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Auspro Enterprises, LP v. Texas Department of Transportation
Citation: Not availableDocket: 03-14-00375-CV
Court: Court of Appeals of Texas; July 20, 2015; Texas; State Appellate Court
Original Court Document: View Document
In the case number 03-14-00375-CV, AusPro Enterprises, LP appeals against the Texas Department of Transportation in the Third Court of Appeals in Austin, Texas, following a decision from the 345th Judicial District Court of Travis County. AusPro Enterprises, represented by Meredith B. Parenti of Parenti Law PLLC, submits a supplemental brief addressing the Supreme Court's ruling in Reed v. Town of Gilbert, which they argue necessitates the reversal of the trial court's judgment. The brief emphasizes that oral argument may assist the Court in understanding how Reed applies to the specific facts of this case and clarifying concerns regarding the Texas Highway Beautification Act and its regulations, particularly in terms of their potential violation of free speech principles. The document includes identities of parties and counsel, a supplemental statement regarding the need for oral argument, a table of authorities, and a structured argument section. Key arguments presented include: 1. The Election Sign Exemption constitutes a content-based regulation of speech, failing to qualify for intermediate scrutiny under time, place, and manner restrictions. 2. The Texas Department of Transportation (TxDOT) cannot justify the exemption based on secondary effects of signs, nor can it prove that the exemption is narrowly tailored to serve a compelling governmental interest. 3. The brief argues for the invalidation of both the Texas Highway Beautification Act and its regulations, asserting that they contravene the Texas Constitution's protections against the regulation of election signs. The document concludes with a prayer for relief and includes an appendix. Bantam Books, Inc. v. Sullivan, Cincinnati v. Discovery Network, Inc., Citizens United v. Federal Election Commission, and several other cases are cited as authorities relevant to the appeal concerning the Texas Highway Beautification Act. Appellant AusPro Enterprises, LP moved to stay the appeal pending the U.S. Supreme Court's decision in Reed v. Town of Gilbert, which was granted by the Court. Following the Supreme Court's ruling, AusPro argues that the decision mandates a reversal of the trial court's judgment, asserting that the Texas regulations are "content-based regulations of speech" that fail strict scrutiny, similar to the sign code ruled unconstitutional in Reed. In Reed v. Town of Gilbert, Arizona, petitioners challenged a sign code that imposed varying restrictions based on sign content, favoring ideological signs over political and temporary directional signs. Ideological signs could be larger and displayed without time restrictions, while political signs faced size and duration limitations, and temporary directional signs had even stricter criteria. The petitioners, including a pastor, used signs to advertise church services, which were affected by these limitations. The case hinged on whether these regulations violated First Amendment rights by being content-based. After the town cited a church for violating its sign code regarding time limits, the church challenged the code under the First and Fourteenth Amendments. The district court initially denied a preliminary injunction, with the Ninth Circuit affirming that the sign code was content-neutral. On remand, the district court granted summary judgment for the town, which was again upheld by the court of appeals. The Supreme Court, however, reversed this decision, asserting that the sign code imposed content-based restrictions on speech that failed strict scrutiny. The Court emphasized that under the First Amendment, applicable through the Fourteenth Amendment to states and municipalities, the government cannot restrict expression based on its message or content. It defined "content-based" regulations as those that differentiate speech based on the subject matter or the message conveyed. The analysis determined that the Gilbert sign code was content-based on its face, as it classified signs according to their messages—such as directing the public to churches or political influences—thus relying entirely on the communicative content of the signs. The Court noted that the mere absence of discriminatory intent by the town did not render the law content-neutral. It rejected the court of appeals' rationale that the sign code was neutral because it did not target specific ideas or viewpoints, clarifying that this reasoning confused two different forms of content discrimination: viewpoint discrimination and topic prohibition. The Court concluded that a law deemed content-based on its face is subject to strict scrutiny, irrespective of the government's justifications or lack of animus toward the regulated speech. A speech regulation that targets specific subject matter is considered content-based, regardless of whether it discriminates between viewpoints within that subject. Consequently, such regulations are subject