• by Wendy Davis  @wendyndavis, August 13, 2021

Officials in Austin, Texas are urging the Supreme Court to reinstate an ordinance that bans digital billboards in locations other than the advertisers' premises.

In papers filed Friday, city officials argue that the local ordinance doesn't violate the First Amendment, because it “does not single out any subjects, topics, or viewpoints for regulation.”

The legal dispute over the ordinance dates to 2017, when Reagan National Advertising of Texas and Lamar Advantage Outdoor sued the city over its restrictions. 

Austin, like most Texas cities, only allows digital billboard ads on the advertisers' property. City officials say the restriction aims to preserve the local landscape, and further road safety by limiting distractions.

But Reagan National and Lamar Advantage -- which want to convert non-digital outdoor ads to digital ones on 83 billboards in Austin -- claimed in their lawsuit that the distinction on-premises and off-premises digital billboards runs afoul of the First Amendment, which generally restricts the government from regulating speech based on subject matter.

A trial judge upheld the ordinance, but the 5th Circuit Court of Appeals struck it down on the grounds that the distinction between signs on a company's premises or elsewhere is content-based.

That court reasoned that the only way to know whether a sign was on a company's property was by reading it, which rendered the restriction content-based.

City officials are now urging the Supreme Court to reverse that ruling.

“Austin’s off-premises rule regulates all subjects and viewpoints equally,” attorneys for the city write. “The ordinance defines signs based on their off-premises status (i.e., the lack of nexus between the sign and its location); it does not prohibit anyone from speaking on any particular topic or voicing any particular viewpoint.”

Austin officials also argue the ordinance is justified on the grounds that billboards can “create esthetic harms,” and digital billboards -- with their “changing images and bright lights” -- pose an additional risk of distraction.

"On-premises signs ... are by definition integrated with an existing property and are thus less visually distracting than an off-premises sign that stands alone,” the city writes.

The U.S. Chamber of Commerce and other business groups support Austin, arguing that the city's ordinance “maximizes visibility, safety, and the rights of landowners and businesses to attract traffic.”

The Supreme Court is expected to hear the case in the upcoming term, which begins in October.