVERTISING OF AUSTIN, LLC
Opinion of the Court
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. 377 F. Supp. 3d 670, 673, 683 (WD Tex.
2019). As relevant, the court held that the challenged sign
code provisions were content neutral under Reed v. Town of
Gilbert, 576 U. S. 155 (2015). The court explained that “the
on/off premises distinction [did] not impose greater re-
strictions 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 sub-
ject matter is located on the same property as the sign.” 377
F. Supp. 3d, at 681. The court therefore held that the dis-
tinction was a facially content-neutral “regulation based on
location.” Ibid. 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.” Id., at 681–682. Accordingly, the court re-
viewed the City’s on-/off-premises distinction under the
standard of intermediate scrutiny applicable to content-
neutral regulations of speech. Id., at 682. The court found
that the distinction satisfied this standard. Id., at 682–683.
The Court of Appeals reversed. 972 F. 3d 696, 699 (CA5
2020). 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 hall-
marks of a content-based inquiry,” the distinction was
content based. Id., at 706. It reasoned that “[t]he fact that
a government official ha[s] to read a sign’s message to de-
termine the sign’s purpose [i]s enough to” render a regula-
tion content based and “subject [it] to strict scrutiny.” Ibid.
——————
2 Lamar did not participate in the proceedings on the merits before this
Court. Brief for Respondent Reagan II.
Cite as: 596 U. S. ____ (2022) 5
Opinion of the Court
(citing Thomas v. Bright, 937 F. 3d 721, 730–731 (CA6
2019)); see also 972 F. 3d, at 704 (“To determine whether a
sign is on-premises or off-premises, one must read the sign
. . . ”). The court acknowledged that its interpretation of
Reed was “broad,” but reasoned that the consequences were
“not . . . unforeseen,” given the concerns raised by Justices
who did not join the opinion of the Court. 972 F. 3d, at 707.
Because the Court of Appeals determined that the City’s
on-/off-premises distinction imposed a content-based re-
striction 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,” id., at
709, the court held that the City’s justifications for the dis-
tinction could not meet that standard, rendering it uncon-
stitutional, id., at 709–710.3
This Court granted certiorari. 594 U. S. ___ (2021).
——————
3 The Court of Appeals further considered the possibility that the code
provisions regulated only commercial speech, such that only intermedi-
ate scrutiny would apply even if the provisions were content based. 972
F. 3d, at 707–709; see Central Hudson Gas & Elec. Corp. v. Public Serv.
Comm’n of N. Y., 447 U. S. 557, 566 (1980). The court rejected this view
because the provisions “applie[d] with equal force to both commercial and
noncommercial messages.” 972 F. 3d, at 709. Before this Court, the City
makes a similar argument, claiming that “[a]s applied to billboards like
those owned by respondents,” the contested code provisions regulate
commercial speech and so are subject to intermediate scrutiny. Brief for
Petitioner 49. It is undisputed, however, that Reagan’s billboards also
display noncommercial messages, meaning that the City’s denial of
Reagan’s applications for digitization implicated Reagan’s commercial
and noncommercial speech alike. See Brief for Respondent Reagan 45–
46; App. 130–141. More importantly, as the Court of Appeals explained,
the contested code provisions admit of no exception for noncommercial
speech. The only way in which they differentiate speech is by distin-
guishing between on-premises and off-premises signs. The Court thus
must determine which level of scrutiny applies to the manner in which
the provisions actually regulate speech.
6 CITY OF AUSTIN v. REAGAN NAT.
ADVERTISING OF AUSTIN, LLC
Opinion of the Court
II
A regulation of speech is facially content based under the
First Amendment if it “target[s] speech based on its com-
municative content”—that is, if it “applies to particular
speech because of the topic discussed or the idea or message
expressed.” Reed, 576 U. S., at 163. The Court of Appeals
interpreted Reed to mean 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. 972 F. 3d, at 706. This rule, which holds that a reg-
ulation cannot be content neutral if it requires reading the
sign at issue, is too extreme an interpretation of this Court’s
precedent. Unlike the regulations at issue in Reed, 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 con-
tent neutral and does not warrant the application of strict
scrutiny.
A
The Reed Court confronted a very different regulatory
scheme than the one at issue here: a comprehensive sign
code that “single[d] out specific subject matter for differen-
tial treatment.” 576 U. S., at 169. The town of Gilbert, Ar-
izona, had adopted a code that applied distinct size, place-
ment, and time restrictions to 23 different categories of
signs. Id., at 159. The Court focused its analysis on three
categories defined by whether the signs displayed ideologi-
cal, political, or certain temporary directional messages.
The code gave the most favorable treatment to “ ‘Ideological
Sign[s],’ ” defined as those “ ‘communicating a message or
ideas for noncommercial purposes’ ” with certain excep-
tions. Id., at 159–160 (alteration in original). It offered less
favorable treatment to “ ‘Political Sign[s],’ ” defined as those
“ ‘designed to influence the outcome of an election.’ ” Id., at
Cite as: 596 U. S. ____ (2022) 7
Opinion of the Court
160 (alteration in original). Most restricted of all were
“ ‘Temporary Directional Signs Relating to a Qualifying
Event,’ ” with qualifying events defined as gatherings
“ ‘sponsored, arranged, or promoted by a religious, charita-
ble, community service, educational, or other similar non-
profit organization.’ ” Id., at 160–161.
The Reed Court determined that these restrictions were
facially content based. Id., at 164–165. Rejecting the con-
tention that the restrictions were content neutral because
they did not discriminate on the basis of viewpoint, the
Court explained: “[I]t is well established that ‘[t]he First
Amendment’s hostility to content-based regulation extends
not only to restrictions on particular viewpoints, but also to
prohibition of public discussion of an entire topic.’ ” Id., at
169 (quoting Consolidated Edison Co. of N. Y. v. Public
Serv. Comm’n of N. Y., 447 U. S. 530, 537 (1980)); accord,
e.g., Police Dept. of Chicago v. Mosley, 408 U. S. 92, 95
(1972) (explaining that “[t]he central problem” with a mu-
nicipality’s effort to exempt labor picketing from a prohibi-
tion on picketing near public schools was “that it describes
permissible picketing in terms of its subject matter”); Carey
v. Brown, 447 U. S. 455, 460–461 (1980) (subjecting a simi-
lar statute that “accord[ed] preferential treatment to the ex-
pression of views on one particular subject” to strict scru-
tiny).4 Applying these principles, the Court reasoned that
“a speech regulation targeted at specific subject matter is
content based even if it does not discriminate among view-
points within that subject matter. . . . For example, a law
——————
4 The concurrence in Reed, which spoke for three of the six Justices in
the majority, similarly explained that “[c]ontent-based laws merit th[e]
protection” of strict scrutiny “because they present, albeit sometimes in
a subtler form, the same dangers as laws that regulate speech based on
viewpoint. Limiting speech based on its ‘topic’ or ‘subject’ favors those
who do not want to disturb the status quo. Such regulations may inter-
fere with democratic self-government and the search for truth.” 576
U. S., at 174 (ALITO, J., concurring) (quoting Consolidated Edison Co. of
N. Y., 447 U. S., at 537).
8 CITY OF AUSTIN v. REAGAN NAT.
ADVERTISING OF AUSTIN, LLC
Opinion of the Court
banning the use of sound trucks for political speech—and
only political speech—would be a content-based regulation,
even if it imposed no limits on the political viewpoints that
could be expressed.” 576 U. S., at 169. By treating ideolog-
ical messages more favorably than political messages, and
both more favorably than temporary directional messages,
“[t]he Town’s Sign Code likewise single[d] out specific sub-
ject matter for differential treatment, even if it [did] not tar-
get viewpoints within that subject matter.” Ibid.
In this case, enforcing the City’s challenged sign code pro-
visions requires reading a billboard to determine whether
it directs readers to the property on which it stands or to
some other, offsite location. Unlike the sign code at issue
in Reed, however, the City’s provisions at issue here do not
single out any topic or subject matter for differential treat-
ment. A sign’s substantive message itself is irrelevant to
the application of the provisions; there are no content-dis-
criminatory classifications for political messages, ideologi-
cal messages, or directional messages concerning specific
events, including those sponsored by religious and non-
profit organizations. Rather, the City’s provisions distin-
guish based on location: A given sign is treated 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 there-
fore similar to ordinary time, place, or manner restrictions.
Reed does not require the application of strict scrutiny to
this kind of location-based regulation. Cf. Frisby v. Schultz,
487 U. S. 474, 482 (1988) (sustaining an ordinance that pro-
hibited “only picketing focused on, and taking place in front
of, a particular residence” as content neutral).
B
This Court’s First Amendment precedents and doctrines
have consistently recognized that restrictions on speech
Cite as: 596 U. S. ____ (2022) 9
Opinion of the Court
may require some evaluation of the speech and nonetheless
remain content neutral.
Most relevant here, the First Amendment allows for reg-
ulations of solicitation—that is, speech “requesting or seek-
ing to obtain something” or “[a]n attempt or effort to gain
business.” Black’s Law Dictionary 1677 (11th ed. 2019). To
identify whether speech entails solicitation, one must read
or hear it first. Even so, the Court has reasoned that re-
strictions 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 view-
point. Heffron v. International Soc. for Krishna Conscious-
ness, Inc., 452 U. S. 640, 649 (1981).