to strict scrutiny, which requires the government to demonstrate that the restriction serves a compelling interest and is narrowly tailored to achieve that interest. The court determined that the town failed to demonstrate that its sign code, which differentiated temporary directional signs from political and ideological signs, was narrowly tailored to further a compelling governmental interest. The court found the town's stated interests in aesthetics and traffic safety to be "hopelessly underinclusive," as the code permitted unlimited, larger ideological signs while imposing strict limits on smaller directional signs. Additionally, directional signs did not pose a greater traffic hazard compared to ideological or political signs. Therefore, the court concluded that the sign code did not meet strict scrutiny standards. Regarding the Texas Highway Beautification Act, the election sign exemption was identified as a content-based regulation of speech, subject to strict scrutiny as established in the Supreme Court case Reed. The exemption allows for signs related to public elections, with specific conditions, thus singling out election-related speech for different treatment. This constitutes a clear content-based regulation, akin to the sign code invalidated in Reed, as it distinguishes between signs based on their communicative content. The argument that the Act and its regulations could be justified as content-neutral time, place, and manner restrictions does not hold after Reed, as the election sign exemption explicitly regulates based on the content of the signs. Thus, the Act and its regulations are not subject to intermediate scrutiny and cannot withstand strict scrutiny. The Act imposes strict limitations on election-related speech, allowing it only during a 90-day period before and a 10-day period after an election, while prohibiting such speech along interstate and primary highways at all other times. The Texas Supreme Court's ruling in Barber deemed the Act's general prohibition on signs as a content-neutral time, place, and manner restriction. However, Barber did not challenge the election sign exemption directly. The Court acknowledged that the Act distinguishes based on subject matter but maintained it was content-neutral. This position is now undermined by the Supreme Court's decision in Reed, which emphasizes that the regulation’s justification is irrelevant to determining if it is content-based. The regulation is deemed content-based if it targets specific speech topics or messages. Consequently, the Act's distinctions based on subject matter render it subject to strict scrutiny rather than the lesser scrutiny for regulations addressing secondary effects. Furthermore, TxDOT's attempt to justify the Act based on secondary effects—such as aesthetics and traffic safety—is invalid because this rationale does not apply to content-based regulations. TxDOT must meet the stringent burden of demonstrating that the election sign exemption is narrowly tailored to serve a compelling governmental interest. However, the interests of aesthetics and traffic safety have been previously dismissed by the Supreme Court as inadequate and not narrowly tailored, indicating TxDOT cannot satisfy this requirement with the current justification. The Court in Reed deemed the town's justification based on aesthetics insufficient, noting that temporary directional signs are not more visually disruptive than political signs, yet the town's code imposed strict limitations on their duration while allowing other signs to proliferate. This inconsistency extends to the election sign exemption, which enforces stringent time constraints on election signs that do not apply to other sign types, thereby discriminating against political speech. The Supreme Court's decision in Citizens United v. Federal Election Commission invalidated a complete ban on corporate political speech during specific pre-election periods, asserting that no compelling government interest could justify such limits. The election sign exemption effectively prohibits election-related speech for three-quarters of the year, permitting display only 90 days before and 10 days after an election. Prior to Reed, courts had already found similar durational restrictions unconstitutional as they were not narrowly tailored to serve compelling governmental interests. The Reed decision further clarified that regulations favoring certain signs over others based on content do not align with governmental interests in aesthetics or safety. AusPro challenges both the election sign exemption in §391.005 and its implementing regulations, arguing they violate the First Amendment by making content-based distinctions and failing to be narrowly tailored. AusPro maintains its right to contest TxDOT's licensing and permitting regulations as an invalid prior restraint, asserting that being prosecuted for noncompliance raises questions about the legitimacy of the licensing scheme. Furthermore, TxDOT does not claim that AusPro forfeited its broader First Amendment challenges, indicating that AusPro's arguments regarding the licensing regulations have been preserved throughout