May 16th, 2022 by Rieders Travis in Constitutional Law

City of Austin v. Reagan Nat’l Adver. of Austin, LLC, 2022 U.S. LEXIS 2098 (S. Ct. April 21, 2022) (Sotomayor, J.)  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 regulation is subject to strict scrutiny. We hold that it is not. 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 to federal court, and Lamar intervened as a plaintiff. This Court’s First Amendment precedents and doctrines have consistently recognized 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—that is, speech “requesting or seeking 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 restrictions 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 viewpoint. Heffron v. International Soc. for Krishna Consciousness, Inc., 452 U. S. 640, 649, 101 S. Ct. 2559, 69 L. Ed. 2d 298 (1981). 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 restriction, for instance, that restriction may be content based. See Reed, 576 U. S., at 164, 135 S. Ct. 2218, 192 L. Ed. 2d 236. Moreover, to survive intermediate 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, 109 S. Ct. 2746, 105 L. Ed. 2d 661 (1989). The parties dispute whether the City can satisfy these requirements. This Court, however, is “a court of final review 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, 132 S. Ct. 1421, 182 L. Ed. 2d 423 (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 addressing.” Ibid. Because the Court of Appeals did not address 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.

Attorney Cliff Rieders

Attorney Cliff RiedersCliff Rieders is a Nationally Board Certified Trial Lawyer practicing personal injury law. A large part of his practice involves multi-district litigation, including cases related to pharmaceuticals, vitamin supplements and medical devices. He is admitted in several state and federal courts, as well as the Supreme Court of the United States. Rieders is the past regional president of the Federal Bar Association and is a life member of the distinguished American Law Institute, which promulgates proposed rules adopted by many state courts. He is a past president of the Pennsylvania Association for Justice, formerly Pennsylvania Trial Lawyers Association. As a founder of the Pennsylvania Patient Safety Authority, he served on the Board for 15 years.

Not only has Rieders held many highly esteemed, leadership positions, he authored legislation related to the Patient Safety Authority and the Mcare Act, which governs medical and hospital liability actions in Pennsylvania. He authored texts upon which both practitioners and judges rely, including Pennsylvania Malpractice Laws and Forms, and Financial Responsibility Law Issues in Pennsylvania, the latter governing auto and truck collisions in Pennsylvania. In addition, he wrote several books on the practice of law in Pennsylvania regarding wrongful death and survivor actions, insurance bad faith, legal malpractice claims and worker rights, among others. Rieders also serves as a resource to practitioners as a regular speaker for Celesq, an arm of the world’s largest legal publisher, Thomson Reuters West Publishing.

As recognition of his wide range of contribution to his profession and of his dedication to protecting the rights of his clients, he received numerous awards, among them the George F. Douglas Amicus Curiae Award, the Milton D. Rosenberg Award, the B’nai B’rith Justice Award, and awards of recognition from the Pennsylvania Trial Lawyers. [ Attorney Bio ]