Midwest Media Property, L.L.C v. Symmes Township

Judges; GREER, District Judge.* SUTTON, J., delivered the opinion of court, in which GREER, D.J., joined. CLAY, J. (pp. 466-81), delivered a separate dissenting opinion.

OPINION SUTTON, Circuit Judge.

The district court granted summary judgment to Symmes Township plain on tiffs’ claims that the township’s sign regu (and lations violated the Fourteenth) First Amendment because plaintiffs lack stand . ing to challenge them We affirm.

I. Media, Midwest a company that erects and operates advertising signs, applied nine times for zoning permits to allow it to display billboards in Symmes Township, located in greater Cincinnati metropol- area, itan behalf of its clients. on. Midwest * Greer, The Honorable J. Ronnie nessee, United States sitting by designation. District Judge for the Eastern District of Ten- sought permission first Media Midwest applications nine filed one Media 672-square-foot, 40-foot-high, post on to and another Properties of CTI behalf inspector zoning sign. double-sided Speckert. behalf Zoning Rural County the Hamilton Township, the Symmes post To Symmes with contracts Commission, which township’s comply with must applicant matters, de- zoning oversee Township to Midwest time At regulations. pro- noting application, nied regula- applications, these filed Media township’s violated posed advertising “off-premise prohibited tions 322.1-3, prohibition its § limit, id. see message.” commercial carrying sign[s] id. advertising, off-premises Ohio, County, Hamilton Twp., Symmes 323.1(2). 314.14; § XXXI, § art. Zoning Resolution “[o]ff-premise (defining § 312.40 id. see application second Media’s Midwest di- sign which “[a] as [advertising sign” sin- 672-square-foot, display to a sought commodity, business, a to attention rects The high. 40 feet sign that stood gle-face service or non-commercial or commercial application, the denied zoning inspector conducted, not which entertainment or billboard[s] “Commercial reasoning that where premises the upon offered or sold JA twp,” Symmes permitted are affixed”); id. located sign such township’s the exceeded application the ad- premise 323.1(2) “[o]ff (prohibiting § limits, Zon- see square-footage and height several imposed They also vertising”). 2(3)—(4), XXXI, § art. ing Resolution 321.2— See, e.g., id. restrictions. size and height off-prem- on the prohibition it violated and sign (“No freestanding pole 321.2-1(3) § 323.1(2). § advertising, see id. ises the from ... feet hundred three located permission sought application The third ... forty-five exceed ... shall way right of single-face 672-square-foot, display to six sign within ... and no height feet zoning and high, 40 feet standing sign right of ... feet fifty hundred for the certificate inspector denied ... feet twenty exceed ... shall way one. second he did the (“No reasons 321.2-2(4) same free- ....”); § id. height than more shall contain sign standing pole permis- sought application The fourth (120) feet of square twenty hundred one double-sided, 672-square- post to sion sides).”). (maximum per side sign area high. Once feet sign, foot cer- regula- township, inspector'denied zoning According again, possi- township’s to “minimize designed it violated are tions tificate location, size, or character and its limits square-footage bility and height affecting adversely advertising. hazards create will off-premises ban 311.4, “provide § to safety,” id. public sought permission application fifth The related to directly which regulations double-sided, 672- another display the functional therefore use and land high. measuring feet square-foot varying signs for need economic and certificate, inspector denying 311.8, § locations,” id. sizes, and types township regulations cited sections environment,” id. aesthetic more “create prohibit- and limits height and setting size size, for “provide 311.10, § id. See advertising. off-premises adver- off-premise spacing lighting 323.1(2). 2(3)—(4), §§ 321.2— customary use according to tising applica- eighth sixth, seventh The areas retail rules special provide erect permission requested tions Dis- by Residence are surrounded foot double-sided, 672-square “monopole,” § tricts,” 311.12. id. billboard measuring 40 feet high. whether the size and height zoning-plans examiner denied the certifi- provisions were “severable and enforceable cates, citing regulation prohibiting off- even if other provisions not,” id., [were] premises advertising signs, id. plaintiffs whether the were “enti- § 323.1(2), (in affidavit) noted later tled to damages even though their applica- that she could have denied the requests on tions would have subject been to denial the basis of size limits. even in the complete absence of the con- application ninth sought to display a tested portions of the Sign Rules,” id. at 40-foot-tall, three-sided sign measuring 7-8. After additional briefing on these 672 square feet on two of the sides and 288 points, the grаnted the township’s on the third. The township rejected the supplemental motion for summary judg- application, citing the ban on off-premises ment ground plaintiffs lack id., advertising, see and Midwest Media’s standing to bring their claims. failure variance, to seek a and noting later (in an affidavit from the zoning-plans ex- II. aminer) that the proposed sign violated the This appeal township’s raises two size and height “ease[ ]” requirements. “controvers[y]” issues under Article III: After the denial of the ninth application, Is the dispute moot in view of the town- Media, Midwest CTI Properties and Spec- ship’s passage of the amendment to the kert filed this against lawsuit Symmes sign-ordinance And, law? if even the case Township, challenging the validity of the moot, is not haye do plaintiffs off-premises ban, advertising though not bring this challenge? height size and restrictions, and the validity of the process permitting because “procedural lacked safeguards.” Compl. A. ¶¶ 49-50, 54. The plaintiffs sought an in- While standing restricts a party’s junction, damages attorney fees. capacity bring a lawsuit at the time the Soon plaintiffs after filed lawsuit, this complaint filed, mootness par restricts a Symmes Township amended regula- ty’s capacity to bring a lawsuit throughout tions to clarify them, some of to remove the course of the litigation. United States others and to leave still others intact. Of Parole Comm’n v. Geraghty, 445 U.S. particular interest to this lawsuit, 396-97, 100 S.Ct. 63 L.Ed.2d 479 township in place left its size and height (1980). Mootness occurs “when the issues requirements. Seе Zoning Resolution art. presented are longer no ‘live’ or par XXXI, § 313.3-5. ties legally lack a cognizable interest Symmes Township filed a motion for outcome.” v. McCormack, Powell summary judgment, which the district 486, 496, 89 S.Ct. 23 L.Ed.2d 491 court initially denied because parties “the (1969). Even when an presents action had given inadequate (1) attention” to live or case controversy at the time of whether the court could “require the filing, subsequent developments-includ

