Don’t Mess with Texas Signs: Highway Beautification Does Not Mean Content Regulation
Last week, the Austin Court of Appeals—recognizing that Reed v. Town of Gilbert, Ariz., 576 U.S. 155 (2015) “arguably transformed First Amendment free-speech jurisprudence”—held that “certain provisions in Subchapters B and C of the [Texas Highway Beautification] Act are facially content-based restrictions on speech that render those subchapters unconstitutional.”[1]
Back in 2011, Auspro Enterprises, LP displayed a Ron Paul campaign sign on its property in Bee Cave, Texas. The Texas Department of Transportation told Auspro that the sign was illegal and ordered Auspro to remove the sign. When Auspro didn’t remove the sign, the Texas Department of Transportation initiated an enforcement action in Travis County District Court. The Travis County District Court ruled in favor of the Department, over Auspro’s First Amendment challenges.
While the case was pending on appeal—and abated pending the Reed decision—the U.S. Supreme Court decided Reed v. Town of Gilbert, Ariz., 576 U.S. 155 (2015). In Reed, the U.S. Supreme Court held that a “law that is content based on its face is subject to strict scrutiny regardless of the government’s benign motive, content-neutral justification, or lack of animus toward the ideas contained in the regulated speech.” Consequently, any regulation of signs based on content, under the Supreme Court’s guidance, is likely unconstitutional, given the rigorous strict scrutiny analysis.
Auspro’s argument to the Austin Court of Appeals was that under Reed, the Texas Highway Beautification Act “is a content-based government regulation of speech that cannot survive strict scrutiny.” And as it turns out, the Texas Highway Beautification Act regulates signs based on content. For example, as the court noted, exemptions from the prohibition on advertising within certain distances of a highway include “outdoor advertising for the sale or lease of the property on which it is located,” “outdoor advertising solely for activities conducted on the property on which it is located,” or “advertising pertaining to a natural wonder or a scenic or historic attraction.” Tex. Transp. Code § 391.031(b). Moreover, under the Texas Highway Beautification Act, “a sign advertising a presidential candidate’s fundraising event at the site where the sign is displayed would be allowed at any time . . . while a sign that merely expresses the view that one should vote for that same presidential candidate would be banned during all but the small window around an election.”[2]
And although the Texas Supreme Court previously upheld the Texas Highway Beautification Act pursuant to a First Amendment challenge, the introduction of the Reed decision caused the Court of Appeals to “respectfully disagree with the Department’s assertion that [it] remain bound by Barber’s holding that the Texas’s Highway Beautification Act is ‘content neutral and constitutes a valid time, place, and manner restriction.’”[3] In fact, the Court of Appeals recognized that even in the Barber decision, the Texas Supreme Court stated that the Texas Highway Beautification Act “does make certain distinctions based on subject matter,” confirming that the content-based regulations must be struck down under Reed.
After the Austin Court of Appeals determined that the Texas Highway Beautification Act constituted content-based regulations, it applied the strict scrutiny test, finding that the Act’s provisions and related regulations were not narrowly tailored for a compelling governmental interest. Thus, the Court determined that the content-based regulations in Subchapters B and C were unconstitutional and must be severed from the Act.
Given that the 2017 Legislative Session is right around the corner, it will be interesting to see whether the Legislature attempts to re-work the Texas Highway Beautification Act. In doing so, it must of course be very careful not to regulate signs based on content in order to pass muster under Reed and Auspro. Alternatively, the Texas Supreme Court may weigh in on this ruling as well. In the interim, if state enforcement authorities or local officials attempt to regulate signs, Reed and Auspro provide great bases upon which to challenge any such regulation or enforcement.
[1] Auspro Enterprises, LP v. Tex. Dep't of Transp., 03-14-00375-CV, 2016 WL 4506161 (Tex. App.—Austin Aug. 26, 2016), opinion withdrawn and superseded on denial of reh'g, 506 S.W.3d 688 (Tex. App.—Austin 2016, no pet.), review granted, judgment vacated (Apr. 6, 2018).
[2] Auspro Enterprises, 2016 WL 4506161, at *6; Compare Tex. Transp. Code § 391.031(b)(3) with Tex. Transp. Code § 391.005.
[3] Auspro Enterprises, 2016 WL 4506161, at *7 (quoting Texas Dept. of Transp. v. Barber, 111 S.W.3d 86, 89 (Tex. 2003)).