Auspro Enters., LP v. Tex. Dep't of Transp.
| Citation | 506 S.W.3d 688 |
| Decision Date | 08 December 2016 |
| Docket Number | NO. 03–14–00375–CV,03–14–00375–CV |
| Parties | AUSPRO ENTERPRISES, LP, Appellant v. TEXAS DEPARTMENT OF TRANSPORTATION, Appellee |
| Court | Court of Appeals of Texas |
Meredith B. Parenti, Parenti Law, P.L.L.C., Houston, TX, for Appellant.
Douglas D. Geyser, Solicitor General's Office, Matthew H. Frederick, Assistant Solicitor General, Office of the Attorney General, Austin, TX, for Appellee.
Before Chief Justice Rose, Justices Pemberton and Field
ON MOTION FOR REHEARING
We withdraw our opinion and judgment dated August 26, 2016, substitute the following opinion and judgment in their place, and deny the Department's motion for rehearing.
This case addresses the constitutionality of the Texas Highway Beautification Act.1 The United States Supreme Court recently struck down a similar sign regulation in Reed v. Town of Gilbert , where the high court observed:
This type of ordinance may seem like a perfectly rational way to regulate signs, but a clear and firm rule governing content neutrality is an essential means of protecting the freedom of speech, even if laws that might seem "entirely reasonable" will sometimes be "struck down because of their content-based nature."2
In Reed , the Supreme Court refined its framework for analyzing "content based" regulations of speech, holding, "A law that is content based on its face is subject to strict scrutiny regardless of the government's benign motive, content-neutral justification, or lack of ‘animus toward the ideas contained’ in the regulated speech."3 With this holding and broad framework for determining whether a government regulation of speech is "content based," Reed has arguably transformed First Amendment free-speech jurisprudence.
In Reed 's wake, our principal issue here is not whether the Texas Highway Beautification Act's outdoor-advertising regulations violate the First Amendment, but to what extent. Based on our determination that, under Reed , certain provisions in Subchapters B and C of the Act are facially content-based restrictions on speech that render those subchapters unconstitutional, we will reverse the district court's judgment and render judgment severing those unconstitutional subchapters from the Texas Highway Beautification Act.
The facts of this case are straightforward and undisputed. On July 7, 2011, Auspro Enterprises, LP, placed a sign supporting Ron Paul's 2012 presidential campaign on its property on State Highway 71 West in Bee Cave, Texas. On July 12, the Texas Department of Transportation sent a letter to Auspro explaining that its sign was "illegal" because all outdoor signs must be permitted and, although there is a specific exemption under Department rules for political signs, the exemption only allows political signs to be displayed 90 days before and 10 days after an election.4 The Department's letter ordered Auspro to remove the sign.
After Auspro failed to remove the sign, the Department brought an enforcement action in Travis County District Court for injunctive relief and civil penalties. In response, Auspro asserted that the Texas Highway Beautification Act and the Department's implementing rules violate, both facially and as applied, Auspro's right to free speech under the U.S. and Texas constitutions.5 The district court granted final judgment in the Department's favor after a bench trial on stipulated facts, specifically concluding, among other things, that the Act and the Department's rules were not unconstitutional as applied to Auspro.6
During Auspro's appeal from the district court's final judgment, the United States Supreme Court granted certiorari and heard oral argument in Reed , prompting this Court to grant Auspro's motion to abate this appeal pending the resolution of Reed . Following the Reed decision and with the benefit of its instruction, we reinstated this appeal and allowed the parties to submit briefs regarding Reed 's effect on our decision here.
Auspro brings three issues on appeal, but its principal contention post-Reed is that the Texas Highway Beautification Act violates the First Amendment because it is a "content-based" government regulation of speech that cannot survive strict scrutiny.7 The Department, in turn, maintains that Reed does not inform our decision, arguing that the Texas Act actually favors election signs and that, relatedly, we remain bound by the Texas Supreme Court's 2003 decision in Texas Department of Transportation v. Barber , which held that the Texas Highway Beautification Act is constitutional.8 In the alternative, the Department maintains that our constitutional inquiry here is limited to the election-sign exemption and that our sole remedy, should we determine that provision is unconstitutional, is severing that exemption from the Act.