Township to permit the erection of signs in ing the passage of a new or an law amend clear violation” the size and height re- ment original law may moot the quirements, which appeared to be “consti- case. Beals, Hall 45, 48, tutionally permissible regulations,” simply S.Ct. 24 L.Ed.2d 214 “because [zoning] officials] failed cite those regulations in denying” some of the cases, most the repeal or applications, D. Ct. Order at 2006 WL amendment of a law moots challenges to regulations. height size township’s case, But, plain in this law. original noting application (denying JA 92 from arising See damages money sought tiffs limit); JA height exceeded nine that their approve township’s failure general citing application (denying this existence applications. height lim containing size plaintiffs’ provision preserves damages claim (same); (same); JA JA 110 its); challenge the JA 88 backward-looking right stating zoning inspector (affidavit from live case preserve law and original denied” been “could have application Blau dispute. that controversy over “exceeded, the Dist., proposed Pub. Sch. Thomas Fort maxi Cir.2005). and “exceeded height limitation” 381, 387 JA 160 footage” permissible); square mum B. stat examiner (affidavit zoning-plans from haye “could applications three mini ing that “irreducible meet To they “exceeded because” denied constitutional been requirements mum” the max limitations” “exceeded height demonstrate must standing, plaintiffs JA permissible); footage” injury square imum they “have suffered examiner fact&emdash;an zoning-plans (affidavit protected legally invasion have been “could (a) application particu stating concrete interest limi imminent, height it exceeded (b) ... actual denied because larized, and the maximum Lujan De and “exceeded hypothetical,” tations” conjectural or plain Yet permissible). footage” Wildlife, 504 U.S. square fenders (inter size and challenge the not to L.Ed.2d tiffs chose omitted), complaint&emdash; in their requirements and citations marks quotation nal difficulty the of such “between of the exists in view (2) link perhaps a causal that of,” Media, Inc. v. complained Prime here. See challenge the conduct injury 814, Brentwood, 818-21 fairly be F.3d ... can 398 “injury id.-i.e., City the that of e Cir.2005) sign de challenge (6th (rejecting of the action challenged th traced Rights requirements); height Ky. E. size fendant,” v. ordinance’s Simon Welfare 1917, L.A. City 48 Council 41, 96 Members S.Ct. also 426 U.S. Org., Vincent, “like 466 U.S. it is (1976), and that Taxpayers 450 v. L.Ed.2d for that 80 L.Ed.2d to'merely speculative, opposed ly, as post on ban city’s a favorable by challenge redressed (rejecting be injury will 561, 112 S.Ct. property). public decision,” Lujan, ' omitted). marks (internal quotation size challenge not to Having chosen indispensable “an requirement Each having filed regulations height “must case” plaintiffs part in the sign post applications nine any other same.way as in the supported regulations, these that township violated bears plaintiff which the matter success tenably that show cannot plaintiffs proof.” Id. burden sign regulations other challenging caused injury any will redress ordinance plaintiffs’ key with problem in the even For regulations. by these if redressability. Even one claim if, con regulations-even of these absence township’s show could plaintiffs plaintiffs’ sought relief with (or sistent advertising ban off-premises original them invalidated our court complaint, violated process) sign-approval its injury plaintiffs’ redress not that would Me Amendment, Midwest each of First the sizé because permis sought sign applications nine dia’s ap- township preclude would still violated plainly signs that post sion to proving sign their applications and provisions thus of the Sign Regulation that still preclude plaintiffs would from erecting could have served as the basis for denying each signs. of these the December 2004 Application.”); Harp Ill., Adver. Inc. v. Vill. Chi. Ridge, In reaching conclusion, this we follow a (7th F.3d Cir.1993) path (denying by marked several decisions from standing to company that circuits, challenged city’s other most of which not only pre- zoning sign codes, but not sented the its same size redrеssability problem provision, because the company but also arose from “could not disputes sign over put up its even if it ordinances—and indeed achieved total disputes over victory in litigation” [the] given ordinances litigated its same law firm. proposed sign Media, was “six Advantage large times as L.L.C. as Prairie, Chicago Ridge (8th allows”); Eden 456 F.3d see also Cir.2006), Clark v. City Lakewood, Eighth Circuit F.3d identified a similar Cir.2001) (reasoning flaw. “[A] plaintiff favorable decision for did not Advantage,” challenge “an reasoned, the court additional barrier” “even with his respect to those adult-entertainment code license provisions application, “the which were district factors in could denial of its redress his permit applications alleged injury would not lawsuit”); this allow it to Deeper build proposed its signs, Christian Fellowship Sobol, these would Life still (2d violate other Cir.1991) 83-84 unchallenged provisions (holding that of the sign code like church lacked standing restrictions on to challenge permit size, height, location, procedure and setback.” as granting Id. at “unbridled discre 801; (“[F]or see id. at 802 tion” even in victory officials because the pro statute [plaintiff] would be ‘no closer’ to hibited all erecting religious organizations from re its billboards or obtaining damages permits; ceiving than thus “even if [the church] litigation when began.”). To the were to change same ef- its [to tenets with comply Outdoor, fect KHis C. permit L.L. Clay Coun- requirements]' the statute ty, (11th Cir.2007). 482 F.3d 1299 would Plaintiff still not allow appellant permit so “hаs not satisfied long the redressability re- remained a religious organiza quirement,” tion”); the court “Any held: injury Renne v. Geary, 501 cf. [plaintiff] actually 319, suffered ‍​​​‌‌​​‌‌‌​‌​‌‌​​​​‌​​‌‌​‌​​‌​​‌​​‌‌​​​‌‌‌‌‌‌‌​​‍from 2331, the bill- 115 L.Ed.2d 288 board and sign prohibition offsite a (finding dispute nonjusticiable not where an redressible because the applications other failed unchallenged statute “might be con to meet the requirements of strued” to prohibit other statutes the same conduct as and regulations not the challenged.” challenged Id. at statute); 13 Charles Alan 1303. Wright, Arthur R. Miller & Edward H. Cooper, Federal and Practice Procedure The Fourth Circuit reached a similar § 3531.5. conclusion in a similar setting: “Because application Covenant’s violated We the need not spacing decide plaintiffs whether requirement, it could not have could resolve ap been standing this defect by alleg- proved regardless of whether they other that sub wish post to signs that would stantive provisions of Sign the Regulation satisfy the township’s size and height re- are held to be unconstitutional.” Cove strictions. Nothing in their complaint of- nant C, Media S. L.L.C. v. City N. fers any that they indication any have such Charleston, 421, (4th 493 F.3d 430 plans Cir. if the nine past applications —and 2007); (Plaintiff see id. (none “does not have of which satisfied the size height standing to challenge other restrictions) substantive are precedent, there is no rea-

463 of ‘in- requirement the “satisfies plaintiff any such file they will that think to son ”). is no thus jury-in-fact’ There future. in the application from injury imminent alleging basis n case and this between similarities fоr con- no basis they offer regulations, em- Media, F.3d deserve Prime to they permission will seek cluding display to Media wanted Prime phasis. with comply would sign that post city’s ordi- billboard violated signs that the ordinance. portions unchallenged on off- prohibition its nance, including over- of the invocation' Plaintiffs’ its advertising size premises this solve not does doctrine breadth at After 346. Id. height restrictions. relaxes Yes, the doctrine problem. height limitations the size holding that may party “that requirement traditional manner time, place valid constituted rights.” own of its only violation assert Media, City Inc. restrictions, Prime see Inc., Ass’n, Booksellers Am. Virginia Cir. Brentwood, F.3d 636, 98 the district the case 2005), we remanded also Broadrick (1988); see L.Ed.2d Prime Media had to decide whether court Oklahoma, entire billboard challenge the standing to (1973) (“Litigants L.Ed.2d 830 court ordinance, 825. id. at district challenge a statute permitted ... are the' and dismissed not did concluded ex- of free rights their own not because Media, City Inc. v. lawsuit, Prime aof violated, but because pression 3:02-1034, WL Brentwood, No. assumption that prediction judicial 2005), (M.D.Tenn. July 3754055, at *3 cause others existence very statute’s Prime Media affirmed, holding that con- from and we refrain court not before mount an standing to expres- speech lacked stitutionally protected constitutional ordinance, see our sion.”). year, this But, earlier attack overbreadth does overbreadth Be- litigants Media, 353-54. F.3d reminded Prime an “allege failure party’s were height not restrictions excuse size and cause the being rule specific arising injury time, and manner place valid entirely sepa- an than rather challenged, signs violated Prime Media’s and because appear happens rule that rate necessarily company provisions, these municipal code.” section same injury. See redressable suffer a did Brentwood, Media, Inc. v. Prime produce (“If attempted to it had at-352 id. (6th Cir.2007); id. 343, 351 with complied a billboard'which creates (“Because overbreadth at 350 was threatened requirements, size prudential only exception under oth- regulation rejection or with made has Court inquiry, there provisions, ordinance challenged er requirement injury fact that the clear injury cognizable abe arguably would claims under to overbreadth applies still plans some had articulated Eyen if it fact. Amendment.”) add- (emphasis the First a sign, to erect such developed it had that Booksellers; 484 U.S. Am. ed); also doing so be- from discouraged was but (“To a cause bring 392, 636 at one lose based to it was destined cause requires in federal action of provisions substantive the ordinance’s of mini- an irreducible at establish plaintiffs of an have claim might Media ... Prime fact....”); Sec’y injury mum of However injury. imminent, threatened Co., 467 U.S. H. Munson Joseph v.Md. of such no evidence bears record 786 2839, L.Ed.2d 81 958, result, Prime Media aAs development. issue[ ]” “crucial (1984) (noting that a by affected subject to not been has whether standing overbreadth provisions other ordinanсe challenged in rest statute, of the including the allegedly claims.”). its remaining unconstitutional parts of it. result, As a they say, they should be permitted to pur- Media, As it was in Prime so it is here: sue their against claims parts other of All plaintiffs of the signs sought to erect law. “Severability of a local ordinance is a Symmes violated Township’s size and question of state law....” City Lake- height requirements, and they have not of wood v. Co., Plain Dealer Publ’g provided any us with facts showing that they intend to L.Ed.2d display that comply (1988). Ohio has with established a provisions. three-part these Having suffered no to inquiry determine cognizable injury, they whether severability lack standing to “(1) is appropriate: mount an Are attack constitutional township’s sign and the regulations-whether parts unconstitutional capable under the over- separation so breadth that each may doctrine or any under other doc read (2) by stand Media, trine. See Advantage itself? Is the 456 F.3d unconstitu- at (“Under tional part so no circumstances ... connected with general does the scope of overbreadth doctrine relieve a whole plaintiff make it impossible give its burden to effect show apparent constitutional stand intention of ing.”); the Legislature Legal Fund, CAMP if the Inc. part clause or Def. Atlanta, stricken out? F.3d Is the insertion of words (“The Cir.2006) overbreadth terms necessary doctrine in order separate does plaintiff relieve part burden constitutional the unconstitu- prove constitutional tional standing, part, give re effect to the former quires plaintiff only?” himself has suf State Hochhausler, 76 Ohio fered some threatened or St.3d actual injury N.E.2d 466-67 (internal resulting from putatively illegal quotation ac omitted). marks tion.”) (internal quotation marks' omitted); The valid size and height restrictions on Gospel Missions Am. L.A., v. City the one hand and the purportedly uncon (9th Cir.2003) 328 F.3d (noting stitutional off-premises ban and procedur that overbreadth standing requires “inju al provisions on the satisfy other Ohio’s ry-in-fact”); Flarp Adver., 9 1292 severability requirements. All of pro (“[The overbreadth doctrine] not im does visions comfortably own; stand on their ply, however, requirement even without the challenged provisions, elided.”).. to sue has been Plain the height and size restrictions further that, tiffs do no by better contending they goals several of the sign regulations- have brought a challenge. facial See Cove most especially goal “public safety” Media, nant (“Al 493 F.3d at 429-30 and “aesthetic[s].” Zoning Resolution art. though there is broad given latitude facial XXXI, §§ 311.4, 311.10. And no words or challenges in the First Amendment con terms need be added separate the chal text, plaintiff must establish that he has lenged portions from those not challenged standing to challenge each provision of an or to give meaning to the size and height ordinance showing that he injured was provisions. See, e.g., Norwood v. Horney, by application (inter provisions.”) those 110 Ohio St.3d 853 N.E.2d nal marks, citations and quotation omitted). (2006); 1150-51 State ex. rel. Maurer v. that, Plaintiffs next argue Sheward, even if Ohio St.3d 644 N.E.2d the height sizе and are consti (1994); 377-78 Bd. Lucas County of tutional and even if they would defeat their Comm’rs v. Waterville Twp. Trs., Bd. of claims, they cannot be severed from the 171 Ohio App.3d 354, 870 N.E.2d filed on Media that Midwest application and size the (2007). Because 801-03 a setting forth Properties’ from CTI severable behalf — are requirements height Neither Properties. CTI claim for unique provisions unconstitutional allegedly the alleged, has Properties nor CTI plaintiffs Speckert prohibited they because and for apply instance, plans it damages that for their relief obtaining Symmes Town- comply with court that would claims, district the injunction and with Mid- height limits. As in con- ship’s size and provisions on those relied properly fail claims, theirs too standing to Media’s lacked west plaintiffs that cluding standing. of want this lawsuit. bring circuits, analy- extensive response have In brief of our sister Several colleague, dissenting we circum by our like sis offered conclusion like reached Media, observations. following F.3d at the Covenant make See stances. Elev- Seventh, Ninth and Eighth, restriction Fourth, size and (severing height virtually identi- “[bjecause applica rejected have Covenant’s Circuits