Thus, in 1940, the Court invalidated a statute prohibiting
solicitation for religious causes but observed that States
were “free to regulate the time and manner of solicitation
generally, in the interest of public safety, peace, comfort or
convenience.” Cantwell v. Connecticut, 310 U. S. 296, 306–
307. Decades later, the Court reviewed just such a time,
place, and manner regulation restricting all solicitation at
the Minnesota State Fair, as well as all sale or distribution
of merchandise, to a specific location. Heffron, 452 U. S., at643–644. The State had applied the restriction against a
religious practice that included “solicit[ing] donations for
the support of the Krishna religion.” Id., at 645. As a re-
sult, members of the religion were free to roam the fair-
grounds and discuss their beliefs, but they were prohibited
from asking for donations for their cause outside of a desig-
nated location. Id., at 646, 655. The Court upheld the
State’s application of this restriction as content neutral,
emphasizing that it “applie[d] evenhandedly to all who
wish[ed] . . . to solicit funds,” whether for “commercial or
charitable” reasons. Id., at 649.
Consistent with these precedents, the Court has previ-
ously understood distinctions between on-premises and off-
10 CITY OF AUSTIN v. REAGAN NAT.
ADVERTISING OF AUSTIN, LLC
Opinion of the Court
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. Suffolk Outdoor Advertising Co. v.
Hulse, 439 U. S. 808 (1978). Three years later, the Court
upheld in relevant part an ordinance that prohibited all off-
premises commercial advertising but allowed on-premises
commercial advertising. Metromedia, Inc. v. San Diego,
453 U. S. 490, 503–512 (1981) (plurality opinion).5 The
Metromedia Court did not need to decide whether the off-
premises prohibition was content based, as it regulated only
commercial speech and so was subject to intermediate scru-
tiny in any event. See id., at 507–512 (citing Central Hud-
son Gas & Elec. Corp. v. Public Serv. Comm’n of N. Y., 447
U. S. 557 (1980)). Shortly thereafter, however, the Court
applied the relevant portion of Metromedia and described
the off-premises prohibition as “a content-neutral prohibi-
tion against the use of billboards.” Members of City Council
of Los Angeles v. Taxpayers for Vincent, 466 U. S. 789, 807
(1984) (emphasis added).
Underlying these cases and others is a rejection of the
view that any examination of speech or expression inher-
ently triggers heightened First Amendment concern. Ra-
ther, it is regulations that discriminate based on “the topic
discussed or the idea or message expressed” that are
content based. Reed, 576 U. S., at 171. The sign code pro-
visions challenged here do not discriminate on those bases.
——————
5 Although the opinion in Metromedia was labeled a plurality for four
Justices, the relevant portion of the opinion was also joined by a fifth.
See 453 U. S., at 541 (Stevens, J., dissenting in part) (“join[ing] Parts I
through IV of JUSTICE WHITE’s opinion”).
Cite as: 596 U. S. ____ (2022) 11
Opinion of the Court
C
Reagan does not claim Reed expressly or implicitly over-
turned the precedents discussed above. Its argument relies
primarily on one sentence in Reed recognizing that “[s]ome
facial distinctions based on a message are obvious, defining
regulated speech by particular subject matter, and others
are more subtle, defining regulated speech by its function
or purpose.” Id., at 163. Seizing on this reference, Reagan
asserts that the City’s sign code “defines off-
premises signs based on their ‘function or purpose.’ ” Brief
for Respondent Reagan 20 (quoting Reed, 576 U. S., at 163).
It asks the Court to “reaffirm that, where a regulation ‘de-
fine[s] regulated speech by its function or purpose,’ it is
content-based on its face and thus subject to strict scru-
tiny.” Brief for Respondent Reagan 34 (quoting Reed, 576
U. S., at 163).
The argument stretches Reed’s “function or purpose” lan-
guage too far. The principle the Reed Court articulated is
more straightforward. While overt subject-matter discrim-
ination is facially content based (for example, “ ‘Ideological
Sign[s],’ ” defined as those “ ‘communicating a message or
ideas for noncommercial purposes’ ”), so, too, are subtler
forms of discrimination that achieve identical results based
on function or purpose (for example, “ ‘Political Sign[s],’ ” de-
fined as those “ ‘designed to influence the outcome of an
election’ ”). Id., at 159, 160, 163–164 (alterations in origi-
nal). In other words, a regulation of speech cannot escape
classification as facially content based simply by swapping
an obvious subject-matter distinction for a “function or pur-
pose” proxy that achieves the same result. That does not
mean that any classification that considers function or pur-
pose is always content based. Such a reading of “function
or purpose” would contravene numerous precedents, includ-
ing many of those discussed above. Reed did not purport to
cast doubt on these cases.
12 CITY OF AUSTIN v. REAGAN NAT.
ADVERTISING OF AUSTIN, LLC
Opinion of the Court
Nor did Reed cast doubt on the Nation’s history of regu-
lating off-premises signs. Off-premises billboards of the
sort that predominate today were not present in the found-
ing era, but as large outdoor advertisements proliferated in
the 1800s, regulation followed. As early as 1932, the Court
had already approved a location-based differential for ad-
vertising signs. See Packer Corp., 285 U. S., at 107, 110.
Thereafter, for the last 50-plus years, federal, state, and lo-
cal jurisdictions have repeatedly relied upon on-/off-
premises distinctions to address the distinct safety and es-
thetic challenges posed by billboards and other methods of
outdoor advertising. See supra, at 2. The unbroken tradi-
tion of on-/off-premises distinctions counsels against the
adoption of Reagan’s novel rule. See Williams-Yulee v. Flor-
ida Bar, 575 U. S. 433, 446 (2015) (recognizing “history and
tradition of regulation” as relevant when considering the
scope of the First Amendment).6
D
Tellingly, even today’s dissent appears reluctant to em-
brace the read-the-sign rule adopted by the court below. In-
——————
6 The Court of Appeals, for its part, understood Reed to have deemed a
regulation content based solely because “it ‘single[d] out signs bearing a
particular message: the time and location of a specific event.’ ” 972 F. 3d
696, 706 (CA5 2020) (quoting Reed, 576 U. S., at 171). Reagan does not
rely as heavily on this language, and for good reason. As a preliminary
matter, the Reed Court found that the provisions at issue in that case did
not, in fact, “hinge on ‘whether and when an event is occurring.’ ” Id., at
170. More fundamentally, those provisions did not target all events gen-
erally, regardless of topic; they targeted “a specific event” (an election)
“because of the topic discussed or the idea or message expressed” (politi-
cal speech). Id., at 171. The Court of Appeals’ contrary reading would
render the majority opinion in Reed irreconcilable with the concurrence,
which recognized that “[r]ules imposing time restrictions on signs adver-
tising a one-time event,” which “do not discriminate based on topic or
subject,” would be content neutral. Id., at 174, 175 (ALITO, J., concur-
ring).
Cite as: 596 U. S. ____ (2022) 13
Opinion of the Court
stead, the dissent attacks a straw man. Contrary to its ac-
cusations, we do not “nullif[y]” Reed’s protections, “resusci-
tat[e]” a decision that we do not cite, or fashion a novel
“specificity test” simply by quoting the standard repeatedly
enunciated in Reed. Post, at 9, 11, 21 (opinion of THOMAS,
J.). Nor do we cast doubt on any of our precedents recog-
nizing examples of topic or subject-matter discrimination as
content based. See, e.g., post, at 9–10. We merely apply
those precedents to reach the “commonsense” result that a
location-based and content-agnostic on-/off-premises dis-
tinction does not, on its face, “singl[e] out specific subject
matter for differential treatment.” Reed, 576 U. S., at 163,
169.
It is the dissent that would upend settled understandings
of the law. Where we adhere to the teachings of history,
experience, and precedent, the dissent would hold that tens
of thousands of jurisdictions have presumptively violated
the First Amendment, some for more than half a century,
and that they have done so by use of an on-/off-premises
distinction this Court has repeatedly reviewed and never
previously questioned. For the reasons we have explained,
the Constitution does not require that bizarre result.
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 re-
striction, for instance, that restriction may be content
based. See Reed, 576 U. S., at 164. Moreover, to survive
intermediate scrutiny, a restriction on speech or expression
must be “ ‘narrowly tailored to serve a significant govern-
mental interest.’ ” Ward v. Rock Against Racism, 491 U. S.
781, 791 (1989).
The parties dispute whether the City can satisfy these re-
quirements. This Court, however, is “a court of final review
14 CITY OF AUSTIN v. REAGAN NAT.
ADVERTISING OF AUSTIN, LLC
Opinion of the Court
and not first view,” and it does not “[o]rdinarily . . . decide
in the first instance issues not decided below.” Zivotofsky
v. Clinton, 566 U. S. 189, 201 (2012) (internal quotation
marks 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 ad-
dressing.” Ibid. Because the Court of Appeals did not ad-
dress 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.
Cite as: 596 U. S. ____ (2022) 1
BREYER, J., concurring
SUPREME COURT OF THE UNITED STATES
_________________
No. 20–1029
_________________
CITY OF AUSTIN, TEXAS, PETITIONER v.
REAGAN NATIONAL ADVERTISING
OF AUSTIN, LLC, ET AL.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE FIFTH CIRCUIT
[April 21, 2022]
JUSTICE BREYER, concurring.