the case. AusPro asserts that the statutes and regulations cited by the Plaintiff infringe upon its free speech rights under the First Amendment and the Texas Constitution, both on their face and as applied. The Texas Department of Transportation (TxDOT) has based its legal arguments on these licensing and permitting regulations. The trial court acknowledged the Act and related TxDOT regulations, ruling them not unconstitutional as applied to AusPro. AusPro requests the appellate court to reverse this ruling, arguing that the Act and regulations improperly regulate signs based on content and do not meet strict scrutiny standards. AusPro notes that the Supreme Court's decision in Reed invalidated the entirety of a sign code for similar reasons and contends that an expansive ruling against the Act and regulations would provide useful guidance for legislative revisions. Additionally, AusPro emphasizes that the Texas Constitution explicitly prohibits restrictions on speech, asserting that the Act violates this principle. It seeks a court judgment declaring the Act and its regulations unconstitutional under both the U.S. and Texas constitutions. The document concludes with a formal request for reversal of the trial court's judgment, supported by the signatures and contact information of AusPro's counsel, and includes a certificate of compliance and service details. Temporary directional signs related to qualifying events are defined as signs directing the public to events sponsored by non-profit organizations, such as religious or community gatherings. These signs are limited to six square feet in size and may be placed on private property or public rights-of-way, with a maximum of four signs per property. They can only be displayed for 12 hours before the event and one hour afterward. The Good News Community Church and its pastor, Clyde Reed, sought to advertise their services using temporary signs but faced citations for exceeding display time limits and failing to include event dates. The Church, which holds services at various locations due to financial constraints, had begun displaying 15 to 20 signs weekly. Following repeated violations and confiscation of a sign, the Church attempted to negotiate with town officials but was met with strict adherence to the Sign Code. Consequently, the Church filed a complaint in the U.S. District Court for Arizona, claiming the Sign Code infringed on their First and Fourteenth Amendment rights, though their request for a preliminary injunction was denied. The Sign Code had undergone amendments since 2007, initially prohibiting religious assembly signs in public rights-of-way and later allowing temporary directional signs under specific conditions. The Ninth Circuit Court of Appeals affirmed that the Sign Code's regulation of temporary directional signs did not constitute content-based speech regulation. The court noted that while an enforcement officer would have to read the sign to apply the Sign Code, this cursory examination did not equate to synthesizing the sign's expressive content. The district court was instructed to assess whether the distinctions among temporary directional, political, and ideological signs represented content-based regulation. Upon remand, the district court ruled in favor of the Town, a decision that was again upheld by the Ninth Circuit, which found that the sign categories were content-neutral. The court reasoned that the distinctions were based on objective factors relevant to the exemption from permit requirements and did not consider the sign's substance. Citing the Supreme Court's decision in Hill v. Colorado, the Ninth Circuit concluded that the Sign Code was content-neutral, affirming that the Town did not regulate speech based on disagreement with the conveyed message and that its interests in regulating temporary signs were unrelated to content. Consequently, the court applied a lower scrutiny level to the Sign Code, finding no violation of the First Amendment. The Supreme Court granted certiorari and subsequently reversed this decision, reiterating that the First Amendment prohibits laws that abridge freedom of speech based on content. Content-based laws targeting speech due to its message are presumptively unconstitutional unless narrowly tailored to serve compelling interests. The court emphasized that a regulation is considered content-based if it distinguishes speech based on the topic or idea expressed, whether overtly or subtly. Such distinctions are subject to strict scrutiny. Laws that are facially content-neutral can still be classified as content-based if they cannot be justified without referencing the content of the speech or if they were enacted due to disagreement with the message being conveyed. Such laws must meet strict scrutiny standards. The Town’s Sign Code is deemed content-based because it categorizes signs based on their messages—specifically, differentiating between Temporary Directional Signs, Political Signs, and Ideological Signs—and subjecting each category to different restrictions. This means the regulations depend entirely on the communicative content of the signs, leading to varied treatment