19-1399
6th Cir.Sep 4, 2020Background
- International Outdoor sought permits to erect two off-premises digital billboards in Troy, MI (14x48 sides, 70 ft tall) that exceeded the city’s size, height, and setback limits.
- Troy denied permits and a variance; International Outdoor appealed administratively then filed a § 1983 suit alleging (Count I) the variance scheme was an unconstitutional prior restraint and (Count II) the sign ordinance was content-based.
- During litigation the City adopted an amended sign ordinance that tightened variance standards, barred the plaintiff’s proposed signs, and (City says) contains a severability clause; plaintiff conceded injunctive/declaratory claims were mooted by the amendment but sought damages for past denials.
- The district court dismissed Count II (applied Central Hudson) and granted summary judgment for the City on Count I (finding mootness/severability), and denied plaintiff’s attorney’s‑fee request.
- The Sixth Circuit affirmed summary judgment on Count I (prior restraint) because the amendment and severability mooted relief, but vacated the dismissal of Count II and remanded for application of Reed; it also vacated and remanded the fee denial pending the Reed-based reconsideration.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| 1) Prior restraint — whether the variance scheme vested unbridled discretion | Variance criteria were vague ("public interest," "hardship," etc.), giving Board unfettered discretion and an unconstitutional prior restraint | The City amended the ordinance and the variance provision is severable; amendment moots injunctive relief and severability defeats damages | Pre‑amendment variance scheme was an unconstitutional prior restraint, but the City’s amendment and the ordinance’s severability rendered injunctive/declaratory and damages claims moot; summary judgment for City affirmed |
| 2) Content‑based restrictions — whether ordinance exempting certain sign categories is content‑based and subject to strict scrutiny | Ordinance exempts flags, temporary signs, political/noncommercial signs etc., so the City must inspect content; strict scrutiny required under Reed | The regulated speech is commercial; apply Central Hudson intermediate scrutiny | Reed applies because the ordinance treats speech differently by content; dismissal of Count II vacated and remanded for Reed analysis |
| 3) Standing / redressability (Midwest Media argument) | Plaintiff can show redressability because the variance procedure could relax otherwise prohibitive size/height rules, so it may obtain relief | Plaintiff lacks standing: even if off‑premises ban struck, size/height rules (severable) would still bar billboards (Midwest Media) | Midwest Media is distinguishable; plaintiff has standing to challenge content‑based provisions because the variance provision could afford redress |
| 4) Attorney’s fees under 42 U.S.C. § 1988 | Plaintiff asks fees as a prevailing party because City amended the ordinance following litigation | No court‑ordered relief was obtained; voluntary amendment does not make plaintiff a prevailing party | District court did not abuse discretion in denying fees now; but because Count II dismissal is vacated, the fees ruling is vacated and remanded for reconsideration after further proceedings |
Key Cases Cited
- Reed v. Town of Gilbert, 576 U.S. 155 (2015) (content‑based regulations of speech are presumptively unconstitutional and subject to strict scrutiny)
- Central Hudson Gas & Electric Corp. v. Public Service Comm’n, 447 U.S. 557 (1980) (intermediate scrutiny test for commercial speech)
- Midwest Media Prop. LLC v. Symmes Twp., 503 F.3d 456 (6th Cir. 2007) (redressability/standing where severable size/height rules precluded relief)
- Forsyth Cty. v. Nationalist Movement, 505 U.S. 123 (1992) (prior restraints require narrow, objective, definite standards)
- City of Lakewood v. Plain Dealer Pub. Co., 486 U.S. 750 (1988) (facial challenge where licensing scheme permits discretionary censorship)
- Deja Vu of Nashville, Inc. v. Metro. Gov’t of Nashville, 274 F.3d 377 (6th Cir. 2001) (prompt decision and preservation of status quo required in licensing schemes under Freedman)
- Thomas v. Bright, 937 F.3d 721 (6th Cir. 2019) (applies Reed to on‑premises exception; content‑based treatment invalid under strict scrutiny)
- American Ass’n of Political Consultants, Inc. v. FCC (Barr), 140 S. Ct. 2335 (2020) (content‑based exception struck; strict scrutiny required and severability considered)
- Buckhannon Bd. & Care Home, Inc. v. W. Va. Dep’t of Health & Human Res., 532 U.S. 598 (2001) (voluntary change by defendant without judicial imprimatur does not make plaintiff a prevailing party)