City of Austin v. Reagan National Advertising of Austin, LLC

P R E L I M I N A R Y P R I N T
Volume 596 U. S. Part 1
Pages 61–106
OFFICIAL REPORTS
OF
T H E S U P R E M E C O U R T
April 21, 2022
REBECCA A. WOMELDORF
reporter of decisions
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pio@supremecourt.gov, of any typographical or other formal errors.

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TERM, 2021
61
Syllabus
CITY OF AUSTIN, TEXAS v. REAGAN NATIONAL
ADVERTISING
OF AUSTIN, LLC, et al.
certiorari to the united states court of appeals for
the fth circuit
No. 20–1029. Argued November 10, 2021—Decided April 21, 2022
Like a great many jurisdictions around the country, the City of Austin,
Texas (City), specially 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. See City Code § 25–10–102(1). These are
known as off-premises signs. The City's sign code at the time of
this dispute prohibited construction of new off-premises signs. Ibid.
Grandfathered off-premises signs could remain in their existing loca-
tions as “nonconforming signs,” but could not be altered in ways that
increased their nonconformity. §§ 25–10–3(10), 25–10–152(A)–(B). On-
premises signs were not similarly restricted. § 25–10–102(6).
Respondents, Reagan National Advertising of Austin, LLC, and
Lamar Advantage Outdoor Company, L. P., own billboards in Austin.
When Reagan sought permits to digitize some of its billboards, the City
denied its applications. Reagan fled suit in state court, alleging that
the City's prohibition against digitizing off-premises signs, but not on-
premises signs, violated the First Amendment's Free Speech Clause.
The City removed the case to federal court, and Lamar intervened.
The District Court held that the challenged sign code provisions were
content neutral under Reed v. Town of Gilbert, 576 U. S. 155, reviewed
the City's on-/off-premises distinction under intermediate scrutiny, and
found that the distinction satisfed that standard. The Court of Ap-
peals reversed. It found the on-/off-premises distinction to be facially
content based because a government offcial had to read a sign's message
to determine whether the sign was off-premises. The court then re-
viewed the City's on-/off-premises distinction under strict scrutiny, and
it held that the City failed to satisfy that onerous standard.
Held: The City's on-/off-premises distinction is facially content neutral
under the First Amendment. Pp. 69–77.
(a) Reed held that a regulation of speech is content based under the
First Amendment if it “target[s] speech based on its communicative con-
tent,” i. e., if it “applies to particular speech because of the topic discussed
or the idea or message expressed.” 576 U. S., at 163. The Court of
Appeals' interpretation of Reed—to mean that a regulation cannot be
content neutral if its application requires reading the sign at issue—is
too extreme an interpretation of this Court's precedent. Pp. 69–75.

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62 CITY
OF AUSTIN v. REAGAN NAT.
ADVERTISING OF AUSTIN, LLC
Syllabus
(1) In Reed, the town of Gilbert, Arizona, adopted a comprehensive
sig
n code that applied distinct size, placement, and time restrictions to
23 different categories of signs, giving more favorable treatment to
some categories (such as ideological signs or political signs) and less
favorable treatment to others (such as temporary directional signs re-
lating to religious events, educational events, or other similar events).
The Court rejected the contention that the restrictions were content
neutral because they did not discriminate on the basis of particular
viewpoints, reasoning that “a speech regulation targeted at specifc sub-
ject matter is content based even if it does not discriminate among view-
points within that subject matter.” 576 U. S., at 169. Unlike the sign
code in Reed, the City's sign ordinances here do not single out any topic
or subject matter for differential treatment. A sign's message matters
only to the extent that it informs the sign's relative location. Thus, the
City's on-/off-premises distinction is more like ordinary time, place, or
manner restrictions, which do not require the application of strict scru-
tiny. Cf. Frisby v. Schultz, 487 U. S. 474, 482. Pp. 69–72.
(2) This Court's precedents and doctrines have consistently recog-
nized 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, and speech
must be read or heard to determine whether it entails solicitation. See
Heffron v. International Soc. for Krishna Consciousness, Inc., 452 U. S.
640. Moreover, the Court has previously understood distinctions be-
tween on-premises and off-premises signs to be content neutral. See
Suffolk Outdoor Advertising Co. v. Hulse, 439 U. S. 808 (order dismiss-
ing appeal); Members of City Council of Los Angeles v. Taxpayers for
Vincent, 466 U. S. 789. 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, content-based
regulations are those that discriminate based on “the topic discussed or
the idea or message expressed.” Reed, 576 U. S., at 171. Pp. 72–74.
(3) Reagan's counterargument relies primarily on a sentence in
Reed recognizing that “[s]ome facial distinctions based on a message
are obvious, defning regulated speech by particular subject matter, and
others are more subtle, defning regulated speech by its function or pur-
pose.” 576 U. S., at 163. Reagan contends that the City's sign code
defnes off-premises signs on the basis of function or purpose and is
therefore content based and subject to strict scrutiny. This stretches
Reed's “function or purpose” language too far. Reed held that subtler
forms of content discrimination cannot escape classifcation as content
based simply because they swap an obvious subject-matter distinction
for a function or purpose proxy. That does not mean that any classif-
cation that considers function or purpose is always content based.

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as: 596 U. S. 61 (2022)
63
Syllabus
Reagan's reading of Reed would contravene numerous precedents and
cast
doubt on the Nation's history of regulating off-premises signs.