Reed v. Town of Gilbert, 576 U. S. 155 (2015), is binding
precedent here. Given that precedent, I join the majority’s
opinion. I write separately because I continue to believe
that the Court’s reasoning in Reed was wrong. The Court
there struck down a city’s sign ordinance under the First
Amendment. It wrote that the First Amendment requires
strict scrutiny whenever a regulation “target[s] speech
based on its communicative content.” Id., at 163. It there-
fore concluded that “[c]ontent-based laws . . . are presump-
tively unconstitutional and may be justified only if the gov-
ernment proves that they are narrowly tailored to serve
compelling state interests.” Ibid.But the First Amendment is not the Tax Code. Its pur-
poses are often better served when judge-made categories
(like “content discrimination”) are treated, not as bright-
line rules, but instead as rules of thumb. And, where strict
scrutiny’s harsh presumption of unconstitutionality is at is-
sue, it is particularly important to avoid jumping to such
presumptive conclusions without first considering “whether
the regulation at issue works harm to First Amendment in-
terests that is disproportionate in light of the relevant reg-
ulatory objectives.” Id., at 179 (BREYER, J., concurring in
judgment); Barr v. American Assn. of Political Consultants,
2 CITY OF AUSTIN v. REAGAN NAT.
ADVERTISING OF AUSTIN, LLC
BREYER, J., concurring
Inc., 591 U. S. ___, ___–___ (2020) (BREYER, J., concurring
in judgment and dissenting in part) (slip op., at 9–10); Sor-
rell v. IMS Health Inc., 564 U. S. 552, 582 (2011) (BREYER,
J., dissenting). Here, I would conclude that the City of Aus-
tin’s (City’s) regulation of off-premises signs works no such
disproportionate harm. I therefore agree with the major-
ity’s conclusion that strict scrutiny and its attendant pre-
sumption of unconstitutionality are unwarranted. The ma-
jority reaches this conclusion by applying Reed’s formal
framework, as stare decisis requires. I would add that
Reed’s strict formalism can sometimes disserve the very
First Amendment interests it was designed to protect.
I
The First Amendment helps to safeguard what Justice
Holmes described as a marketplace of ideas. Abrams v.
United States, 250 U. S. 616, 630 (1919) (dissenting opin-
ion). A democratic people must be able to freely “generate,
debate, and discuss both general and specific ideas, hopes,
and experiences.” Barr, 591 U. S., at ___ (opinion of
BREYER, J.) (slip op., at 3). They “must then be able to
transmit their resulting views and conclusions to their
elected representatives, which they may do directly, or in-
directly through the shaping of public opinion.” Ibid. Those
representatives can respond by turning the people’s ideas
into policies. The First Amendment, by protecting the
“marketplace” and the “transmission” of ideas, thereby
helps to protect the basic workings of democracy itself. See
Meyer v. Grant, 486 U. S. 414, 421 (1988) (“The First
Amendment was ‘fashioned to assure unfettered inter-
change of ideas for the bringing about of political and social
changes desired by the people’ ”).
Courts help to protect these democratic values in part by
strictly scrutinizing certain categories of laws that threaten
to “ ‘drive certain ideas or viewpoints from the market-
place.’ ” R. A. V. v. St. Paul, 505 U. S. 377, 387 (1992). We
Cite as: 596 U. S. ____ (2022) 3
BREYER, J., concurring
have recognized, for example, that First Amendment values
are in danger when the government imposes restrictions
upon “ ‘core political speech,’ ” Buckley v. American Consti-
tutional Law Foundation, Inc., 525 U. S. 182, 186–187
(1999); when it discriminates against “particular views
taken by speakers on a subject,” Rosenberger v. Rector and
Visitors of Univ. of Va., 515 U. S. 819, 829–830 (1995); and,
in some contexts, when it removes “an entire topic” of dis-
cussion from public debate, Consolidated Edison Co. of
N. Y. v. Public Serv. Comm’n of N. Y., 447 U. S. 530, 537–
538 (1980).
But not all laws that distinguish between speech based
on its content fall into a category of this kind. That is in
part because many ordinary regulatory programs may well
turn on the content of speech without posing any “realistic
possibility that official suppression of ideas is afoot.”
R. A. V., 505 U. S., at 390. Those regulations, rather than
hindering the ability of the people to transmit their
thoughts to their elected representatives, may constitute
the very product of that transmission. Barr, 591 U. S., at
___ (opinion of BREYER, J.) (slip op., at 4).
The U. S. Code (as well as its state and local equivalents)
is filled with regulatory laws that turn, often necessarily,
on the content of speech. Consider laws regulating census
reporting requirements, e.g., 13 U. S. C. §224; securities-
related disclosures, e.g., 15 U. S. C. §78l; copyright infringe-
ment, e.g., 17 U. S. C. §102; labeling of prescription drugs,
e.g., 21 U. S. C. §353(b)(4)(A), or consumer electronics, e.g.,
42 U. S. C. §6294; highway signs, e.g., 23 U. S. C. §131(c);
tax disclosures, e.g., 26 U. S. C. §6039F; confidential medi-
cal records, e.g., 38 U. S. C. §7332; robocalls, e.g., 47 U. S. C.
§227; workplace safety warnings, e.g., 29 CFR §1910.145(2021); panhandling, e.g., Ala. Code §13A–11–9(a) (2022);
solicitation on behalf of charities, e.g., N. Y. Exec. Law Ann.
§174–b (West 2019); signs at petting zoos, e.g., N. Y. Gen.
Bus. Law Ann. §399–ff(3) (West 2015); and many more.
4 CITY OF AUSTIN v. REAGAN NAT.
ADVERTISING OF AUSTIN, LLC
BREYER, J., concurring
If Reed is taken as setting forth a formal rule that courts
must strictly scrutinize regulations simply because they re-
fer to particular content, we have good reason to fear the
consequences of that decision. One possibility is that courts
will strike down “ ‘entirely reasonable’ ” regulations that re-
flect the will of the people. Reed, 576 U. S., at 171; e.g.,
Barr, 591 U. S., at ___ (slip op., at 9) (striking down the Tel-
ephone Consumer Protection Act’s exception allowing ro-
bocalls that collect government debt); IMDB.com v. Becerra,
962 F. 3d 1111, 1125–1127 (CA9 2020) (striking down a
California law prohibiting certain websites from publishing
the birthdates of entertainment professionals). If so, the
Court’s content-based line-drawing will “substitut[e] judi-
cial for democratic decisionmaking” and threaten the abil-
ity of the people to translate their ideas into policy. Sorrell,
564 U. S., at 603 (BREYER, J., dissenting).
A second possibility is that courts instead will (perhaps
unconsciously) dilute the stringent strict scrutiny standard
in an effort to avoid striking down reasonable regulations.
Doing so would “weaken the First Amendment’s protection
in instances where ‘strict scrutiny’ should apply in full
force.” Reed, 576 U. S., at 178 (opinion of BREYER, J.).
A third possibility is that courts will develop a matrix of
formal subsidiary rules and exceptions that seek to distin-
guish between reasonable and unreasonable content-based
regulations. Such a patchwork, however, may prove overly
complex, unwieldy, or unworkable. And it may make it
more difficult for ordinary Americans to understand the im-
portance of First Amendment values and to live their lives
in accord with those values.
For these reasons, as I have said before, I would reject
Reed’s approach, which too rigidly ties content discrimina-
tion to strict scrutiny (and, consequently, to “almost certain
legal condemnation”). Id., at 176. Instead, I would treat
content discrimination as a rule of thumb to be applied with
what JUSTICE KAGAN has called “a dose of common sense.”
Cite as: 596 U. S. ____ (2022) 5
BREYER, J., concurring
Id., at 183 (opinion concurring in judgment). Where con-
tent-based regulations are at issue, I would ask a more
basic First Amendment question: Does “the regulation at
issue wor[k] harm to First Amendment interests that is dis-
proportionate in light of the relevant regulatory objectives”?
Id., at 179 (opinion of BREYER, J.). I believe we should an-
swer that question by examining “the seriousness of the
harm to speech, the importance of the countervailing objec-
tives, the extent to which the law will achieve those objec-
tives, and whether there are other, less restrictive ways of
doing so.” Ibid.
II
The regulation at issue in this case is the City of Austin’s
sign code, which regulates billboards and other “off-
premises” signs. The City defines an “off-premises” sign as
“a sign advertising a business, person, activity, goods, prod-
ucts, or services not located on the site where the sign is
installed, or that directs persons to any location not on that
site.” Austin, Tex., City Code §25–10–3(11) (2016).
Some years ago, the City forbid construction of new off-
premises signs. §25–10–102(1). At the same time, it grand-
fathered in existing off-premises signs, allowing them to re-
main but subjecting them to regulation. §§25–10–3(10),
25–10–152(A), (B). Owners of grandfathered off-premises
signs are allowed to change the face of their signs, but not
to digitize them. Ibid. In the case before us, owners who
wanted to digitize their off-premises signs challenged the
City’s regulation on the ground that it violates the First
Amendment.
The Court remands for the lower courts to assess the con-
stitutionality of this regulation in the first instance, so I
need not answer that question conclusively now. I wish
only to illustrate why I believe a strong presumption of un-
lawfulness is out of place here.
6 CITY OF AUSTIN v. REAGAN NAT.
ADVERTISING OF AUSTIN, LLC
BREYER, J., concurring
Billboards and other roadside signs can generally be cat-
egorized as a form of outdoor advertising. Regulation of
outdoor advertising in order to protect the public’s interest
in “avoiding visual clutter,” Members of City Council of Los
Angeles v. Taxpayers for Vincent, 466 U. S. 789, 806 (1984),
or minimizing traffic risks, Metromedia, Inc. v. San Diego,
453 U. S. 490, 507–508 (1981), is unlikely to interfere sig-
nificantly with the “marketplace of ideas.” In this case, for
example, there is no evidence that the City regulated off-
premises signs in order to censor a particular viewpoint or
topic, or that its regulations have had that effect in practice.
