485 F.Supp.3d 947
S.D. Ohio2020Background
- Kenjoh Outdoor built a two-sided billboard adjacent to I-75 in Sidney, Ohio, within 500 feet of an interchange; only one face was visible from I-75.
- Kenjoh alleges it relied on an ODOT field representative’s statement that no permit was required if the off-premise face was not visible from I-75, and placed off-premise advertising on the non‑I‑75 face.
- ODOT later determined the billboard violated the 500‑foot interchange setback (Ohio Admin. Code §5501:2-2-02(A)(3)(a)(ii)) and, relying on §5501:2-2-05(D), placed all of Kenjoh’s permit applications on hold until the illegal device was remedied; Kenjoh removed off‑premise advertising.
- Kenjoh sued under 42 U.S.C. § 1983 seeking a facial and as‑applied First Amendment challenge (prior restraint/content‑based rule and lack of time limits/narrow tailoring) and damages against ODOT officials.
- Defendants moved to dismiss; the court held the administrative hold rule regulates commercial speech (not a prior restraint requiring Freedman time limits), survives intermediate scrutiny, and no constitutional violation was pleaded; dismissal granted and case terminated.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Ohio Admin. Code §5501:2-2-05(D) is an unconstitutional prior restraint (facial & as‑applied) | The rule conditions permit processing on remedying alleged violations and allows indefinite holds without procedural limits, amounting to a prior restraint on speech. | The rule regulates only commercial advertising, not noncommercial speech; prior-restraint doctrine (and Freedman time limits) does not apply to commercial-speech permit schemes. | Court: Not a prior restraint for commercial speech; Freedman time limits not required; rule examined under at most intermediate scrutiny and upheld. |
| Whether the on‑premise/off‑premise distinction makes the rule content‑based and subject to strict scrutiny | The distinction requires reading sign content/function to determine applicability, so it is content‑based. | On/off‑site distinction regulates commercial speech and is content‑neutral or at least subject to Central Hudson intermediate scrutiny; Reed does not govern commercial‑speech sign rules. | Court: Reed does not displace long-standing treatment of commercial sign distinctions; intermediate scrutiny applies and is satisfied. |
| Whether withholding permit processing while an applicant maintains an illegal device unlawfully suppresses speech | Withholding permits prevents Kenjoh from speaking until it remedies alleged illegality. | The hold furthers substantial interests (safety, aesthetics, enforcement) and leaves open alternative channels; it's proportionate to the interest. | Court: Rule leaves open ample channels and is narrowly tailored to Ohio’s substantial interests; application to Kenjoh lawful. |
| Whether Defendant Fling is liable in his individual capacity or entitled to qualified immunity | Fling's enforcement damaged Kenjoh; official liability is proper under §1983. | No constitutional violation was committed; alternatively, any claim was not clearly established in 2018, so qualified immunity applies. | Court: No constitutional violation pleaded; Fling entitled to qualified immunity (right was not clearly established in 2018). |
Key Cases Cited
- Freedman v. Maryland, 380 U.S. 51 (1965) (time limits on administrative prior restraints are required for noncommercial speech)
- Reed v. Town of Gilbert, 576 U.S. 155 (2015) (content‑based restrictions warrant strict scrutiny)
- Metromedia, Inc. v. City of San Diego, 453 U.S. 490 (1981) (on‑site/off‑site commercial sign distinctions can be upheld to serve safety/aesthetic interests)
- Central Hudson Gas & Elec. v. Pub. Serv. Comm'n, 447 U.S. 557 (1980) (intermediate scrutiny test for commercial speech)
- Harlow v. Fitzgerald, 457 U.S. 800 (1982) (qualified immunity standard for government officials)
- Malley v. Briggs, 475 U.S. 335 (1986) (qualified immunity protects all but plainly incompetent or those who knowingly violate the law)
- Wheeler v. Comm’r of Hwys., 822 F.2d 586 (6th Cir.) (1987) (Sixth Circuit upheld on/off‑premise distinction prior to Reed)
- Thomas v. Bright, 937 F.3d 721 (6th Cir. 2019) (Sixth Circuit later found certain sign regulation unconstitutional where noncommercial speech was implicated)
- McGlone v. Bell, 681 F.3d 718 (6th Cir. 2012) (definition and discussion of prior restraint doctrine)
- Deja Vu of Nashville, Inc. v. Metro. Gov't of Nashville & Davidson Cty., 274 F.3d 377 (6th Cir. 2001) (prior‑restraint presumption against validity)