99 F.4th 840
6th Cir.2024Background
- The Village of St. Bernard regulates signs and billboards, including a ban on variable-message (digital) signs for outdoor advertising.
- Norton Outdoor Advertising operated multiple billboards in the Village and received a permit to convert certain faces to digital displays, but the Village revoked the permit, citing the ban on variable-message signs.
- The Village’s code defines and regulates signs with some exemptions, including a "public service signs" exemption that treats some content more favorably.
- Norton sued, alleging the ordinances are unconstitutional under the First Amendment, arguing both facial and as-applied challenges.
- The district court granted summary judgment to the Village, finding the ordinance content-neutral, but the Sixth Circuit reversed after analyzing the impact of a recent Supreme Court case (City of Austin).
- The appeals court found a content-based exemption requiring strict scrutiny, which the ordinance failed, and remanded for further proceedings on severability of the invalid provision.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the Village's sign ordinance is content-based | Ordinance has content-based exemptions, requiring strict scrutiny | Ordinance is content-neutral; on-/off-premises distinction only | Ordinance is content-based due to the public service exemption |
| Level of scrutiny applicable to ordinance | Strict scrutiny under Reed; exemption favors certain speech | Intermediate scrutiny under Austin; ordinance is location-based | Strict scrutiny applies |
| Whether the ordinance is narrowly tailored | Exemptions undermine stated goals; not narrowly tailored | Exemptions do not render it insufficient; serves safety/aesthetics | Fails strict scrutiny; not narrowly tailored |
| Should the invalid provision be severed? | Ordinance framework is inherently content-based and inseverable | Severable; remaining portions can stand under Austin | Remanded for district court to address severability |
Key Cases Cited
- Reed v. Town of Gilbert, 576 U.S. 155 (2015) (content-based sign ordinance must satisfy strict scrutiny)
- City of Austin v. Reagan National Advertising of Austin, LLC, 596 U.S. 61 (2022) (on/off-premises sign distinction generally content-neutral)
- City of Cincinnati v. Discovery Network, Inc., 507 U.S. 410 (1993) (exceptions undermining stated goals defeat narrow tailoring)
- Pleasant Grove City v. Summum, 555 U.S. 460 (2009) (government speech not subject to First Amendment constraints)
- Arizona Free Enter. Club's Freedom Club PAC v. Bennett, 564 U.S. 721 (2011) (law must be narrowly tailored to a compelling interest to withstand strict scrutiny)