There is consequently little reason to apply a presumption
of unconstitutionality to this kind of regulation.
Without such a presumption, I would weigh the First
Amendment harms that a regulation imposes against the
regulatory objectives that it serves. The City’s regulation
here appears to work at most a limited, niche-like harm to
First Amendment interests. Respondents own a number of
grandfathered off-premises signs. They can use those signs
to communicate whatever messages they choose. They com-
plain only that they cannot digitize the signs, which would
allow them to display several messages in rapid succession.
Perhaps digitization would enable them to make more ef-
fective use of their billboard space. But their inability to
maximize the use of their space in this way is unlikely to
meaningfully interfere with their participation in the “mar-
ketplace of ideas.”
At the same time, the City has asserted a legitimate in-
terest in maintaining the regulation. As I have said, the
public has an interest in ensuring traffic safety and pre-
serving an esthetically pleasing environment, supra this
page, and the City here has reasonably explained how its
regulation of off-premises signs in general, and digitization
in particular, serves those interests. Amici tell us that bill-
boards, especially digital ones, can distract drivers and
cause accidents. See, e.g., Brief for United States as Amicus
Cite as: 596 U. S. ____ (2022) 7
BREYER, J., concurring
Curiae 21 (citing a study of 450 crashes in Alabama and
Florida that “revealed that the presence of digital billboards
increased the overall crash rates in areas of billboard influ-
ence”); Brief for National League of Cities et al. as Amici
Curiae 22 (“ ‘The Wisconsin Department of Transport found
a 35% increase in collisions near a variable message sign’ ”
(alteration omitted)). They add that on-premises signs are
less likely to cause accidents. Id., at 23 (“[A] 2014 study
found no evidence that on premises digital signs led to an
increase in crashes”). The City further says that billboards
cause more visual clutter than on-premises signs because
the latter are “typically ‘small in size’ and integrated into
the premises.” Reply Brief 19.
I would leave for the courts below to weigh these harms
and interests, and any alternatives, in the first instance,
without a strong presumption of unconstitutionality.
Cite as: 596 U. S. ____ (2022) 1
Opinion of ALITO, J.
SUPREME COURT OF THE UNITED STATES
_________________
No. 20–1029
_________________
CITY OF AUSTIN, TEXAS, PETITIONER v.
REAGAN NATIONAL ADVERTISING
OF AUSTIN, LLC, ET AL.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE FIFTH CIRCUIT
[April 21, 2022]
JUSTICE ALITO, concurring in the judgment in part and
dissenting in part.
I agree with the majority that we must reverse the deci-
sion of the Court of Appeals holding that the provisions of
the Austin City Code regulating on- and off-premises signs
are facially unconstitutional. Ante, at 6. The Court of Ap-
peals reasoned that those provisions impose content-based
restrictions and that they cannot satisfy strict scrutiny, but
the Court of Appeals did not apply the tests that must be
met before a law is held to be facially unconstitutional.
“Normally, a plaintiff bringing a facial challenge must ‘es-
tablish that no set of circumstances exists under which the
[law] would be valid,’ or show that the law lacks ‘a plainly
legitimate sweep.’ ” Americans for Prosperity Foundation v.
Bonta, 594 U. S. ___, ___ (2021) (slip op., at 15) (citation
omitted). A somewhat less demanding test applies when a
law affects freedom of speech. Under our First Amendment
“overbreadth” doctrine, a law restricting speech is unconsti-
tutional “if a substantial number of its applications are un-
constitutional, judged in relation to the statute’s plainly le-
gitimate sweep.” United States v. Stevens, 559 U. S. 460,
473 (2010) (internal quotation marks omitted).
In this case, the Court of Appeals did not apply either of
those tests, and it is doubtful that they can be met. Many
2 CITY OF AUSTIN v. REAGAN NAT.
ADVERTISING OF AUSTIN, LLC
Opinion of ALITO, J.
(and possibly the great majority) of the situations in which
the relevant provisions may apply involve commercial
speech, and under our precedents, regulations of commer-
cial speech are analyzed differently. See Sorrell v. IMS
Health Inc., 564 U. S. 552, 571–572 (2011).
It is also questionable whether those code provisions are
unconstitutional as applied to most of respondents’ bill-
boards. It appears that most if not all of those billboards
are located off-premises in both the usual sense of that
term,1 and in the sense in which the term is used in the
Austin code. See Austin, Tex., City Code §25–10–3(11)
(2016) (a sign is off-premises if it “advertis[es] a business,
person, activity, goods, products, or services not located on
the site where the sign is installed” or if it “directs persons
to any location not on that site”). The record contains pho-
tos of some of these billboards, see App. 130–147, and all
but one appears to be located on otherwise vacant land.
Thus, they are clearly off-premises signs, and because they
were erected before the enactment of the code provisions at
issue, the only relevant restriction they face is that they
cannot be digitized.2 The distinction between a digitized
and non-digitized sign is not based on content, topic, or sub-
ject matter. Even if the message on a billboard were writ-
ten in a secret code, an observer would have no trouble de-
termining whether it had been digitized.
Because the Court of Appeals erred in holding that the
code provisions are facially unconstitutional, I agree that
——————
1 In ordinary usage, a sign that is attached to or located in close prox-
imity to a building is not described as located “off-premises.” The dis-
tinction between on- and off-premises signs is based solely on location,
and that is why such a classification is not content-based. See Reed v.
Town of Gilbert, 576 U. S. 155, 175 (2015) (ALITO, J., concurring).
2 A grandfathered sign can be maintained at its existing location, but
the owner cannot “increase the degree of the existing nonconformity,”
“change the method or technology used to convey a message,” or “increase
the illumination of the sign.” Austin, Tex., City Code §§25–10–152(A)–
(B).
Cite as: 596 U. S. ____ (2022) 3
Opinion of ALITO, J.
we should reverse that decision. On remand, the lower
courts should determine whether those provisions are un-
constitutional as applied to each of the billboards at issue.
Today’s decision, however, goes further and holds flatly
that “[t]he sign code provisions challenged here do not dis-
criminate” on the basis of “ ‘the topic discussed or the idea
or message expressed,’ ” ante, at 10, and that categorical
statement is incorrect. The provisions defining on- and off-
premises signs clearly discriminate on those grounds, and
at least as applied in some situations, strict scrutiny should
be required.
As the Court notes, under the provisions in effect when
petitioner’s applications were denied, a sign was considered
to be off-premises if it “advertis[ed],” among other things, a
“person, activity, . . . or servic[e] not located on the site
where the sign is installed” or if it “direct[ed] persons to any
location not on that site.” Austin, Tex., City Code §25–10–
3(11). Consider what this definition would mean as applied
to signs posted in the front window of a commercial estab-
lishment, say, a little coffee shop. If the owner put up a sign
advertising a new coffee drink, the sign would be classified
as on-premises, but suppose the owner instead mounted a
sign in the same location saying: “Contribute to X’s legal
defense fund” or “Free COVID tests available at Y phar-
macy” or “Attend City Council meeting to speak up about
Z.” All those signs would appear to fall within the definition
of an off-premises sign and would thus be disallowed. See
also post, at 3–4 (THOMAS, J., dissenting). Providing dis-
parate treatment for the sign about a new drink and the
signs about social and political matters constitutes discrim-
ination on the basis of topic or subject matter. The code
provisions adopted in 2017 are worded differently, but the
new wording may not rule out similar results.3
——————
3 The amended code now defines “off-premise[s] sign” as “a sign that
4 CITY OF AUSTIN v. REAGAN NAT.
ADVERTISING OF AUSTIN, LLC
Opinion of ALITO, J.
For these reasons, I would simply hold that the provisions
at issue are not facially unconstitutional, and I would re-
frain from making any broader pronouncements.
——————
displays any message directing attention to a business, product, service,
profession, commodity, activity, event, person, institution, or other com-
mercial message which is generally conducted, sold, manufactured, pro-
duced, offered, or occurs elsewhere than on the premises where the sign
is located,” and defines an “on-premise[s] sign” as “a sign that is not an
off-premise[s] sign.” Austin, Tex., City Code §§25–10–4(9)–(10) (2021).
It is not clear that the inclusion of “other commercial message” modifies
the terms “activity,” “event,” “person,” or “institution” such that the pro-
vision would not draw topic-based distinctions as applied to non-
commercial speech.
Cite as: 596 U. S. ____ (2022) 1
THOMAS, J., dissenting
SUPREME COURT OF THE UNITED STATES
_________________
No. 20–1029
_________________
CITY OF AUSTIN, TEXAS, PETITIONER v.
REAGAN NATIONAL ADVERTISING
OF AUSTIN, LLC, ET AL.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE FIFTH CIRCUIT
[April 21, 2022]
JUSTICE THOMAS, with whom JUSTICE GORSUCH and
JUSTICE BARRETT join, dissenting.
In Reed v. Town of Gilbert, 576 U. S. 155 (2015), we held
that a speech regulation is content based—and thus pre-
sumptively invalid—if it “draws distinctions based on the
message a speaker conveys.” Id., at 163. Here, the city of
Austin imposes special restrictions on “off-premise[s]
sign[s],” defined as signs that “advertis[e] a business, per-
son, activity, goods, products, or services not located on the
site where the sign is installed, or that direc[t] persons to
any location not on that site.” Austin, Tex., City Code §25–
10–3(11) (2016). Under Reed, Austin’s off-premises re-
striction is content based. It discriminates against certain
signs based on the message they convey—e.g., whether they
promote an on- or off-site event, activity, or service.
