City of Austin v. Reagan National Advertising of Austin

NOTICE: This opinion is subject to
formal revision before publication in the preliminary print of the
United States Reports. Readers are requested to notify the Reporter
of Decisions, Supreme Court of the United States, Washington,
D. C. 20543, of any typographical or other formal errors, in
order that corrections may be made before the preliminary print
goes to press.

															SUPREME COURT OF THE UNITED STATES

															_________________

															No. 20–1029

															_________________

															City of Austin, Texas, PETITIONER v. Reagan National Advertising of Austin, LLC, et al.

															on writ of certiorari to the united states
court of appeals for the fifth circuit

															[April 21, 2022]

															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.

															I

															A

															American jurisdictions have regulated outdoor
advertisements for well over a century. See C. Taylor & W.
Chang, The History of Outdoor Advertising Regulation in the United
States, 15 J. of Macromarketing 47, 48 (Spring 1995). By some
accounts, the proliferation of conspicuous patent-medicine
advertisements on rocks and barns prompted States to begin
regulating outdoor advertising in the late 1860s. Ibid. ; F.
Presbrey, The History and Development of Advertising 500–501
(1929). As part of this regulatory tradition, federal, state, and
local governments have long distinguished between signs (such as
billboards) that promote ideas, products, or services located
elsewhere and those that promote or identify things located onsite.
For example, this Court in 1932 reviewed and approved of a Utah
statute that prohibited signs advertising cigarettes and related
products, but allowed businesses selling such products to post
onsite signs identifying themselves as dealers. Packer Corp. v. Utah , 285 U.S.
105 , 107, 110.

															On-/off-premises distinctions, like the one at
issue here, proliferated following the enactment of the Highway
Beautification Act of 1965 (Act), 23 U. S. C. §131. In
the Act, Congress directed States receiving federal highway funding
to regulate outdoor signs in proximity to federal highways, in part
by limiting off-premises signs. See §§131(b)–(c) (allowing
exceptions for “signs, displays, and devices advertising the sale
or lease of property upon which they are located” and “signs,
displays, and devices . . . advertising activities
conducted on the property on which they are located”). Under the
Act, approximately two-thirds of States have implemented similar
on-/off-premises distinctions. See App. A to Reply to Brief in
Opposition (collecting statutes); Brief for State of Florida
et al. as Amici Curiae 7, n. 3 (same). The City
represents, and respondents have not disputed, that “tens of
thousands of municipalities nationwide” have adopted analogous
on-/off-premises distinctions in their sign codes. Brief for
Petitioner 19; see also App. B to Reply to Brief in Opposition
(collecting examples of ordinances); Brief for State of Florida
et al. as Amici Curiae 8, n. 4 (same).

															The City of Austin is one such municipality. The
City distinguishes between on-premises and off-premises signs in
its sign code, and specially regulates the latter, in order to
“protect the aesthetic value of the city and to protect public
safety.” App. 39.

															During the time period relevant to this dispute,
the City’s sign code defined the term “off-premise sign” to mean “a
sign advertising a business, person, activity, goods, products, or
services not located on the site where the sign is installed, or
that directs persons to any location not on that site.” Austin,
Tex., City Code §25–10–3(11) (2016). This definition was materially
analogous to the one used in the federal Highway Beautification Act
and many other state and local codes referenced above. The code
prohibited the construction of any new off-premises signs,
§25–10–102(1), but allowed existing off-premises signs to remain as
grandfathered “non-conforming signs,” §25–10–3(10). An owner of a
grandfathered off-premises sign could “continue or maintain [it] at
its existing location” and could change the “face of the sign,” but
could not “increase the degree of the existing nonconformity,”
“change the method or technology used to convey a message,” or
“increase the illumination of the sign.” §§25–10–152(A)–(B). By
contrast, the code permitted the digitization of on-premises signs.
§25–10–102(6) (permitting “electronically controlled
changeable-copy sign[s]”).[ 1 ]

															B

															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.[ 2 ]

															After the parties stipulated to the pertinent
facts, the District Court held a bench trial and entered judgment
in favor of the City. 377 F. Supp. 3d 670, 673, 683 (WD Tex.
2019). As relevant, the court held that the challenged sign code
provisions were content neutral under Reed v. Town of
Gilbert , 576 U.S. 155 (2015). The court explained that “the
on/off premises distinction [did] not impose greater restrictions
for political messages, religious messages, or any other subject
matter,” and “d[id] not require a viewer to evaluate the topic,
idea, or viewpoint on the sign”; instead, it required the viewer
only “to determine whether the subject matter is located on the
same property as the sign.” 377 F. Supp. 3d, at 681. The court
therefore held that the distinction was a facially content-neutral
“regulation based on location.” Ibid. The court further
found “no evidence in the record” that the City had applied the
sign code provisions “differently for different messages or
speakers” or that its stated concern for esthetics and safety was
“pretext for any other purpose.” Id., at 681–682.
Accordingly, the court reviewed the City’s on-/off-premises
distinction under the standard of intermediate scrutiny applicable
to content-neutral regulations of speech. Id., at 682. The
court found that the distinction satisfied this standard. Id., at 682–683.

															The Court of Appeals reversed. 972 F.3d 696, 699
(CA5 2020). The court opined that because the City’s
on-/off-premises distinction required a reader to inquire “who is
the speaker and what is the speaker saying,” “both hallmarks of a
content-based inquiry,” the distinction was content based. Id., at 706. It reasoned that “[t]he fact that a government
official ha[s] to read a sign’s message to determine the sign’s
purpose [i]s enough to” render a regulation content based and
“subject [it] to strict scrutiny.” Ibid. (citing Thomas v. Bright , 937 F.3d 721, 730–731 (CA6 2019));
see also 972 F. 3d, at 704 (“To determine whether a sign is
on-premises or off-premises, one must read the sign . . .
”). The court acknowledged that its interpretation of Reed was “broad,” but reasoned that the consequences were “not
. . . unforeseen,” given the concerns raised by Justices
who did not join the opinion of the Court. 972 F. 3d, at
707.

															Because the Court of Appeals determined that the
City’s on-/off-premises distinction imposed a content-based
restriction on speech, it reviewed that distinction under the
onerous standard of strict scrutiny. Recognizing that strict
scrutiny “is, understandably, a hard standard to meet” and that it
“leads to almost certain legal condemnation,” id., at 709,
the court held that the City’s justifications for the distinction
could not meet that standard, rendering it unconstitutional, id., at 709–710.[ 3 ]

															This Court granted certiorari. 594 U. S.
___ (2021).

															II

															A regulation of speech is facially content
based under the First Amendment if it “target[s] speech based on
its communicative content”—that is, if it “applies to particular
speech because of the topic discussed or the idea or message
expressed.” Reed , 576 U. S., at 163. The Court of
Appeals interpreted Reed to mean that if “[a] reader must
ask: who is the speaker and what is the speaker saying” to apply a
regulation, then the regulation is automatically content based. 972
F. 3d, at 706. This rule, which holds that a regulation cannot
be content neutral if it requires reading the sign at issue, is too
extreme an interpretation of this Court’s precedent. Unlike the
regulations at issue in Reed , the City’s off-premises
distinction requires an examination of speech only in service of
drawing neutral, location-based lines. It is agnostic as to
content. Thus, absent a content-based purpose or justification, the
City’s distinction is content neutral and does not warrant the
application of strict scrutiny.

															A

															The Reed Court confronted a very
different regulatory scheme than the one at issue here: a
comprehensive sign code that “single[d] out specific subject matter
for differential treatment.” 576 U. S., at 169. The town of
Gilbert, Arizona, had adopted a code that applied distinct size,
placement, and time restrictions to 23 different categories of
signs. Id., at 159. The Court focused its analysis on three
categories defined by whether the signs displayed ideological,
political, or certain temporary directional messages. The code gave
the most favorable treatment to “ ‘Ideological
Sign[s],’ ” defined as those “ ‘communicating a message
or ideas for noncommercial purposes’ ” with certain
exceptions. Id., at 159–160 (alteration in original). It
offered less favorable treatment to “ ‘Political
Sign[s],’ ” defined as those “ ‘designed to influence the
outcome of an election.’ ” Id., at 160 (alteration in
original). Most restricted of all were “ ‘Temporary
Directional Signs Relating to a Qualifying Event,’ ” with
qualifying events defined as gatherings “ ‘sponsored,
arranged, or promoted by a religious, charitable, community
service, educational, or other similar non-profit
organization.’ ” Id., at 160–161.

