                                                                                     ACCEPTED
                                                                                 03-14-00375-CV
                                                                                         7469409
                                                                      THIRD COURT OF APPEALS
                                                                                 AUSTIN, TEXAS
                                                                          10/21/2015 10:21:04 AM
                                                                               JEFFREY D. KYLE
                                                                                          CLERK
                     NO. 03-14-00375-CV
                               
       IN THE THIRD COURT OF APPEALS, AUSTIN, TEXAS
                                                 RECEIVED IN
                                            3rd COURT OF APPEALS
                                                           AUSTIN, TEXAS
                                                       10/21/2015 10:21:04 AM
                                                          JEFFREY D. KYLE
                        AusPro Enterprises, LP,                 Clerk
                                     Appellant,

                                   v.

                 Texas Department of Transportation,
                                     Appellee.


      Amicus Curiae Brief in Support of Appellant by the Marion B.
                  Brechner First Amendment Project


Eugene Volokh*                          Philip Durst
UCLA School of Law                      Deats Durst & Owen, P.L.L.C.
First Amendment                         1204 San Antonio, Suite 203
Amicus Brief Clinic                     Austin, Texas 78701
405 Hilgard Ave.                        pdurst@ddollaw.com
Los Angeles, CA 90095                   (512) 474-6200
volokh@law.ucla.edu                     Counsel for Amicus Curiae
(310) 206-3926




  * Counsel would like to thank Vikram Iyer, a UCLA School of Law
student who worked on this brief.
               IDENTITY OF PARTIES AND COUNSEL

   The Appellant’s Brief correctly identifies the parties and their coun-

sel.

   The amicus curiae on whose behalf this brief is filed is the Marion B.

Brechner First Amendment Project.

   The counsel for this amicus curiae are:


Eugene Volokh                           Philip Durst
UCLA School of Law                      Deats Durst & Owen, P.L.L.C.
First Amendment                         1204 San Antonio, Suite 203
Amicus Brief Clinic                     Austin, Texas 78701
405 Hilgard Ave.                        pdurst@ddollaw.com
Los Angeles, CA 90095                   (512) 474-6200
volokh@law.ucla.edu                     Counsel for Amicus Curiae
(310) 206-3926




                                    i
                              TABLE OF CONTENTS

IDENTITY OF PARTIES AND COUNSEL ........................................... i	

TABLE OF CONTENTS ........................................................................ii	

INDEX OF AUTHORITIES................................................................. iii	

INTEREST OF AMICUS CURIAE ....................................................... 1	

SUMMARY OF THE ARGUMENT ...................................................... 1	

ARGUMENT .......................................................................................... 3	

    I.	   The Sign Code Impermissibly Discriminates Between
          Campaign Signs (Among Other Signs) and Nonprofit
          Service Club, Charitable Association, and Religious
          Organization Signs .................................................................... 3	

    II.	 The Sign Code Impermissibly Distinguishes Between
         Immediately Upcoming and Future Elections ......................... 5	

CONCLUSION ....................................................................................... 7	

CERTIFICATE OF COMPLIANCE ...................................................... 8	

CERTIFICATE OF SERVICE ............................................................... 9	




                                               ii
                               INDEX OF AUTHORITIES



                                                 Cases	

McCullen v. Coakley, 134 S. Ct. 2518 (2014), ............................... 2, 5, 6, 7

Reed v. Town of Gilbert, 135 S. Ct. 2218 (2015). ............................ passim

Survivors Network of Those Abused by Priests, Inc. v. Joyce, 779
  F.3d 785 (8th Cir. 2015)........................................................................... 5

                                               Statutes	

TEX. TRANSP. CODE § 391.005 ................................................................. 2, 3

TEX. TRANSP. CODE § 391.031(a)(1) ............................................................ 3

                                            Regulations	

43 TEX. ADMIN. CODE § 21.143 .................................................................... 3

43 TEX. ADMIN. CODE § 21.146(a)(10) ................................................. 2, 3, 6

43 TEX. ADMIN. CODE § 21.146(a)(6) ........................................................... 4




                                                 iii
                   INTEREST OF AMICUS CURIAE

  The Marion B. Brechner First Amendment Project is a nonprofit,

nonpartisan organization located at the University of Florida in

Gainesville, Florida. Directed by Prof. Clay Calvert, the Project is

dedicated to contemporary issues of freedom of expression, including

current cases and controversies affecting freedom of speech, freedom of

press, freedom of petition, and freedom of thought.

