Reagan Nat'l Adver. of Austin, Inc. v. City of Cedar Park
Reagan Nat'l Adver. of Austin, Inc. v. City of Cedar Park
Opinion of the Court
BE IT REMEMBERED on this day the Court reviewed the file in the above-styled cause, and specifically Defendant City of Cedar Park (the City)'s Amended Motion for Summary Judgment [# 24], Plaintiff Reagan National Advertising of Austin, Inc. (Reagan)'s Response [# 29], Cedar Park's Reply [# 30] in support, Reagan's Sur-Reply [# 33] in opposition, and Cedar Park's Sur-Sur-Reply [# 35] in support.
*676Having reviewed the documents, the relevant law, and the file as a whole, the Court now enters the following opinion and orders.
Background
This is a First Amendment case. Reagan is a commercial billboard company in the business of outdoor advertising. Am. Compl. [# 18] at 2. On March 8, 2017, Reagan submitted five sign permit applications to the City. Am. Mot. Summ. J. [# 24-2] (Sign Permit Applications). Three of these applications requested permission to install digital sign faces on three existing outdoor signs (the Digital Conversion Applications). Id. at 1, 2-16. The other two applications sought permits for the construction of two new signs (the New Sign Applications). Id. at 1, 17-32.
To receive approval, permit applications must demonstrate proposed signs meet the requirements of the City's Sign Code.
Both Article 13.01 and Article 13.03 contain provisions which rely upon a distinction between on-premises and off-premises signs. An "on-premises sign" is defined as a "sign identifying or advertising the business, person, activity, goods, products, or services located on the site where the sign is installed, or that directs persons to a location on that site." Sign Code at 4. By contrast, an "off-premises sign" is defined as a "sign referring to goods, products or services provided at a location other than that which the sign occupies." Id. at 3-4. All five of Reagan's permit applications relate to off-premises signs.
On March 14, 2017, the City denied all five of Reagan's permit applications. Am. Mot. Summ. J. [# 24-4] Ex. 4 (Denial Letters). Among other reasons, the New Sign Applications were denied because they proposed using light-emitting diode (LED) displays in off-premises signs. Id. at 7-10. Although the Sign Code allows LED displays to be incorporated into some on-premises signs, it bans the use of LED displays in off-premises signs. See Sign Code § 13.01.007(i)(4) ("Electronically controlled changeable messages signs shall not advertise goods or services not offered on the premises on which the sign is located."); id. § 13.03.006(d) ("No light emitting diode (LED) displays or signs shall be permitted."). The City likewise denied the Digital Conversion Applications because, like the New Sign Applications, the Digital Conversion Applications proposed installing LED displays in off-premises signs. Denial Letters at 1-6; Sign Code §§ 13.01.007(i)(4), 13.03.006(d); see also id. §§ 13.01.016(a), 13.03.007(a) ("[N]o change or alteration shall be made [to existing signs] that would increase the degree of nonconformity [with the Sign Code].").
After the City denied Reagan's permit applications, Reagan filed this action in state court arguing that the Sign Code's differing treatment of on-premises and off-premises signs constitutes content discrimination and that this content-based distinction cannot survive constitutional scrutiny. Notice Removal [# 1-1] Ex. 1 (Original *677Pet.) at 4. On this basis, Reagan seeks to invalidate the entire Sign Code. Reply [# 31] at 3. The City later removed the action to this Court and now moves for summary judgment. Notice Removal [# 1]; Am. Mot. Summ. J. [# 24]. This pending motion is ripe for review.
Analysis
I. Legal Standard
Summary judgment shall be rendered when the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine dispute as to any material fact and that the moving party is entitled to judgment as a matter of law. FED. R. CIV. P. 56(a) ; Celotex Corp. v. Catrett ,
Once the moving party has made an initial showing that there is no evidence to support the nonmoving party's case, the party opposing the motion must come forward with competent summary judgment evidence of the existence of a genuine fact issue. Matsushita ,
"Only disputes over facts that might affect the outcome of the suit under the governing laws will properly preclude the entry of summary judgment." Anderson , 477 U.S. at 248,
II. Application
The City argues it is entitled to summary judgment because the distinction drawn by the Sign Code between on-premises and off-premises commercial speech is constitutional as a matter of law. Am. Mot. Summ. J. [# 24] at 2. Reagan, meanwhile, contends this distinction is an unconstitutional content-based regulation of speech under the First Amendment. Resp. [# 29]
*678at 20. The Court first determines the standard of scrutiny and then turns to assessing the constitutionality of the Sign Code.