for signs with different messages. The Court of Appeals incorrectly argued the Sign Code was content-neutral, claiming the Town's regulation was not influenced by disagreement with the message and that justifications for regulating signs were unrelated to their content. However, this reasoning overlooks the critical step of assessing whether the law is content-neutral on its face. A law that is content-based must undergo strict scrutiny, regardless of the government's intent or justification. The courts have established that illicit legislative intent is not required for a First Amendment violation, and a content-based purpose can indicate a regulation's nature, though it is not a necessity. A law cannot be deemed content neutral simply based on a benign justification; the evaluation must begin with the law's facial content. Courts have consistently determined the content neutrality of a statute before examining its purpose or justification. For instance, in United States v. Eichman, while the statute lacked explicit content-based limitations, it was evident that the government's interest aimed at suppressing free expression. A facially content-neutral law must be justified without regard to the content of regulated speech. Strict scrutiny applies when a law is content-based or when its purpose is content-related, necessitating a thorough evaluation before categorizing the law as content neutral. Misinterpretations of prior cases, such as Ward, incorrectly suggest that governmental motives matter when a law is clearly content-based. In Ward, the focus was on a content-neutral law, examining if the regulation was justified without reference to speech content. The First Amendment protections are designed to prevent censorship by ensuring that laws do not lend themselves to suppressing certain viewpoints, regardless of legislative intent. Historical cases, such as NAACP v. Button, illustrate the risks associated with content-based statutes, which can be misused to stifle specific speech. The Court rejected the State's argument that its interest in regulating professional conduct aligned the statute with the First Amendment. It emphasized that the intention behind regulations, whether to ensure high standards or not, does not justify curtailing free expression. The potential for discriminatory enforcement of the Sign Code by officials hostile to specific viewpoints was noted. The Court also dismissed the Court of Appeals' reasoning that the Sign Code was content-neutral, clarifying that content-based regulation includes not only discrimination among viewpoints but also any prohibition on public discussion of specific topics. Regulations that target particular subject matters, even without viewpoint discrimination, are considered content-based. The Sign Code’s disparate treatment of ideological messages versus political messages exemplifies this content-based discrimination. The Court reiterated that the First Amendment prohibits such differential treatment, regardless of whether it explicitly favors or censors specific ideas. The Sign Code's distinctions do not categorize signs based on the identity of the speaker, as restrictions on political, ideological, and temporary event signs apply uniformly regardless of the sponsor. For example, a business advertising church meetings faces the same limitations as the church itself. If an individual displays political signs, they can exceed size and duration limits compared to church service signs, indicating that the regulations are not truly speaker based. The notion that speaker-based distinctions are automatically content neutral is incorrect; such laws can reflect content preferences and thus warrant strict scrutiny. The Code's requirement for officials to classify signs based on whether they aim to influence election outcomes or communicate noncommercial messages introduces a content-based inquiry, which is not alleviated by the presence of an event. The Court of Appeals did not provide precedent supporting an exception to the content-neutrality requirement for event-based regulations. A law is considered content-based if it applies to specific speech due to the subject matter or message conveyed. Regulations targeting signs based on the messaging of specific events are equally content based as those targeting other ideas. While the Code may appear rational, enforcing content neutrality is crucial for protecting free speech, even if seemingly reasonable laws can be invalidated for being content based. The Town’s Sign Code faces scrutiny due to its content-based restrictions on speech, necessitating strict scrutiny, which requires the government to prove that the restrictions serve a compelling interest and are narrowly tailored. The Town must demonstrate that its differentiation between temporary directional signs and other sign types (like political and ideological signs) furthers a compelling governmental interest. However, the Town only cites two interests—preserving aesthetic appeal and ensuring traffic safety—both of which are deemed underinclusive. Temporary directional signs are not significantly more of an eyesore than ideological signs, yet