Legal Report, June 2022

Davis & Associates, P.A.

1. City of Austin v. Reagan Nat’l Advertising of Austin, LLC, 2022 U.S. LEXIS 2098 (April 21, 2022).First Amendment; Billboard signs.
Reagan National Advertising of Austin, LLC (“Plaintiff”) owns and operates signs and billboards within the City of Austin (“City”). Plaintiff filed applications with the City to digitize some of its billboards, specifically to update the billboards so they could electronically change text and images. The City denied the applications, basing its denial on the City’s sign code which permitted digital on-premises signs but prohibited all digital off-premises signs, including billboards. Plaintiff sued the City, arguing that the sign code’s distinction between on-premises and off-premises digital signs violated Plaintiff’s free speech rights under the First Amendment of the U.S. Constitution (“First Amendment”). The U.S. District Court of Western Texas found for the City, holding that the City’s on/off-premises distinction here was a legal, content-neutral code regulation that was valid under First Amendment case law, including Reed v. Town of Gilbert. The Fifth Circuit Court of Appeals reversed, finding the City’s distinction between on-premises and off-premises digital signs was content-based under Reed and therefore a presumptively illegal sign regulation.

In a 6-3 decision, the U.S. Supreme Court reversed the Fifth Circuit’s decision, holding that the City’s distinction between on-premises and off-premises digital signs was content-neutral under the First Amendment. Unlike the content-based sign code in Reed v. Town of Gilbert, the Court found that the City’s sign code did not impose greater restrictions for off-premises signs based on the messages or topics conveyed by the sign; rather, the City’s only restriction is based on the location of the sign. The City’s location-based restriction was characterized by the Court as a time, place or manner regulation that is content-neutral. This case affirms historical precedent that location-based sign regulations are content-neutral and will survive court challenge, even following the recent Reed decision.

2. Shurtleff v. City of Boston, 2022 U.S. LEXIS 2327 (May 2, 2022). First Amendment; Flag-raising.
The City of Boston (“City”) enacted a program that allowed groups to hold events on the plaza outside City Hall during which participants may hoist a flag of their choosing on one of the plaza’s three flagpoles. Between 2005 and 2017, the City approved 284 flag-raising events and did not deny a single flag-raising application. In 2017, Harold Shurtleff (“Plaintiff”) applied to the City to fly a “Christian flag” for his organization’s event at City Hall plaza. The City informed Plaintiff that the group could hold an event on the plaza but could not raise their flag during it. Plaintiff sued the City, claiming its refusal to let the organization raise its flag violated Plaintiff’s free speech rights under the First Amendment. The U.S. District Court of Massachusetts held that the City’s decision to not fly the organization’s flag did not violate Plaintiff’s free speech rights because of the government speech doctrine, which allows the City as a speaker to make its own decision of what to say or not say, without being subject to free speech challenges, when conveying its own messages or implementing its own policies or ¬†programs. The U.S. First Circuit affirmed the District Court’s decision and found for the City.

In a unanimous decision, however, the U.S. Supreme Court found that the City’s refusal to allow the organization to fly its flag violated Plaintiff’s First Amendment rights.¬† The appellate court’s order was reversed and the matter was remanded back to the lower courts. The Supreme Court concluded that the City’s flag-raising program did not constitute government speech because the City did not have sufficient control over the flag flying component of the program. Specifically, the City had no written policies or internal guidance about what flags groups could fly and what those flags would communicate, and in practice the City had approved each and every application until Plaintiff’s request. The Court found that the City’s flag-raising program was not government speech and that the City’s refusal to let Plaintiff’s organization fly its flag violated Plaintiff’s free speech rights the First Amendment. This case illustrates the importance that, for any kind of government-sanctioned messaging events or demonstrations, local governments’ decisions to admit or deny applicants will be subject to First Amendment challenges if sufficient policies and procedures are not in place that otherwise characterize the local decisions as government speech.