The conservative advocacy group Americans for Prosperity is siding with two ad companies that are seeking to invalidate an Austin, Texas ordinance that regulates digital billboards.
The organization, initially funded by the Koch brothers, argues in a friend-of-the-court brief filed this week with the Supreme Court that the Austin ordinance -- which prohibits digital billboards in locations other than the advertisers' premises -- should be struck down as a “content-based” restriction on speech.
“Austin chose to define 'off-premise' by the sign’s content so that determining whether a sign is on-premise or off-premise requires reading the sign, analyzing what it says, and applying the Code to the meaning of the sign,” the organization writes. “That is facially content-based.”
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 limits distractions on the road.
The ad companies Reagan National Advertising of Texas and Lamar Advantage Outdoor, which want to convert non-digital outdoor ads to digital ones on 83 billboards in Austin, sued in 2017 to invalidate the ordinance.
The companies argued that the distinction between on-premises and off-premises digital billboards violates 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.
The appellate judges said the only way to know whether a billboard was on a company's property was by reading it, which rendered the restriction content-based.
The city is now appealing that decision to the Supreme Court.
Austin officials contend that its restrictions on digital signs are content-neutral because they apply equally to all off-premises signs.
City officials also say the ordinance is justified because billboards can “create esthetic harms,” and digital billboards -- with their “changing images and bright lights” -- pose an additional risk of distraction.
The ad companies countered in papers filed last week that city officials failed to present evidence to the trial judge about digital signs' potential to cause harm.
The city “offered no studies, surveys, or statistics showing that digital signs are either more dangerous or intrusive than traditional signs -- much less that the differential treatment of on-premises and off-premises signs is justified,” the ad companies wrote.
While Americans for Prosperity contends that Austin's restriction is content-based, the group also argues more broadly that nearly all commercial speech should be protected by the First Amendment to the same extent as editorial speech.
The Supreme Court has said in other cases that commercial speech has some constitutional protections, but not as many as political or editorial speech.
“When it comes to commercial speech, value is in the eye of the beholder,” the organization writes. “To some, a billboard providing the location of the only kosher restaurant in town may be 'low value' commercial speech; but for other readers it may provide information critical to freely exercising religion or the right to travel.”
A broad array of outside groups -- including the outdoor advertising company Outfront Media, free speech watchdog Knight First Amendment Institute and local chambers of commerce -- sided with Austin in the battle.
The Supreme Court is expected to hear the case in its upcoming term, but hasn't yet set a date for arguments.