the Code allows unlimited larger ideological signs while imposing strict limits on smaller directional ones. Additionally, the Town fails to establish that directional signs pose a greater safety risk than ideological signs. Consequently, the Sign Code does not meet the burden of proof required for narrowly tailoring to compelling interests, leading to its failure under strict scrutiny. The ruling clarifies that governments are not barred from enacting effective sign laws. Only content-based distinctions face strict scrutiny; content-neutral distinctions are subject to lesser scrutiny. The Town has various content-neutral options to address safety and aesthetic concerns, such as regulating sign size, materials, lighting, and placement, or even banning signs on public property if implemented in a content-neutral manner. Lower courts have established that content-based sign laws are subject to strict scrutiny, as evidenced by cases such as Solantic, LLC v. Neptune Beach and Matthews v. Needham, which both found similar sign categories to be content-based. While municipalities may reasonably regulate signs to address issues like space usage, visibility, and safety, certain signs are crucial for guiding traffic and ensuring safety. A sign ordinance focused on public safety—like warning signs or traffic direction—could survive strict scrutiny, but the signs involved in this case, which include political and ideological messages, do not meet this standard as they are not justified by safety concerns and are overly broad. The Court reverses the lower court’s judgment and remands for further proceedings. Justice Alito concurs, emphasizing that content-based laws must meet strict scrutiny due to their potential to undermine democratic processes. He notes that municipalities can still implement reasonable, content-neutral sign regulations, such as those addressing size, location, illumination, and message type, without falling under the strict scrutiny requirement. Regulations differentiating the placement of signs based on property type (commercial vs. residential) and sign type (on-premises vs. off-premises) are permissible, as are restrictions on the total number of signs per mile and time limits for signs advertising one-time events. Such rules do not discriminate based on content and are comparable to restrictions on oral speech or music. Government entities may also post signs for safety, directions, and historical or scenic site identification, adhering to principles of governmental speech as established in *Pleasant Grove City v. Summum*. While municipalities can regulate signs to ensure public safety and aesthetic considerations, content-neutral restrictions must be narrowly tailored to serve legitimate interests, as articulated in *Ward v. Rock Against Racism*. Justice Breyer emphasizes that categories of content discrimination should be viewed as guidelines rather than triggers for strict scrutiny, which should only apply where content discrimination appears to suppress specific viewpoints or disrupt neutral forum management. In contexts where a public forum is opened, the government cannot restrict assembly or speech based on the intended message, and strict scrutiny is warranted in those cases. However, not all instances of content discrimination necessitate strict scrutiny; its application should be context-dependent. Content discrimination can expose flaws in government justifications for speech-restricting rules. For instance, if a city prohibits newsracks on public property to prevent litter but exempts others that cause similar litter, it raises questions about the rationale's consistency. Disfavoring certain types of speech disadvantages those expressions, hindering the free marketplace of ideas and individual expression. However, invoking strict scrutiny based solely on content discrimination is excessive since many governmental actions inherently involve speech regulation and necessitate content discrimination. Examples include regulations in securities, energy conservation labeling, prescription drug labeling, doctor-patient confidentiality, income tax disclosures, and safety briefings. Applying strict scrutiny uniformly could disrupt effective governmental regulation, especially where such regulation is justified. Concerns also arise regarding the Court's application of varying standards, particularly in distinguishing between commercial and noncommercial content-based regulation, often misapplying the appropriate scrutiny level. Lastly, the Court has indicated that "government speech" is not subject to First Amendment constraints. Regulated speech is primarily considered private speech rather than government speech. The Supreme Court has established that if content discrimination stems from the very reasons justifying the prohibition of a speech category, there is minimal risk of idea or viewpoint discrimination. This principle is limited to certain instances where content discrimination can be justified. A potential approach to avoid complications in applying strict scrutiny involves relaxing its robust applicability, but this may undermine First Amendment protections. Content