The US Supreme Court Thursday ruled in a 6-3 decision that the Austin city code’s distinction between on-premises signs, which may be digitized, and off-premises signs, which may not, was “facially content neutral” under the First Amendment. 

In City of Austin v. Reagan National Advertising, the city of Austin, Texas enacted a regulation that allowed businesses to advertise their products on a digital billboards as long as it was on the business’s property. The regulation also prohibited these billboards anywhere that was not the business’s property.

The Supreme Court heard oral arguments in the case in November 2021. The city argued that the Fifth Circuit, which relied heavily on Reed, erred in holding that the “on-premises/off-premises distinction is content based and fails under strict scrutiny.” 

In the majority opinion written by Justice Sotomayor, she stated that the Austin ordinance was not the same as the ordinance at issue in Reed. She continued by stating the Fifth Circuit’s holding was “too extreme an interpretation of this Court’s precedent.”

The court held the city’s distinction between on- and off-premises was facially content neutral under the First Amendment. The opinion further determined that, under the court’s precedents interpreting the Free Speech Clause of the First Amendment, the Austin ordinance was not subject to strict scrutiny.

Justice Breyer concurred, while Justice Alito concurred in part and dissented in part. Justice Thomas wrote the majority opinion, which was joined by Justice Gorsuch. Justice Barrett dissented.

Justice Breyer in his concurrence stated that he continued to believe that the court’s reasoning in Reed was wrong. He ended his concurrence by stating: “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.”

In his concurrence, Justice Alito said:

“Today’s decision . . . goes further and holds flatly that ‘[t]he sign code provisions challenged here do not discriminate’ on the basis of  ‘the topic discussed or the idea or message expressed,’ 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.”

Justice Thomas, who wrote the majority in Reed, wrote: “Reed provided a clear and neutral rule that protected the freedom of speech from governmental caprice and viewpoint discrimination, I would adhere to that precedent rather than risk resuscitating Hill.” The dissent said they would follow Reed rather than follow the decision in Hill v. Colorado.