Pp. 74–75.
(b) This Court's determination that the City's on-/off-premises dis-
tinction is facially content neutral does not end the First Amendment
inquiry. Evidence that an impermissible purpose or justifcation under-
pins a facially content-neutral restriction may mean that the restriction
is nevertheless content based. Moreover, to survive intermediate scru-
tiny, a restriction on speech or expression must be “ `narrowly tailored
to serve a signifcant governmental interest.' ” Ward v. Rock Against
Racism, 491 U. S. 781, 791. Because the Court of Appeals did not ad-
dress these issues, the Court leaves them for remand and expresses no
view on the matters. Pp. 76–77.
972 F. 3d 696, reversed and remanded.
Sotomayor, J., delivered the opinion of the Court, in which Roberts,
C. J., and Breyer, Kagan, and Kavanaugh, JJ., joined. Breyer, J., fled
a concurring opinion, post, p. 77. Alito, J., fled an opinion concurring in
the judgment in part and dissenting in part, post, p. 83. Thomas, J., fled
a dissenting opinion, in which Gorsuch and Barrett, JJ., joined, post,
p. 86.
M i chael R. D reeben arg ued the cause for petiti oner.
With him on the briefs were Renea Hicks, Jeremy R. Girton,
Anne L. Morgan, and Meghan L. Riley.
Benjamin W. Snyder argued the cause for the United
States as amicus curiae supporting petitioner. With him
on the brief were Acting Solicitor General Fletcher, Acting
Assistant Attorney General Boynton, Deputy Solicitor Gen-
eral Feigin, and Michael S. Raab.
Kannon K. Shanmugam argued the cause for respond-
ents. With him on the brief were William T. Marks and B.
Russell Horton.*
*Briefs of amici curiae urging reversal were fled for the State of Flor-
ida et al. by Ashley Moody, Attorney General of Florida, Henry C. Whi-
taker, Solicitor General, Daniel W. Bell, Chief Deputy Solicitor General,
Kevin A. Golembiewski, Deputy Solicitor General, and David M. Costello,
Assistant Solicitor General, by Andrew J. Bruck, Acting Attorney General
of New Jersey, and by the Attorneys General for their respective jurisdic-
tions as follows: Leslie Rutledge of Arkansas, Rob Bonta of California,
William Tong of Connecticut, Karl A. Racine of the District of Columbia,
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64 CITY
OF AUSTIN v. REAGAN NAT.
ADVERTISING OF AUSTIN, LLC
Opinion of the Court
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 nota-
bly, 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.
Kwame Raoul of Illinois, Thomas J. Miller of Iowa, Aaron M. Frey of
Maine, Brian E. Frosh of Maryland, Maura Healey of Massachusetts,
Dana Nessel of Michigan, Keith Ellison of Minnesota, Lynn Fitch of Mis-
sissippi, Aaron D. Ford of Nevada, Letitia James of New York, Dave Yost
of Ohio, Ellen F. Rosenblum of Oregon, Josh Shapiro of Pennsylvania,
Jason R. Ravnsborg of South Dakota, Thomas J. Donovan, Jr., of Ver-
mont, and Robert W. Ferguson of Washington; for the American Planning
Association by Brian J. Connolly; for the International Sign Association
by Joseph S. Hall; for the Knight First Amendment Institute at Columbia
University et al. by Scott Wilkens, Alex Abdo, and Jameel Jaffer; for the
National League of Cities et al. by John J. Korzen and Lisa Soronen; and
for Outfront Media Inc. by Laura W. Brill.
Briefs of amici curiae urging affrmance were fled for the Alliance De-
fending Freedom et al. by William L. Esser IV, John J. Bursch, and Chris-
topher P. Schandevel; for the Americans for Prosperity Foundation by
Cynthia Fleming Crawford and Casey Mattox; for the Cato Institute by
Eugene Volokh and Ilya Shapiro; for the Institute for Free Speech by Julie
Smith and Owen Yeates; for the Institute for Justice by Samuel B. Gedge,
Robert McNamara, and Paul M. Sherman; for the Liberty Justice Center
by Jeffrey M. Schwab; for the Pacifc Legal Foundation by Deborah J. La
Fetra; for Summus Outdoor by Bruce E. H. Johnson and Caesar Kalinow-
ski IV; and for the Washington Legal Foundation by Thomas M. Johnson,
Jr., Krystal B. Swendsboe, Cory L. Andrews, and John M. Masslon II.
Briefs of amici curiae were fled for Land Developers et al. by Cooke
Kelsey; for the Out of Home Advertising Association of America, Inc.,
et al. by Gordon D. Todd and Virginia A. Seitz; and for Protect the First
Foundation by Gene C. Schaerr, Erik S. Jaffe, H. Christopher Bartolo-
mucci, Hannah C. Smith, and Kathryn E. Tarbert.

Cite
as: 596 U. S. 61 (2022)
65
Opinion of the Court
I
A
Amer
ican jurisdictions have regulated outdoor advertise-
ments 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 (1995). By
some accounts, the proliferati on of conspicuous patent-
medicine adver tisements on rocks and bar ns 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 tra-
dition, federal, state, and local governments have long distin-
guished 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 Beauti-
fcation Act of 1965 (Act), 23 U. S. C. § 131. In the Act, Con-
gress 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) (allow-
ing 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 im-
plemented 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,
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66 CITY
OF AUSTIN v. REAGAN NAT.
