United States Court of Appeals for the Fifth Circuit United States Court of Appeals Fifth Circuit

FILED March 30, 2023 No. 19-50354 Lyle W. Cayce Clerk

Reagan National Advertising of Austin, Incorporated,

Plaintiff—Appellant,

Lamar Advantage Outdoor Company, L.P., doing business as The Lamar Companies,

Intervenor Plaintiff—Appellant,

versus

City of Austin,

Defendant—Appellee.

Appeal from the United States District Court for the Western District of Texas USDC No. 1:17-CV-673

ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES

Before Elrod, Southwick, and Haynes, Circuit Judges. Leslie H. Southwick, Circuit Judge: Case: 19-50354 Document: 00516694971 Page: 2 Date Filed: 03/30/2023

No. 19-50354

Two outdoor-advertising companies filed applications with the City of Austin to digitize existing, traditional billboards and to upgrade signs with less sophisticated digitization. The City rejected their applications because the signs would advertise a business, service, or activity that was not located on the site where the sign was installed. The companies sued, arguing that the City’s Sign Code’s distinction between on-premises and off-premises signs violated the First Amendment. The district court upheld the Sign Code. When the case first came to this court, we reversed, holding that the on-premises/off-premises distinction was content based and could not survive strict scrutiny. The U.S. Supreme Court, though, held that the City’s Sign Code was facially content neutral and, absent an impermissible purpose, would be subject to intermediate scrutiny. The Court remanded. We conclude, applying the Supreme Court’s new guidance, that the Sign Code survives intermediate scrutiny. We AFFIRM. FACTUAL AND PROCEDURAL BACKGROUND Austin, Texas, regulates outdoor signs in Chapter 25-10 of its City Code (the “Sign Code”).1 The Sign Code defined “off-premise 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). The Sign Code generally prohibited the construction of new off-premises signs, § 25–10–102(1), but allowed existing off-premises signs to remain as “non-conforming signs,” § 25-10-3(10). Non-conforming, off-premises

1 We consider the City’s 2016 Sign Code, which was in effect during the period relevant to this dispute. In August 2017, the City amended its Sign Code. The amendments, though, do not affect this appeal. City of Austin v. Reagan Nat’l Advert. of Austin, LLC, 142 S. Ct. 1464, 1470 n.1 (2022).

2 Case: 19-50354 Document: 00516694971 Page: 3 Date Filed: 03/30/2023

No. 19-50354

signs, though, could not change the “method or technology used to convey [their] message.” §§ 25-10-152(A)–(B). The Sign Code permitted on- premises signs to be “electronically controlled