Supreme Court Holds Off-Premises Signs Require Less Than Strict Scrutiny Under First Amendment

By Amanda Z. Weaver, Ph.D. and David G. Barker

The U.S. Supreme Court issued an opinion on April 21 addressing the regulation of “off-premises” signs, holding that such regulations are not subject to strict scrutiny under the First Amendment. 

City of Austin v. Reagan National Advertising of Austin, No. 20-1029 (Apr. 21, 2022) (opinion here) contends with a municipal regulation in Austin, Texas, distinguishing between on-premises and off-premises signs. “On-premises” signs advertise goods, services, ideas, etc., offered at the same physical location of the sign.  “Off-premises” signs refer to things located offsite.

Under the First Amendment, a regulation of speech is facially content-based if it “targets speech based on its communicative content”—that is, “because of the topic discussed or the idea or message expressed.”  Content-based speech regulations require a court to strictly scrutinize the regulations to ensure they do not impermissibly infringe on speech rights. 

The Supreme Court determined that the off-premises distinction at issue was “agnostic as to content” and required examining the speech that existed on off-premises signs “only in service of drawing neutral, location-based lines.”  Therefore, the Court held that strict scrutiny was not the appropriate standard of review for this regulation, overturning the Fifth Circuit’s conclusion to the contrary.

The Court distinguished this case from its 2015 decision in Reed v. Town of Gilbert. Reed addressed a sign code that “single[d] out specific subject matter for differential treatment,” which is why strict scrutiny applied in that instance.

Justice Breyer penned a concurrence and Justice Alito concurred in part and dissented in part.  Justices Thomas, Gorsuch, and Barrett dissented, expressing concern that the majority’s holding provided a malleable standard and moved away from the clear rule expressed in Reed.

The Supreme Court’s holding in City of Austin likely will affect sign ordinances, regulations, and laws around the country.