ADVERTISING OF AUSTIN, LLC
Opinion of the Court
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 dis-
tinguishes between on-premises and off-premises signs in its
sign code, and specially regulates the latter, in order to “pro-
tect 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 defned 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 defnition
was materially analogous to the one used in the federal High-
way Beautifcation 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 ex-
isting off-premises signs to remain as grandfathered “non-
conforming signs,” § 25–10–3(10). An owner of a grandfath-
ered 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 nonconfor-
mity,” “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 digiti-
zation 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,
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.

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as: 596 U. S. 61 (2022)
67
Opinion of the Court
L. P. (Lamar), are outdoor-advertising companies that own
bi
llboards 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 fled 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 fed-
eral court, and Lamar intervened as a plaintiff.
2
After the parties stipulated to the pertinent facts, the Dis-
trict 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 Gil-
bert, 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 sub-
ject 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 “differ-
ently 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 regula-
tions of speech. Id., at 682. The court found that the dis-
tinction satisfed 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-
2
Lamar did not participate in the proceedings on the merits before this
Court. Brief for Respondent Reagan II.
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68 CITY
OF AUSTIN v. REAGAN NAT.
ADVERTISING OF AUSTIN, LLC
Opinion of the Court
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
offcial 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 acknowl-
edged that its interpretation of Reed was “broad,” but rea-
soned 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 restric-
tion 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 justifcations for the distinction
could not meet that standard, rendering it unconstitutional,
id., at 709–710.
3
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 com-
mercial speech and so are subject to intermediate scrutiny. Brief for Peti-
tioner 49. It is undisputed, however, that Reagan's billboards also display
noncommercial messages, meaning that the City's denial of Reagan's appli-
cations 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
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Cite
as: 596 U. S. 61 (2022)
69
Opinion of the Court
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 commu-
nicative content”—that is, if it “applies to particular speech
because of the topic discussed or the idea or message ex-
pressed.” 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 reg-
ulation 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 justifcation, the City's distinction is con-
tent 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 specifc subject matter for differential
treatment.” 576 U. S., at 169. The town of Gilbert, Ari-
zona, had adopted a code that applied distinct size, place-
ment, and time restrictions to 23 different categories of
signs. Id., at 159. The Court focused its analysis on three
categories defned by whether the signs displayed ideologi-
cal, political, or certain temporary directional messages.
provisions admit of no exception for noncommercial speech. The only way
i n wh ich they differentiate speech is by distinguishi ng 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.
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70 CITY
OF AUSTIN v. REAGAN NAT.
ADVERTISING OF AUSTIN, LLC
Opinion of the Court
The code gave the most favorable treatment to “ `Ideological
Sig
n[s],' ” defned as those “ `communicating a message or
ideas for noncommercial purposes' ” with certain exceptions.
Id., at 159–160 (alteration in original). It offered less favor-
able treatment to “ `Political Sign[s],' ” defned as those “ `de-
signed to infuence the outcome of an election.' ” Id., at 160
(alteration in original). Most restricted of all were “ `Tem-
porary Directional Signs Relating to a Qualifying Event,' ”
with qualifying events defned as gatherings “ `sponsored, ar-
ranged, or promoted by a religious, charitable, community
service, educational, or other similar non-proft organiza-
tion.' ” Id., at 160–161.
The Reed Court determined that these restrictions were
facially content based. Id., at 164–165. Rejecting the con-
tention 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 Amend-
ment's hostility to content-based regulation extends not only
to restrictions on particular viewpoints, but also to prohibi-
tion 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., Po-
lice Dept. of Chicago v. Mosley, 408 U. S. 92, 95 (1972) (ex-
plaining that “[t]he central problem” with a municipality's
effort to exempt labor picketing from a prohibition on picket-
ing 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
Apply-
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 inter-
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as: 596 U. S. 61 (2022)
71
Opinion of the Court
ing these principles, the Court reasoned that “a speech regu-
lati
on targeted at specifc 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 fa-
vorably than political messages, and both more favorably
than temporary directional messages, “[t]he Town's Sign
Code likewise single[d] out specifc subject matter for differ-
ential treatment, even if it [did] not target viewpoints within
that subject matter.” Ibid.
In this case, enforcing the City's challenged sign code pro-
visions 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 applica-
tion of the provisions; there are no content-discriminatory
classifcations for political messages, ideological messages, or
directional messages concerning specifc events, including
those sponsored by religious and nonproft 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 dis-
cussed 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 ap-
plication of strict scrutiny to this kind of location-based reg-
ulation. Cf. Frisby v. Schultz, 487 U. S. 474, 482 (1988) (sus-
fere 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).
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72 CITY
OF AUSTIN v. REAGAN NAT.
ADVERTISING OF AUSTIN, LLC
Opinion of the Court
taining 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 re-
main content neutral.
Most relevant here, the First Amendment allows for regu-
lations of solicitation—that is, speech “requesting or seeking
to obtain something ” or “[a]n attempt or effort to gain busi-
ness.” Black's Law Dictionary 1677 (11th ed. 2019). To
identify whether speech entails solicitation, one must read or
hear it frst. Even so, the Court has reasoned that restric-
tions on solicitation are not content based and do not inher-
ently present “the potential for becoming a means of sup-
pressing 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 specifc location. Heffron, 452 U. S., at
643–644. The State had applied the restriction against a re-
ligious 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 ask-
ing for donations for their cause outside of a designated loca-
tion. Id., at 646, 655. The Court upheld the State's applica-
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as: 596 U. S. 61 (2022)
73
Opinion of the Court
tion 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 pre-
viously understood distinctions between on-premises and off-
premises signs, like the one at issue in this case, to be con-
tent 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 Met-
romedia 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 scru-
tiny in any event. See id., at 507–512 (citing Central Hud-
son 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 prohibi-
tion against the use of billboards.” Members of City Coun-
cil 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 inher-
ently tr iggers heightened First Amendment concer n.