A. Level of Scrutiny
The parties disagree on the level of scrutiny to be applied. The City argues regulation of commercial billboard speech is subject to intermediate scrutiny under the Supreme Court's decision in Metromedia, Inc. v. City of San Diego ,
In Metromedia , the Supreme Court considered the constitutionality of a San Diego ordinance that permitted on-premises commercial advertising but forbid off-premises commercial advertising. Metromedia ,
Reagan contends, however, that the Supreme Court's more recent decision in Reed overrules both Metromedia and Central Hudson and requires strict scrutiny be applied to content-based regulations of even commercial speech. Resp. [# 29] at 6-15. In Reed , the Supreme Court considered the constitutionality of a local ordinance that applied differing requirements to certain noncommercial signs depending upon whether the sign in question qualified as an "Ideological," "Political," or "Temporary Directional" sign under the ordinance. Reed ,
Reed does not require the application of strict scrutiny to content-based regulations *679of commercial speech. For starters, Reed concerned noncommercial speech, rather than commercial speech, and perhaps for that reason, the majority opinion in Reed makes no mention of the Central Hudson commercial speech standard. See Reed ,
Reagan protests that even if Reed does not require the application of strict scrutiny to commercial speech, strict scrutiny should still apply here because the Sign Code's distinction between on-premises and off-premises signs might also be applied to noncommercial speech. Resp. [# 29] at 15-16. This argument fails because Reagan has not shown it possesses standing to challenge the constitutionality of the Sign Code as applied to noncommercial speech. As an initial matter, Reagan has not shown it engages in noncommercial speech of its own. Nor has Reagan shown it has overbreadth standing to challenge the constitutionality of the Sign Code as applied to the noncommercial speech of third parties not before the Court.
Under the overbreadth standing doctrine, litigants "are permitted to challenge a statute not because their own rights of free expression are violated, but because of a judicial prediction or assumption that the statute's very existence may cause others not before the court to refrain from constitutionally protected speech or expression." Broadrick v. Oklahoma ,
Here, Reagan has not established overbreadth standing because it has not shown the overbreadth of the Sign Code is substantial relative to the statute's plainly legitimate sweep. Though Reagan suggests its billboards occasionally carry noncommercial *680speech, Reagan does not identify any specific examples, much less demonstrate that noncommercial speech makes up a substantial portion of the City's off-premises speech. See Resp. [# 29] at 15; cf. Metromedia ,
The Court concludes Reagan is not entitled to overbreadth standing, and as a result, Reagan lacks standing to challenge the application of the Sign Code to noncommercial speech. The Court therefore proceeds to assess Reagan's challenge to the Sign Code's regulation of commercial speech under the Central Hudson standard.
B. Constitutionality
The First Amendment protects commercial speech only insofar as that speech concerns lawful activity and is not misleading. Metromedia ,
Reagan first argues the City does not possess a substantial government interest.
Reagan next argues that the City's interests in traffic safety and aesthetics are not directly advanced by the City's Sign Code. Resp. [# 29] at 16. Specifically, Reagan contends the Sign Code as a whole fails to advance any substantial government interest because the City allows a single tenant on one of its properties to use an LED display for off-premises advertising. Resp. [# 29] at 3, 16-21 (noting the HEB Center-a sports arena and live-event venue-uses an LED sign to display off-premises advertising).
In sum, the Court concludes the Sign Code directly advances the City's substantial government interests in traffic safety and aesthetics and survives constitutional scrutiny under Central Hudson. The Court therefore GRANTS the City's motion for summary judgment.
Conclusion
The Court concludes the distinction drawn by the Sign Code between on-premises and off-premises speech qualifies as a constitutional regulation of commercial speech. The Court therefore grants the City's motion for summary judgment on Reagan's First Amendment claim. And as this was Reagan's sole claim,
Accordingly,
IT IS ORDERED the Court GRANTS the City of Cedar Park's Motion for Summary Judgment [# 24]; and
IT IS FURTHER ORDERED that Cedar Park's Motion to Strike Sur-Reply or, in the Alternative, Motion for Leave to File Sur-Sur-Reply [# 32] is DISMISSED AS MOOT.
Cedar Park's Motion to Strike Sur-Reply or, in the Alternative, Motion for Leave to File Sur-Sur-Reply [# 32] is DISMISSED AS MOOT because Cedar Park has already filed its sur-sur-reply, which the Court considers herein.
The City enacted a new sign code the day after Reagan submitted its permit applications. Am. Mot. Summ. J. [# 24] at 5 n.4. However, Texas law requires the permit applications be evaluated under the law as it existed at the time they were submitted, rather than under the new, revised sign code. Tex. Loc. Gov't Code § 245.002.
See also Lone Star Sec. & Video, Inc. v. City of Los Angeles ,
Reagan provides no cogent explanation as to why it believes "[t]he exception made for this sign renders" the entire Sign Code unconstitutional. See Resp. [# 29] at 19-20. Indeed, the Sign Code contains many provisions which have little to do with the distinction between on-premises and off-premises advertising. See, e.g. , Sign Code § 13.01.006(a) (prohibiting use of "flashing lights" and "revolving beacon lights");
Although Reagan purports to bring both facial and as-applied First Amendment claims, "the distinction between facial and as-applied challenges ... goes to the breadth of the remedy employed by the Court, not what must be pleaded in a complaint." Citizens United v. Fed. Elec. Comm'n ,
Reference
- Full Case Name
- REAGAN NATIONAL ADVERTISING OF AUSTIN, INC. v. CITY OF CEDAR PARK
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- 1 case
- Status
- Published