															The Reed Court determined that these
restrictions were facially content based. Id., at 164–165.
Rejecting the contention that the restrictions were content neutral
because they did not discriminate on the basis of viewpoint, the
Court explained: “[I]t is well established that ‘[t]he First
Amendment’s hostility to content-based regulation extends not only
to restrictions on particular viewpoints, but also to prohibition
of public discussion of an entire topic.’ ” Id., at 169
(quoting Consolidated Edison Co. of N. Y. v. Public
Serv. Comm’n of N. Y. , 447 U.S.
530 , 537 (1980)); accord, e.g., Police Dept. of
Chicago v. Mosley , 408 U.S.
92 , 95 (1972) (explaining that “[t]he central problem” with a
municipality’s effort to exempt labor picketing from a prohibition
on picketing near public schools was “that it describes permissible
picketing in terms of its subject matter”); Carey v. Brown , 447 U.S.
455 , 460–461 (1980) (subjecting a similar statute that
“accord[ed] preferential treatment to the expression of views on
one particular subject” to strict scrutiny).[ 4 ] Applying these principles, the Court reasoned
that “a speech regulation targeted at specific subject matter is
content based even if it does not discriminate among viewpoints
within that subject matter. . . . For example, a law
banning the use of sound trucks for political speech—and only
political speech—would be a content-based regulation, even if it
imposed no limits on the political viewpoints that could be
expressed.” 576 U. S., at 169. By treating ideological
messages more favorably than political messages, and both more
favorably than temporary directional messages, “[t]he Town’s Sign
Code likewise single[d] out specific subject matter for
differential treatment, even if it [did] not target viewpoints
within that subject matter.” Ibid. In this case, enforcing the City’s challenged
sign code provisions requires reading a billboard to determine
whether it directs readers to the property on which it stands or to
some other, offsite location. Unlike the sign code at issue in Reed , however, the City’s provisions at issue here do not
single out any topic or subject matter for differential treatment.
A sign’s substantive message itself is irrelevant to the
application of the provisions; there are no content-discriminatory
classifications for political messages, ideological messages, or
directional messages concerning specific events, including those
sponsored by religious and nonprofit organizations. Rather, the
City’s provisions distinguish based on location: A given sign is
treated differently based solely on whether it is located on the
same premises as the thing being discussed or not. The message on
the sign matters only to the extent that it informs the sign’s
relative location. The on-/off-premises distinction is therefore
similar to ordinary time, place, or manner restrictions. Reed does not require the application of strict scrutiny to
this kind of location-based regulation. Cf. Frisby v. Schultz , 487 U.S.
474 , 482 (1988) (sustaining an ordinance that prohibited “only
picketing focused on, and taking place in front of, a particular
residence” as content neutral).

															B

															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 (1981).

															Thus, in 1940, the Court invalidated a statute
prohibiting solicitation for religious causes but observed that
States were “free to regulate the time and manner of solicitation
generally, in the interest of public safety, peace, comfort or
convenience.” Cantwell v. Connecticut , 310 U.S.
296 , 306–307. Decades later, the Court reviewed just such a
time, place, and manner regulation restricting all solicitation at
the Minnesota State Fair, as well as all sale or distribution of
merchandise, to a specific location. Heffron , 452
U. S., at 643–644. The State had applied the restriction
against a religious practice that included “solicit[ing] donations
for the support of the Krishna religion.” Id., at 645. As a
result, members of the religion were free to roam the fairgrounds
and discuss their beliefs, but they were prohibited from asking for
donations for their cause outside of a designated location. Id., at 646, 655. The Court upheld the State’s application
of this restriction as content neutral, emphasizing that it
“applie[d] evenhandedly to all who wish[ed] . . . to
solicit funds,” whether for “commercial or charitable” reasons. Id., at 649.

															Consistent with these precedents, the Court has
previously understood distinctions between on-premises and
off-premises signs, like the one at issue in this case, to be
content neutral. In 1978, the Court summarily dismissed an appeal
“for want of a substantial federal question” where a state court
had approved of an on-/off-premises distinction as a permissible
time, place, and manner restriction under the Free Speech Clause. Suffolk Outdoor Advertising Co. v. Hulse , 439 U.S.
808 (1978). Three years later, the Court upheld in relevant part an
ordinance that prohibited all off-premises commercial advertising
but allowed on-premises commercial advertising. Metromedia,
Inc. v. San Diego , 453 U.S.
490 , 503–512 (1981) (plurality opinion).[ 5 ] The Metromedia Court did not need to
decide whether the off-premises prohibition was content based, as
it regulated only commercial speech and so was subject to
intermediate scrutiny in any event. See id., at 507–512
(citing Central Hudson Gas & Elec. Corp. v. Public
Serv. Comm’n of N. Y. , 447 U.S.
557 (1980)). Shortly thereafter, however, the Court applied the
relevant portion of Metromedia and described the
off-premises prohibition as “a content-neutral prohibition
against the use of billboards.” Members of City Council of Los
Angeles v. Taxpayers for Vincent , 466 U.S.
789 , 807 (1984) (emphasis added).

															Underlying these cases and others is a rejection
of the view that any examination of speech or expression
inherently triggers heightened First Amendment concern. Rather, it
is regulations that discriminate based on “the topic discussed or
the idea or message expressed” that are content based. Reed ,
576 U. S., at 171. The sign code provisions challenged here do
not discriminate on those bases.

															C

															Reagan does not claim Reed expressly or
implicitly overturned the precedents discussed above. Its argument
relies primarily on one sentence in Reed recognizing that
“[s]ome facial distinctions based on a message are obvious,
defining regulated speech by particular subject matter, and others
are more subtle, defining regulated speech by its function or
purpose.” Id., at 163. Seizing on this reference, Reagan
asserts that the City’s sign code “defines off- premises signs
based on their ‘function or purpose.’ ” Brief for Respondent
Reagan 20 (quoting Reed , 576 U. S., at 163). It asks
the Court to “reaffirm that, where a regulation ‘define[s]
regulated speech by its function or purpose,’ it is content-based
on its face and thus subject to strict scrutiny.” Brief for
Respondent Reagan 34 (quoting Reed , 576 U. S., at
163).

															The argument stretches Reed ’s “function
or purpose” language too far. The principle the Reed Court
articulated is more straightforward. While overt subject-matter
discrimination is facially content based (for example,
“ ‘Ideological Sign[s],’ ” defined as those
“ ‘communicating a message or ideas for noncommercial
purposes’ ”), so, too, are subtler forms of discrimination
that achieve identical results based on function or purpose (for
example, “ ‘Political Sign[s],’ ” defined as those
“ ‘designed to influence the outcome of an election’ ”). Id., at 159, 160, 163–164 (alterations in original). In
other words, a regulation of speech cannot escape classification as
facially content based simply by swapping an obvious subject-matter
distinction for a “function or purpose” proxy that achieves the
same result. That does not mean that any classification that
considers function or purpose is always content based. Such
a reading of “function or purpose” would contravene numerous
precedents, including many of those discussed above. Reed did not purport to cast doubt on these cases.

															Nor did Reed cast doubt on the Nation’s
history of regulating off-premises signs. Off-premises billboards
of the sort that predominate today were not present in the founding
era, but as large outdoor advertisements proliferated in the 1800s,
regulation followed. As early as 1932, the Court had already
approved a location-based differential for advertising signs. See Packer Corp. , 285 U. S., at 107, 110. Thereafter, for
the last 50-plus years, federal, state, and local jurisdictions
have repeatedly relied upon on-/off- premises distinctions to
address the distinct safety and esthetic challenges posed by
billboards and other methods of outdoor advertising. See supra, at 2. The unbroken tradition of on-/off-premises
distinctions counsels against the adoption of Reagan’s novel rule.
See Williams-Yulee v. Florida Bar , 575 U.S. 433, 446
(2015) (recognizing “history and tradition of regulation” as
relevant when considering the scope of the First
Amendment).[ 6 ]

															D

															Tellingly, even today’s dissent appears
reluctant to embrace the read-the-sign rule adopted by the court
below. Instead, the dissent attacks a straw man. Contrary to its
accusations, we do not “nullif[y]” Reed ’s protections,
“resuscitat[e]” a decision that we do not cite, or fashion a novel
“specificity test” simply by quoting the standard repeatedly
enunciated in Reed . Post, at 9, 11, 21 (opinion of
Thomas, J.). Nor do we cast doubt on any of our precedents
recognizing examples of topic or subject-matter discrimination as
content based. See, e.g., post, at 9–10. We merely
apply those precedents to reach the “commonsense” result that a
location-based and content-agnostic on-/off-premises distinction
does not, on its face, “singl[e] out specific subject matter for
differential treatment.” Reed , 576 U. S., at 163,
169.

															It is the dissent that would upend settled
understandings of the law. Where we adhere to the teachings of
history, experience, and precedent, the dissent would hold that
tens of thousands of jurisdictions have presumptively violated the
First Amendment, some for more than half a century, and that they
have done so by use of an on-/off-premises distinction this Court
has repeatedly reviewed and never previously questioned. For the
reasons we have explained, the Constitution does not require that
bizarre result.

															III

															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. 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 (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 (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.