Rather, it is regulations that discriminate based on “the
5
Although the opinion in Metromedia was labeled a plurality for four
Justices, the relevant portion of the opinion was also joined by a ffth.
See 453 U. S., at 541 (Stevens, J., dissenting in part) (“join[ing] Parts I
through IV of Justice White's opinion”).
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Opinion of the Court
topic discussed or the idea or message expressed” that are
content
based. Reed, 576 U. S., at 171. The sign code pro-
visions challenged here do not discriminate on those bases.
C
Reagan does not claim Reed expressly or implicitly over-
turned 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, defning
regulated speech by particular subject matter, and others
are more subtle, defning regulated speech by its function or
purpose.” Id., at 163. Seizing on this reference, Reagan
asserts that the City's sign code “defnes 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 “reaffrm that, where a regulation `defne[s] regu-
lated 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” lan-
guage too far. The principle the Reed Court articulated is
more straightforward. While overt subject-matter discrim-
ination is facially content based (for example, “ `Ideological
Sign[s],' ” defned 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],' ” de-
fned as those “ `designed to infuence the outcome of an elec-
tion' ”). Id., at 159, 160, 163–164 (alterations in original).
In other words, a regulation of speech cannot escape classif-
cation as facially content based simply by swapping an obvi-
ous subject-matter distinction for a “function or purpose”
proxy that achieves the same result. That does not mean
that any classifcation that considers function or purpose is
always content based. Such a reading of “function or pur-
pose” would contravene numerous precedents, including
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75
Opinion of the Court
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 regulat-
ing 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 ad-
vertising 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 chal-
lenges posed by billboards and other methods of outdoor ad-
vertising. See supra, at 65–66. 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 em-
brace the read-the-sign rule adopted by the court below.
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 specifc 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 specifc 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 ren-
der the majority opinion in Reed irreconcilable with the concurrence,
which recognized that “[r]ules imposing time restrictions on signs ad-
vertising a one-time event,” which “do not discriminate based on topic
or subject,” would be content neutral. Id., at 174, 175 (Alito, J.,
concurring).
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Opinion of the Court
Instead, the dissent attacks a straw man. Contrary to its
accusati
ons, we do not “nullif[y]” Reed's protections, “resus-
citat[e]” a decision that we do not cite, or fashion a novel
“specifcity test” simply by quoting the standard repeatedly
enunciated in Reed. Post, at 93, 96, 106 (opinion of Thomas,
J.). Nor do we cast doubt on any of our precedents recogniz-
ing examples of topic or subject-matter discrimination as
content based. See, e. g., post, at 94–95. We merely apply
those precedents to reach the “commonsense” result that a
location-based and content-agnostic on-/off-premises distinc-
tion does not, on its face, “singl[e] out specifc 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 distinc-
tion this Court has repeatedly reviewed and never pre-
viously 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 fa-
cially content neutral does not end the First Amendment in-
quiry. If there is evidence that an impermissible purpose or
justifcation 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 “ `nar-
rowly tailored to serve a signifcant governmental interest.' ”
Ward v. Rock Against Racism, 491 U. S. 781, 791 (1989).
The parties dispute whether the City can satisfy these re-
quirements. This Court, however, is “a court of fnal review
and not frst view,” and it does not “[o]rdinarily . . . decide in
the frst instance issues not decided below.” Zivotofsky v.
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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.
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 justifed 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 pur-
poses 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 frst considering “whether
the regulation at issue works harm to First Amendment in-
terests that is disproportionate in light of the relevant regu-
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latory objectives.” Id., at 179 (Breyer, J., concurring in
judg
ment); Barr v. American Assn. of Political Consult-
ants, Inc., 591 U. S. –––, ––– – ––– (2020) (Breyer, J., concur-
ring in judgment and dissenting in part); 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) regu-
lation 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 unconstitu-
tionality are unwarranted. The majority reaches this con-
clusion 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, de-
bate, and discuss both general and specifc ideas, hopes, and
experiences.” Barr, 591 U. S., at ––– (opinion of Breyer,
J.). 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 protec ti ng 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 market-
place.' ” R. A. V. v. St. Paul, 505 U. S. 377, 387 (1992). We
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79
Breyer, J., concurring
have recognized, for example, that First Amendment values
are
in danger when the government imposes restrictions
upon “ `core political speech,' ” Buckley v. American Consti-
tutional 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. Pub-
lic 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 possi-
bility that offcial 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.).
