Kenjoh Outdoor, LLC v. Jack Marchbanks, 23 F.4th 686

Ohio requires ODOT permits to place an "advertising device" on interstate or primary highways and has a compliance rule refusing to process permit applications if the applicant has outstanding fees, modified a device without approval, or is "maintaining an illegal device."
Before the legislative amendment, "advertising device" was defined by content as any outdoor sign "designed, intended, or used to advertise."
Kenjoh erected a two-sided billboard in 2017 after an ODOT employee said no permit was needed; ODOT later determined the sign violated a 500-foot interchange restriction and ordered its removal, then put Kenjoh’s other permit applications on hold under the compliance rule.
Kenjoh removed the billboard after losing revenue and sued: sought a permanent injunction (challenging the compliance rule as an unconstitutional prior restraint) and damages under 42 U.S.C. § 1983 against an ODOT supervisor (Fling).
While the appeal was pending, Ohio amended the statutory definition of "advertising device" to center on whether the sign is owned/operated by someone who "earns compensation for the placement of a message," changing the regulation’s speaker-focused scope.
The Sixth Circuit vacated and remanded the injunction claim for the district court to reconsider under the amended definition, but affirmed qualified immunity for Fling on the damages claim (because the law was not clearly established at the time of his actions).

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the legislative amendment moots Kenjoh's injunctive challenge	Amendment does not moot because the compliance rule still burdens Kenjoh’s paid-billboard business	Amendment changes statute and could remove the controversy	Not moot — amendment left the same core burden; controversy remains
Whether the court should decide constitutionality on appeal or remand to district court	Appellate resolution is proper	Remand so the district court can evaluate the statute as amended	Remand — district court should address effects of new definition in the first instance
Whether the compliance rule is an unconstitutional prior restraint on (commercial) speech	Compliance rule is a prior restraint violating the First Amendment	Rule regulates commercial speech; prior restraint doctrine does not apply; intermediate scrutiny controls	Not decided on the merits on appeal; lower court’s injunction ruling vacated and remanded for reconsideration under amended statute
Whether Fling is entitled to qualified immunity for placing permits on hold	Fling violated a clearly established First Amendment right	Law was not clearly established that prior restraint applies to commercial speech; qualified immunity applies	Affirmed — qualified immunity granted because precedent did not clearly establish prior-restraint protection for commercial speech

Discount Tobacco City & Lottery, Inc. v. United States, 674 F.3d 509 (6th Cir. 2012) (prior-restraint doctrine does not apply to the commercial-speech at issue).
Central Hudson Gas & Elec. Corp. v. Public Servs. Comm’n, 477 U.S. 557 (1980) (commercial-speech framework and observation that traditional prior-restraint doctrine may not apply to commercial speech).
Ashcroft v. al-Kidd, 563 U.S. 731 (2011) (qualified-immunity requires law be clearly established; lack of on-point precedent supports immunity).
District of Columbia v. Wesby, 138 S. Ct. 577 (2018) (qualified-immunity analysis looks to law as it existed at the time of the challenged conduct).
Green Party of Tenn. v. Hargett, 700 F.3d 816 (6th Cir. 2012) (legislative amendment during appeal can moot a case if it removes the relevant harm).
Cam I, Inc. v. Louisville/Jefferson Cnty. Metro Gov’t, 460 F.3d 717 (6th Cir. 2006) (case-or-controversy analysis when laws change).
Bench Billboard Co. v. City of Cincinnati, 675 F.3d 974 (6th Cir. 2012) (courts apply the law as it exists at the time of decision).
Ashcroft v. Iqbal, 556 U.S. 662 (2009) (pleading standard for plausible claims).