holding that enth it from the requirement, arising of spacing them the claims—most violated cal tion ordinances, concerning regardless approved sign been have of types not could same provisions relying challenges and types other substantive the of whether same be uncon The dis- held to problem. standing Sign Regulation same on the thereforе, could not Covenant, court ana- “the district that concern stitutional. sent’s regu- sign constitutionality constitution of the any substantive lyzed have suffered of the of that provisions to other the resolution injury due and used al lations un been may have standing,” that Dissent Regulation deny Sign issue Media, Instead, constitutional.”); Advantage case. by this presented not properly court other (“The district what these simply did at 801 F.3d court district sign code of the reasoned provisions It have done: considered circuits its overbreadth making attacks, say, four out five severable who plaintiff to be determination.”); Tanner Adver. ordinance provisions substantive injury F.3d because Fayette County, L.L.C. a redressible Group, does not raise banc) (“[T]he Cir.2006) (en of the portions against injunction “[a]n that the has chal- conclusion it opinion’s zoning codes panel Tanner litigant who proposed allows erect not let it doctrine lenged would overbreadth § A-l a statute sim- under- block only injured village could was sign; § A another, valid, all of or even ordinance § A-2 challenge enforcing also ply ”). Adver., 9 Harp incorrect.... the books.” already of a statute plaintiffs The concern at 1292. the dis- that- Plaintiffs, contend lastly, restric- height the size challenge did Spec- the claims “ignore[d]” trict court ar- mentioned complaint tions erroneously Properties and CTI kert does not township’s code XXXI of ticle Midwest Media’s in with” “lump[ed] them counts substantive The' change matters. us no they give But at 22. Br. claims. the size did not mention complaint the various the claims treat reason restrictions, the counts height Speckert- only as distinct. companies pleadings as the well complaint provide plaintiffs that the evidence —as specific district before submissions and other manag- company’s from the affidavit is an that, clear this, court—make never who member, Speckert, Robert other several challenged plaintiffs while regulations, height the size mentions size challenge the they did provisions, constitutionality. their questions let alone restrictions. nothing offer plaintiffs And —save III. regulations impermissible contain content- based restrictions on speech. reasons, For The these district we affirm. case, dismissed this finding that CLAY, Circuit Judge, dissenting. Plaintiffs lack standing, granted and sum- mary majority The argues judgment in favor Plaintiffs-Mid Township. Property, west Media (“Midwest”), L.L.C. The Township Sign Regulations CTI Properties, (“CTI”), L.L.C. Spec In case, this the principal issue concerns kert, (“Speckert”), L.L.C. lack standing to the sign regulations enacted the Town- action, bring this § under U.S.C. ship. The Township justifies its restrictive against Symmes Defendant Township .measures on grounds “public safety (“Defendant” or “Township”), a municipali welfare, advancement of aesthetic in ty Ohio. This result rests on the errone characteristics, promotion business ous conclusion that Plaintiffs “chose[ ] not property (Def. preservation.” value Br. at challenge the size and height regula 6) The sign contested regulations provide tions” imposed by Maj. Defendant. Op. at numerous restrictions on the size type 461. Because complaint Plaintiffs’ express of signs appear in various loca- ly challenges Township’s sign regulations tions throughout the Township. In perti- in their entirety, this jurisdiction court has nent part, sign regulations prohibit to reach merits of this I case. would commercial advertising off the premises of reverse the district court’s decision and being business advertised. They remand this case to re- the district court for quire signs all to be further set proceedings. back ten feet from pavement and rights-of-way, and five feet BACKGROUND from adjoining property, they provide Plaintiffs allege that the Township disparate vio- standards for different catego- lated their First and as, Fourteenth Amend- signs, ries of signs such identifying non- rights ment by enforcing unconstitutional profit organizations, construction signs, signs. July 30, Between real signs, estate traffic signs control and August 2004, Midwest filed political signs. applications nine for commercial advertise- With respect to “Commercial signage,” ment signs CTI, behalf Speckert, and the regulations provide additional instruc- other property owners the Township. tion. The regulations permit only one The sign applications were denied because “free standing pole sign” per parcel of land off-premises advertising signs carrying located within 650 feet of a federal inter- commercial messages expressly state highway. must be at least banned under the Township’s sign regula- ten feet any from right way, and twenty tions. The Township does not any allow feet adjacent from property. Finally, the exceptions from prohibition. this regulations provide limits of the height and plain terms regulations clearly size of commercial signs: distinguish different types of speech—in- 3. No freestanding pole sign located cluding political, commercial, and noncom- (300) three hundred mercial feet from speech the right set forth different re- —and of way of a strictions federal interstate regulations highway distinct based on shall type (45) speech forty-five exceed that is feet in being communi- cated and the from message being grade finished disseminated. level and no case, this Plaintiffs challenged within the con- six hundred fifty feet stitutionality of the sign regulations; spe- right way of a federal inter- cifically, Plaintiffs contend that state highway shall exceed twenty be sign shall still message, each Speech grade finished the in feet regulations im- the subject dimensional to level. including, -but zoning district in each posed con- sign shall pole freestanding 4. No size, area and set- height, to limited not twenty hundred one than more tain if it were manner in same the back side per area sign square feet (J.A. message.” a commercial displaying sides). (maximum 2 144) also retain regulations The amended 132) (J.A. com- off-premises all ban on express regulations sign the amended Defendant advertisements. mercial regula- In the amended 2005.1 May on of erect- the business is ... “Midwest com- it was stated that tions, Defendant signs that advertising operating to receive right “public’s the mitted to churches, businesses, or- by utilized are First by the messages protected display” ... to commu- and individuals ganizations, however, to reason- “subject, Amendment and noncommercial nicate commercial mini- safety and assure to regulations able 8) (J.A. Speckert CTI and messages.” 142) (J.A. The blight.” mize visual business a] companies “operate! certain eliminated regulations amended in land within” interests property own[] and clarified political signs to “seek[ ] companies Township. Both the advertising excluded off-premises and com- view noncommercial display and per- now signs. noncommercial Defendant the - within messages on mercial signs and political display mits the to freedom the “seek[] Township,” Messages” Protected “First Amendment signs on [their] own or others’ certifícate, post [their] to subject zoning a without (J.A. Township.” the located property requirements. setback area, height, and agreements 9) lease They “signed have 143-44) (J.A. signs,” but operate to authorizing Midwest ap- “special a created also Defendant the signs in posting “refrained from have 16) (Def. Br. Under process.” peals effect chilling Township due Defendant regulations, amended 4) (Plaintiffs’ Br. at Sign Regulations.” with making determination with charged sign applica- nine fif- within submitted application Midwest zoning ato respect on behalf tions, be including applications decision days. Defendant’s teen Each Township. Zoning Appeals Speckert, the Board CTI appeаled forty-foot “Board”) days. sought twenty (the applications within these hearing sign within on commercial “freestanding pole to set a required tall Board is provide square must feet days, and forty with twenty property,” applications parties. interested of these all Each notice to side. space per written for Township a final decision either make rejected must Board were If hearing. prohibition after the days comply with failing within fourteen procedural proposing meet fails to for signage,” Board premises “off regulations, highway,” forth interstate set requirements “not next billboard granted. is deemed zoning application limits on with comply failing for construct- signs which could number of did regulations amended Notably, exceeding parcel, or particular on a ed free- concerning change restrictions Additionally, restrictions. area height Under poles. standing signs denying that, in argues now Township “[wjhether regulations, amended a few only initially gave application, each Free or a message a commercial displays regulations. amended Defendant complaint after amend the did not 1. Plaintiffs justifications several valid denial un- quate attention .... first [t]he such is- der sign regulations. Specifically, the sue is the effect of the fact that Township argues that each proposed sign proposed signs were in clear violation of violates the restrictions on height and area provisions of the Sign Rules not cited by they that violate the against rule off- the Zoning Inspector in denying or re- premises advertising. fusing Plaintiffs’ applications but also History Procedural not challenged on grounds constitutional by Plaintiffs. Can the Court require the After the denial of the applications, nine Township permit the erection signs Plaintiffs filed a complaint against in clear violation of apparently Township constitu- September 3, 2004, alleging tionally permissible that regulations regulations are unconstitu- because its official tional. failed to cite regulations Plaintiffs those contend that the sign in denying restrictions are content-based application? Are the con- regulations define prohibit stitutionally permissible signs solely provisions sev- by the content or message to displayed erable and enforceable even pro- if other and impermissibly favor commercial are over visions not? Are Plaintiffs entitled noncommercial speech. Additionally, to damages they though even their applica- allege regulations that the procedural lack tions would have been subject to denial safeguards grant unfettered discretion even in the complete absence of the to the Board. Finally, Plaintiffs maintain portions contested Sign Rules? that Defendant’s regulations unduly bur- Resolution of those issues in favor of den fundamental methods of communica- Defendant may eliminate the necessity tion and violate equal protection. of the Court’s resolving certain constitu- tional issues in this case.