The Court nevertheless holds that the off-premises re-
striction is content neutral because it proscribes a suffi-
ciently broad category of communicative content and, there-
fore, does not target a specific “topic or subject matter.”
Ante, at 8. This misinterprets Reed’s clear rule for content-
based restrictions and replaces it with an incoherent and
malleable standard. In so doing, the majority’s reasoning
is reminiscent of this Court’s erroneous decision in Hill v.
Colorado, 530 U. S. 703 (2000), which upheld a blatantly
2 CITY OF AUSTIN v. REAGAN NAT.
ADVERTISING OF AUSTIN, LLC
THOMAS, J., dissenting
content-based prohibition on “counseling” near abortion
clinics on the ground that it discriminated against “an ex-
tremely broad category of communications.” Id., at 723.
Because I would adhere to Reed rather than echo Hill’s
long-discredited approach, I respectfully dissent.
I
A
The First Amendment, applicable to the States through
the Fourteenth, prohibits laws “abridging the freedom of
speech.” U. S. Const., Amdt. 1; see also Stromberg v. Cali-
fornia, 283 U. S. 359, 368 (1931). “When enforcing this pro-
hibition, our precedents distinguish between content-based
and content-neutral regulations.” National Institute of
Family and Life Advocates v. Becerra, 585 U. S. ___, ___
(2018) (slip op., at 6). A content-based law is “presump-
tively invalid,” United States v. Playboy Entertainment
Group, Inc., 529 U. S. 803, 817 (2000) (internal quotation
marks omitted), and may generally be upheld only if the
government proves that the regulation is narrowly tailored
to serve compelling state interests, R. A. V. v. St. Paul, 505
U. S. 377, 395 (1992).1
In Reed v. Town of Gilbert, we held that courts should
identify content-based restrictions by applying a “com-
monsense” test: A speech regulation is content based if it
——————
1 For several categories of historically unprotected speech, including
obscenity, defamation, fraud, incitement, and speech integral to criminal
conduct, the government ordinarily may enact content-based restrictions
without satisfying strict scrutiny. See United States v. Stevens, 559 U. S.
460, 468–469 (2010). This Court’s precedents have also declined to apply
strict scrutiny to several other types of content-based restrictions, includ-
ing laws targeting “commercial speech.” Central Hudson Gas & Elec.
Corp. v. Public Serv. Comm’n of N. Y., 447 U. S. 557, 561–566 (1980).
But see Lorillard Tobacco Co. v. Reilly, 533 U. S. 525, 572 (2001)
(THOMAS, J., concurring in part and concurring in judgment). As the
Court recognizes, Austin’s off-premises sign rule is not limited to any of
these categories of speech. See ante, at 5, n. 3.
Cite as: 596 U. S. ____ (2022) 3
THOMAS, J., dissenting
“target[s] speech based on its communicative content.” 576
U. S., at 163. Put another way, a law is content based “ ‘on
its face’ [if it] draws distinctions based on the message a
speaker conveys.” Ibid. While we noted that “[s]ome facial
distinctions based on a message are obvious,” we empha-
sized that others could be “more subtle, defining regulated
speech by its function or purpose.” Ibid. In all events,
whether a law is characterized as targeting a “topic,” “idea,”
“subject matter,” or “communicative content,” the law is
content based if it draws distinctions based in any way “on
the message a speaker conveys.” Id., at 163–164.2
Applying this standard, we held that the town of
Gilbert’s sign code was “a paradigmatic example of content-
based discrimination” because it classified “various catego-
ries of signs based on the type of information they
convey[ed], [and] then subject[ed] each category to different
restrictions.” Id., at 169, 159. For instance, Gilbert defined
“ ‘Temporary Directional Signs’ ” as any sign that “con-
vey[ed] the message of directing the public to [a] ‘qualifying
event,’ ” and permitted their display for no more than 12
hours before and 1 hour after the event occurred. Id., at
164, 161. Meanwhile, “ ‘Ideological Sign[s],’ ” defined as any
sign (not covered by another category) that “ ‘communi-
cat[ed] a message or ideas for noncommercial purposes,’ ”
were subject to no temporal limitations. Id., at 159–160. In
short, the restrictions on any given sign depended “on the
communicative content of the sign.” Id., at 164. Gilbert’s
——————
2 In Reed, we acknowledged that some prior decisions had skipped over
this facial analysis and applied a justification-focused test. See 576
U. S., at 165–167. But we explained that the justification-focused test
implicated a “separate and additional category of laws that, though fa-
cially content neutral, [are] content-based regulations [because they]
cannot be ‘ “justified without reference to the content of the regulated
speech,” ’ or . . . were adopted by the government ‘because of disagree-
ment with the message [the speech] conveys.’ ” Id., at 164 (quoting Ward
v. Rock Against Racism, 491 U. S. 781, 791 (1989)). All agree that this
second type of content-based regulation is not at issue here.
4 CITY OF AUSTIN v. REAGAN NAT.
ADVERTISING OF AUSTIN, LLC
THOMAS, J., dissenting
sign code was thus facially content based and presump-
tively unlawful. See id., at 159.
In contrast to Reed’s “commonsense” test, Gilbert urged
us to define “content based” as a “term of art that ‘should be
applied flexibly’ with the goal of protecting ‘viewpoints and
ideas from government censorship or favoritism.’ ” Id., at
168. Such a functionalist test, Gilbert argued, could ferret
out illicit government motives while obviating the need to
subject reasonable laws to strict scrutiny. See ibid. We re-
jected Gilbert’s attempt to cast the phrase “content based”
as a “term of art” because “[i]nnocent motives do not
eliminate the danger of censorship presented by a facially
content-based statute.” Id., at 167. We noted that “one
could easily imagine a Sign Code compliance manager who
disliked [a] Church’s substantive teachings deploying the
Sign Code to make it more difficult for the Church to inform
the public of the location of its services.” Id., at 167–168.
Thus, we concluded that “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.” Id., at 171 (internal quotation
marks omitted).
We also rejected the Ninth Circuit’s reasoning that
Gilbert’s sign restrictions were content neutral because
they depended on “the content-neutral elements of . . .
whether and when an event is occurring.” Id., at 169 (in-
ternal quotation marks omitted). That is, whether a tem-
porary directional sign was permissible depended, in part,
on its temporal proximity to a “ ‘qualifying event.’ ” Id., at
164. This partial dependence on content-neutral elements
was immaterial, we explained, because the restrictions also
depended on the signs’ communicative content. Gilbert of-
ficials still had to examine a sign’s message to determine
what type of sign it was, and this “obvious content-based
inquiry d[id] not evade strict scrutiny simply because an
Cite as: 596 U. S. ____ (2022) 5
THOMAS, J., dissenting
event [was] involved.” Id., at 170.
B
Under Reed’s approach for identifying content-based reg-
ulations, Austin’s off-premises sign restriction is content
based. As relevant to this suit, Austin’s sign code imposes
stringent restrictions on a category of “off-premise[s]
sign[s].” §25–10–3(11). The code defines “off-premise[s]
sign[s]” as those “advertising a business, person, activity,
goods, products, or services not located on the site where
the sign is installed,” or as signs “direct[ing] persons to any
location not on that site.” Ibid. This broad definition
sweeps in a wide swath of signs, from 14- by 48-foot bill-
boards to 24- by 18-inch yard signs. The sign code prohibits
new off-premises signs and makes it difficult (or impossible)
to change existing off-premises signs, including by digitiz-
ing them. See ante, at 3.
Like the town of Gilbert in Reed, Austin has identified a
“categor[y] of signs based on the type of information they
convey, [and] then subject[ed that] category to different re-
strictions.” 576 U. S., at 159. A sign that conveys a mes-
sage about off-premises activities is restricted, while one
that conveys a message about on-premises activities is not.
See id., at 171 (regulating signs based on “a particular mes-
sage” about “the time and location of a specific event” is
content based). And, per Reed, it does not matter that
Austin’s code “defin[es] regulated speech by its function or
purpose”—i.e., advertising or directing passersby else-
where. Id., at 163. Again, all that matters is that the reg-
ulation “draws distinctions based on” a sign’s “communica-
tive content,” which the off-premises restriction plainly
does. Ibid.
This conclusion is not undermined because the off-
premises sign restriction depends in part on a content-
neutral element: the location of the sign. Much like in Reed,
that an Austin official applying the sign code must know
6 CITY OF AUSTIN v. REAGAN NAT.
ADVERTISING OF AUSTIN, LLC
THOMAS, J., dissenting
where the sign is does not negate the fact that he also must
know what the sign says. Take, for instance, a sign outside
a Catholic bookstore. If the sign says, “Visit the Holy
Land,” it is likely an off-premises sign because it conveys a
message directing people elsewhere (unless the name of the
bookstore is “Holy Land Books”). But if the sign instead
says, “Buy More Books,” it is likely a permissible on-
premises sign (unless the sign also contains the address of
another bookstore across town). Finally, suppose the sign
says, “Go to Confession.” After examining the sign’s mes-
sage, an official would need to inquire whether a priest ever
hears confessions at that location. If one does, the sign
could convey a permissible “on-premises” message. If not,
the sign conveys an impermissible off-premises message.
Because enforcing the sign code in any of these instances
“requires [Austin] officials to determine whether a sign”
conveys a particular message, the sign code is content based
under Reed. Id., at 170.
In sum, the off-premises rule is content based and thus
invalid unless Austin can satisfy strict scrutiny. See
Playboy Entertainment Group, 529 U. S., at 813. Because
Austin has offered nothing to make that showing, the Court
of Appeals did not err in holding that the off-premises rule
violates the First Amendment.