discrimination should generally be viewed as a substantial reason against the constitutionality of regulations in traditional public forums or where viewpoint discrimination is a concern. However, in other contexts, it should be regarded as a guideline rather than a definitive standard. This requires assessing whether a regulation disproportionately harms First Amendment interests in relation to its objectives, considering the severity of the speech harm, the significance of the objectives, the regulation's effectiveness, and the availability of less restrictive alternatives. In the specific case of regulating roadside signage for safety and aesthetic purposes, the absence of a traditional public forum or viewpoint censorship means that strict scrutiny is not warranted. Nonetheless, it is concluded that the Town of Gilbert's signage regulations violate the First Amendment, aligning with Justice Kagan's reasoning. The case highlights how various municipalities have ordinances that regulate signs while allowing exceptions based on subject matter, illustrating the complexities of sign regulation across different jurisdictions. Municipalities can post specific safety signs like “Blind Pedestrian Crossing” and “Hidden Driveway” without a permit, while other signs typically require one. Historic site markers are also exempt from general regulations. The federal Highway Beautification Act restricts signs along interstate highways, allowing exceptions for those directing to “scenic and historical attractions.” Recent court analysis indicates that many local sign ordinances may be at risk due to a ruling that categorizes laws singling out specific subject matter as “facially content based,” triggering strict scrutiny. While some sign laws may survive this review, the likelihood is low, as strict scrutiny requires the government to demonstrate a compelling interest and that the law is narrowly tailored. Courts must assess whether towns have compelling reasons for specific signage exemptions, such as historical markers or safety signs. The implications of this ruling may compel communities to either repeal exemptions allowing helpful signs or eliminate sign restrictions altogether, leading to increased clutter. Justice Alito acknowledges the broad impact of this ruling, arguing that it subjects regulations for signs advertising one-time events to strict scrutiny, despite the majority's claims to the contrary. The court emphasizes the necessity of strict scrutiny to protect First Amendment rights, aiming to maintain an open marketplace of ideas and prevent government bias in regulating speech. Subject-matter exemptions in sign ordinances do not raise concerns about distorting the marketplace of ideas, as they do not suppress viewpoints or suggest improper government motives. Strict scrutiny applies to content-based speech regulations only when there is a realistic possibility of government suppression of ideas, particularly when regulations differentiate based on viewpoint or restrict discussion of entire topics. The majority opinion emphasizes that the Code's targeting of specific messages—such as event time and location—necessitates strict scrutiny. Subject-matter restrictions, even if viewpoint-neutral, can imply favoritism towards certain ideas, potentially skewing public discourse. When such favoritism is realistically possible, the law must pass stringent constitutional tests. However, if the risk of skewed debate is negligible, strict scrutiny may not be necessary, allowing reasonable laws to survive. The doctrine should ensure that the government cannot favor or disfavor viewpoints, but it should also be applied with common sense to allow for laws that do not threaten this fundamental principle. The text argues that the application of strict scrutiny to content-based laws has been more flexible than commonly acknowledged, citing several cases where lower scrutiny standards were applied. In *Members of City Council of Los Angeles v. Taxpayers for Vincent*, the Court upheld a municipal ordinance with exemptions under intermediate scrutiny, finding no bias or censorship in its enactment. Similarly, in *Renton v. Playtime Theatres, Inc.*, intermediate scrutiny was applied to a zoning law aimed at preventing crime and protecting property values, not suppressing unpopular views. In *City of Ladue v. Gilleo*, the Court assumed that a sign ordinance’s exemptions did not require strict scrutiny, although the law was found unconstitutional under any standard due to its breadth. The author criticizes the Town of Gilbert’s justification for its sign ordinance, noting that it fails to meet strict or even intermediate scrutiny due to arbitrary distinctions, such as limiting directional signs while allowing larger signs for other purposes without a rational basis. The author expresses concern that the majority's ruling may lead to widespread invalidation of local ordinances, potentially burdening courts with numerous challenges that could undermine reasonable regulations. Ultimately, the author concurs only in the judgment, opposing the need for a broader constitutional scrutiny that the majority suggests.