Significantly, Plaintiffs’ complaint alleg- es that entirety of Township’s sign Midwest Media Prop., Symmes L.L.C. v. regulations' including the height and area — Ohio, Twp., No. 04-CV-604, 2006 WL restrictions —are unconstitutional: (S.D.Ohio at *3 18, 2006) (un- Jan. herein, As used “Sign Regulations” re- published case). fers specifically to Article XXXI of the After further briefing,

Symmes the district Township Zoning Resolution granted and, summary judgment collectively to in favor those sections of the Defendant on May Resolution finding define [sic] otherwise regulate signs.... the Township denied or refused each of (J.A. 13) Plaintiffs’ applications because it con- On June Defendant filed templated both taller larger motion for summary judgment, which the than permitted by the Sign Regulations. district court denied because parties Plaintiffs do not deny that each of the failed to adequately brief certain issues. contemplated signs exceeded the Sign pertinent part, the district court stated: Regulations’ height restrictions, and size perceives Court a number of issues and the evidence of record plainly dem- parties

to which the have given inade- onstrates that per- were not 2. Each of the ("THE thirteen counts in complaint SIGN REGULATIONSUNCONSTITU- alleging that the Township ordinances are TIONALLY FAVOR COMMERCIAL OVER constitutionally deficient use "Sign the words SPEECH”). NONCOMMERCIAL Regulations” to specific describe regula- and area contained Article being (J.A. tions challenged. ‍​​​‌‌​​‌‌‌​‌​‌‌​​​​‌​​‌‌​‌​​‌​​‌​​‌‌​​​‌‌‌‌‌‌‌​​‍17) e.g., See (J.A. XXXI regulations. 132) fact and material any as to issue ine provisions those under mitted judg to a entitled moving party Regulations. of law.” Fed.R.Civ.P. а matter ment Sym C. v. L.L. Property, Media Midwest Inc., Lobby, 56(c); Liberty Anderson 04-CV-604, WL Ohio, No. Tp., mes 2006) 477 U.S. May (S.D.Ohio *3 2347489, at ,“A (1986). is ‘material’ fact 202 L.Ed.2d case). express Despite (unpublished summary judg grant of precludes dis complaint, of Plaintiffs’ language [the] would fact have of that proof Plaintiffs do ment if “that found trict court of refuting one constitutionality establishing or of of effect challenge of action or per se” a cause of restrictions elements size essential height and routinely per by parties, asserted that defense “[s]uch promote blight ap of visual necessarily application to reduce affect mitted would (citations omit *4 at safety.” rights Id. law to traffic of principle propriate size height and ted). that court noted The Kendall parties.” of and obligations in the invalidated been (6th have “restrictions Co., 174 Cir F.2d 751 Hoover aesth safety and that of evidence omitted). absence (citations .1984) adop for their the motivation etics were summary judgment seeking party Sign Regulations “the that tion,” found but demonstrating of initial burden bears the of statements explicit include in this case of issue material a genuine of the absence safe public identifying intent purpose Catrett, U.S. 477 Corp. v. fact. Celotex specifically, Id. More aesthetics.” ty and 265 L.Ed.2d 91 317, 333, 106 S.Ct. of as a matter court “concluded the district carry their burden (1986). If Defendants actual an cannot prove Plaintiffs law that of absence there showing that of injury-in-fact,” threatened claim, 325, 106 id. support evidence an оver- assert standing to “lack Plaintiffs forward must come Plaintiffs S.Ct. Regulations Sign challenge to breadth is a that there showing facts “specific with at *6. Id. third-parties.” of on behalf Bank trial,” Nat’l First for issue genuine timely appeal of notice filed Plaintiffs Co., 391 U.S. Serv. Ariz. v. Cities 6, 2006. June 569 20 L.Ed.2d 270, 88 S.Ct.