II
To reach the opposite result, the majority implicitly re-
writes Reed’s bright-line rule for content-based restrictions.
In the majority’s view, the off-premises restriction is not
content based because it does not target a specific “topic or
subject matter.” Ante, at 8. The upshot of the majority’s
reasoning appears to be that a regulation based on a suffi-
ciently general or broad category of communicative content
is not actually content based.
Such a rule not only conflicts with Reed and many pre-
Reed precedents but is also incoherent and unworkable.
Cite as: 596 U. S. ____ (2022) 7
THOMAS, J., dissenting
Tellingly, the only decision that even remotely supports the
majority’s rule is one it does not cite: Hill v. Colorado.
There, the Court held that an undeniably content-based law
was nonetheless content neutral because it discriminated
against “an extremely broad category of communications,”
supposedly without regard to “subject matter.” 530 U. S.,
at 723. The majority’s decision today is erroneous for the
same reasons that Hill is an aberration in our case law.
A
The majority concedes that “[t]he message on the sign
matters” when applying Austin’s sign code. Ante, at 8. That
concession should end the inquiry under Reed. But the ma-
jority nonetheless finds the sign code to be content neutral
by recasting facially content-based restrictions as only
those that target sufficiently specific categories of commu-
nicative content and not as those that depend on communi-
cative content simpliciter.
For example, while Reed defined content-based re-
strictions as those that “dra[w] distinctions based on the
message a speaker conveys,” 576 U. S., at 163 (emphasis
added), the majority decides that Austin’s sign code is not
content based because it draws no distinctions based on “[a]
sign’s substantive message,” ante, at 8 (emphasis added).
Elsewhere, the majority speaks not of “substantive mes-
sage[s]” but of “topic[s] or subject matter[s],” which the ma-
jority thinks are sufficiently specific categories of communi-
cative content. Ibid. As a result, the majority contends that
a law targeting directional messages concerning “events
generally, regardless of topic,” would not be content based,
but one targeting “directional messages concerning specific
events” (e.g., “religious” or “political” events) would be.
Ante, at 12, n. 6, 8 (emphasis added).3 Regardless of the
——————
3 On this point, the majority’s analysis tracks the position advanced by
8 CITY OF AUSTIN v. REAGAN NAT.
ADVERTISING OF AUSTIN, LLC
THOMAS, J., dissenting
label, the majority today excises, without a word of expla-
nation, a subset of supposedly non-substantive or unspecific
messages from the First Amendment’s protection against
content-based restrictions.
This understanding of content-based restrictions contra-
venes Reed, which held that a law is content based if it “tar-
get[s] speech based on its communicative content”—not
“specific” or “substantive” categories of communicative con-
tent. 576 U. S., at 163; see also, e.g., Norton v. Springfield,
806 F. 3d 411, 412 (CA7 2015) (“Reed effectively abolishes
any distinction between content regulation and subject-
matter regulation. Any law distinguishing one kind of
speech from another by reference to its meaning now re-
quires a compelling justification”). Only by jettisoning
Reed’s “commonsense” definition of what it means to be con-
tent based can the majority assert that the off-premises
rule is strictly “location-based” and “agnostic as to content,”
ante, at 6, even though the law undeniably depends on both
location and communicative content, supra, at 5–6.
Moreover, the majority’s suggestion that laws targeting
broad categories of communicative content are not content
based is hard to square with the sign categories that Reed
invalidated. For instance, we found Gilbert’s expansive def-
inition of “Ideological Sign[s]” to be content based even
though it broadly covered any “sign communicating a mes-
sage or ideas for noncommercial purposes” that did not al-
ready fall into one of the other categories. 576 U. S., at 159
(internal quotation marks omitted). Nor did we suggest
that the outcome in Reed would have been different if the
sign categories were defined even more generally.
The majority answers that it is not “fashion[ing] a novel
——————
Austin, which asserted that content neutrality was a “question of gener-
ality.” Tr. of Oral Arg. 14; see also id., at 19 (explaining that whether a
law is content based turns on the “level of specificity” at which the gov-
ernment regulates speech).
Cite as: 596 U. S. ____ (2022) 9
THOMAS, J., dissenting
‘specificity test,’ ” but instead “simply” “quoting the stand-
ard repeatedly enunciated in Reed.” Ante, at 13. The ma-
jority finds this alleged specificity test in a paragraph near
the end of Reed, where we noted that a law “targeted at spe-
cific subject matter is content based even if it does not dis-
criminate among viewpoints within that subject matter,”
and then affirmed that Gilbert’s sign code “single[d] out
specific subject matter for differential treatment.” 576
U. S., at 169.
These statements never purported to endorse a specificity
test of the sort now suggested by the majority. Read in con-
text, Reed’s two references to “specific subject matter” nat-
urally address laws that target a “subject matter,” however
broadly defined, as opposed to some other subject matter;
they did not refer only to laws targeting some sufficiently
“specific” category of “subject matter.” Moreover, the con-
cept of “specificity” or “generality” appears nowhere in the
part of Reed that set forth its “commonsense” test for con-
tent neutrality. See id., at 163–164. If Reed’s content-neu-
trality test turned on specificity, we would have said so ex-
plicitly when stating the test. Finally, even crediting the
majority’s strained reading of Reed’s passing references to
“specific subject matter,” the paragraph where they appear
made clear that it was describing only “a paradigmatic ex-
ample of content-based discrimination.” Id., at 169 (empha-
sis added). That part of Reed never professed to announce
a comprehensive rule with respect to all laws targeting
speech based on its communicative content.
Our pre-Reed precedents likewise foreclose a construction
of “content based” that applies only to some content. We
have held many capacious speech regulations to be content
based, including restrictions on “ ‘advice or assistance de-
rived from scientific, technical or other specialized
knowledge,’ ” Holder v. Humanitarian Law Project, 561
U. S. 1, 12–13 (2010); “ ‘advertising, promotion, or any ac-
tivity . . . used to influence sales or the market share of a
10 CITY OF AUSTIN v. REAGAN NAT.
ADVERTISING OF AUSTIN, LLC
THOMAS, J., dissenting
prescription drug,’ ” Sorrell v. IMS Health Inc., 564 U. S.
552, 559 (2011); “editorializing,” FCC v. League of Women
Voters of Cal., 468 U. S. 364, 382–383, and n. 14 (1984);
“ ‘[publication] for philatelic, numismatic, educational, his-
torical, or newsworthy purposes,’ ” Regan v. Time, Inc., 468
U. S. 641, 644 (1984); and “anonymous speech,” McIntyre v.
Ohio Elections Comm’n, 514 U. S. 334, 348, 357 (1995).
These speech categories are no more “specific” or “substan-
tive” than messages regarding off-premises activities. And
some of these examples, like “editorializing” or publishing
“newsworthy” information, are clearly less so. What unites
these speech restrictions is that their application turns “on
the nature of the message being conveyed,” Carey v. Brown,
447 U. S. 455, 461 (1980), not whether they regulate specific
or general categories of speech, or whether they address
substantive or non-substantive categories of speech.
We have defined content-based restrictions to include all
content-based distinctions because any other rule would be
incoherent. After all, off-premises advertising could be con-
sidered a “subject” or a “topic” as those words are ordinarily
used. See L. D. Management Co. v. Gray, 988 F. 3d 836, 839
(CA6 2021) (off-premises billboard restriction “turns on the
‘topic discussed’ ” (emphasis added)). And, in any event,
there is no principled way to decide whether a category of
communicative content is “substantive” or “specific” enough
for the majority to deem it a “topic” or “subject” worthy of
heightened protection. Although off-premises advertising
is a more general category of speech than some (e.g., off-
premises advertising of religious events), it is a more spe-
cific category than others (e.g., advertising generally). The
majority offers only its own ipse dixit to explain why off-
premises advertising is insufficiently specific to qualify as
content based under Reed. Worse still, the majority does
not explain how courts should draw the line between a suf-
ficiently substantive or specific content-based classification
and one that is insufficiently substantive or specific.
Cite as: 596 U. S. ____ (2022) 11
THOMAS, J., dissenting
On this point, Austin suggests there is no need to worry
because our cases provide “guideposts” from which one can
divine what “level of generality” renders a speech regula-
tion content based. Tr. of Oral Arg. 18, 24. To be sure, that
is the sort of inquiry the majority’s opaque test invites. But
Reed directed us elsewhere—to the text of the law in ques-
tion and whether that law “ ‘on its face’ draws distinctions
based on the message a speaker conveys.” 576 U. S., at 163.
The majority’s holding that some rules based on content are
not, as it turns out, content based nullifies Reed’s clear test.
B
The majority offers several reasons why its approach is
consistent with Reed and other cases. None of these argu-
ments is persuasive. Instead, they only serve to underscore
the Court’s ill-advised departure from our doctrine.
1
The majority first suggests that deeming Austin’s sign
code content based would require us to adopt an “extreme”
reinterpretation of Reed. Ante, at 6. Specifically, the
majority faults the Court of Appeals for concluding that
Austin’s regulation was content based because, to enforce
the off-premises rule, “ ‘[a] reader must ask: who is the
speaker and what is the speaker saying’ ”? Ibid. (quoting
972 F. 3d 696, 706 (CA5 2020)). In the majority’s view, Reed
cannot stand for such a simplistic read-the-sign test.
The majority’s skepticism is misplaced. We have often
acknowledged that the need to examine the content of a
message is a strong indicator that a speech regulation is
content based. One year before Reed, for example, we
stated that an abortion clinic buffer-zone law “would be con-
tent based if it required enforcement authorities to
examine the content of the message that is conveyed to de-
termine whether a violation has occurred.” McCullen v.