															It is so ordered. Notes 1 The City subsequently
amended its sign code. The parties agree that the amendments do not
affect this dispute. Reply to Brief in Opposition 11–12; Brief for
Respondent Reagan 9. 2 Lamar did not participate
in the proceedings on the merits before this Court. Brief for
Respondent Reagan II. 3 The Court of Appeals
further considered the possibility that the code provisions
regulated only commercial speech, such that only intermediate
scrutiny would apply even if the provisions were content based. 972
F. 3d, at 707–709; see Central Hudson Gas & Elec.
Corp. v. Public Serv. Comm’n of N. Y. , 447 U.S.
557 , 566 (1980). The court rejected this view because the
provisions “applie[d] with equal force to both commercial and
noncommercial messages.” 972 F. 3d, at 709. Before this Court,
the City makes a similar argument, claiming that “[a]s applied to
billboards like those owned by respondents,” the contested code
provisions regulate commercial speech and so are subject to
intermediate scrutiny. Brief for Petitioner 49. It is undisputed,
however, that Reagan’s billboards also display noncommercial
messages, meaning that the City’s denial of Reagan’s applications
for digitization implicated Reagan’s commercial and noncommercial
speech alike. See Brief for Respondent Reagan 45–46; App. 130–141.
More importantly, as the Court of Appeals explained, the contested
code provisions admit of no exception for noncommercial speech. The
only way in which they differentiate speech is by distinguishing
between on-premises and off-premises signs. The Court thus must
determine which level of scrutiny applies to the manner in which
the provisions actually regulate speech. 4 The concurrence in Reed , which spoke for three of the six Justices in the
majority, similarly explained that “[c]ontent-based laws merit
th[e] protection” of strict scrutiny “because they present, albeit
sometimes in a subtler form, the same dangers as laws that regulate
speech based on viewpoint. Limiting speech based on its ‘topic’ or
‘subject’ favors those who do not want to disturb the status quo.
Such regulations may interfere with democratic self-government and
the search for truth.” 576 U. S., at 174 (Alito, J.,
concurring) (quoting Consolidated Edison Co. of N. Y. , 447
U. S., at 537). 5 Although the opinion in Metromedia was labeled a plurality for four Justices, the
relevant portion of the opinion was also joined by a fifth. See 453
U. S., at 541 (Stevens, J., dissenting in part) (“join[ing]
Parts I through IV of Justice White’s opinion”). 6 The Court of Appeals, for
its part, understood Reed to have deemed a regulation
content based solely because “it ‘single[d] out signs bearing a
particular message: the time and location of a specific
event.’ ” 972 F.3d 696, 706 (CA5 2020) (quoting Reed ,
576 U. S., at 171). Reagan does not rely as heavily on this
language, and for good reason. As a preliminary matter, the Reed Court found that the provisions at issue in that case
did not, in fact, “hinge on ‘whether and when an event is
occurring.’ ” Id., at 170. More fundamentally, those
provisions did not target all events generally, regardless of
topic; they targeted “a specific event” (an election) “because of
the topic discussed or the idea or message expressed” (political
speech). Id., at 171. The Court of Appeals’ contrary reading
would render the majority opinion in Reed irreconcilable
with the concurrence, which recognized that “[r]ules imposing time
restrictions on signs advertising a one-time event,” which “do not
discriminate based on topic or subject,” would be content neutral. Id., at 174, 175 (Alito, J., concurring). SUPREME COURT OF THE UNITED STATES

															_________________

															No. 20–1029

															_________________

															City of Austin, Texas, PETITIONER v. Reagan National Advertising of Austin, LLC, et al.

															on writ of certiorari to the united states
court of appeals for the fifth circuit

															[April 21, 2022]

															Justice Breyer, concurring. Reed v. Town of Gilbert , 576 U.S.
155 (2015), is binding precedent here. Given that precedent, I join
the majority’s opinion. I write separately because I continue to
believe that the Court’s reasoning in Reed was wrong. The
Court there struck down a city’s sign ordinance under the First
Amendment. It wrote that the First Amendment requires strict
scrutiny whenever a regulation “target[s] speech based on its
communicative content.” Id., at 163. It therefore concluded
that “[c]ontent-based laws . . . are presumptively
unconstitutional and may be justified only if the government proves
that they are narrowly tailored to serve compelling state
interests.” Ibid. But the First Amendment is not the Tax Code. Its
purposes are often better served when judge-made categories (like
“content discrimination”) are treated, not as bright-line rules,
but instead as rules of thumb. And, where strict scrutiny’s harsh
presumption of unconstitutionality is at issue, it is particularly
important to avoid jumping to such presumptive conclusions without
first considering “whether the regulation at issue works harm to
First Amendment interests that is disproportionate in light of the
relevant regulatory objectives.” Id., at 179 (Breyer, J.,
concurring in judgment); Barr v. American Assn. of
Political Consultants, Inc. , 591 U. S. ___, ___–___ (2020)
(Breyer, J., concurring in judgment and dissenting in part) (slip
op., at 9–10); Sorrell v. IMS Health Inc. , 564 U.S.
552 , 582 (2011) (Breyer, J., dissenting). Here, I would
conclude that the City of Austin’s (City’s) regulation of
off-premises signs works no such disproportionate harm. I therefore
agree with the majority’s conclusion that strict scrutiny and its
attendant presumption of unconstitutionality are unwarranted. The
majority reaches this conclusion by applying Reed ’s formal
framework, as stare decisis requires. I would add that Reed ’s strict formalism can sometimes disserve the very
First Amendment interests it was designed to protect.

															I

															The First Amendment helps to safeguard what
Justice Holmes described as a marketplace of ideas. Abrams v. United States, 250 U.S.
616 , 630 (1919) (dissenting opinion). A democratic people must
be able to freely “generate, debate, and discuss both general and
specific ideas, hopes, and experiences.” Barr , 591
U. S., at ___ (opinion of Breyer, J.) (slip op., at 3). They
“must then be able to transmit their resulting views and
conclusions to their elected representatives, which they may do
directly, or indirectly through the shaping of public opinion.” Ibid. Those representatives can respond by turning the
people’s ideas into policies. The First Amendment, by protecting
the “marketplace” and the “transmission” of ideas, thereby helps to
protect the basic workings of democracy itself. See Meyer v. Grant , 486 U.S.
414 , 421 (1988) (“The First Amendment was ‘fashioned to assure
unfettered interchange of ideas for the bringing about of political
and social changes desired by the people’ ”).

															Courts help to protect these democratic values
in part by strictly scrutinizing certain categories of laws that
threaten to “ ‘drive certain ideas or viewpoints from the
marketplace.’ ” R. A. V. v. St. Paul , 505 U.S.
377 , 387 (1992). We have recognized, for example, that First
Amendment values are in danger when the government imposes
restrictions upon “ ‘core political speech,’ ” Buckley v. American Constitutional Law Foundation,
Inc. , 525 U.S.
182 , 186–187 (1999); when it discriminates against “particular
views taken by speakers on a subject,” Rosenberger v. Rector and Visitors of Univ. of Va. , 515
U.S. 819 , 829–830 (1995); and, in some contexts, when it
removes “an entire topic” of discussion from public debate, Consolidated Edison Co. of N. Y. v. Public Serv.
Comm’n of N. Y. , 447 U.S.
530 , 537–538 (1980).

															But not all laws that distinguish between speech
based on its content fall into a category of this kind. That is in
part because many ordinary regulatory programs may well turn on the
content of speech without posing any “realistic possibility that
official suppression of ideas is afoot.” R. A. V. ,
505 U. S., at 390. Those regulations, rather than hindering
the ability of the people to transmit their thoughts to their
elected representatives, may constitute the very product of that
transmission. Barr , 591 U. S., at ___ (opinion of
Breyer, J.) (slip op., at 4).

															The U. S. Code (as well as its state and
local equivalents) is filled with regulatory laws that turn, often
necessarily, on the content of speech. Consider laws regulating
census reporting requirements, e.g., 13 U. S. C.
§224; securities- related disclosures, e.g., 15
U. S. C. §78 l ; copyright infringement, e.g., 17 U. S. C. §102; labeling of prescription
drugs, e.g., 21 U. S. C. §353(b)(4)(A), or
consumer electronics, e.g., 42 U. S. C. §6294;
highway signs, e.g., 23 U. S. C. §131(c); tax
disclosures, e.g., 26 U. S. C. §6039F;
confidential medical records, e.g., 38 U. S. C.
§7332; robocalls, e.g., 47 U. S. C. §227;
workplace safety warnings, e.g., 29 CFR §1910.145 (2021);
panhandling, e.g., Ala. Code §13A–11–9(a) (2022);
solicitation on behalf of charities, e.g., N. Y. Exec.
Law Ann. §174–b (West 2019); signs at petting zoos, e.g., N. Y. Gen. Bus. Law Ann. §399–ff(3) (West 2015); and many
more.

															If Reed is taken as setting forth a
formal rule that courts must strictly scrutinize regulations simply
because they refer to particular content, we have good reason to
fear the consequences of that decision. One possibility is that
courts will strike down “ ‘entirely reasonable’ ”
regulations that reflect the will of the people. Reed , 576
U. S., at 171; e.g., Barr , 591 U. S., at
___ (slip op., at 9) (striking down the Telephone Consumer
Protection Act’s exception allowing robocalls that collect
government debt); IMDB.com v. Becerra , 962 F.3d 1111,
1125–1127 (CA9 2020) (striking down a California law prohibiting
certain websites from publishing the birthdates of entertainment
professionals). If so, the Court’s content-based line-drawing will
“substitut[e] judicial for democratic decisionmaking” and threaten
the ability of the people to translate their ideas into policy. Sorrell , 564 U. S., at 603 (Breyer, J.,
dissenting).

															A second possibility is that courts instead will
(perhaps unconsciously) dilute the stringent strict scrutiny
standard in an effort to avoid striking down reasonable
regulations. Doing so would “weaken the First Amendment’s
protection in instances where ‘strict scrutiny’ should apply in
full force.” Reed , 576 U. S., at 178 (opinion of
Breyer, J.) . A third possibility is that courts will develop
a matrix of formal subsidiary rules and exceptions that seek to
distinguish between reasonable and unreasonable content-based
regulations. Such a patchwork, however, may prove overly complex,
unwieldy, or unworkable. And it may make it more difficult for
ordinary Americans to understand the importance of First Amendment
values and to live their lives in accord with those values.

