International Outdoor, Inc. v. City of Troy, Mich., 77 F.4th 432

Background

International Outdoor sought permits to erect two large, two-sided billboards in Troy (each side 14x48 ft, 70 ft high); City denied permits and variances because the signs violated the Ordinance’s size, height, and setback rules.
Troy’s sign Ordinance required permits except for certain listed exceptions (including flags and various “temporary signs” such as real‑estate, garage‑sale, political signs); it also contained a variance process and substantive size/height/setback limits for ground signs.
International Outdoor sued under 42 U.S.C. § 1983, alleging (1) the variance procedure was an unconstitutional prior restraint and (2) the permit exceptions were content‑based restrictions violating the First Amendment.
On prior appeal the Sixth Circuit affirmed dismissal of the prior‑restraint claim but reversed dismissal of the content‑based‑restriction claim and remanded to apply strict scrutiny; the City amended the Ordinance in 2018 and retained a severability clause.
On remand the district court found the permit exceptions failed strict scrutiny but were severable, leaving the Ordinance’s valid, content‑neutral height/size/setback rules in force; International Outdoor’s proposed billboards still violated those rules, so its remaining claim and fee request were dismissed.
The Sixth Circuit affirmed: the challenged exceptions are severable under Michigan law; International Outdoor forfeited new arguments raised only in reconsideration; no prevailing‑party relief was warranted.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the permit exceptions were content‑based and survived strict scrutiny	Exceptions (temporary signs, flags, etc.) are content‑based and thus unconstitutional	Ordinance regulates commercial speech or is content‑neutral; survives intermediate scrutiny / or can be cured	District court: exceptions do not survive strict scrutiny; Sixth Circuit recognized content‑based nature and affirmed severance outcome
Whether the content‑based exceptions are severable from the remainder of the Ordinance	Exceptions are integral and cannot be severed without defeating the ordinance	Ordinance contains a severability clause; exceptions are discrete and removable without making the ordinance inoperable	Court: exceptions are severable under Michigan law; severability clause and discrete structure control
Whether severing exceptions would leave a permit requirement that is an unconstitutional prior restraint and entitle plaintiff to damages for paid fees	Severance would produce a permit‑for‑all scheme that is a prior restraint; plaintiff paid fees so can recover damages	Plaintiff did not timely raise that argument below; failure to preserve forfeits claim; severance need not create unconstitutional scheme	Court: argument forfeited (raised first on reconsideration); plaintiff not entitled to damages; dismissal affirmed
Whether plaintiff is entitled to attorney’s fees under § 1988	International Outdoor claimed prevailing‑party status	No court‑ordered relief remained; not a prevailing party	Court: denial of attorney’s fees affirmed because plaintiff obtained no court‑ordered relief

Key Cases Cited

Reed v. Town of Gilbert, 576 U.S. 155 (2015) (content‑based sign restrictions trigger strict scrutiny)
City of Austin v. Reagan Nat’l Advert. of Austin, LLC, 142 S. Ct. 1464 (2022) (on/off‑premises distinction facially content‑neutral; does not negate other content‑based precedents)
City of Lakewood v. Plain Dealer Publ’g Co., 486 U.S. 750 (1988) (severability questions for local ordinances often governed by state law)
In re Request for Advisory Opinion Regarding Const. of 2011 PA 38, 806 N.W.2d 683 (Mich. 2011) (Michigan rule: delete invalid language if remainder is complete and operative)
Blank v. Dep’t of Corr., 611 N.W.2d 530 (Mich. 2000) (severability requires inquiry into legislative intent and entanglement)
GEFT Outdoor, LLC v. Monroe County, 62 F.4th 321 (7th Cir. 2023) (upholding severance of permitting scheme where alternative enforcement remained)
Barr v. Am. Assoc. of Pol. Consultants, Inc., 140 S. Ct. 2335 (2020) (courts should avoid using a discrete constitutional flaw to invalidate an otherwise constitutional statute)
Central Hudson Gas & Elec. Corp. v. Pub. Serv. Comm’n, 447 U.S. 557 (1980) (commercial‑speech intermediate‑scrutiny framework)
Int’l Outdoor, Inc. v. City of Troy, 974 F.3d 690 (6th Cir. 2020) (prior Sixth Circuit decision: affirmed prior‑restraint dismissal, reversed dismissal of content‑based claim)
Scottsdale Ins. Co. v. Flowers, 513 F.3d 546 (6th Cir. 2008) (arguments first raised on reconsideration are untimely and forfeited)
Davis v. Colerain Twp., 51 F.4th 164 (6th Cir. 2022) (standing principles in First Amendment challenges)