  Amicus’s arguments may assist the Court in deciding this matter. As

an organization dedicated to research into First Amendment rights, and

advocacy in support of such rights—though one with no direct stake in

the outcome of this case—amicus is well-positioned to offer this Court

information about the U.S. Supreme Court’s Free Speech Clause

precedent.

  No fees were paid in connection with the preparation of this brief.

                  SUMMARY OF THE ARGUMENT

  In Reed v. Town of Gilbert, 135 S. Ct. 2218 (2015), the U.S. Supreme

Court held that sign regulations are content-based when they impose

different restrictions based on the information that a sign conveys. The

Texas sign code provisions that impose a time limit for campaign signs,


                                   1
but no such limit for nonprofit service club, charitable association, or re-

ligious organization signs, are therefore content-based.

  Likewise, in McCullen v. Coakley, 134 S. Ct. 2518 (2014), the U.S.

Supreme Court held that a statute is content-based “if it require[s] ‘en-

forcement authorities’ to ‘examine the content of the message that is

conveyed to determine whether’ a violation has occurred.” Id. at 2531

(citations omitted). TEX. TRANSP. CODE § 391.005 and 43 TEX. ADMIN.

CODE § 21.146(a)(10), which allow election signs only for 90 days before

an election, require enforcers to examine the content of a sign to deter-

mine to which election it refers. A sign that reads “Vote for John Smith

for Mayor,” when the mayoral election is 80 days away, is allowed, but

“Vote for Jane Jones for President,” when the presidential election is

120 days away, is forbidden; determining whether the sign is forbidden

thus requires “examin[ing] the content of the message.” This distinction

between signs about immediately upcoming elections and signs about

further-off elections is thus likewise content-based.




                                     2
     Because these provisions of the sign code (among others1) are con-

tent-based, they are subject to strict scrutiny: the state must show that

the content discrimination is narrowly tailored to a compelling govern-

ment interest. Reed, 135 S. Ct. at 2231. The state does not even argue

that these provisions pass strict scrutiny. The content distinctions must

therefore be invalidated.

                                 ARGUMENT

I.        The Sign Code Impermissibly Discriminates Between Campaign
          Signs (Among Other Signs) and Nonprofit Service Club, Charita-
          ble Association, and Religious Organization Signs

     Texas law generally forbids signs within 660 feet of a highway. TEX.

TRANSP. CODE § 391.031(a)(1); 43 TEX. ADMIN. CODE § 21.143. Election-

related signs are exempted from this prohibition, but only when are

erected no more than 90 days before the election date. TEX. TRANSP.

CODE § 391.005; 43 TEX. ADMIN. CODE § 21.146(a)(10). Nonprofit service

club, charitable association, and religious organization signs, on the

other hand, are not subject to a time limit. 43 TEX. ADMIN. CODE §




     1   Amicus is focusing on these provisions, rather than trying to ex-
haustively catalog all the content-based distinctions present in the sign
code.


                                      3
21.146(a)(6). This distinction makes these provisions a content-based

speech restriction.

  In Reed, the U.S. Supreme Court struck down a sign ordinance that

subjected temporary directional signs, political signs, and ideological

signs to different time limits. 135 S. Ct. 2218, 2224-25 (2015). The Court

held that the sign code was content-based because the restriction im-

posed on any given sign depended on whether its message directed the

public to an event, discussed an election, or communicated other ideas:

  If a sign informs its reader of the time and place a book club will
  discuss John Locke’s Two Treatises of Government, that sign will
  be treated differently from a sign expressing the view that one
  should vote for one of Locke’s followers in an upcoming election,
  and both signs will be treated differently from a sign expressing
  an ideological view rooted in Locke’s theory of government. On its
  face, the Sign Code is a content-based regulation of speech.

Id. at 2227.

  Likewise, under Texas law, if a sign informs its reader to vote for

Bob Smith because he is one of Locke’s followers, it will be treated dif-

ferently than if it tells people about “events” or “locations” of a John

Locke Club. The election sign cannot be put up until 90 days before the

election; the club sign can be permanent. That makes the law content-

based under Reed.


                                    4
      Nor does it matter that the State may have lacked a censorious mo-

tive for implementing its sign code. “A law that is content based on its

face is subject to strict scrutiny regardless of the state’s benign motive,

content-neutral justification, or lack of ‘animus toward the ideas con-

tained’ in the regulated speech.” Id. at 2228.