The U. S. Code (as well as its state and local equivalents)
is flled with regulatory laws that turn, often necessarily, on
the content of speech. Consider laws regulating census re-
porting requirements, e. g., 13 U. S. C. § 224; securities-
related disclosures, e. g., 15 U. S. C. § 78l; copyright infringe-
ment, 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; confdential medical rec-
ords, 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
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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 re-
fect the will of the people. Reed, 576 U. S., at 171; e. g.,
Barr, 591 U. S., at ––– (striking down the Telephone Con-
sumer Protection Act's exception allowing robocalls that col-
lect government debt); IMDB.com v. Becerra, 962 F. 3d 1111,
1125–1127 (CA9 2020) (striking down a California law prohib-
iting certain websites from publishing the birthdates of en-
tertainment professionals). If so, the Court's content-based
line-drawing will “substitut[e] judicial for democratic deci-
sionmaking ” and threaten the ability of the people to trans-
late 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 distin-
guish between reasonable and unreasonable content-based
regulations. Such a patchwork, however, may prove overly
complex, unwieldy, or unworkable. And it may make it
more diffcult for ordinary Americans to understand the im-
portance 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 discrimina-
tion 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
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81
Breyer, J., concurring
Amendment question: Does “the regulation at issue wor[k]
har
m 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 defnes 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 grand-
fathered 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 con-
stitutionality of this regulation in the frst instance, so I need
not answer that question conclusively now. I wish only to
illustrate why I believe a strong presumption of unlawful-
ness is out of place here.
Billboards and other roadside signs can generally be cate-
gorized as a form of outdoor advertising. Regulation of out-
door advertising in order to protect the public's interest in
“avoiding visual clutter,” Members of City Council of Los
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Angeles v. Taxpayers for Vincent, 466 U. S. 789, 806 (1984),
or
minimizing traffc risks, Metromedia, Inc. v. San Diego,
453 U. S. 490, 507–508 (1981) (plurality opinion), is unlikely
to interfere signifcantly 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 pre-
sumption 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 com-
plain 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 effec-
tive use of their billboard space. But their inability to maxi-
mize the use of their space in this way is unlikely to meaning-
fully interfere with their participation in the “marketplace
of ideas.”
At the same time, the City has asserted a legitimate inter-
est in maintaining the regulation. As I have said, the public
has an interest in ensuring traffc 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, espe-
cially 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 infuence”); Brief for Na-
tional League of Cities et al. as Amici Curiae 22 (“ `The Wis-
consin Department of Transport found a 35% increase in col-
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83
Opinion of Alito, J.
lisions near a variable message sign' ” (alteration omitted)).
They
add that on-premises signs are less likely to cause acci-
dents. 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 frst instance,
without a strong presumption of unconstitutionality.
Justice Alito, concurring in the judgment in part and
dissenting in part.
I agree with the majority that we must reverse the deci-
sion 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 69. The Court of Ap-
peals 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 `estab-
lish that no set of circumstances exists under which the [law]
would be valid,' or show that the law lacks `a plainly legiti-
mate sweep.' ” Americans for Prosperity Foundation v.
Bonta, 594 U. S. –––, ––– (2021) (citation omitted). A some-
what less demanding test applies when a law affects freedom
of speech. Under our First Amendment “overbreadth” doc-
trine, a law restricting speech is unconstitutional “if a sub-
stantial 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
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the relevant prov isi ons may apply i nvolve commercia l
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' bill-
boards. 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 mes-
sage 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
1
In ordinary usage, a sign that is attached to or located in close proxim-
ity to a building is not described as located “off-premises.” The distinc-
tion between on- and off-premises signs is based solely on location, and
that is why such a classifcation 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).
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should determine whether those provisions are unconstitu-
ti
onal as applied to each of the billboards at issue.
Today's decision, however, goes further and holds fatly
that “[t]he sign code provisions challenged here do not dis-
criminate” on the basis of “ `the topic discussed or the idea
or message expressed,' ” ante, at 73–74, and that categorical
statement is incorrect. The provisions defning 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 defnition would mean as applied
to signs posted in the front window of a commercial estab-
lishment, say, a little coffee shop. If the owner put up a sign
advertising a new coffee drink, the sign would be classifed
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 phar-
macy” or “Attend City Council meeting to speak up about Z.”
All those signs would appear to fall within the defnition of
an off-premises sign and would thus be disallowed. See also
post, at 88–89 (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
3
The amended code now defnes “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 com-
mercia l message wh ich is genera l ly conduc ted, sold, manufac tured,
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Thomas, J., dissenting
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.
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 pre-
sumptively 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],” defned 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 pro-
mote an on- or off-site event, activity, or service.
The Court nevertheless holds that the off-premises restric-
tion is content neutral because it proscribes a suffciently
broad category of communicative content and, therefore,
does not target a specifc “topic or subject matter.” Ante, at
71. 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 reminis-
cent of this Court's erroneous decision in Hill v. Colorado,
530 U. S. 703 (2000), which upheld a blatantly content-based
produced, offered, or occurs elsewhere than on the premises where the
sign is located,” and defnes 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” modifes
the terms “activity,” “event,” “person,” or “institution” such that the pro-
vision would not draw topic-based distinctions as applied to noncommer-
cial speech.
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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 ap-
proach, 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. Cali-
fornia, 283 U. S. 359, 368 (1931). “When enforcing this pro-
hibition, our precedents distinguish between content-based
and content-neutral regulations.” National Institute of
Family and Life Advocates v. Becerra, 585 U. S. –––, –––
(2018). 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 “common-
sense” test: A speech regulation is content based if it “tar-
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, includ-
ing 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 recog-
nizes, Austin's off-premises sign rule is not limited to any of these catego-
ries of speech. See ante, at 68–69, n. 3.
