Amicus Briefs

Our Legal Experts Weigh In on Outdoor Advertising Cases

Scenic Texas, the state’s only non-profit organization dedicated to the preservation and enhancement of our state’s visual environment, particularly as seen by the traveling public, keeps an eye on the state court cases pertaining to outdoor advertising and commercial signs. Unfortunately, without an organization like Scenic Texas to alert and engage the public and stakeholders that stand to lose scenic environment standards, these legal cases can create devastating visual precedents throughout the state and country.

Reagan billboards like this one in Austin residential neighborhoods could become digital blights at night

Reagan and Lamar v. City of Austin

Case and brief summary:  Reagan National Advertising of Austin and Lamar Advantage Outdoor Company v City of Austin (appealed by Reagan and Lamar) to the Fifth Circuit Court of Appeals from the United States District Court for the Western District of Texas, USDC No. 1:17-CV-673. Reagan and Lamar sued the City of Austin when the city denied approximately 85 digital billboard permits for off-premise advertising billboards arguing that the City Sign Code’s distinction between on-premise and off-premise signs violated the U.S. Constitution’s First Amendment free speech clause. The case was first heard by the US District Court for the Western District of Texas, and held FOR the City, ie, that the city sign code on/off-premise distinction was not content-based and was constitutional using an intermediate scrutiny standard of review. On August 25, 2020, a three-member panel of the Fifth Circuit Court of Appeals reversed the US Western District Court and held:the Austin Sign Code’s on-premises/off-premises distinction was content-based and must therefore be subject to a strict scrutiny standard of review. The Fifth Circuit concluded that under that higher standard of review, the city’s on/off-premise distinction was content-based, thus unconstitutional. The City of Austin has announced it will appeal to SCOTUS—filing due January 21, 2021.

Far-reaching impact on Texas cities and beyond:  The Fifth Circuit jurisdiction covers all cities in three States—Texas, Mississippi and Louisiana so the ramifications are far-reaching, costly and profound. This opinion will effectively invalidate every municipal sign code in the State of Texas (and likely many in Mississippi and Louisiana). Every sign owner will have the same claim—that any regulations (height, size, spacing, lighting, etc.), if based on the distinction between on- and off-premise signs, are invalid simply because of that distinction. In fact, the on/off-premise distinction has been used by municipalities and most state regulators for decades, and it was upheld by the SCOTUS in 1981 and again reaffirmed by a unanimous SCOTUS court in 1994. Substantial and needless expense will be incurred simply to re-write every existing code, and many unwanted digital commercial billboards will surely be erected during the chaos created by this opinion. This is a far-reaching action taken by a federal court to invalidate local control over commercial advertising billboards. 

Other Cases

Powell v. Houston

The Texas Supreme Court ruled in Powell v Houston 9-0 in favor of the City of Houston. Justice Busby was assigned the opinion and wrote a strong opinion in favor of the City and preserving the visual environment, and four justices joined a concurrence that narrowly avoided causing havoc. Another victory for the scenic family in Texas.

Rabbit Hill v. State of Texas

Often times taxpayers get stuck with paying for billboards that the state needs to take down for highway expansions. In this case, Clear Channel claimed that their billboards were worth almost a million dollars, an exorbitant cost for the state and taxpayers to have to pay. Here are the case details and the scenic brief prepared by Scenic Texas.

The State of Texas v. Clear Channel Outdoor, Inc