															For these reasons, as I have said before, I
would reject Reed’s approach, which too rigidly ties content
discrimination to strict scrutiny (and, consequently, to “almost
certain legal condemnation”). Id. , at 176. Instead, I would
treat content discrimination as a rule of thumb to be applied with
what Justice Kagan has called “a dose of common sense.” Id., at 183 (opinion concurring in judgment). Where content-based
regulations are at issue, I would ask a more basic First Amendment
question: Does “the regulation at issue wor[k] harm to First
Amendment interests that is disproportionate in light of the
relevant regulatory objectives”? Id., at 179 (opinion of
Breyer, J.). I believe we should answer that question by examining
“the seriousness of the harm to speech, the importance of the
countervailing objectives, the extent to which the law will achieve
those objectives, and whether there are other, less restrictive
ways of doing so.” Ibid. II

															The regulation at issue in this case is the
City of Austin’s sign code, which regulates billboards and other
“off- premises” signs. The City defines an “off-premises” sign as
“a sign advertising a business, person, activity, goods, products,
or services not located on the site where the sign is installed, or
that directs persons to any location not on that site.” Austin,
Tex., City Code §25–10–3(11) (2016).

															Some years ago, the City forbid construction of
new off-premises signs. §25–10–102(1). At the same time, it
grandfathered in existing off-premises signs, allowing them to
remain but subjecting them to regulation. §§25–10–3(10),
25–10–152(A), (B). Owners of grandfathered off-premises signs are
allowed to change the face of their signs, but not to digitize
them. Ibid. In the case before us, owners who wanted to
digitize their off-premises signs challenged the City’s regulation
on the ground that it violates the First Amendment.

															The Court remands for the lower courts to assess
the constitutionality of this regulation in the first instance, so
I need not answer that question conclusively now. I wish only to
illustrate why I believe a strong presumption of unlawfulness is
out of place here.

															Billboards and other roadside signs can
generally be categorized as a form of outdoor advertising.
Regulation of outdoor advertising in order to protect the public’s
interest in “avoiding visual clutter,” Members of City Council
of Los Angeles v. Taxpayers for Vincent , 466 U.S.
789 , 806 (1984), or minimizing traffic risks, Metromedia,
Inc. v. San Diego , 453 U.S.
490 , 507–508 (1981), is unlikely to interfere significantly
with the “marketplace of ideas.” In this case, for example, there
is no evidence that the City regulated off-premises signs in order
to censor a particular viewpoint or topic, or that its regulations
have had that effect in practice. There is consequently little
reason to apply a presumption of unconstitutionality to this kind
of regulation.

															Without such a presumption, I would weigh the
First Amendment harms that a regulation imposes against the
regulatory objectives that it serves. The City’s regulation here
appears to work at most a limited, niche-like harm to First
Amendment interests. Respondents own a number of grandfathered
off-premises signs. They can use those signs to communicate
whatever messages they choose. They complain only that they cannot
digitize the signs, which would allow them to display several
messages in rapid succession. Perhaps digitization would enable
them to make more effective use of their billboard space. But their
inability to maximize the use of their space in this way is
unlikely to meaningfully interfere with their participation in the
“marketplace of ideas.”

															At the same time, the City has asserted a
legitimate interest in maintaining the regulation. As I have said,
the public has an interest in ensuring traffic safety and
preserving an esthetically pleasing environment, supra this
page, and the City here has reasonably explained how its regulation
of off-premises signs in general, and digitization in particular,
serves those interests. Amici tell us that billboards,
especially digital ones, can distract drivers and cause accidents.
See, e.g., Brief for United States as Amicus Curiae 21 (citing a study of 450 crashes in Alabama and Florida that
“revealed that the presence of digital billboards increased the
overall crash rates in areas of billboard influence”); Brief for
National League of Cities et al. as Amici Curiae 22
(“ ‘The Wisconsin Department of Transport found a 35% increase
in collisions near a variable message sign’ ” (alteration
omitted)). They add that on-premises signs are less likely to cause
accidents. Id., at 23 (“[A] 2014 study found no evidence
that on premises digital signs led to an increase in crashes”). The
City further says that billboards cause more visual clutter than
on-premises signs because the latter are “typically ‘small in size’
and integrated into the premises.” Reply Brief 19.

															I would leave for the courts below to weigh
these harms and interests, and any alternatives, in the first
instance, without a strong presumption of unconstitutionality. SUPREME COURT OF THE UNITED STATES

															_________________

															No. 20–1029

															_________________

															City of Austin, Texas, PETITIONER v. Reagan National Advertising of Austin, LLC, et al.

															on writ of certiorari to the united states
court of appeals for the fifth circuit

															[April 21, 2022]

															Justice Alito, concurring in the judgment in
part and dissenting in part.

															I agree with the majority that we must reverse
the decision of the Court of Appeals holding that the provisions of
the Austin City Code regulating on- and off-premises signs are
facially unconstitutional. Ante , at 6. The Court of Appeals
reasoned that those provisions impose content-based restrictions
and that they cannot satisfy strict scrutiny, but the Court of
Appeals did not apply the tests that must be met before a law is
held to be facially unconstitutional. “Normally, a plaintiff
bringing a facial challenge must ‘establish that no set of
circumstances exists under which the [law] would be valid,’ or show
that the law lacks ‘a plainly legitimate sweep.’ ” Americans for Prosperity Foundation v. Bonta , 594
U. S. ___, ___ (2021) (slip op., at 15) (citation omitted). A
somewhat less demanding test applies when a law affects freedom of
speech. Under our First Amendment “overbreadth” doctrine, a law
restricting speech is unconstitutional “if a substantial number of
its applications are unconstitutional, judged in relation to the
statute’s plainly legitimate sweep.” United States v. Stevens , 559 U.S.
460 , 473 (2010) (internal quotation marks omitted).

															In this case, the Court of Appeals did not apply
either of those tests, and it is doubtful that they can be met.
Many (and possibly the great majority) of the situations in which
the relevant provisions may apply involve commercial speech, and
under our precedents, regulations of commercial speech are analyzed
differently. See Sorrell v. IMS Health Inc. , 564 U.S.
552 , 571–572 (2011).

															It is also questionable whether those code
provisions are unconstitutional as applied to most of respondents’
billboards. It appears that most if not all of those billboards are
located off-premises in both the usual sense of that term,[ 1 ] and in the sense in which the term
is used in the Austin code. See Austin, Tex., City Code
§25–10–3(11) (2016) (a sign is off-premises if it “advertis[es] a
business, person, activity, goods, products, or services not
located on the site where the sign is installed” or if it “directs
persons to any location not on that site”). The record contains
photos of some of these billboards, see App. 130–147, and all but
one appears to be located on otherwise vacant land. Thus, they are
clearly off-premises signs, and because they were erected before
the enactment of the code provisions at issue, the only relevant
restriction they face is that they cannot be digitized.[ 2 ] The distinction between a digitized
and non-digitized sign is not based on content, topic, or subject
matter. Even if the message on a billboard were written in a secret
code, an observer would have no trouble determining whether it had
been digitized.

															Because the Court of Appeals erred in holding
that the code provisions are facially unconstitutional, I agree
that we should reverse that decision. On remand, the lower courts
should determine whether those provisions are unconstitutional as
applied to each of the billboards at issue.

															Today’s decision, however, goes further and
holds flatly that “[t]he sign code provisions challenged here do
not discriminate” on the basis of “ ‘the topic discussed or
the idea or message expressed,’ ” ante , at 10, and that
categorical statement is incorrect. The provisions defining on- and
off-premises signs clearly discriminate on those grounds, and at
least as applied in some situations, strict scrutiny should be
required.

															As the Court notes, under the provisions in
effect when petitioner’s applications were denied, a sign was
considered to be off-premises if it “advertis[ed],” among other
things, a “person, activity, . . . or servic[e] not
located on the site where the sign is installed” or if it
“direct[ed] persons to any location not on that site.” Austin,
Tex., City Code §25–10–3(11). Consider what this definition would
mean as applied to signs posted in the front window of a commercial
establishment, say, a little coffee shop. If the owner put up a
sign advertising a new coffee drink, the sign would be classified
as on-premises, but suppose the owner instead mounted a sign in the
same location saying: “Contribute to X’s legal defense fund” or
“Free COVID tests available at Y pharmacy” or “Attend City Council
meeting to speak up about Z.” All those signs would appear to fall
within the definition of an off-premises sign and would thus be
disallowed. See also post , at 3–4 (Thomas, J., dissenting).
Providing disparate treatment for the sign about a new drink and
the signs about social and political matters constitutes
discrimination on the basis of topic or subject matter. The code
provisions adopted in 2017 are worded differently, but the new
wording may not rule out similar results.[ 3 ]

															For these reasons, I would simply hold that the
provisions at issue are not facially unconstitutional, and I would
refrain from making any broader pronouncements. Notes 1 In ordinary usage, a sign
that is attached to or located in close proximity to a building is
not described as located “off-premises.” The distinction between
on- and off-premises signs is based solely on location, and that is
why such a classification is not content-based. See Reed v. Town of Gilbert , 576 U.S. 155, 175 (2015) (Alito, J.,
concurring). 2 A grandfathered sign can
be maintained at its existing location, but the owner cannot
“increase the degree of the existing nonconformity,” “change the
method or technology used to convey a message,” or “increase the
illumination of the sign.” Austin, Tex., City Code
§§25–10–152(A)–(B). 3 The amended code now
defines “off-premise[s] sign” as “a sign that displays any message
directing attention to a business, product, service, profession,
commodity, activity, event, person, institution, or other
commercial message which is generally conducted, sold,
manufactured, produced, offered, or occurs elsewhere than on the
premises where the sign is located,” and defines an “on-premise[s]
sign” as “a sign that is not an off-premise[s] sign.” Austin, Tex.,
City Code §§25–10–4(9)–(10) (2021). It is not clear that the
inclusion of “other commercial message” modifies the terms
“activity,” “event,” “person,” or “institution” such that the
provision would not draw topic-based distinctions as applied to
non-commercial speech. SUPREME COURT OF THE UNITED STATES

															_________________

															No. 20–1029

															_________________

															City of Austin, Texas, PETITIONER v. Reagan National Advertising of Austin, LLC, et al.

															on writ of certiorari to the united states
court of appeals for the fifth circuit

															[April 21, 2022]

															Justice Thomas, with whom Justice Gorsuch and
Justice Barrett join, dissenting.