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get[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 fa-
cial distinctions based on a message are obvious,” we empha-
sized that others could be “more subtle, defning 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 con-
tent 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 dis-
crimination” because it classifed “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 defned “ `Temporary Direc-
tional Signs' ” as any sign that “convey[ed] the message of di-
recting 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, “ `Ideologi-
cal Sign[s],' ” defned as any sign (not covered by another
category) that “ `communicat[ed] a message or ideas for non-
commercial purposes,' ” were subject to no temporal limita-
tions. Id., at 159–160. In short, the restrictions on any
given sign depended “on the communicative content of the
2
In Reed, we acknowledged that some prior decisions had skipped over
this facial analysis and applied a justifcation-focused test. See 576 U. S.,
at 165–167. But we explained that the justifcation-focused test impli-
cated a “separate and additional category of laws that, though facially
content neutral, [are] content-based regulations [because they] cannot be
` “justifed 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
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sign.” Id., at 164. Gilbert's sign code was thus facially con-
tent
based and presumptively unlawful. See id., at 159.
In contrast to Reed's “commonsense” test, Gilbert urged
us to defne “content based” as a “term of art that `should be
applied fexibly' 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 elimi-
nate 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 diffcult for the Church to inform
the public of the location of its services.” Id., at 167–168.
Thus, we concluded that “a clear and frm rule governing
content neutrality is an essential means of protecting the
freedom of speech, even if laws that might seem entirely rea-
sonable 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 Gil-
bert'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 quota-
tion marks omitted). That is, whether a temporary direc-
tional sign was permissible depended, in part, on its tempo-
ral proximity to a “ `qualifying event.' ” Id., at 164. This
partial dependence on content-neutral elements was immate-
rial, we explained, because the restrictions also depended on
the signs' communicative content. Gilbert offcials 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
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evade strict scrutiny simply because an event [was] in-
volved.
” Id., at 170.
B
Under Reed's approach for identifying content-based regu-
lations, Austin's off-premises sign restriction is content
based. As relevant to this suit, Austin's sign code imposes
str i ngent restr ic ti ons 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 defnition
sweeps in a wide swath of signs, from 14- by 48-foot bill-
boards to 24- by 18-inch yard signs. The sign code prohibits
new off-premises signs and makes it diffcult (or impossible)
to change existing off-premises signs, including by digitizing
them. See ante, at 66.
Like the town of Gilbert in Reed, Austin has identifed a
“categor[y] of signs based on the type of information they
convey, [and] then subject[ed that] category to different re-
strictions.” 576 U. S., at 159. A sign that conveys a mes-
sage 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 mes-
sage” about “the time and location of a specifc event” is con-
tent based). And, per Reed, it does not matter that Austin's
code “defn[es] regulated speech by its function or pur-
pose”—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 con-
tent,” 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 offcial applying the sign code must know
where the sign is does not negate the fact that he also must
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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 mes-
sage, an offcial 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] offcials to determine whether a sign” con-
veys 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 Play-
boy Entertainment Group, 529 U. S., at 813. Because Aus-
tin has offered nothing to make that showing, the Court of
Appeals did not err in holding that the off-premises rule vio-
lates the First Amendment.
II
To reach the opposite result, the majority implicitly re-
writes Reed's bright-line rule for content-based restrictions.
In the majority's view, the off-premises restriction is not con-
tent based because it does not target a specifc “topic or sub-
ject matter.” Ante, at 71. The upshot of the majority's
reasoning appears to be that a regulation based on a suff-
ciently general or broad category of communicative content
is not actually content based.
Such a rule not only conficts with Reed and many pre-
Reed precedents but is also incoherent and unworkable.
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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 71.
That concession should end the inquiry under Reed. But the
majority nonetheless fnds the sign code to be content neu-
tral by recasting facially content-based restrictions as only
those that target suffciently specifc categories of communi-
cative content and not as those that depend on communica-
tive content simpliciter.
For example, while Reed defned content-based restric-
tions 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 substan-
tive message,” ante, at 71 (emphasis added). Elsewhere, the
majority speaks not of “substantive message[s]” but of “top-
ic[s] or subject matter[s],” which the majority thinks are suf-
fciently specifc categories of communicative content. Ibid.
As a result, the majority contends that a law targeting direc-
tional messages concerning “events generally, regardless of
topic,” would not be content based, but one targeting “direc-
tional messages concerning specifc events” (e. g., “religious”
or “political” events) would be. Ante, at 75, n. 6, 71 (emphasis
added).
3
Regardless of the label, the majority today excises,
3
On this point, the majority's analysis tracks the position advanced by
Austin, which asserted that content neutrality was a “question of general-
ity.” Tr. of Oral Arg. 14; see also id., at 19 (explaining that whether a law
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without a word of explanation, a subset of supposedly non-
subst
antive or unspecifc messages from the First Amend-
ment's protection against content-based restrictions.
This understanding of content-based restrictions contra-
venes Reed, which held that a law is content based if it
“target[s] speech based on its communicative content”—not
“specifc” or “substantive” categories of communicative con-
tent. 576 U. S., at 163; see also, e. g., Norton v. Springfeld,
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 re-
quires a compelling justifcation”). Only by jettisoning
Reed's “commonsense” defnition of what it means to be con-
tent based can the majority assert that the off-premises rule
is strictly “location-based” and “agnostic as to content,” ante,
at 69, even though the law undeniably depends on both loca-
tion and communicative content, supra, at 90–91.
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
defnition of “Ideological Sign[s]” to be content based even
though it broadly covered any “sign communicating a mes-
sage or ideas for noncommercial purposes” that did not al-
ready 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 defned even more generally.