Coakley, 573 U. S. 464, 479 (2014) (internal quotation
12 CITY OF AUSTIN v. REAGAN NAT.
ADVERTISING OF AUSTIN, LLC
THOMAS, J., dissenting
marks omitted). That statement was not an outlier. See,
e.g., Arkansas Writers’ Project, Inc. v. Ragland, 481 U. S.
221, 230 (1987) (tax exemption for periodicals “uniformly
devoted to religion or sports” was content based because it
required state officials to “examine the content of the
message” (internal quotation marks omitted)); Forsyth
County v. Nationalist Movement, 505 U. S. 123, 134 (1992)
(regulation requiring parade organizers to pay a fee de-
pending on the security costs anticipated for the event was
content based because “[i]n order to assess accurately the
cost of security for parade participants, the administrator
must necessarily examine the content of the message that
is conveyed” (internal quotation marks omitted)); League of
Women Voters, 468 U. S., at 366, 383 (law forbidding public
broadcasting stations from “engag[ing] in editorializing”
was content based because it required “enforcement author-
ities [to] necessarily examine the content of the message
that is conveyed” (internal quotation marks omitted)).
Ultimately, the majority’s objection to the Court of Ap-
peals’ reliance on a read-the-sign test is a red herring; its
real objection is to Reed’s rule that any law that draws dis-
tinctions based on communicative content is content based.
2
The majority next argues that Austin’s sign code is con-
tent neutral under our precedents. See ante, at 8–10. But
none of the cases the majority cites supports its crabbed
view of what constitutes a content-based restriction.
First, in Heffron v. International Soc. for Krishna
Consciousness, Inc., 452 U. S. 640 (1981), the Court upheld,
as content neutral, an ordinance providing that the “[s]ale
or distribution of any merchandise, including printed or
written material,” could occur only from certain booths at
the fairgrounds. Id., at 643 (internal quotation marks omit-
ted). Such a statute is facially content neutral under Reed
because it does not “ ‘on its face’ dra[w] distinctions
Cite as: 596 U. S. ____ (2022) 13
THOMAS, J., dissenting
based on the message a speaker conveys” when selling or
distributing merchandise subject to the ordinance. 576
U. S., at 163. True, the Court construed the ordinance also
to limit “fund solicitation operations,” 452 U. S., at 644, but
that was not, as the majority claims, a prohibition on “ask-
ing for donations,” ante, at 9. Rather, anyone was free to
“as[k] for donations” wherever he liked, because the ordi-
nance did “not prevent respondents from wandering
throughout the fairgrounds and directing interested donors
or purchasers to their booth.” 452 U. S., at 664, n. 2(Blackmun, J., concurring in part and dissenting in part).
Then, once “at the booth,” the donor could “make a contri-
bution.” Ibid.Second, in Cantwell v. Connecticut, 310 U. S. 296 (1940),
the Court invalidated a licensing system for religious and
charitable solicitation while acknowledging in dicta that a
State could regulate the time, place, and manner of solici-
tation. Id., at 304, 307. But here, we are not faced with a
true time, place, or manner restriction, as even the majority
concedes. See ante, at 8.4 And, in any event, Cantwell did
not suggest that a content-based restriction could
be sustained as a time, place, or manner restriction; its
analysis focused predominantly on the plaintiff ’s free
exercise claim; and the case predated our modern content-
neutrality doctrine by nearly three decades. Thus, nothing
in Heffron or Cantwell supports the majority’s narrow
approach to identifying content-based restrictions.
——————
4 The majority says only that Austin’s sign code is “similar” to a time-
place-manner restriction, citing Frisby v. Schultz, 487 U. S. 474 (1988).
Ante, at 8. But Frisby upheld an ordinance that regulated only where
picketing may take place and not what message the picketers could com-
municate. See 487 U. S., at 477 (ordinance made it “unlawful for any
person to engage in picketing before or about the residence or dwelling
of any individual” (internal quotation marks omitted)); cf. Hill v. Colo-
rado, 530 U. S. 703, 766 (2000) (Kennedy, J., dissenting) (“[n]o examina-
tion of the content of a speaker’s message is required to determine
whether an individual is picketing”).
14 CITY OF AUSTIN v. REAGAN NAT.
ADVERTISING OF AUSTIN, LLC
THOMAS, J., dissenting
Finally, the majority argues that we have “previously un-
derstood distinctions between on-premises and off-premises
signs . . . to be content neutral.” Ante, at 9–10. To be sure,
in both Suffolk Outdoor Adv. Co. v. Hulse, 439 U. S. 808(1978), and Metromedia, Inc. v. San Diego, 453 U. S. 490,
503–512 (1981) (plurality opinion), this Court suggested
that some restrictions on off-premises advertising were con-
stitutional. And later, in Members of City Council of Los
Angeles v. Taxpayers for Vincent, 466 U. S. 789 (1984), the
Court described Metromedia as upholding “a content-
neutral prohibition against the use of billboards.” 466 U. S.,
at 807 (emphasis added). But the statement in Vincent was
dictum, and, as the majority concedes, both our summary
decision in Suffolk and the plurality opinion in Metromedia
sanctioned off-premises restrictions only insofar as they ap-
plied to commercial speech. Ante, at 10. That is, the “Court
did not need to decide”—and did not decide—“whether the
off-premises prohibition was content based” because re-
strictions on commercial speech are “subject to intermedi-
ate scrutiny in any event.” Ibid.3
The majority also claims that finding Austin’s sign code
to be content based “would render the majority opinion in
Reed irreconcilable with” JUSTICE ALITO’s Reed concur-
rence. Ante, at 12, n. 6. In particular, JUSTICE ALITO iden-
tified nine different types of sign regulations that he be-
lieved “would not be content based,” including “[r]ules
distinguishing between on-premises and off-premises
signs” and “[r]ules imposing time restrictions on signs ad-
vertising a one-time event.” 576 U. S., at 174–175. The
majority evidently believes that these two types of sign reg-
ulations necessarily turn on a sign’s communicative con-
tent, like the off-premises sign restriction at issue here.
That reading of the Reed concurrence makes little sense.
Cite as: 596 U. S. ____ (2022) 15
THOMAS, J., dissenting
First, there is no reason to interpret the concurrence as re-
ferring to off-premises or one-time-event rules that turn on
a sign’s communicative content. Doing so would make
those two rules categorically different from the other seven,
none of which would ever turn on message content. See,
e.g., id., at 174 (“Rules distinguishing between lighted
and unlighted signs”). And although off-premises and
one-time-event rules could be drafted in terms of a sign’s
communicative content, as is true here, they need not be.
“There might be many formulations of an on/off-premises
distinction that are content-neutral.” Thomas v. Bright,
937 F. 3d 721, 733 (CA6 2019); see also ante, at 2, n. 1
(ALITO, J., concurring in judgment in part and dissenting in
part) (explaining that “[i]n ordinary usage” an “off-
premises” sign is one that is not “attached to or located in
close proximity to a building”). For instance, a city could
define “ ‘an o[n]-premise[s] sign as any sign within 500 feet
of a building,’ ” 937 F. 3d, at 732, or a sign that is installed
by “ ‘a business . . . licensed to occupy . . . the premises
where the sign is located,’ ” Brief for Summus Outdoor as
Amicus Curiae 10. As for regulations of one-time-event
signs, Austin itself amended its sign code, at the behest of
its lawyers, specifically to make its ordinance content neu-
tral. See Austin, Tex., City Code §25–10–102(D) (2021);
App. 152. Thus, interpreting JUSTICE ALITO’s concurrence
as referring to rules that turn on communicative content,
as opposed to rules that are content neutral, is unwar-
ranted.
Second, it would be strange to interpret the concurrence
as proclaiming that all off-premises sign restrictions are
content neutral considering the longstanding dispute over
that question. In fact, 20 years before Reed, then-Judge
Alito opined that there was “no easy answer to [the] ques-
tion” whether “exceptions for ‘for sale’ signs and signs relat-
ing to on-site activities” would render a sign code content
based. Rappa v. New Castle County, 18 F. 3d 1043, 1080
16 CITY OF AUSTIN v. REAGAN NAT.
ADVERTISING OF AUSTIN, LLC
THOMAS, J., dissenting
(CA3 1994) (concurring opinion); see also, e.g., Ackerly Com-
munications of Mass., Inc. v. Cambridge, 88 F. 3d 33, 36,
n. 7 (CA1 1996) (“In ‘commonsense’ terms, the distinction
surely is content-based because determining whether a sign
must stay up or must come down requires consideration of
the message it carries”); Norton Outdoor Adv., Inc. v. Ar-
lington Heights, 69 Ohio St. 2d 539, 541, 433 N. E. 2d 198,
200 (1982) (“In prohibiting all forms of offsite billboard ad-
vertising, the ordinance is thus inescapably directed to the
content of protected speech”). Ultimately, it seems quite
unlikely that JUSTICE ALITO’s quick recital of some content-
neutral rules purported to pre-emptively decide an issue
that had long perplexed federal and state courts.