															In Reed v. Town of Gilbert , 576
U.S. 155 (2015), we held that a speech regulation is content
based—and thus presumptively invalid—if it “draws distinctions
based on the message a speaker conveys.” Id. , at 163. Here,
the city of Austin imposes special restrictions on “off-premise[s]
sign[s],” defined as signs that “advertis[e] a business, person,
activity, goods, products, or services not located on the site
where the sign is installed, or that direc[t] persons to any
location not on that site.” Austin, Tex., City Code §25–10–3(11)
(2016). Under Reed , Austin’s off-premises restriction is
content based. It discriminates against certain signs based on the
message they convey— e.g. , whether they promote an on- or
off-site event, activity, or service.

															The Court nevertheless holds that the
off-premises restriction is content neutral because it proscribes a
sufficiently broad category of communicative content and,
therefore, does not target a specific “topic or subject matter.” Ante , at 8. This misinterprets Reed ’s clear rule for
content-based restrictions and replaces it with an incoherent and
malleable standard. In so doing, the majority’s reasoning is
reminiscent of this Court’s erroneous decision in Hill v. Colorado , 530 U.S.
703 (2000), which upheld a blatantly content-based prohibition
on “counseling” near abortion clinics on the ground that it
discriminated against “an extremely broad category of
communications.” Id. , at 723. Because I would adhere to Reed rather than echo Hill ’s long-discredited
approach, I respectfully dissent.

															I

															A

															The First Amendment, applicable to the States
through the Fourteenth, prohibits laws “abridging the freedom of
speech.” U. S. Const., Amdt. 1; see also Stromberg v. California , 283 U.S.
359 , 368 (1931). “When enforcing this prohibition, our
precedents distinguish between content-based and content-neutral
regulations.” National Institute of Family and Life
Advocates v. Becerra , 585 U. S. ___, ___ (2018)
(slip op., at 6). A content-based law is “presumptively invalid,” United States v. Playboy Entertainment Group , Inc. , 529 U.S.
803 , 817 (2000) (internal quotation marks omitted), and may
generally be upheld only if the government proves that the
regulation is narrowly tailored to serve compelling state
interests, R. A. V. v. St. Paul , 505 U.S.
377 , 395 (1992).[ 1 ]

															In Reed v. Town of Gilbert , we
held that courts should identify content-based restrictions by
applying a “commonsense” test: A speech regulation is content based
if it

															“target[s] speech based on its communicative
content.” 576 U. S., at 163. Put another way, a law is content
based “ ‘on its face’ [if it] draws distinctions based on the
message a speaker conveys.” Ibid. While we noted that
“[s]ome facial distinctions based on a message are obvious,” we
emphasized that others could be “more subtle, defining regulated
speech by its function or purpose.” Ibid . In all events,
whether a law is characterized as targeting a “topic,” “idea,”
“subject matter,” or “communicative content,” the law is content
based if it draws distinctions based in any way “on the message a
speaker conveys.” Id. , at 163–164.[ 2 ]

															Applying this standard, we held that the town of
Gilbert’s sign code was “a paradigmatic example of content-based
discrimination” because it classified “various categories of signs
based on the type of information they convey[ed], [and] then
subject[ed] each category to different restrictions.” Id. ,
at 169, 159. For instance, Gilbert defined “ ‘Temporary
Directional Signs’ ” as any sign that “convey[ed] the message
of directing the public to [a] ‘qualifying event,’ ” and
permitted their display for no more than 12 hours before and 1 hour
after the event occurred. Id. , at 164, 161. Meanwhile,
“ ‘Ideological Sign[s],’ ” defined as any sign (not
covered by another category) that “ ‘communicat[ed] a message
or ideas for noncommercial purposes,’ ” were subject to no
temporal limitations. Id. , at 159–160. In short, the
restrictions on any given sign depended “on the communicative
content of the sign.” Id. , at 164. Gilbert’s sign code was
thus facially content based and presumptively unlawful. See id. , at 159.

															In contrast to Reed ’s “commonsense” test,
Gilbert urged us to define “content based” as a “term of art that
‘should be applied flexibly’ with the goal of protecting
‘viewpoints and ideas from government censorship or
favoritism.’ ” Id. , at 168. Such a functionalist test,
Gilbert argued, could ferret out illicit government motives while
obviating the need to subject reasonable laws to strict scrutiny.
See ibid. We rejected Gilbert’s attempt to cast the phrase
“content based” as a “term of art” because “[i]nnocent motives do
not eliminate the danger of censorship presented by a facially
content-based statute.” Id. , at 167. We noted that “one
could easily imagine a Sign Code compliance manager who disliked
[a] Church’s substantive teachings deploying the Sign Code to make
it more difficult for the Church to inform the public of the
location of its services.” Id. , at 167–168. Thus, we
concluded that “a clear and firm rule governing content neutrality
is an essential means of protecting the freedom of speech, even if
laws that might seem entirely reasonable will sometimes be struck
down because of their content-based nature.” Id. , at 171
(internal quotation marks omitted).

															We also rejected the Ninth Circuit’s reasoning
that Gilbert’s sign restrictions were content neutral because they
depended on “the content-neutral elements of . . .
whether and when an event is occurring.” Id. , at 169
(internal quotation marks omitted). That is, whether a temporary
directional sign was permissible depended, in part, on its temporal
proximity to a “ ‘qualifying event.’ ” Id. , at
164. This partial dependence on content-neutral elements was
immaterial, we explained, because the restrictions also depended on
the signs’ communicative content. Gilbert officials still had to
examine a sign’s message to determine what type of sign it was, and
this “obvious content-based inquiry d[id] not evade strict scrutiny
simply because an event [was] involved.” Id. , at 170.

															B

															Under Reed ’s approach for identifying
content-based regulations, Austin’s off-premises sign restriction
is content based. As relevant to this suit, Austin’s sign code
imposes stringent restrictions on a category of “off-premise[s]
sign[s].” §25–10–3(11). The code defines “off-premise[s] sign[s]”
as those “advertising a business, person, activity, goods,
products, or services not located on the site where the sign is
installed,” or as signs “direct[ing] persons to any location not on
that site.” Ibid. This broad definition sweeps in a wide
swath of signs, from 14- by 48-foot billboards to 24- by 18-inch
yard signs. The sign code prohibits new off-premises signs and
makes it difficult (or impossible) to change existing off-premises
signs, including by digitizing them. See ante , at 3.

															Like the town of Gilbert in Reed , Austin
has identified a “categor[y] of signs based on the type of
information they convey, [and] then subject[ed that] category to
different restrictions.” 576 U. S., at 159. A sign that
conveys a message about off-premises activities is restricted,
while one that conveys a message about on-premises activities is
not. See id. , at 171 (regulating signs based on “a
particular message” about “the time and location of a specific
event” is content based). And, per Reed , it does not matter
that Austin’s code “defin[es] regulated speech by its function or
purpose”— i.e. , advertising or directing passersby elsewhere. Id. , at 163. Again, all that matters is that the regulation
“draws distinctions based on” a sign’s “communicative content,”
which the off-premises restriction plainly does. Ibid .

															This conclusion is not undermined because the
off- premises sign restriction depends in part on a content-
neutral element: the location of the sign. Much like in Reed , that an Austin official applying the sign code must
know where the sign is does not negate the fact that he also
must know what the sign says. Take, for instance, a sign
outside a Catholic bookstore. If the sign says, “Visit the Holy
Land,” it is likely an off-premises sign because it conveys a
message directing people elsewhere (unless the name of the
bookstore is “Holy Land Books”). But if the sign instead says, “Buy
More Books,” it is likely a permissible on- premises sign (unless
the sign also contains the address of another bookstore across
town). Finally, suppose the sign says, “Go to Confession.” After
examining the sign’s message, an official would need to inquire
whether a priest ever hears confessions at that location. If one
does, the sign could convey a permissible “on-premises” message. If
not, the sign conveys an impermissible off-premises message.
Because enforcing the sign code in any of these instances “requires
[Austin] officials to determine whether a sign” conveys a
particular message, the sign code is content based under Reed . Id. , at 170.