DISCUSSION ERRED COURT DISTRICT II. THE Review

I. Standard JUDG- SUMMARY IN GRANTING for lack a claim dismissal THE TOWN- OF IN FAVOR MENT Me Prime de novo. is reviewed SHIP Brentwood, F.3d dia, City Inc. v. Cir.2007); Ca (6th also Am. Standing A. & Ass’n, Louisa Water Inc. noe. Generally Standing 1. Constitutional (6th Comm’n, F.3d Sewer matter, argue Plaintiffs As a Cir.2004). threshold decided improperly district court that the a district Moreover, reviews this Court be claim the constitutional the merits de summary judgment denial court’s standing. issue of addressing the fore McClellan, Dickerson novo. Env’t, 523 Better v. Citizens Steel Co. Cir.1996). Summary 1151, L.Ed.2d 83, 118 S.Ct. de pleadings, “if the proper judgment courts held that (1998), Court interrogatories, answers positions, as a questions jurisdictional decide must the affi file, with together admissions Id. at matter. threshold genu- no there is davits, any, if show requirement 1003. “The jurisdiction lenged action of defendant, and not ... be established as a threshold matter th[e] result the independent [of] action of ” spring[s] from the nature and limits of the some party third not before the court.’ judicial power of the United States and is (internal Id. quotation marks and citation (in inflexible and exception.” without Id. omitted) “Third, it likely, must be op- ternal quotation marks and citations omit posed merely speculative, inju- that the ted). A should not analyze or re ry will be redressed a favorable deci- solve substantive issues before addressing (internal sion.” Id. quotation marks and the issue of standing. turning “Before omitted). citation Each element of stand- merits, [a court] must address the ing will be discussed below. plaintiffs’ standing to raise several consti Plaintiffs can demonstrate an injury in tutional claims and must do [] so even fact that satisfies the first element of the though some of those constitutional claims standing inquiry. Notably, the district are easier to resolve than standing the court’s opinion question only addressed attached them.” Midwest’s Old Riv 1064 Road, er claims Cleveland, Inc. v. did not City make a deter- 137 and. of 760, (6th Cir.2005) (citation Fed.Appx. 764 mination with respect to CTI’s and Spec- omitted) (unpublished opinion). A district kert’s standing claims. Since CTI’s and court may not avoid the standing issue Speckert’s and claims separate are and inde- proceed to a determination on the merits pendent from claims, Midwest’s the dis- because “standing way in no depends on trict court erred in failing to address those the merits of plaintiffs contention that claims. particular conduct illegal.” is McConnell The record shows that Midwest submit v. Comm’n, Fed. Election 93, 227, 540 U.S. sign ted applications to the Township spe 124 619, S.Ct. 157 L.Ed.2d 491 cifically on behalf of CTI Speckert. and Seldin, (quoting Warth v. 490, 422 U.S. Defendant denied applications. 500, 2197, 95 (1975)). S.Ct. 45 L.Ed.2d 343 denial of applications precluded CTI case, the instant since the district court Speckert from disseminating commer analyzed the constitutionality of the sign speech cial and messages, may have regulations and used the resolution of that had a chilling effect on protectеd speech. issue deny standing, the court’s decision See Bd. Com’rs, County Wabaunsee of procedurally improper. County, Umbehr, Kan. v. 518 U.S. case, In this the district court erred in S.Ct. 135 L.Ed.2d 843 finding that Plaintiffs lack standing to (recognizing that chilling is a “con effect bring this action. To make a determina- stitutional violation[ ] [that] arise from tion respect with standing, this Court deterrent, or chilling, effect of govern must determine whether Plaintiffs “have mental [efforts] that fall short of a direct suffered an injury in fact—-an invasion of a prohibition against the exercise of First legally (a) protected interest which is con- rights.”) Amendment (quoting Laird v. Ta (b) crete and particularized, and actual or tum, imminent, conjectural not or hypothetical.” (1972)). L.Ed.2d 154 Since the Lujan Township Wildlife, 504 U.S. Defenders of used the regulations deny 119 L.Ed.2d (1992) (internal applications, CTI Speckert quotation can demon marks and omitted). citation strate a “Second, direct injury and have standing there must be a causal challenge connection between injury regulations. See, e.g., Epi complained conduct injury Steubenville, of—the center has City Inc. v. Steu of to be ‘fairly ... benville, trace[able] to chal- (S.D.Ohio F.Supp. 849-50 the size and challenge failed complaint inability to obtain 1996) (holding that in the Town- set forth injury restrictions height constitutes zoning permit municipal contention This regulations. Sons ship’s sign & V. Jacobs fact); also Health, flagrant Pub. wrong and demonstrates County Dep’t simply Saginaw (E.D.Mich.2003); Hori and ex- language plain, for F.Supp.2d disregard Industry, Outdoor, City L.L.C. v. in Plaintiffs’ press allegations contained zon (C.D.Cal.2002). 1113, 1125 F.Supp.2d case, complaint ex- In this complaint. Sign Township’s. “the challenges pressly in have an does Midwest Although to Ar- specifically and “refers Regulations” by CTI injury alleged as direct jury Township Zon- Symmes XXXI of clearly shows ticle the record Speckert, collectively to those and, have it would Resolution income lost Midwest [or] define been had the Resolution applications if the sections received quali including provi- loss signs, economic regulate Midwest’s otherwise approved. (Definitions), standing purposes. injury Articles III an fies as located sions Louis Firefighters St. XIX (Board Zoning Appeals), Ass’n Int’l XVIII Cf. 969, 974 (Viola- Ferguson, Certificates), and XXVIII (Zoning Cir.2002) indirect economic (noting 13) Penalties).” (J.A. Town- tions fact); injury may constitute injury ship’s size F.3d Best, Krieger, 189 Best & Biggs v. XXXI, ex- and Plaintiffs in found Article Cir.1999) (same); (9th Horstkoet 989, 998 of its and all this article challenge pressly F.3d Safety, 159 Pub. Dep’t v. ter Moreover, of complaint. in the provisions (same). Cir.1998) the (10th Since that all alleges repeatedly complaint the directly curtailed' applications of the denial sign Township’s of aspects the reduced speech Speckert’s CTI’s insepara- constitutionally invalid “are income, have suffered Plaintiffs Midwest’s regulations,” the of the remainder ble in injury fact. requisite (J.A. regulation 25), “no valid and that element satisfy 23) the second (J.A. also Plaintiffs signs,” requested prohibited [the] is a because there standing inquiry of the assertions, majority’s the Contrary to in alleged their between connection causal piece challenge a discrete do not Plaintiffs See Township’s conduct. the juries and in rather, XXXI; allegations the Article of Plain Ass’n, at 542. F.3d Am. Canoe con challenge provisions all complaint the fairly traceable injuries are alleged tiffs’ tained, majority’s read The in article.' the particu regulations, Township’s wrong be simply complaint is ing of sign reg used Defendant larly because applying charged with this Court cause See applications. deny ulations com to the of review liberal standard Fla., Oldsmar, City v. Lockridge of pleadings viewing the and with plaint (finding that 1240, 1249-50 F.Supp.2d most light in the record “causally evidence was application of a denial . Fru Pagan plaintiffs allegedly unconstitutional favorable connected to Cir.2007) (en (6th deni application chey, 492 F.3d upon ordinance 56); Hilde based.”). satis Finally, Plaintiffs Fed.R.Civ.P. banc)(discussing als were Univ., inqui Mich. Trs. State element Bd. fy the third brand of (“Under injuries Cir.1979) their likely it is 705, ry deci by a favorable Fed be redressed would allowances pleading the liberal Procedure, allegations sion. of Civil eral Rules broadly con must be in pleadings made lack Plaintiffs avers majority The The 8. strued.”); Fed.R.Civ.P. also action because bring this standing to pleading requirement notice is satisfied be 2. Standing Under the Overbreadth allegations cause Plaintiffs’ Doctrine are sufficient to put Defendant notice of the injury While the reasons stated above suffi being Gibson, alleged.3 Conley 355 U.S. cient to hold that Plaintiffs have standing, 41, 48, 78 S.Ct. 2 L.Ed.2d 80 their case is further bolstered the over- (“Thе reject Rules Federal approach breadth doctrine. Supreme Court has found that broadly pleading game written may skill which statutes powerful have a deterrent effect misstep by one on free may counsel be decisive to speech and expression. Thornhill v. Ala the outcome and accept the principle that bama, purpose pleading is to facilitate a L.Ed. 1093 (establishing the over- proper merits.”); decision on the see also doctrine). breadth Court Evans-Marshall v. Bd. Educ. Tipp has held “that very existence of some City Exempted Village Dist., Sch. 428 F.3d broadly written statutes may have such a (6th Cir.2005) 223, 228 (noting that “under deterrent effect on free expression that the notice pleading standard of the Feder they should be subject to challenge even Rules, al courts are reluctant to dismiss by a party whose own conduct may be colorable claims which have not had the unprotected.” Members Council benefit of discovery”) factual (citing Con City Los Angeles v. Taxpayers Vin ley, 99). 355 U.S. at In the cent, heightened absence of a pleading require 80 L.Ed.2d 772 Indeed, “such a ment, there nois basis for finding that the statute be challenged on its face even allegations of complaint Plaintiffs’ fail to though a more narrowly drawn statute challenge size limitations would be valid applied to the party in set forth in the Township’s sign regula the case before it.” Id. “Litigants ... are tions. permitted to challenge a statute not be- 3. Admittedly, pleading requirement notice follow from this circumstantial evidence. Id. slightly Supreme was amended by the Court’s at 1962-63. that, Court held Twombly, recent decision Bell Atlantic Co. v. § Act, under 1 of the Sherman a "bare asser- — -, U.S. 127 S.Ct. tion conspiracy” is not sufficient to state a (2007), L.Ed.2d 929 which held plain that "a Instead, Id. claim. at 1967. Twombly obligation provide tiffs to 'grounds' of his plaintiff was required also plead facts requires 'entitlement to relief more' than la suggestion” which a of actual collu- "raised conclusions, bels and a formulaic recita sion. Id. of the tion elements of a cause of will action words, In other Twombly was a case where not do....”. Id. at Twombly 1964-65. does plaintiff invoked a banning statute collu- here, however, not because Plaintiff apply has sion, but actually failed to any state facts coupled allegations its with 'sug facts which suggesting collusion. This stands in stark gest that deprived Defendant has it of its Here, contrast to the instant case. Plaintiff alleged right post signs-. alleges a violation of the First Amendment's Twombly Clause, Speech involved a claim Free § supports under 1 of allega- its Act, Sherman Antitrust requires specific' tion with examples of instances plaintiff prove that the where the engaged challenged regulations defendants denied it the "contract, in a ability speak combination ... conspira- freely. expressly Plaintiff cy, in restraint trade or states commerce.” Id. at that it has been post unable 1961. alleging Rather than a "[a]s such collu- result Township’s of the enforcement existed, however, sion the Twombly plaintiff Sign Regulations.” (J.A. 8) its (emphasis add- merely alleged ed). that the oper- defendants were specific It cites examples nine where it ating their businesses ain manner which is was alleged denied its rights as a direct result collusion, consistent with and then invited the Township's denial applica- of Plaintiff's courts to conclude that conspiracy a post must signs. tions to regulations. As challenge sign standing to expression of free rights their own cause stated, expressly judicial pre violated, Supreme'Court of a but because are the statute’s assumption diction that one never held with [it] ha[s] before others not may very cause existence can- speech also ‘commercial interest’ constitutionally refrain from the court to validity of stat- challenge the facial Broad expression.” speech or protected of its substantial grounds ute on the Oklahoma, 612, 93 413 U.S. rick v. Amendment infringement of the First 2908, 37 L.Ed.2d 830 S.Ct. otherwise, others. interests of Were of over- stations, doctrine Amendment the- “The First radio movie newspapers, ‘departure designed was as breadth with those producers aters and —often standing,’ to enable rules traditional largest and the highest interest unharmed are who themselves persons controver- in a First Amendment stake ‘to in a statute nevertheless defect challenge gov- not be sy able —would that it ground challenge statute sub- speech limitations’ ernment unconstitution conceivably appliеd may stantially overbroad. not be others, in other ally to .situations 2882; also Id. at 505 n. S.Ct. ” Trs. State Bd. fore the Court.’ Pub. v. Plain Dealer Lakewood 469, 484, 109 Fox, 492 U.S. Univ. of N.Y. Co., 750, 755-56, 108 S.Ct. 486 U.S. (1989) (quot L.Ed.2d 388 “one (holding that L.Ed.2d 771 Broadrick, at ing challenge it subject to the law who Mich. v. Cent. 2908); Dambrot see also apply- necessity of first facially without the Cir.1995). Univ., 55 F.3d license.”). denied, for, being person that the requirement “no There is that Mid clearly Case law establishes that his the attack demonstrate making has west, advertising company, as an by a regulated could not be conduct own constitutionality challenge standing to narrow requisite with the statute drawn the n issue in this case sign regulations at Vincent, specificity.” clearly case complaint in this (internal quotation n. zoning ordinances that Defendant’s alleges omitted). “Facial over- and citation marks See, Lac Vieux e.g., overbroad. been entertained Desert claims have breadth also Chippewa Indians terms, Superior Lake to Band statutes, purport by their where Bd., F.3d 172 Gaming Control time, manner of Mich. place, regulate Cir.1999) (6th (finding “given that conduct, 397, 407 expressive or communicative facial ... a required official Amendment context has First such conduct where any need for delegated stan- challenge appropriate, laws that under approval allegedly local func discretionary to in the power participate to party] dardless [a unreview tionaries, virtually in to es resulting in order process [ ] unconstitutional Amendment obviated.”); on First prior restraints Desert Outdoor standing able tablish 613, Broadrick, 93 rights.” ver., Valley, City Moreno Inc. v. Ad omitted). (citations Cir.1996) (9th 2908 (finding S.Ct. 814, 818 103 F.3d standing “have advertising companies that that, advertising as argues Midwest sign] permit [municipal challenge- the to ‍​​​‌‌​​‌‌‌​‌​‌‌​​​​‌​​‌‌​‌​​‌​​‌​​‌‌​​​‌‌‌‌‌‌‌​​‍facial overbreadth it raise a company, ap they did not requirement, though even sign regulations. to Defendant’s challenge for a applying permits, ply Metromedia, Diego, City San Inc. v. futile.”); Nat'l been would have 2882, permit 69 L.Ed.2d 101 453 S.Ct. U.S. Lauderdale, 934 Fort Adver. Co. (1981), Court held Supreme 800 Cir.1991) (11th (finding that F.2d may use overbreadth sign companies company act, advertisement “has a commercial legislative interests are limited speech regulated by however, interest in the courts apply will the strictest right “has the code” and assert scrutiny, level of and invalidate law claim, par- in its own behalf and for third unless it necessary is deemed to serve a ties, unconstitutional.”); the code is See, compelling government e.g., interest. Babylon, Nat’l Adver. Co. v. Town Freeman, 191, 199-200, Burson v. U.S. (2d Cir.1990) (finding 119 L.Ed.2d 5 Fi “because of its commercial interest nally, Supreme recog Court has also restrict, speech appellants seek to [adver- which, nized some interests while not con tising company] standing challenge has stituting fundamental triggering interests invalid”). facially .... ordinances scrutiny, strict still must be examined un majority’s finding contrary heightened See, der a level of e.g., review. plainly prece- contravenes well-established McConnell, 540 U.S. at 124 S.Ct. 619. dent from this Court Ordinarily, government when the seeks Therefore, Court. Midwest has over- regulate speech commercial which is challenge breadth the Town- neither misleading nor concerning illegal ship’s sign regulations. Because Plaintiffs activity, this apply Court should an inter standing, have constitutional the district scrutiny mediate level of in weighing the in dismissing erred this case. restriction. Under this intermediate scru tiny, the speech restriction will upheld B. The First Amendment 1) only if directly advances a substantial Underlying Jurisprudence 1. 2) interest; government is not “more the First “Just as Amendment does not necessary extensive than to serve that in guarantee right to communicate one’s terest.” Cent. Hudson Gas & Elec. Corp., at all places any views times 557, 566, U.S. permit manner ... so it does not munici- (1980); L.Ed.2d 341 see also Edenfield palities regulate expression methods of Fane, however, they whenever and wherever (1993) (“[L]aws 123 L.Ed.2d 543 restrict Media, wish.” Prime 398 F.3d at 818 speech, commercial unlike laws bur (citing Wheeler v. Comm’r Highways, dening protected other forms of expres Ky., Commw. 822 F.2d sion, only need be tailored in a reasonable Cir.1987)) (internal quotation marks omit- manner to serve substantial state inter ted). In order to determine whether or est order to survive First Amendment municipal ordinances at im- issue scrutiny.”). review, “Unlike rational-basis permissibly regulate speech in violation of scrutiny] [intermediate permit does not us Amendment, however, the First a court supplant precise put interests for must first determine which level of scruti- by ward the State with supposi other ny it apply weighing should in the Town- Edenfield, 768, tions.” 507 U.S. at ship’s regulating speech interest in agаinst Rather, S.Ct. 1792. the burden rests with speaking. Plaintiffs’ interest in The courts the Defendant to proffer specific gov give great legislatures deference to in ernment interests which it deems sufficient cases, generally most deferring legisla- to to overcome scrutiny. intermediate Id. at judgment long'as tive a appears so law 770-71, 113 S.Ct. 1792. See, supported by some rational basis. e.g., Minnesota v. Under Creamery scrutiny, party Clover intermediate “the Leaf Co., 456, 464, 715, seeking regulate 101 S.Ct. speech, commercial L.Ed.2d 659 When fundamental the burden of affirmatively [has] establish- “place[ standard” or ] a “deferential apply is constitutional the ordinance” ing that to demonstrate this test. on aspects [Plaintiffs] all burden respect with Adver., Inc. v. unconstitutionality of the ordinance.” Desert Outdoor 814, 819 103 F.3d Valley, Moreno at 773. Id. Cir.1996) the State Trs. (citing Bd. of municipality argued “that Pagan, In N.Y., 109 S.Ct. at 492 U.S. Univ. of difficult, expensive, and time- would-be it at 770- 507 U.S. 3028); Edenfield, see also provide studies and consuming to conduct (“It is well es 113 S.Ct. support zoning in of’ its evidence empirical up seeking party that [t]he tablished Nevertheless, this Court Id. ordinance. speech commercial on hold a restriction “adopt a.standard ‘obvious- declined (quot justifying it.” the burden carries ‘commonsense,’ under which [to] ness’ Corp., Drug Prod. Youngs ing Bolger in the absence speech regulation uphold 2875, 77 n. 463 U.S. harm,” and concrete found evidence of (1983)) omit marks (quotation L.Ed.2d 469 quite has made Supreme “the Court ted) “This burden (alteration original)). in “evidentiary there is an that” rе- clear by speculation mere is not satisfied state must meet under in- quirement rather, body governmental conjecture; scrutiny.” Id. at 774. “[T]he termediate on commer a restriction to sustain seeking by established standard must demonstrate speech cial on obviousness nor depends neither Court re and that its are real it recites harms [Supreme prece- Court sense. common them to in fact will alleviate striction to establish requires some evidence dent] Edenfield, 507 U.S. degree.” material addresses regulation actual speech this re 1792. “Without 113 S.Ct. (em- re in fact.” Id. with ease basis could with some quirement, harms [Defendant] service of speech commercial original). strict phasis not themselves objectives that could other a law may be for As difficult as expres on commercial a burden justify scrutiny, this intermediate level survive sion.” Id. circumstances, laws burden certain under recently reaffirmed framework was This commercial must survive an speech decision in our en banc Court this a restriction test. on stricter When even a commer- Pagan, Fruchey. Pagan speech engages in or other commercial by the decided case that was speech cial restriction,” the law “can “content-based who decided the judge same district scrutiny.” if it strict only stand satisfies matter,4 held expressly this Court instant Playboy Group, Entm’t United States v. produce suffi- municipality that a must Inc., 529 U.S. justify the restrictions evidence to cient (2000); see also Turner L.Ed.2d by an ordi- imposed speech commercial Inc. v. Fed. Commc’ns Sys., Broad. This Court at 771. 492 F.3d nance. Comm’n, by the adduced that “the evidence found regu (noting that a 129 L.Ed.2d satisfy insufficient [municipality] [was] scrutiny aas strict “warrant lation than “a conelu- more [its] burden” regulation.”). content-based interests” government sdry articulation scrutiny, a content-based strict Under prece- Supreme Court required under “necessary must speech restriction specifi- 772-73. This Court Id. at dent. interest” and compelling state serve court cannot the district cally noted that deciding Pagan it was' when recently decided benefit the en banc Court 4. Since case. have the instant court did not Pagan, the district 476 people using to achieve that end.” ment to