4
Near the end of its analysis, the majority invokes an al-
legedly “unbroken tradition of on-/off-premises distinctions”
that it claims “counsels against” faithful application of
Reed. Ante, at 12. To be sure, history and tradition are
relevant to identifying and defining those “few limited
areas” where, “[f ]rom 1791 to the present,” “the First
Amendment has permitted restrictions upon the content of
speech.” Brown v. Entertainment Merchants Assn., 564
U. S. 786, 791 (2011) (internal quotation marks omitted);
see supra, at 2, n. 1. But the majority openly admits that
off-premises regulations “were not present [at] the found-
ing.” Ante, at 12. And while it asserts that “large outdoor
advertisements proliferated in the 1800s,” ibid., it offers no
evidence of any content-based restrictions from that period,
let alone off-premises restrictions on noncommercial
speech. The earliest example of an off-premises restriction
that the majority cites arose in Packer Corp. v. Utah, 285
U. S. 105 (1932), but that case involved a restriction on com-
mercial advertising and did not even feature a First Amend-
ment claim. See id., at 108–112.
Ultimately, the majority’s only “historical” support is that
Cite as: 596 U. S. ____ (2022) 17
THOMAS, J., dissenting
regulations like Austin’s “proliferated following the enact-
ment of the Highway Beautification Act of 1965.” Ante, at
2. The majority’s suggestion that the First Amendment
should yield to a speech restriction that “proliferated”—
under pressure from the Federal Government—some two
centuries after the founding is both “startling and danger-
ous.” United States v. Stevens, 559 U. S. 460, 470 (2010).
This Court has never hinted that the government can, with
a few decades of regulation, subject “new categories of
speech” to less exacting First Amendment scrutiny. Id., at
472.
Regardless, even if this allegedly “unbroken tradition”
did not fall short by a century or two, the majority offers no
explanation why historical regulation is relevant to the
question whether the off-premises restriction is content
based under Reed and our modern content-neutrality juris-
prudence. If Austin had met its burden of identifying a
historical tradition of analogous regulation—as can be
done, say, for obscenity or defamation—that would not
make the off-premises rule content neutral. It might simply
mean that the off-premises rule is a constitutional form of
content-based discrimination. But content neutrality un-
der Reed is an empirical question, not a historical one.
Thus, the majority’s historical argument is not only merit-
less but misguided.
C
Despite asserting that the Court of Appeals’ analysis un-
der Reed would “contravene numerous precedents,” ante, at
11, the majority identifies no decision of this Court support-
ing the idea that a speech restriction is not content based
so long as it regulates a sufficiently broad or non-
substantive category of communicative content. In fact,
there is only one case that could possibly validate the ma-
jority’s aberrant analysis: Hill v. Colorado. That Hill is the
majority’s only support underscores the danger that today’s
18 CITY OF AUSTIN v. REAGAN NAT.
ADVERTISING OF AUSTIN, LLC
THOMAS, J., dissenting
decision poses to the First Amendment.
Hill involved a law that prohibited persons outside
abortion clinics from knowingly approaching within eight
feet of another person without consent “for the purpose of
. . . engaging in oral protest, education, or counseling.” 530
U. S., at 707 (internal quotation marks omitted). Hill con-
cluded, implausibly, that this regulation was content neu-
tral.
The majority’s reasoning in this case is just as implausi-
ble. The majority asserts that the off-premises rule is not
content based because it does not target a sufficiently “spe-
cific” or “substantive” category of communications. Ante, at
8. Hill correspondingly held that restrictions on “protest,
education, or counseling” were not content-based classifica-
tions because they cover “an extremely broad category of
communications.” 530 U. S., at 723. The majority also tries
to disguise its redefinition of content neutrality by charac-
terizing Austin’s rule as a “neutral, location-based” re-
striction. Ante, at 6. So too did Hill try to conceal its doc-
trinal innovation by characterizing the buffer-zone law as a
neutral “place restriction.” 530 U. S., at 723. Finally, the
majority finds it immaterial that Austin’s rule can be en-
forced only by “reading a [sign] to determine whether it”
contains an off-premises message. Ante, at 8. Hill likewise
found it irrelevant that “the content of the oral statements”
would need to “be examined to determine whether” the pro-
hibition applied. 530 U. S., at 720.
The parallel between the majority’s opinion and Hill
should be discomforting given that Hill represented “an un-
precedented departure” from this Court’s First Amendment
jurisprudence. Id., at 772 (Kennedy, J., dissenting). Its
content-neutrality analysis was, as Justice Scalia ex-
plained, “absurd” given that the buffer-zone law was “obvi-
ously and undeniably content based.” Id., at 742–743
(dissenting opinion). First Amendment scholars from
across the ideological spectrum agree. See, e.g., M.
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THOMAS, J., dissenting
McConnell, Professor Michael W. McConnell’s Response, in
K. Sullivan, Sex, Money, and Groups: Free Speech and As-
sociation Decisions in the October 1999 Term, 28 Pep-
perdine L. Rev. 723, 748 (2001) (“The Court said that this
statute is content-neutral. I just literally cannot see how
they could possibly come to that conclusion”); Colloquium,
id., at 750 (Laurence Tribe stating Hill “was slam-dunk
simple and slam-dunk wrong”); R. Fallon, Strict Judicial
Scrutiny, 54 UCLA L. Rev. 1267, 1298, and n. 174 (2007)
(Hill “unconvincingly . . . maintain[ed] that a content-based
restriction on speech [was] not really content-based”). And,
since Hill, this Court has all but interred its flawed content-
neutrality analysis in both McCullen, see supra, at 11, and
Reed. See Price v. Chicago, 915 F. 3d 1107, 1118 (CA7 2019)
(“In the wake of McCullen and Reed, it’s not too strong to
say that what Hill explicitly rejected is now prevailing
law”).
The majority’s refusal to acknowledge Hill simply under-
scores the decision’s defunct status. Again, Hill is the only
case that could support the majority’s ill-conceived content-
neutrality analysis, and yet the majority disclaims reliance
on it. Lower courts should take the majority’s disclaimer at
face value: Hill is “a decision that we do not cite.” Ante, at
13. And today’s decision amounts to little more than an
ad hoc exemption for the “location-based” and supposedly
“content-agnostic on-/off-premises distinction.” Ibid.Even so, the majority’s approach should offer little com-
fort because arbitrary carveouts from Reed undermine the
“clear and firm rule governing content neutrality” that we
understood to be “an essential means of protecting the free-
dom of speech.” 576 U. S., at 171. The majority’s deviation
from that “clear and firm rule” poses two serious threats to
the First Amendment’s protections.
First, transforming Reed’s clear definition of “content
based regulation” back into an opaque and malleable “term
20 CITY OF AUSTIN v. REAGAN NAT.
ADVERTISING OF AUSTIN, LLC
THOMAS, J., dissenting
of art” turns the concept of content neutrality into a “ve-
hicl[e] for the implementation of individual judges’ policy
preferences.” Tennessee v. Lane, 541 U. S. 509, 556 (2004)
(Scalia, J., dissenting). Hill exemplifies this danger. See
530 U. S., at 742 (Scalia, J., dissenting) (“I have no doubt
that this regulation would be deemed content based in an
instant if the case before us involved antiwar protesters, or
union members seeking to ‘educate’ the public about the
reasons for their strike”). The majority’s approach in this
case is cut from the same cloth. As the majority transpar-
ently admits, it seeks to “apply [our] precedents to reach the
‘commonsense’ result” and avoid what it perceives as a “bi-
zarre result.” Ante, at 13 (emphasis added). But Reed man-
dates a “commonsense” test for content neutrality even if
the result is that “laws that might seem entirely reasonable
will sometimes be struck down.” 576 U. S., at 163, 171 (in-
ternal quotation marks omitted).
Second, sanctioning certain content-based classifications
but not others ignores that even seemingly reasonable
content-based restrictions are ready tools for those who
would “suppress disfavored speech.” Id., at 167; see also
Hill, 530 U. S., at 743 (Scalia, J., dissenting) (“ ‘The vice of
content-based legislation . . . is not that it is always used for
invidious, thought-control purposes, but that it lends itself
to use for those purposes’ ”). This is because “the responsi-
bility for distinguishing between” permissible and imper-
missible content “carries with it the potential for invidious
discrimination of disfavored subjects.” Cincinnati v. Dis-
covery Network, Inc., 507 U. S. 410, 423–424, n. 19 (1993).
That danger only grows when the content-based distinc-
tions are “by no means clear,” giving more leeway for gov-
ernment officials to punish disfavored speakers and ideas.
Ibid.The content-based distinction drawn by Austin’s off-
premises speech restriction is “by no means clear,” ibid.,
and plainly lends itself “to suppress[ing] disfavored
Cite as: 596 U. S. ____ (2022) 21
THOMAS, J., dissenting
speech,” Reed, 576 U. S., at 167. As the Court of Appeals
noted, Austin’s “prepared counsel” “struggled to answer
whether” signs conveying messages like “ ‘God Loves You,’ ”
“ ‘Vote for Kathy,’ ” or “ ‘Sally makes quilts here and sells
them at 3200 Main Street’ ” would be regulated as off-
premises signs. 972 F. 3d, at 706. Before us, Austin’s coun-
sel had similar difficulties, and amici have proposed dozens
of religious and political messages that would be next to im-
possible to categorize under Austin’s rule. See, e.g., Brief
for Alliance Defending Freedom et. al. as Amici Curiae 15–
19; Brief for Institute for Justice as Amicus Curiae 3–9.
These pervasive ambiguities offer enforcement officials am-
ple opportunity to suppress disfavored views. And they un-
derscore Reed’s warning that “[i]nnocent motives do not
eliminate the danger of censorship presented by a facially
content-based statute.” 576 U. S., at 167.
* * *
Because Reed provided a clear and neutral rule that pro-
tected the freedom of speech from governmental caprice and
viewpoint discrimination, I would adhere to that precedent
rather than risk resuscitating Hill. I respectfully dissent.