The majority answers that it is not “fashion[ing] a novel
`specifcity test,' ” but instead “simply” “quoting the standard
repeatedly enunciated in Reed.” Ante, at 76. The majority
fnds this alleged specifcity test in a paragraph near the end
is content based turns on the “level of specifcity” at which the government
regulates speech).
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of Reed, where we noted that a law “targeted at specifc sub-
jec
t matter is content based even if it does not discriminate
among viewpoints within that subject matter,” and then af-
frmed that Gilbert's sign code “single[d] out specifc subject
matter for differential treatment.” 576 U. S., at 169.
These statements never purported to endorse a specifcity
test of the sort now suggested by the majority. Read in
context, Reed's two references to “specifc subject matter”
naturally address laws that target a “subject matter,” how-
ever broadly defned, as opposed to some other subject mat-
ter; they did not refer only to laws targeting some suff-
ciently “specifc” category of “subject matter.” Moreover,
the concept of “specifcity” 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 specifcity, we would have said so
explicitly when stating the test. Finally, even crediting the
majority's strained reading of Reed's passing references to
“specifc subject matter,” the paragraph where they appear
made clear that it was describing only “a paradigmatic exam-
ple 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 de-
rived from scientifc, technical or other specialized knowl-
edge,' ” Holder v. Humanitarian Law Project, 561 U. S. 1,
12–13 (2010); “ `advertising, promotion, or any activity . . .
used to infuence 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 phila-
telic, numismatic, educational, historical, or newsworthy pur-
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poses,' ” 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 “specifc” 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 specifc or general categories of speech,
or whether they address substantive or non-substantive cat-
egories of speech.
We have defned content-based restrictions to include all
content-based distinctions because any other rule would be
incoherent. After all, off-premises advertising could be con-
sidered 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 “specifc” 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 specifc
category than others (e. g., advertising generally). The ma-
jority offers only its own ipse dixit to explain why off-
premises advertising is insuffciently specifc to qualify as
content based under Reed. Worse still, the majority does
not explain how courts should draw the line between a suff-
ciently substantive or specifc content-based classifcation
and one that is insuffciently substantive or specifc.
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
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the sort of inquiry the majority's opaque test invites. But
Reed
directed us elsewhere—to the text of the law in ques-
tion 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 nullifes Reed's clear test.
B
The majority offers several reasons why its approach is
consistent with Reed and other cases. None of these argu-
ments is persuasive. Instead, they only serve to underscore
the Court's ill-advised departure from our doctrine.
1
The majority frst suggests that deeming Austin's sign
code content based would require us to adopt an “extreme”
reinterpretation of Reed. Ante, at 69. Specifcally, the ma-
jority faults the Court of Appeals for concluding that Aus-
tin'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 ac-
knowledged that the need to examine the content of a mes-
sage 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 vio-
lation has occurred.” McCullen v. Coakley, 573 U. S. 464,
479 (2014) (internal quotation marks omitted). That state-
ment was not an outlier. See, e. g., Arkansas Writers' Proj-
ect, 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 offcials to “examine
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the content of the message” (internal quotation marks omit-
ted));
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 accu-
rately the cost of security for parade participants, the admin-
istrator must necessarily examine the content of the message
that is conveyed” ( inter na l quot ati on marks omitted));
League of Women Voters, 468 U. S., at 366, 383 (law forbid-
ding public broadcasting stations from “engag[ing] in editori-
alizing ” was content based because it required “enforcement
authorities [to] necessarily examine the content of the mes-
sage that is conveyed” (internal quotation marks omitted)).
Ultimately, the majority's objection to the Court of Ap-
peals' reliance on a read-the-sign test is a red herring; its
real objection is to Reed's rule that any law that draws dis-
tinctions 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 72–74. 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 Con-
sciousness, 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 fair-
grounds. 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 mes-
sage a speaker conveys” when selling or distributing mer-
chandise subject to the ordinance. 576 U. S., at 163. True,
the Court construed the ordinance also to limit “fund solicita-
tion operations,” 452 U. S., at 644, but that was not, as the
majority claims, a prohibition on “asking for donations,”
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ante, at 72. Rather, anyone was free to “as[k] for donations”
where
ver 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 solicita-
tion. 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 71.
4
And, in any event, Cantwell
did not suggest that a content-based restriction could be sus-
tained 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 doc-
trine by nearly three decades. Thus, nothing in Heffron or
Cantwell supports the majority's narrow approach to identi-
fying content-based restrictions.
Finally, the majority argues that we have “previously un-
derstood distinctions between on-premises and off-premises
signs . . . to be content neutral.” Ante, at 73. 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
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 71–72. 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 ”).
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some restrictions on off-premises advertising were constitu-
ti
onal. And later, in Members of City Council of Los
Angeles v. Taxpayers for Vincent, 466 U. S. 789 (1984), the
Cour t descr ibed Me tro med i a as upholdi ng “a co n ten t-
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 ap-
plied to commerci al speech. An te, at 73. That is, the
“Cour t 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 fnding Austin's sign code
to be content based “would render the majority opinion in
Reed irreconcilable with” Justice Alito’s Reed concurrence.