“narrowly picketing speak drawn Perry Ass’n v. Local Edu Perry Educ. Brown, particular subject. one Carey v. 37, Ass’n, 45, 460 U.S. 103 S.Ct. cators’ 455, 460-61, 2286, 447 U.S. 100 S.Ct. 65 948, (1983); Playboy, 794 74 L.Ed.2d (1980). Similarly, L.Ed.2d 263 a law which 813, 120 The 529 S.Ct. 1878. re U.S. prohibits signs critical of a foreign-govern quirement speech that a restriction on be ment, permitting signs, while all other is narrowly requires regulation drawn content-based and must survive strict be the least restrictive alternative avail 312, scrutiny, Barry, v. Boos 485 U.S. 318- Racism, Against able. v. Rock 491 Ward 19, 1157, (1988), 108 S.Ct. 99 L.Ed.2d 333 781, 6, 2746, n. 109 S.Ct. 105 U.S. 798 though banning signs even law all would (1989). Supreme L.Ed.2d 661 Court short, permitted. “In types some [if] that “it is the rare recognized has case extensively regulated are oth while scrutiny.” ... a law survives strict exempt ers are from regulation based on Freeman, 191, 211, 112 Burson v. 504 U.S. messages they the nature of the seek to (1992). 1846, 119 L.Ed.2d 5 S.Ct. “With convey, sign code [a] [would undeni be] exceptions, rare content discrimination in regulations speech private ably of the citi content-based restriction ... private property presump zens on Solantic, speech.” City Nep LLC v. tively impermissible, presumption and this Beach, tune 410 F.3d City very strong is a one.” Ladue v. Cir.2005). Gilleo, 43, 58, 512 U.S. S.Ct. sug- Case law from our sister circuits (1994) (O’Connor, J., concur L.Ed.2d 36 gests that whether or not a law which ring). speech burdens commercial is content- Supreme Court has defined laws weighs heavily based on whether or not a thereby which are content-based —and are sign ordinance will survive constitutional subject scrutiny to strict those which —as muster. plurality While a of the justified cannot be reference to “without Court safety has held “traffic and the regulated speech.” the content of the Vir Virginia ginia Pharmacy Bd. v. Citizens appearance city gov- are substantial Council, Inc., 748, 771, Consumer 425 U.S. goals,” ernment and thus sufficient to sat- 48 L.Ed.2d S.Ct. isfy Metromedia, scrutiny, intermediate engage Laws which “discrimination Diego, Inc. v. San 453 U.S. among different users of the same medium 69 L.Ed.2d 800 expression” generally for held to be (plurality opinion), at least two Courts of Police Dept. City content-based. of Appeal questioned have whether these in- Chicago Mosley, terests are sufficient to survive strict (1972); 33 L.Ed.2d see also Solantic, scrutiny. See 410 F.3d at 1268 Bellotti, First Bank Nat’l Boston (finding “sign that a narrowly code is not 765, 784-85, 55 L.Ed.2d accomplish City’s tailored asserted (“In protected the realm of interests in safety” aesthetics and traffic speech, legislature constitutionally and that case law recognize[ “[does not] ] disqualified dictating subjects ”); ‘compelling’ those interests as Whitton persons may speak about which and the Gladstone, Mo., 54 F.3d speakers a public who address is (8th Cir.1995) (“[A] municipality’s as- sue.”). Thus, example, law which safety serted interests in traffic prohibits picketing, except when engaged aesthetics, significant, while have never part dispute, of a labor is content- gives based preferential compelling.”). treat- been held to be Constitutionality Sign decision in Dim The Eleventh Circuit’s 2. Clearwater, 985 F.2d 1565 mitt v. Regulations explaining why in Defen helpful of which question Turning now safety concerns are dant’s aesthetic and Township’s scrutiny apply level sign regulations. to sustain insufficient that at least apparent it is regulations, a local ordinance Dimmitt struck down content-based, are some flags and number of limiting the kind scrutiny.5 strict must survive and thus dealership car could plaintiff which the that 314.14, example, states for Section at 1568. The Eleventh Cir display. Id. advertising sign carrying off-premise “[n]o the ordinance must with cuit held that permitted.” message shall be a commercial scrutiny, city respond and the stand strict includ- signs,” 314.30 bans “banner Section in by asserting “promoting its interests ed exception creates an flags, most but minimizing visual ‍​​​‌‌​​‌‌‌​‌​‌‌​​​​‌​​‌‌​‌​​‌​​‌​​‌‌​​​‌‌‌‌‌‌‌​​‍distrac aesthetics and “federal, flags.” Much of state and local Id. at 1569. tions to motorists.” signs special § rules 316 creates noted, “only the As the Eleventh Circuit content, “politi- such as containing certain jus circumstances will extraordinary most advertising,” must signs” or cаl “domestic expression tify regulation protected permits signs 321.1-2 follow. Section Id. The court upon its content.” based center, but identify shopping the name of a preserve the need to added that neither other content. signs with no allows nor the threat of international relations provisions have grounds all of these What criminal violence are sufficient Each government discrimination. censor is content allow content-based common Id.; Barry, signs Boos v. 485 U.S. particular types ship. of them identifies 321-29, 99 L.Ed.2d 333 content, 108 S.Ct. and then of their on the basis criti display (prohibition only signs so specific rules to those creates feet foreign government within 500 cal of are content- provisions These identified. unconstitutional); embassy is foreign based, subject to strict scruti and thus are Ohio, 444, 446- Brandenburg v. 395 U.S. scrutiny, applying strict ny. When 1827, 23 L.Ed.2d 430 89 S.Ct. justify its the burden to defendant bears may only forbid incitement of (government Johnson v. speech regulations. Califor advocacy is directed violence “where such nia, imminent lawless inciting producing (2005). Defendant, in in the L.Ed.2d 949 produce incite likely to. action and is case, sign regula stant asserts action”). such of aesthetic necessary because tions are concerns, interests safety Township’s but asserted public interests justi- compelling hardly more to survive this case these concerns are insufficient than allowing censorship such fications for scrutiny. strict Turner, essaty that interest.” assuming arguendo to further Alternatively, even 5. content-based, (internаl quo- sign regulations are not at omitted). sign regulations would not be able In the and citation tation marks of review the intermediate standard withstand scrutiny, applying intermediate course speech. "Under in- afforded to commercial evidence adduced must review district court scrutiny, Government em- termediate parties. 117 S.Ct. 1174. by See id. choosing long so as the ploy means of its scrutiny, the applying intermediate Even govern- regulation promotes a substantial ... sig- they deter regulations are invalid because that would be less mental interest achieved necessary pro- nificantly speech than more regulation, and does not effectively absent Township’s interests. asserted tect substantially speech than is nec- more burden preserving interest government’s Deja As this Court held in Vu Nash- of ville, preventing crimi- ‘prior international relations restraint’ “[a] exists when the Accordingly, nal violence. the content- exercise of a First right Amendment de- sign of the provisions regulations pends prior approval based on the public of offi- should be struck down as inconsistent with cials.” Id. Township’s sign regula- that; just the First Amendment. they require tions do persons wanting post signs containing protected C. Prior Restraint speech permission to first gov- obtain § ernment claim, officials. Under 325.1 of the alleges As an additional Plaintiff regulations, erect, “it shall be unlawful to sign regulations that the constitute an un- enlarge, expand, alter (including face prior speech. prior lawful restraint оn A relocate, changes), or reconstruct any sign speech restraint when is condi- occurs without filing Township first with the approval Zon- prior government tioned on the Nashville, ing Inspector an application writing and Deja officials. Vu Inc. v. (J.A. 136) obtaining Zoning a Certificate.” Metro. Nashville and Gov’t Davidson words, (6th Cir.2001). In other person’s right a post County, 274 F.3d. First protected speech Amendment on a “prior Court has held that sign is contingent upon their receiving the speech publication restraints on are Township’s prior approval sign, of that the most serious and the least tolerable this applies restriction to the entirety of infringement rights.” on First Amendment Stuart, sign regulations; all signs, regardless Nebraska Press Assn. v. area, 539, 559, regardless 49 L.Ed.2d 683 (1976). content or sign subject location of the Accordingly, “[a]ny system pri- prior to a restraint. bearing comes to this restraints Court heavy presumption against its constitution- Furthermore, licensing scheme lacks validity.” al Maryland, Freedman v. procedural safeguard the third required of 13 L.Ed.2d 649 prior all restraints. According heavy In order to overcome this regulations, “[a]ny party adversely affect- presumption, prior restraint scheme by ed [Township] decision of the may procedural possess safeguards: must three appeal to the Court of Common Pleas of

