Justice Thomas debates lawyers for the city of Austin in pending fight over digital billboards

While it’s not grabbing the attention that other cases are, the U.S. Supreme Court is currently in the midst of hashing out a case involving limits on digital billboards, which has pushed free speech concerns to be considered.

According to The Hill, the case revolves around an Austin, Texas billboard sign code that allows a business to utilize digital billboards on their property, but doesn’t allow them to be used for off-site advertising, which drew immediate backlash from Justice Clarence Thomas. 

At issue is whether or not the city’s billboard code “is triggered by the content of the speech in the advertisement, which would place the regulation in a category that draws the most stringent judicial scrutiny,” The Hill noted.

The case, known as City of Austin v. Reagan National Advertising, gained traction in 2017 after a group of advertisers were denied permits to upgrade old, existing billboards into the newer, popular digital versions. The reason given was that the signs were located off of their business premises.

An “empty vessel”

Former deputy U.S. solicitor general Michael Dreeben argued on behalf of the city, insisting that the case is not violating First Amendment rights, claiming the city’s ban on off-site advertising is content-neutral.

“The off-premises rule is an empty vessel that applies to all subjects and topics,” Dreeban said. “It turns on the relationship of a sign to its location, not the content of its message,” Dreeben said.

Notably, President Joe Biden’s Justice Department has formally sided with the city of Austin, going as far as filing an amicus brief in support.

The city previously lost the case in a lower appeals court.

Thomas intervenes

Justice Thomas clapped back on that assertion, offering a hypothetical situation involving a hamburger restaurant and what it would mean if they chose to advertise another restaurant on its property.

“[If the sign read] ‘Our hamburgers are great, but if you want great barbecue, go to Franklin’s’ …  that sign would not be acceptable under this ordinance, right?” Thomas asked. “But if I were at Franklin’s, I could say ‘Eat at Franklins’?”

The conservative justice added: “I don’t understand how that’s not content-based if I could say ‘Eat at Franklin’s’ if I’m at Franklin’s, but I can’t say it if I’m at McDonald’s or some other place.”

A final decision in the case is expected to come down sometime in June of 2022.

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