															In sum, the off-premises rule is content based
and thus invalid unless Austin can satisfy strict scrutiny. See Playboy Entertainment Group , 529 U. S., at 813. Because
Austin has offered nothing to make that showing, the Court of
Appeals did not err in holding that the off-premises rule violates
the First Amendment.

															II

															To reach the opposite result, the majority
implicitly rewrites Reed ’s bright-line rule for
content-based restrictions. In the majority’s view, the
off-premises restriction is not content based because it does not
target a specific “topic or subject matter.” Ante , at 8. The
upshot of the majority’s reasoning appears to be that a regulation
based on a sufficiently general or broad category of communicative
content is not actually content based.

															Such a rule not only conflicts with Reed and many pre- Reed precedents but is also incoherent and
unworkable. Tellingly, the only decision that even remotely
supports the majority’s rule is one it does not cite: Hill v. Colorado . There, the Court held that an undeniably
content-based law was nonetheless content neutral because it
discriminated against “an extremely broad category of
communications,” supposedly without regard to “subject matter.” 530
U. S., at 723. The majority’s decision today is erroneous for
the same reasons that Hill is an aberration in our case
law.

															A

															The majority concedes that “[t]he message on
the sign matters” when applying Austin’s sign code. Ante , at
8. That concession should end the inquiry under Reed . But
the majority nonetheless finds the sign code to be content neutral
by recasting facially content-based restrictions as only those that
target sufficiently specific categories of communicative content
and not as those that depend on communicative content simpliciter .

															For example, while Reed defined
content-based restrictions as those that “dra[w] distinctions based
on the message a speaker conveys,” 576 U. S., at 163
(emphasis added), the majority decides that Austin’s sign code is
not content based because it draws no distinctions based on “[a]
sign’s substantive message,” ante , at 8 (emphasis
added). Elsewhere, the majority speaks not of “substantive
message[s]” but of “topic[s] or subject matter[s],” which the
majority thinks are sufficiently specific categories of
communicative content. Ibid. As a result, the majority
contends that a law targeting directional messages concerning
“events generally, regardless of topic,” would not be content
based, but one targeting “directional messages concerning specific events” ( e.g. , “religious” or “political”
events) would be. Ante , at 12, n. 6, 8 (emphasis
added).[ 3 ] Regardless of the
label, the majority today excises, without a word of explanation, a
subset of supposedly non-substantive or unspecific messages from
the First Amendment’s protection against content-based
restrictions.

															This understanding of content-based restrictions
contravenes Reed , which held that a law is content based if
it “target[s] speech based on its communicative content”—not
“specific” or “substantive” categories of communicative content.
576 U. S., at 163; see also, e.g. , Norton v. Springfield , 806 F.3d 411, 412 (CA7 2015) (“ Reed effectively abolishes any distinction between content regulation
and subject-matter regulation. Any law distinguishing one kind of
speech from another by reference to its meaning now requires a
compelling justification”). Only by jettisoning Reed ’s
“commonsense” definition of what it means to be content based can
the majority assert that the off-premises rule is strictly
“location-based” and “agnostic as to content,” ante , at 6,
even though the law undeniably depends on both location and communicative content, supra , at 5–6.

															Moreover, the majority’s suggestion that laws
targeting broad categories of communicative content are not content
based is hard to square with the sign categories that Reed invalidated. For instance, we found Gilbert’s expansive definition
of “Ideological Sign[s]” to be content based even though it broadly
covered any “sign communicating a message or ideas for
noncommercial purposes” that did not already fall into one of the
other categories. 576 U. S., at 159 (internal quotation marks
omitted). Nor did we suggest that the outcome in Reed would
have been different if the sign categories were defined even more
generally.

															The majority answers that it is not
“fashion[ing] a novel ‘specificity test,’ ” but instead
“simply” “quoting the standard repeatedly enunciated in Reed .” Ante , at 13. The majority finds this alleged
specificity test in a paragraph near the end of Reed , where
we noted that a law “targeted at specific subject matter is content
based even if it does not discriminate among viewpoints within that
subject matter,” and then affirmed that Gilbert’s sign code
“single[d] out specific subject matter for differential treatment.”
576 U. S., at 169.

															These statements never purported to endorse a
specificity test of the sort now suggested by the majority. Read in
context, Reed ’s two references to “specific subject matter”
naturally address laws that target a “subject matter,” however
broadly defined, as opposed to some other subject matter; they did
not refer only to laws targeting some sufficiently “specific”
category of “subject matter.” Moreover, the concept of
“specificity” or “generality” appears nowhere in the part of Reed that set forth its “commonsense” test for content
neutrality. See id. , at 163–164. If Reed ’s
content-neutrality test turned on specificity, we would have said
so explicitly when stating the test. Finally, even crediting the
majority’s strained reading of Reed ’s passing references to
“specific subject matter,” the paragraph where they appear made
clear that it was describing only “a paradigmatic example of
content-based discrimination.” Id. , at 169 (emphasis added).
That part of Reed never professed to announce a
comprehensive rule with respect to all laws targeting speech based
on its communicative content.

															Our pre- Reed precedents likewise
foreclose a construction of “content based” that applies only to
some content. We have held many capacious speech regulations to be
content based, including restrictions on “ ‘advice or
assistance derived from scientific, technical or other specialized
knowledge,’ ” Holder v. Humanitarian Law
Project , 561 U.S.
1 , 12–13 (2010); “ ‘advertising, promotion, or any
activity . . . used to influence sales or the market
share of a prescription drug,’ ” Sorrell v. IMS
Health Inc. , 564 U.S.
552 , 559 (2011); “editorializing,” FCC v. League of
Women Voters of Cal. , 468 U.S.
364 , 382–383, and n. 14 (1984); “ ‘[publication] for
philatelic, numismatic, educational, historical, or newsworthy
purposes,’ ” Regan v. Time , Inc. , 468 U.S.
641 , 644 (1984); and “anonymous speech,” McIntyre v. Ohio Elections Comm’n , 514 U.S.
334 , 348, 357 (1995). These speech categories are no more
“specific” or “substantive” than messages regarding off-premises
activities. And some of these examples, like “editorializing” or
publishing “newsworthy” information, are clearly less so.
What unites these speech restrictions is that their application
turns “on the nature of the message being conveyed,” Carey v. Brown , 447 U.S.
455 , 461 (1980), not whether they regulate specific or general
categories of speech, or whether they address substantive or
non-substantive categories of speech.

															We have defined content-based restrictions to
include all content-based distinctions because any other
rule would be incoherent. After all, off-premises advertising could
be considered a “subject” or a “topic” as those words are
ordinarily used. See L. D. Management Co. v. Gray , 988 F.3d 836, 839 (CA6 2021) (off-premises billboard
restriction “turns on the ‘ topic discussed’ ” (emphasis
added)). And, in any event, there is no principled way to decide
whether a category of communicative content is “substantive” or
“specific” enough for the majority to deem it a “topic” or
“subject” worthy of heightened protection. Although off-premises
advertising is a more general category of speech than some
( e.g. , off-premises advertising of religious events), it is
a more specific category than others ( e.g. , advertising
generally). The majority offers only its own ipse dixit to
explain why off-premises advertising is insufficiently specific to
qualify as content based under Reed . Worse still, the
majority does not explain how courts should draw the line between a
sufficiently substantive or specific content-based classification
and one that is insufficiently substantive or specific.

															On this point, Austin suggests there is no need
to worry because our cases provide “guideposts” from which one can
divine what “level of generality” renders a speech regulation
content based. Tr. of Oral Arg. 18, 24. To be sure, that is the
sort of inquiry the majority’s opaque test invites. But Reed directed us elsewhere—to the text of the law in question and
whether that law “ ‘on its face’ draws distinctions based on
the message a speaker conveys.” 576 U. S., at 163. The
majority’s holding that some rules based on content are not, as it
turns out, content based nullifies Reed ’s clear test.

															B

															The majority offers several reasons why its
approach is consistent with Reed and other cases. None of
these arguments is persuasive. Instead, they only serve to
underscore the Court’s ill-advised departure from our doctrine.

															1

															The majority first suggests that deeming
Austin’s sign code content based would require us to adopt an
“extreme” reinterpretation of Reed . Ante , at 6.
Specifically, the majority faults the Court of Appeals for
concluding that Austin’s regulation was content based because, to
enforce the off-premises rule, “ ‘[a] reader must ask: who is
the speaker and what is the speaker saying’ ”? Ibid. (quoting 972 F.3d 696, 706 (CA5 2020)). In the majority’s view, Reed cannot stand for such a simplistic read-the-sign
test.

															The majority’s skepticism is misplaced. We have
often acknowledged that the need to examine the content of a
message is a strong indicator that a speech regulation is content
based. One year before Reed , for example, we stated that an
abortion clinic buffer-zone law “would be content based if it
required enforcement authorities to examine the content of the
message that is conveyed to determine whether a violation has
occurred.” McCullen v. Coakley , 573 U.S.
464 , 479 (2014) (internal quotation marks omitted). That
statement was not an outlier. See, e.g. , Arkansas
Writers’ Project , Inc. v. Ragland , 481 U.S.
221 , 230 (1987) (tax exemption for periodicals “uniformly
devoted to religion or sports” was content based because it
required state officials to “examine the content of the message”
(internal quotation marks omitted)); Forsyth County v. Nationalist Movement , 505 U.S.
123 , 134 (1992) (regulation requiring parade organizers to pay
a fee depending on the security costs anticipated for the event was
content based because “[i]n order to assess accurately the cost of
security for parade participants, the administrator must
necessarily examine the content of the message that is conveyed”
(internal quotation marks omitted)); League of Women Voters ,
468 U. S., at 366, 383 (law forbidding public broadcasting
stations from “engag[ing] in editorializing” was content based
because it required “enforcement authorities [to] necessarily
examine the content of the message that is conveyed” (internal
quotation marks omitted)).