First, the decision whether or not to Hamilton County ground on the that such grant a license must be made within a decision was unreasonable or unlawful.” specified, period, brief and thе status (J.A. 118) assuming Even pro- this quo preserved pending must be a final ceeding fulfills requirement that a judicial on the merits. .determination “prompt judicial provided decision” is “to Second, licensing scheme “must also minimize the deterrent effect of an ... judicial decision, assure a prompt license,” erroneous denial process this minimize the deterrent effect of an in- unconstitutionally places the in- burden of terim possibly erroneous denial aof stituting judicial proceedings on the shoul- Third, licensing license.” scheme ders of person restrained must place instituting ju- the burden of regulations. process This flies the face proceedings proving dicial that ex- of this holding Court’s that “the licensing pression unprotected on the licensor scheme must place the burden of institut- rather than the exhibitor. judicial proceedings ... on the licensor Nashville, Deja Vu rather than the exhibitor.” Deja Vu Freedman, Nashville, (quoting 400; Freedman, 380 U.S. at 274 F.3d at 734) (citations omitted). 380 U.S. at 85 S.Ct. 734. discrimination, that the content tional regulations Additionally, a re prior require- scheme constitutes prong’s overall Freedman the first violate not to next be exam straint, regulations whether or must decision that “the ment a made within unconstitu must be whether the a license ined determine grant According to Id. period.” may brief ordinance be specified, of the provisions tional must zoning inspector a regulations, which do portions from the severed per- for a application deny approve See, or e.g., Alaska thе Constitution. violate days within 15 business a to erect 684, mit Brock, 678, 107 480 U.S. v. Airlines may then decision filing. An adverse itsof (1987); 1476, Regan L.Ed.2d 661 94 S.Ct. days of this decision. within appealed be 3262, Time, 641, 652, 104 S.Ct. 468 U.S. appeal, such an receiving notice of Upon (1984); also United L.Ed.2d “fix a must Zoning Appeals Board 282, Booker, 543 U.S. States hearing of time for the reasonable (2005) (Scalia, L.Ed.2d 621 S.Ct. 118) added), (J.A. (emphasis appeal,” first J., (“Usually the Court dissenting) days notice parties 10 any interested give pro particular a unconstitutional declares party A ad- hearing. a convening before law, only inquire does it then vision through the may appeal versely affected can the statute the remainder of whether system. courts state saved.”). applica- swiftest process, this Under in the a month for almost languish will tion Provisions 1. The Content-Based Furthermore, be- process. administrative rule, a severability of only “fix a general must As of Appeals cause the Board of state law. hearing question is a time for ordinance a reasonable local within period Publ’g Dealer specified there is no v. Plain appeal,” Lakewood deny or a grant Co., the decision Freedman, made. Under license must be The Ohio L.Ed.2d ensure scheme must a restraint prior test for three-part has established a Court gov- period, [the specified brief “within unconstitutional whether an determining togo a license or either issue will] ernment larger from a may be severed provision speech. the undesired to restrain” scheme: legislative schеme, This 734. 380 U.S. at (1) uncon- and the Are the constitutional the sort. however, nothing provides so separation parts capable stitutional a “reason- hearing of a within promise A stand may be read that each requirement does not able time” meet part Is unconstitutional itself? or a court a license issued either scope of general connected with the so brief specified initiated “within preceding impossible as to make the whole period.” intention of apparent give effect to prior constitute sign regulations part if the clause Legislature Furthermore, they speech. restraint the insertion of Is out? stricken safeguards necessary procedural lack the necessary in order terms words or constitutional. render such scheme part from the constitutional separate should declare this Accordingly, Court effect give and to part, unconstitutional them unconstitutional. only? former Analysis D. Severance Hochhausler, St.3d 76 Ohio State (1996) (citations N.E.2d 466-67 portions Having determined both omitted). in unconstitu- engage sign regulations Applying this test reveals that much of express purpose fect to an of the portions the content-neutral regulations, “to regu- establish reasonable regulations are severable from the con- size, character, lations governing the provisions. sign regula- tent-based location within the Township.” largely by tions are structured classifying (J.A. 119) Finally, no insertion of words or signs by different kinds of names such as neсessary separate terms is them from sign,” “bench billboard “free standing other, portions content-based of the ordi- (J.A. 119-24) sign,” “political sign.” Accordingly, nance. were sign regula- Different applied rules are then to each of tions’ content discrimination only their these classifications. While some of these flaw, constitutional it would possible be categories, “political signs” such as sever provisions the content-neutral content-based, others, such as “free stand- give them full their effect. ing signs” are content-neutral. Most of governing the rules these content-neutral 2. The Prior Restraint Provisions categories are likewise content-neutral. however, regulations, also con- 321.2-2, example, places Section for con- restraint, stitute an prior unconstitutional tent-neutral restrictions on free- “[a]ll and this alone is sufficient to declare them standing pole signs” in portions certain of unconstitutional in entirety. them In Deja (J.A. 132) Symmes Township. Under this Nashville, Vu Inc. v. Metro. Gov’t of of section: Nashville and County, Davidson we held 1. freestanding pole No sign shall be prior affecting restraint “sexually orient- (10) closer than ten any right feet to of ed” businesses unconstitutional for lack of way line. judicial process. sufficient 274 F.3d at 2. freestanding pole sign No shall be 402-03. Rather portions than allow some (20) twenty adja- closer than any feet to severed, of the law to be Deja Vu of property cent line. held that prior Nashville when a restraint freestanding pole 3. No sign located proper judicial lacks the safeguards, this (300) three hundred right feet from the “renders the facially entire statute uncon- way of of a federal highway interstate stitutional.” Id. at 403. Under such cir- (45) forty-five shall exceed in height feet cumstances, this Court has no choice but grade the finished level and no “enjoin enforcement of the entire Ordi- (650) sign within fifty six hundred feet Id.; nance.” Lakewood v. right way from the of of of a federal inter- Co., Plain Dealer Pub. 757- (20) highway state shall twenty exceed 100 L.Ed.2d 771 feet in from the finished grade (holding that a licensing scheme containing level. prior restraint is unconstitutional on its 4. No freestanding pole sign shall con- face and must be struck down its entire- tain more than one twenty hundred ty). (120) square feet per of area side (maximum sides) two Just like the ordinance in Deja Vu of (J.A. 132) Nashville, the sign regulations instant con- prior stitute a lacking restraint sufficient provisions