Ante, at 75, n. 6. In particular, Justice Alito identifed
nine different types of sign regulations that he believed
“would not be content based,” including “[r]ules distinguish-
ing 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 be-
lieves 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 re-
ferring 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
sig ns”). And although off-premises and one-time-event
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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 84, 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 defne “ `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 Sum-
mus 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, specifcally to make its ordinance
content neutral. See Austin, Tex., City Code § 25–10–102(D)
(2021); App. 152. Thus, interpreting Justice Alito's con-
currence 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 con-
tent 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 Communica-
tions 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 ordi-
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nance 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 pur-
ported to pre-emptively decide an issue that had long per-
plexed federal and state courts.
4
Near the end of its analysis, the majority invokes an alleg-
edly “unbroken tradition of on-/off-premises distinctions”
that it claims “counsels against” faithful application of Reed.
Ante, at 75. To be sure, history and tradition are relevant
to identifying and defning those “few limited areas” where,
“[f]rom 1791 to the present,” “the First Amendment has per-
mitted restrictions upon the content of speech.” Brown v.
Entertainment Merchants Assn., 564 U. S. 786, 791 (2011)
(internal quotation marks omitted); see supra, at 87, n. 1.
But the majority openly admits that off-premises regulations
“were not present [at] the founding.” Ante, at 75. And
while it asserts that “large outdoor advertisements prolifer-
ated 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 exam-
ple 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 enact-
ment of the Highway Beautifcation Act of 1965.” Ante, at
65. 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 danger-
ous.” United States v. Stevens, 559 U. S. 460, 470 (2010).
This Court has never hinted that the government can, with
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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 ques-
tion whether the off-premises restriction is content based
under Reed and our modern content-neutrality jurispru-
dence. If Austin had met its burden of identifying a histori-
cal 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 major-
ity'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 74, the majority identifes no decision of this Court sup-
porting the idea that a speech restriction is not content
based so long as it regulates a suffciently broad or non-
substantive category of communicative content. In fact,
there is only one case that could possibly validate the majori-
ty'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 abor-
tion clinics from knowingly approaching within eight feet of
another person without consent “for the purpose of . . . en-
gaging 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
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based because it does not target a suffciently “specifc” or
“subst
antive” category of communications. Ante, at 71.
Hill correspondingly held that restrictions on “protest, edu-
cation, or counseling ” were not content-based classifcations
because they cover “an extremely broad category of commu-
nications.” 530 U. S., at 723. The majority also tries to
disguise its redefnition of content neutrality by characteriz-
ing Austin's rule as a “neutral, location-based” restriction.
Ante, at 69. So too did Hill try to conceal its doctrinal inno-
vation by characterizing the buffer-zone law as a neutral
“place restriction.” 530 U. S., at 723. Finally, the majority
fnds 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 71. Hill likewise found it ir-
relevant 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 un-
precedented 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 opin-
ion). 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 Octo-
ber 1999 Term, 28 Pepperdine L. Rev. 723, 748 (2001) (“The
Court said that this statute is content-neutral. I just liter-
ally cannot see how they could possibly come to that con-
clusion”); Colloquium, id., at 750 (Laurence Tribe stating
Hill “was slam-dunk simple and slam-dunk wrong ”); R. Fal-
lon, 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-
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based”). And, since Hill, this Court has all but interred its
fawed
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 under-
scores 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
76. 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 frm rule governing content neutrality” that we under-
stood to be “an essential means of protecting the freedom of
speech.” 576 U. S., at 171. The majority's deviation from
that “clear and frm rule” poses two serious threats to the
First Amendment's protections.
First, transforming Reed's clear defnition of “content
based regulation” back into an opaque and malleable “term
of art” turns the concept of content neutrality into a “vehi-
cl[e] for the implementation of individual judges' policy pref-
erences.” Tennessee v. Lane, 541 U. S. 509, 556 (2004)
(Scalia, J., dissenting). Hill exemplifes 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 ad-
mits, it seeks to “apply [our] precedents to reach the `com-
monsense' result” and avoid what it perceives as a “bizarre
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result.” Ante, at 76 (emphasis added). But Reed mandates
a
“commonsense” test for content neutrality even if the re-
sult 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 classifcations
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 responsi-
bility for distinguishing between” permissible and impermis-
sible content “carries with it the potential for invidious
discrimination of disfavored subjects.” Cincinnati v. Dis-
covery 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
offcials to punish disfavored speakers and ideas. Ibid.
The content-based distincti on 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, Aus-
tin'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
diffculties, and amici have proposed dozens of religious and
political messages that would be next to impossible to cate-
gorize under Austin's rule. See, e. g., Brief for Alliance De-
fending Freedom et. al. as Amici Curiae 15–19; Brief for
Institute for Justice as Amicus Curiae 3–9. These perva-
sive ambiguities offer enforcement offcials ample opportu-
nity to suppress disfavored views. And they underscore

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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 pro-
tected the freedom of speech from governmental caprice and
viewpoint discrimination, I would adhere to that precedent
rather than risk resuscitating Hill. I respectfully dissent.
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Reporter’s Note
The attached opinion has been revised to refect the usual publication
and citation style of the United States Reports. The revised pagination
makes available the offcial United States Reports citation in advance of
publication. The syllabus has been prepared by the Reporter of Decisions
for the convenience of the reader and constitutes no part of the opinion of
the Court. A list of counsel who argued or fled briefs in this case, and
who were members of the bar of this Court at the time this case was
argued, has been inserted following the syllabus. Other revisions may
include adjustments to formatting, captions, citation form, and any errant
punctuation. The following additional edits were made:
None