															Ultimately, the majority’s objection to the
Court of Appeals’ reliance on a read-the-sign test is a red
herring; its real objection is to Reed ’s rule that any law
that draws distinctions based on communicative content is content
based.

															2

															The majority next argues that Austin’s sign
code is content neutral under our precedents. See ante , at
8–10. But none of the cases the majority cites supports its crabbed
view of what constitutes a content-based restriction.

															First, in Heffron v. International
Soc. for Krishna Consciousness , Inc. , 452 U.S.
640 (1981), the Court upheld, as content neutral, an ordinance
providing that the “[s]ale or distribution of any merchandise,
including printed or written material,” could occur only from
certain booths at the fairgrounds. Id. , at 643 (internal
quotation marks omitted). Such a statute is facially content
neutral under Reed because it does not “ ‘on its face’
dra[w] distinctions based on the message a speaker conveys” when
selling or distributing merchandise subject to the ordinance. 576
U. S., at 163. True, the Court construed the ordinance also to
limit “fund solicitation operations,” 452 U. S., at 644, but
that was not, as the majority claims, a prohibition on “asking for
donations,” ante , at 9. Rather, anyone was free to “as[k]
for donations” wherever he liked, because the ordinance did “not
prevent respondents from wandering throughout the fairgrounds and
directing interested donors or purchasers to their booth.” 452
U. S., at 664, n. 2 (Blackmun, J., concurring in part and
dissenting in part). Then, once “at the booth,” the donor could
“make a contribution.” Ibid. Second, in Cantwell v. Connecticut , 310 U.S.
296 (1940), the Court invalidated a licensing system for
religious and charitable solicitation while acknowledging in dicta
that a State could regulate the time, place, and manner of
solicitation. Id. , at 304, 307. But here, we are not faced
with a true time, place, or manner restriction, as even the
majority concedes. See ante , at 8.[ 4 ] And, in any event, Cantwell did not suggest
that a content-based restriction could be sustained as a time,
place, or manner restriction; its analysis focused predominantly on
the plaintiff ’s free exercise claim; and the case predated
our modern content-neutrality doctrine by nearly three decades.
Thus, nothing in Heffron or Cantwell supports the
majority’s narrow approach to identifying content-based
restrictions.

															Finally, the majority argues that we have
“previously understood distinctions between on-premises and
off-premises signs . . . to be content neutral.” Ante , at 9–10. To be sure, in both Suffolk Outdoor Adv.
Co. v. Hulse , 439 U.S. 808 (1978), and Metromedia , Inc. v. San Diego , 453 U.S.
490 , 503–512 (1981) (plurality opinion), this Court suggested
that some restrictions on off-premises advertising were
constitutional. And later, in Members of City Council of Los
Angeles v. Taxpayers for Vincent , 466 U.S.
789 (1984), the Court described Metromedia as upholding
“a content- neutral prohibition against the use of
billboards.” 466 U. S., at 807 (emphasis added). But the
statement in Vincent was dictum, and, as the majority
concedes, both our summary decision in Suffolk and the
plurality opinion in Metromedia sanctioned off-premises
restrictions only insofar as they applied to commercial speech. Ante , at 10. That is, the “Court did not need to
decide”—and did not decide—“whether the off-premises prohibition
was content based” because restrictions on commercial speech are
“subject to intermediate scrutiny in any event.” Ibid. 3

															The majority also claims that finding Austin’s
sign code to be content based “would render the majority opinion in Reed irreconcilable with” Justice Alito’s Reed concurrence. Ante , at 12, n. 6. In particular, Justice
Alito identified nine different types of sign regulations that he
believed “would not be content based,” including “[r]ules
distinguishing between on-premises and off-premises signs” and
“[r]ules imposing time restrictions on signs advertising a one-time
event.” 576 U. S., at 174–175. The majority evidently believes
that these two types of sign regulations necessarily turn on a
sign’s communicative content, like the off-premises sign
restriction at issue here.

															That reading of the Reed concurrence
makes little sense. First, there is no reason to interpret the
concurrence as referring to off-premises or one-time-event rules
that turn on a sign’s communicative content. Doing so would make
those two rules categorically different from the other seven, none
of which would ever turn on message content. See, e.g. , id. , at 174 (“Rules distinguishing between lighted and
unlighted signs”). And although off-premises and one-time-event
rules could be drafted in terms of a sign’s communicative
content, as is true here, they need not be. “There might be many
formulations of an on/off-premises distinction that are
content-neutral.” Thomas v. Bright , 937 F.3d 721, 733
(CA6 2019); see also ante , at 2, n. 1 (Alito, J.,
concurring in judgment in part and dissenting in part) (explaining
that “[i]n ordinary usage” an “off- premises” sign is one that is
not “attached to or located in close proximity to a building”). For
instance, a city could define “ ‘an o[n]-premise[s] sign as
any sign within 500 feet of a building,’ ” 937 F. 3d, at
732, or a sign that is installed by “ ‘a business
. . . licensed to occupy . . . the premises
where the sign is located,’ ” Brief for Summus Outdoor as Amicus Curiae 10. As for regulations of one-time-event
signs, Austin itself amended its sign code, at the behest of its
lawyers, specifically to make its ordinance content neutral. See
Austin, Tex., City Code §25–10–102(D) (2021); App. 152. Thus,
interpreting Justice Alito’s concurrence as referring to rules that
turn on communicative content, as opposed to rules that are content
neutral, is unwarranted.

															Second, it would be strange to interpret the
concurrence as proclaiming that all off-premises sign
restrictions are content neutral considering the longstanding
dispute over that question. In fact, 20 years before Reed ,
then-Judge Alito opined that there was “no easy answer to [the]
question” whether “exceptions for ‘for sale’ signs and signs
relating to on-site activities” would render a sign code content
based. Rappa v. New Castle County , 18 F.3d 1043 , 1080 (CA3 1994) (concurring opinion); see also, e.g. , Ackerly Communications of Mass. , Inc. v. Cambridge , 88 F.3d 33 , 36, n. 7 (CA1 1996) (“In ‘commonsense’ terms,
the distinction surely is content-based because determining whether
a sign must stay up or must come down requires consideration of the
message it carries”); Norton Outdoor Adv. , Inc. v. Arlington Heights , 69 Ohio St. 2d 539, 541, 433 N.E.2d
198, 200 (1982) (“In prohibiting all forms of offsite billboard
advertising, the ordinance is thus inescapably directed to the
content of protected speech”). Ultimately, it seems quite unlikely
that Justice Alito’s quick recital of some content-neutral rules
purported to pre-emptively decide an issue that had long perplexed
federal and state courts.

															4

															Near the end of its analysis, the majority
invokes an allegedly “unbroken tradition of on-/off-premises
distinctions” that it claims “counsels against” faithful
application of Reed . Ante , at 12. To be sure, history
and tradition are relevant to identifying and defining those “few
limited areas” where, “[f ]rom 1791 to the present,” “the
First Amendment has permitted restrictions upon the content of
speech.” Brown v. Entertainment Merchants Assn. , 564 U.S.
786 , 791 (2011) (internal quotation marks omitted); see supra , at 2, n. 1. But the majority openly admits that
off-premises regulations “were not present [at] the founding.” Ante , at 12. And while it asserts that “large outdoor
advertisements proliferated in the 1800s,” ibid. , it offers
no evidence of any content-based restrictions from that period, let
alone off-premises restrictions on noncommercial speech. The earliest example of an off-premises restriction that the
majority cites arose in Packer Corp. v. Utah , 285 U.S.
105 (1932), but that case involved a restriction on commercial advertising and did not even feature a First
Amendment claim. See id. , at 108–112.

															Ultimately, the majority’s only “historical”
support is that regulations like Austin’s “proliferated following
the enactment of the Highway Beautification Act of 1965.” Ante , at 2. The majority’s suggestion that the First
Amendment should yield to a speech restriction that “proliferated”—
under pressure from the Federal Government—some two centuries after
the founding is both “startling and dangerous.” United
States v. Stevens , 559
U.S. 460 , 470 (2010). This Court has never hinted that the
government can, with a few decades of regulation, subject “new
categories of speech” to less exacting First Amendment scrutiny. Id. , at 472.

															Regardless, even if this allegedly “unbroken
tradition” did not fall short by a century or two, the majority
offers no explanation why historical regulation is relevant to the
question whether the off-premises restriction is content based
under Reed and our modern content-neutrality jurisprudence.
If Austin had met its burden of identifying a historical tradition
of analogous regulation—as can be done, say, for obscenity or
defamation—that would not make the off-premises rule content
neutral. It might simply mean that the off-premises rule is a
constitutional form of content-based discrimination. But content
neutrality under Reed is an empirical question, not a
historical one. Thus, the majority’s historical argument is not
only meritless but misguided.