These all prongs meet three judicial safeguards. Accordingly, of the Ohio severability test. we are These by Nashville, height, Deja area and bound Vu may distance limits each independent be read not any portion of the remainder sever the Township’s sign regulations given ordinance, and still be their and must declare it unconstitu- Furthermore, full meaning. they give ef- entirety. tional its in this may not be sufficient award nominal Damages E. ongo- experienced have case. Plaintiffs address majority does Lastly, their First and-costly deprivation summary denial court’s the district they may for which rights, Amendment Plaintiffs ar-- damages. claim for Plaintiffs Plaintiffs Since to compensation. entitled for compensated they should be gue the violation damages for may seek a result of they suffered damages district rights, their constitutional the unconstitutional enforcement denying Plain- summarily erred has Court sign regulations. “ damages. claim for tiffs’ §a purpose ‘the basic held compensate should be damages award depriva injuries caused persons CONCLUSION ” Farrar v. rights.’ of constitutional tion sufficiently dem- pled Plaintiffs have

Hobby, 506 U.S. challenge onstrated Carey v. (quoting ‍​​​‌‌​​‌‌‌​‌​‌‌​​​​‌​​‌‌​‌​​‌​​‌​​‌‌​​​‌‌‌‌‌‌‌​​‍L.Ed.2d sign regula- Additionally, the regulations. 1042, 254, 98 S.Ct. Piphus, 435 U.S. re- constitutional cannot withstand tions (1978)). However, “no 55 L.Ed.2d For fore- and are not severable. view awarded damages be compensatory reasons, reverse the district I would going inju of actual proof § 1983 suit absent case decision and remand this court’s 112, 113S.Ct. 566. ry.” Id. at proceedings further the district court amendment Township’s post-lawsuit with.opinion: consistent on the no effect regulations has to its See, e.g., Buckhannon damages claims. Home, Dep’t v. Va. Inc. West & Care

Bd. Res., Human Health & 149 L.Ed.2d 121 S.Ct. (“for has a plaintiff as the long so damages, a defendant’s action for

cause moot will change conduct America, UNITED STATES & Water case.”); Memphis Light see Gas Plaintiff-Appellant, 8,1, Craft, U.S. Div. arising (“damages L.Ed.2d of service termination [defendant’s] Defendant-Appellee. MALONE, Oscar of moot from the bar. this cause saves Thomas ness.”); also Blau Fort 06-2099. No. Dist., 401 F.3d Sch.

Pub. Appeals, United States Court Cir.2005). Indeed, damages, courts allow Circuit. Sixth municipal against § 42 U.S.C. under of unconstitution for the enforcement ities 13, 2007. Sept. Argued: Oldsmar, 475 See zoning ordinances. al 4, 2007. Filed: Oct. Decided and (holding plaintiff at 1253 F.Supp.2d monetary the full measure of entitled chal successfully after

damages available ordinance).

lenging content-based minimum, a deprivation where

aAt occurred, damages nominal has

rights Farrar, see, awarded, e.g.,

must but such

Case Details

Case Name: Midwest Media Property, L.L.C v. Symmes Township

Court Name: Court of Appeals for the Sixth Circuit

Date Published: Oct 1, 2007

Citation: 503 F.3d 456

Docket Number: 06-3828

Court Abbreviation: 6th Cir.