II.     The Sign Code Impermissibly Distinguishes Between Immediately
        Upcoming and Future Elections

      In McCullen, the U.S. Supreme Court held that a statute is content-

based “if it require[s] enforcement authorities to examine the content of

the message that is conveyed to determine whether a violation has oc-

curred.” 134 S. Ct. at 2531. The statute in McCullen prohibited stand-

ing within 35 feet of an abortion clinic. Id. at 2525. The Court held that

the McCullen statute was content-neutral because whether the demon-

strators violated the statute depended not on what they said but only on

where they said it. Id. at 2531; see also Survivors Network of Those

Abused by Priests, Inc. v. Joyce, 779 F.3d 785, 789, 791 (8th Cir. 2015)

(quoting and applying the McCullen test in concluding that a restriction

on disturbing “profane discourse, rude or indecent behavior” outside

churches was content-based, because “[e]nforcement authorities must

decide . . . whether the speaker” is “us[ing] profane or rude expression”).

                                     5
  Here, unlike in McCullen, an enforcer of § 21.146(a)(10) must indeed

examine what the sign says, because the section distinguishes speech

about immediately upcoming elections from speech about other elec-

tions that are further in the future.

  Assume, for example, that a sign stating, “Vote for John Smith” is

erected on April 1, 2016. Under § 21.146(a)(10), enforcement authorities

must consider the content of the sign in determining what election the

sign is referring to, in order to determine when it will be. If the election

is within 90 days, the sign is allowed. But if the election is, for instance,

the November 2016 Presidential election, the sign is forbidden. Unlike

with the statute in McCullen, it is impossible to determine if the sign

violates § 21.146(a)(10) without examining its content.

  This content discrimination has practical effect, because some cam-

paign seasons—such as the presidential campaign season—are longer

than others. As with the sign in this very case, § 21.146(a)(10) will thus

disproportionately affect advocacy of candidates for President. But ul-

timately, regardless of whether this disproportionate effect is consid-

ered, § 21.146(a)(10) cannot be enforced without looking at the content

of each sign, which makes it content-based.


                                        6
                              CONCLUSION

  The Texas sign code impermissibly distinguishes between different

categories of signs by imposing a time limit on campaign signs but not

on charitable signs. It also impermissibly disfavors signs relating to fu-

ture elections by imposing a 90-day window on campaign signs.

  The    sign   code   is   thus,   in       relevant   part,   facially   content-

discriminatory, and anyone enforcing it must examine a sign’s content

to determine if that sign violates the act. Under Reed and McCullen,

then, the code is content-based. The content distinctions identified

above must be judged under strict scrutiny, and the state does not even

argue that those distinctions would pass this rigorous standard. Amicus

therefore request that this Court find in favor of the appellant.


                                                Respectfully submitted,

                                                /s/ Philip Durst
Eugene Volokh                                   Philip Durst
UCLA School of Law                              Deats Durst & Owen, P.L.L.C.
First Amendment                                 1204 San Antonio, Suite 203
Amicus Brief Clinic                             Austin, Texas 78701
405 Hilgard Ave.                                pdurst@ddollaw.com
Los Angeles, CA 90095                           (512) 474-6200
volokh@law.ucla.edu                             Counsel for Amicus Curiae
(310) 206-3926



                                         7
                  CERTIFICATE OF COMPLIANCE

  I certify that this brief complies with the type-volume limitation of

Texas Rule of Appellate Procedure 9.4(i)(2) because it contains 1,279

words, excluding the parts of the brief exempted by Texas Rule of

Appellate Procedure 9.4(i)(1).

                                        /s/ Philip Durst
                                        Philip Durst




                                  8
                      CERTIFICATE OF SERVICE

  As required by Texas Rule of Appellate Procedure 6.3 and 9.5(b), (d),

and (e), I certify that, on October 21, 2015, I have served this document

on all counsel listed below, via the Court’s electronic-filing system:


Meredith B. Parenti                       Ken Paxton
Parenti Law PLLC                          Scott A. Keller
7500 San Felipe, Suite 600                Charles E. Roy
Houston, TX 77063                         Douglas D. Geyser
meredith@parentilaw.com                   Matthew Bohuslav
                                          Office of the Attorney General
Counsel for Appellant                     P.O. Box 12548 (MC 059)
                                          Austin, TX 78711-2548
                                          douglas.geyser@
                                            texasattorneygeneral.gov

                                          Counsel for Appellee


                                          /s/ Philip Durst
                                          Philip Durst




                                     9
