187 F. Supp. 3d 1002
S.D. Ind.2016Background
- GEFT Outdoor LLC challenged Indianapolis Chapter 734 (the Sign Ordinance) as facially and as-applied violations of the First Amendment, arguing the ordinance favored commercial over noncommercial speech and contained content-based restrictions after Reed v. Town of Gilbert.
- GEFT operated three signs (East, West, South); East and West are off-premises advertising signs displaying noncommercial messages and GEFT sought variances to add digital components (denied by BZA). The South sign is an oversized on-premises sign governed by an existing variance.
- The City amended the ordinance after litigation (the Amended Sign Ordinance): it removed the noncommercial-opinion exemption, created a unitary “yard sign” exemption, and added that noncommercial messages may be displayed on any sign authorized for commercial messages; digital components remain banned on off-premises signs.
- GEFT sought a preliminary injunction; parties asked the court to consolidate ruling on injunction into final partial judgment as to First Amendment liability.
- The district court held the original Sign Ordinance unconstitutional in its entirety, leaving GEFT’s damages claims alive, but ruled the Amended Sign Ordinance constitutional under intermediate scrutiny as applied to commercial speech; declaratory/injunctive claims against the original ordinance were rendered moot.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the original Sign Ordinance was content-based under Reed and thus unconstitutional | The noncommercial-opinion exemption and content-defined exemptions made the ordinance content-based and subject to strict scrutiny | The City relied on aesthetics and safety interests and prior practice of different exemptions | Held: The original ordinance was facially content-based under Reed and failed strict scrutiny; entire ordinance invalidated |
| Whether repeal/amendment mooted GEFT's claims under the original ordinance | GEFT argued it retained rights under Indiana §36-7-4-1109 (applications filed before amendment) and thus claims not moot | City argued amendment eliminated live controversy; original statute replaced | Held: Declaratory/injunctive claims moot; money-damages claims for past harm survive (§1109 cannot resurrect an unconstitutional ordinance) |
| Whether Reed’s content-based holding extends to commercial on-/off-premises distinctions (i.e., whether Amended Ordinance triggers strict scrutiny) | GEFT argued the on-/off-premises distinction still draws content-based lines and Reed requires strict scrutiny | City argued Reed concerned noncommercial speech; commercial-speech precedent (Central Hudson/Metromedia) controls, requiring intermediate scrutiny | Held: Reed did not abrogate Central Hudson/Metromedia; on-/off-premises commercial distinctions are evaluated under intermediate scrutiny |
| Whether the Amended Ordinance’s on-/off-premises rules and digital ban survive Central Hudson | GEFT argued the distinctions and digital ban are underinclusive and not shown to directly advance safety/aesthetics | City argued billboards/off-premises signs are typically larger and sited on high-speed roadways, so restrictions directly advance safety and aesthetics | Held: The Amended Ordinance survives intermediate scrutiny (substantial interest; directly advances objectives; narrowly tailored); facially valid and binding on GEFT |
Key Cases Cited
- Reed v. Town of Gilbert, 576 U.S. 155 (2015) (facial content-based sign regulations trigger strict scrutiny)
- Central Hudson Gas & Elec. Corp. v. Pub. Serv. Comm’n, 447 U.S. 557 (1980) (intermediate-scrutiny test for commercial speech regulation)
- Metromedia, Inc. v. City of San Diego, 453 U.S. 490 (1981) (upholding on-site/off-site commercial sign distinction as advancing aesthetics and safety)
- City of Erie v. Pap’s A.M., 529 U.S. 277 (2000) (mootness and limits on advisory opinions principles)
- Agostini v. Felton, 521 U.S. 203 (1997) (lower courts must follow controlling Supreme Court precedent even if it conflicts with other lines)
- Montgomery v. Louisiana, 136 S. Ct. 718 (2016) (an unconstitutional law is void)
- Lavey v. City of Two Rivers, 171 F.3d 1110 (7th Cir. 1999) (Seventh Circuit upholding on-/off-premises distinctions under intermediate scrutiny)