Free-speech jurisprudence, Reed , and its aftermath
The First Amendment mandates that "Congress shall make no law ... abridging the freedom of speech."9 The Supreme Court has interpreted this language to generally prohibit any laws that regulate or restrict expression based on content: "[A]bove all else, the First Amendment means that the government has no power to restrict expression because of its message, its ideas, its subject matter, or its content."10 Such "content-based" regulations of speech "are presumptively unconstitutional and may be justified only if the government proves that they are narrowly tailored to serve compelling state interests."11 Because this strict-scrutiny inquiry is almost impossible to overcome—"It is rare that a regulation restricting speech because of its content will ever be permissible"12 —the primary, and often dispositive, question in a free-speech analysis is whether the law in question is content based or content neutral. Regulations deemed content neutral—i.e., that regulate speech without regard to its content—are subject to the less exacting intermediate scrutiny, which requires that the law in question not be "substantially broader than necessary to achieve the government's interest."13 Reed is the Supreme Court's most recent articulation of its standard for determining whether a particular government regulation of speech is content based.
The government regulation of speech addressed in Reed was a sign ordinance that banned the display of outdoor signs in any part of the Town of Gilbert, Arizona without a permit.14 The ordinance included exemptions from the permit requirement for 23 different categories of signs and, within those exemptions, imposed varying restrictions depending on the category.15 For example, "ideological signs" were freely allowed with no restrictions, while "political signs" could be displayed without a permit, but only within the 60 days preceding an election and the 15 days following an election.16
The Reed plaintiffs—a small church and its pastor—challenged the constitutionality of the ordinance after the Town repeatedly cited the church for failure to comply with the sign ordinance's exemption for "temporary directional signs," generally defined as temporary signs intended to direct passerby to a "qualifying event" of a non-profit organization.17 The church signs, which were posted around town each Saturday to announce the time and location of the next day's service and then removed by Sunday afternoon, violated the ordinance's requirement that temporary directional signs be displayed for no more than twelve hours before the "qualifying event" and for no more than one hour afterward.18 The Supreme Court, explaining that a regulation of speech is content based if it "applies to particular speech because of the topic discussed or the idea or message expressed," held that the sign code was content based on its face.19 Specifically, the Court noted that the ordinance defined "temporary directional signs" on the basis of the event being advertised and "political signs" on the basis of whether the sign's message "is designed to influence the outcome of an election."20 Ultimately, after deciding that the ordinance was a content-based regulation subject to strict scrutiny, the Supreme Court determined the Town could not meet its strict-scrutiny burden and struck down the sign ordinance.21
First Amendment jurisprudence has long analyzed "content-based" regulation of speech under strict scrutiny. Reed 's significance in this area is its clarification of what constitutes a content-based restriction on speech. Before Reed , many courts—including the Ninth Circuit in the decision Reed reversed and the Texas Supreme Court in its 2003 Barber decision upholding the Texas Act—relied on various arguments to deem as content neutral, and thus subject to only intermediate scrutiny, statutes that, on their face, differentiated between categories of speech based on topic or ideas expressed—i.e., were facially content based.22 Stated generally, these arguments were based on considerations such as whether the regulations in question had been adopted or motivated by "disagreement with the message conveyed" and whether there were justifications for the regulation that were "unrelated to the content of the sign."23 Reed emphatically rejected these arguments, asserting that this type of analysis "skips the crucial first step in the content-neutrality analysis: determining whether the law is content neutral on its face."24 If the law is content-based on its face, Reed explained, that is the end of the inquiry: "A law that is content based on its face is subject to strict scrutiny regardless of the government's benign motive, content-neutral justification, or lack of ‘animus toward the ideas contained’ in the regulated speech."25
In sum, as the Supreme Court explained in Reed , a law can be content based in either of two ways: (1) by distinguishing speech by the topic discussed; and (2) where the government's purpose or justification for enacting the law depends on the underlying "idea or message expressed"—i.e., the law is facially content neutral, but the...
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