															C

															Despite asserting that the Court of Appeals’
analysis under Reed would “contravene numerous precedents,” ante , at 11, the majority identifies no decision of this
Court supporting the idea that a speech restriction is not content
based so long as it regulates a sufficiently broad or non-
substantive category of communicative content. In fact, there is
only one case that could possibly validate the majority’s aberrant
analysis: Hill v. Colorado . That Hill is the
majority’s only support underscores the danger that today’s
decision poses to the First Amendment. Hill involved a law that prohibited
persons outside abortion clinics from knowingly approaching within
eight feet of another person without consent “for the purpose of
. . . engaging in oral protest, education, or
counseling.” 530 U. S., at 707 (internal quotation marks
omitted). Hill concluded, implausibly, that this regulation
was content neutral.

															The majority’s reasoning in this case is just as
implausible. The majority asserts that the off-premises rule is not
content based because it does not target a sufficiently “specific”
or “substantive” category of communications. Ante , at 8. Hill correspondingly held that restrictions on “protest,
education, or counseling” were not content-based classifications
because they cover “an extremely broad category of communications.”
530 U. S., at 723. The majority also tries to disguise its
redefinition of content neutrality by characterizing Austin’s rule
as a “neutral, location-based” restriction. Ante , at 6. So
too did Hill try to conceal its doctrinal innovation by
characterizing the buffer-zone law as a neutral “place
restriction.” 530 U. S., at 723. Finally, the majority finds
it immaterial that Austin’s rule can be enforced only by “reading a
[sign] to determine whether it” contains an off-premises message. Ante , at 8. Hill likewise found it irrelevant that
“the content of the oral statements” would need to “be examined to
determine whether” the prohibition applied. 530 U. S., at
720.

															The parallel between the majority’s opinion and Hill should be discomforting given that Hill represented “an unprecedented departure” from this Court’s First
Amendment jurisprudence. Id. , at 772 (Kennedy, J.,
dissenting). Its content-neutrality analysis was, as Justice Scalia
explained, “absurd” given that the buffer-zone law was “obviously
and undeniably content based.” Id. , at 742–743 (dissenting
opinion). First Amendment scholars from across the ideological
spectrum agree. See, e.g. , M. McConnell, Professor Michael
W. McConnell’s Response, in K. Sullivan, Sex, Money, and Groups:
Free Speech and Association Decisions in the October 1999 Term, 28
Pepperdine L. Rev. 723, 748 (2001) (“The Court said that this
statute is content-neutral. I just literally cannot see how they
could possibly come to that conclusion”); Colloquium, id .,
at 750 (Laurence Tribe stating Hill “was slam-dunk simple
and slam-dunk wrong”); R. Fallon, Strict Judicial Scrutiny, 54 UCLA
L. Rev. 1267, 1298, and n. 174 (2007) ( Hill “unconvincingly . . . maintain[ed] that a content-based
restriction on speech [was] not really content-based”). And, since Hill , this Court has all but interred its flawed
content-neutrality analysis in both McCullen , see supra , at 11, and Reed . See Price v. Chicago , 915 F.3d 1107, 1118 (CA7 2019) (“In the wake of McCullen and Reed , it’s not too strong to say that
what Hill explicitly rejected is now prevailing law”).

															The majority’s refusal to acknowledge Hill simply underscores the decision’s defunct status.
Again, Hill is the only case that could support the
majority’s ill-conceived content-neutrality analysis, and yet the
majority disclaims reliance on it. Lower courts should take the
majority’s disclaimer at face value: Hill is “a decision
that we do not cite.” Ante , at 13. And today’s decision
amounts to little more than an ad hoc exemption for the
“location-based” and supposedly “content-agnostic on-/off-premises
distinction.” Ibid .

															Even so, the majority’s approach should offer
little comfort because arbitrary carveouts from Reed undermine the “clear and firm rule governing content neutrality”
that we understood to be “an essential means of protecting the
freedom of speech.” 576 U. S., at 171. The majority’s
deviation from that “clear and firm rule” poses two serious threats
to the First Amendment’s protections.

															First, transforming Reed ’s clear
definition of “content based regulation” back into an opaque and
malleable “term of art” turns the concept of content neutrality
into a “vehicl[e] for the implementation of individual judges’
policy preferences.” Tennessee v. Lane , 541 U.S.
509 , 556 (2004) (Scalia, J., dissenting). Hill exemplifies this danger. See 530 U. S., at 742 (Scalia, J.,
dissenting) (“I have no doubt that this regulation would be deemed
content based in an instant if the case before us involved
antiwar protesters, or union members seeking to ‘educate’ the
public about the reasons for their strike”). The majority’s
approach in this case is cut from the same cloth. As the majority
transparently admits, it seeks to “apply [our] precedents to reach
the ‘commonsense’ result ” and avoid what it perceives as a
“bizarre result .” Ante , at 13 (emphasis added). But Reed mandates a “commonsense” test for content neutrality
even if the result is that “laws that might seem entirely
reasonable will sometimes be struck down.” 576 U. S., at 163,
171 (internal quotation marks omitted).

															Second, sanctioning certain content-based
classifications but not others ignores that even seemingly
reasonable content-based restrictions are ready tools for those who
would “suppress disfavored speech.” Id ., at 167; see also Hill , 530 U. S., at 743 (Scalia, J., dissenting)
(“ ‘The vice of content-based legislation . . . is
not that it is always used for invidious, thought-control purposes,
but that it lends itself to use for those purposes’ ”). This
is because “the responsibility for distinguishing between”
permissible and impermissible content “carries with it the
potential for invidious discrimination of disfavored subjects.” Cincinnati v. Discovery Network , Inc. , 507 U.S.
410 , 423–424, n. 19 (1993). That danger only grows when
the content-based distinctions are “by no means clear,” giving more
leeway for government officials to punish disfavored speakers and
ideas. Ibid. The content-based distinction drawn by Austin’s
off-premises speech restriction is “by no means clear,” ibid. , and plainly lends itself “to suppress[ing] disfavored
speech,” Reed , 576 U. S., at 167. As the Court of
Appeals noted, Austin’s “prepared counsel” “struggled to answer
whether” signs conveying messages like “ ‘God Loves
You,’ ” “ ‘Vote for Kathy,’ ” or “ ‘Sally makes
quilts here and sells them at 3200 Main Street’ ” would be
regulated as off- premises signs. 972 F. 3d, at 706. Before
us, Austin’s counsel had similar difficulties, and amici have proposed dozens of religious and political messages that would
be next to impossible to categorize under Austin’s rule. See, e.g. , Brief for Alliance Defending Freedom et. al. as Amici Curiae 15–19; Brief for Institute for Justice as Amicus Curiae 3–9. These pervasive ambiguities offer
enforcement officials ample opportunity to suppress disfavored
views. And they underscore Reed ’s warning that “[i]nnocent
motives do not eliminate the danger of censorship presented by a
facially content-based statute.” 576 U. S., at 167.

															*  *  *

															Because Reed provided a clear and
neutral rule that protected the freedom of speech from governmental
caprice and viewpoint discrimination, I would adhere to that
precedent rather than risk resuscitating Hill . I
respectfully dissent. Notes 1 For several categories of
historically unprotected speech, including obscenity, defamation,
fraud, incitement, and speech integral to criminal conduct, the
government ordinarily may enact content-based restrictions without
satisfying strict scrutiny. See United States v. Stevens , 559 U.S.
460 , 468–469 (2010). This Court’s precedents have also declined
to apply strict scrutiny to several other types of content-based
restrictions, including laws targeting “commercial speech.” Central Hudson Gas & Elec. Corp. v. Public Serv.
Comm’n of N. Y. , 447 U.S.
557 , 561–566 (1980). But see Lorillard Tobacco Co. v. Reilly , 533 U.S.
525 , 572 (2001) (Thomas, J., concurring in part and concurring
in judgment). As the Court recognizes, Austin’s off-premises sign
rule is not limited to any of these categories of speech. See ante, at 5, n. 3. 2 In Reed , we
acknowledged that some prior decisions had skipped over this facial
analysis and applied a justification-focused test. See 576
U. S., at 165–167. But we explained that the
justification-focused test implicated a “separate and additional
category of laws that, though facially content neutral, [are]
content-based regulations [because they] cannot be
‘ “justified without reference to the content of the regulated
speech,” ’ or . . . were adopted by the government
‘because of disagreement with the message [the speech]
conveys.’ ” Id., at 164 (quoting Ward v. Rock
Against Racism , 491 U.S.
781 , 791 (1989)). All agree that this second type of
content-based regulation is not at issue here. 3 On this point, the
majority’s analysis tracks the position advanced byAustin, which
asserted that content neutrality was a “question of generality.”
Tr. of Oral Arg. 14; see also id., at 19 (explaining that
whether a law is content based turns on the “level of specificity”
at which the government regulates speech). 4 The majority says only
that Austin’s sign code is “similar” to a time-place-manner
restriction, citing Frisby v. Schultz , 487 U.S.
474 (1988). Ante, at 8. But Frisby upheld an
ordinance that regulated only where picketing may take place
and not what message the picketers could communicate. See
487 U. S., at 477 (ordinance made it “unlawful for any person
to engage in picketing before or about the residence or dwelling of
any individual” (internal quotation marks omitted)); cf. Hill v. Colorado , 530 U.S.
703 , 766 (2000) (Kennedy, J., dissenting) (“[n]o examination of
the content of a speaker’s message is required to determine whether
an individual is picketing”).