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Constitutional Law No. 01-0414, 7/3/2003. Click here for the full text of this decision FACTS: This case involves the constitutionality of the Texas Highway Beautification Act. The court decides whether the act, which precludes Pat Barber from displaying a particular billboard on his nonresidential property, violates Barber’s free-speech rights under the U.S. Constitution or the Texas Constitution. The billboard stated, “Just say NO to Searches,” and displayed a telephone number. The court of appeals held that the act violated Barber’s rights under the U.S. Constitution as applied to his expression of noncommercial, ideological speech. HOLDING: Reversed and rendered. The court notes that no one argues that Barber’s speech is anything other than noncommercial speech, even though those calling the telephone number on his sign would learn that Barber was an attorney. Accordingly, the court assumes that only noncommercial speech is at issue here. Barber denominates it as “political ideological speech,” but the court need not for purposes of this analysis differentiate between categories of noncommercial speech. In addition, the court rejects Barber’s contention that because “political ideological speech” is at issue, the Texas act automatically is subject to strict scrutiny. Regulations involving noncommercial speech – which includes political and ideological speech – can be subject to intermediate scrutiny if they are content neutral. In determining whether the Texas act is content neutral, the court recognizes (and the parties concede) that the act does not endorse any particular viewpoint. The act, however, does make certain distinctions based on subject matter. For example, the act exempts from regulation directional signs, signs pertaining to natural wonders or scenic or historic attractions, signs for the sale of property on which they are located, signs designed to protect life and property, and signs providing information about the location of utility lines. The act also exempts temporary signs relating to public elections and signs relating to activities conducted on the property where the signs are located. The court disagrees with Barber’s argument and the court of appeals’ conclusion that the act is content based. The act defines “outdoor advertising” broadly. It includes commercial and noncommercial speech, encompassing “advertising or information.” Further, the act permits both types of speech in noncommercial and non-industrial areas as long as that speech relates to activities on the property. It also permits both types of speech in commercial and industrial areas, regardless of whether that speech relates to activities on the property. The dissent succumbs to Barber’s argument by asserting that the act “permits on-site commercial speech and somenoncommercial speech,” as if the act allows all onsite commercial speech and more limited noncommercial speech. But that is incorrect. The act allows all onsite commercial speech and all onsite noncommercial speech. The act’s exemptions for temporary election signs on any property (industrial and non-industrial) and for signs, other than temporary election signs, in noncommercial and non-industrial areas that relate to activities on the premises do not render the act content based. Without deciding the merits of that test, the court applies the traditional test developed from U.S. Supreme Court precedent for determining whether a regulation is content based. And under that test, the Texas Act is content-neutral. The court decides whether the act is narrowly tailored to serve a substantial state interest. The act is primarily concerned with promoting aesthetics and travel safety by regulating the placement of billboards and signs. The parties do not dispute that the act serves a substantial state interest. But regardless, aesthetics and public safety on the highway are recognized as substantial governmental goals. The Texas Highway Beautification Act, as applied to Barber’s billboard, does not impermissibly infringe upon Barber’s free speech rights under the U.S. Constitution. The act is content-neutral and constitutes a valid time, place, and manner restriction. Nor has Barber shown that the Texas Constitution provides him greater protection than the federal constitution. OPINION: Enoch, J.; Phillips, O’Neill, Jefferson, Schneider and Wainwright, JJ., join. DISSENT: Owen, J.; Hecht and Smith, JJ., join. “I respectfully dissent. I cannot readily distinguish the statute at issue in this case from the city ordinance at issue in City of Ladue v. Gilleo. The reasoning in that and other decisions of the United States Supreme Court that have dealt with restrictions on signage lead me to conclude that the Texas Highway Beautification Act is infirm.”

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