FF Cosmetics FL, Inc. v. City of Miami Beach , 866 F.3d 1290 ( 2017 )

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[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
Nos. 15-14394 & 15-15256
________________________
D.C. Docket No. 1:14-cv-22072-JLK
FF COSMETICS FL, INC.,
a Florida corporation,
d.b.a. Forever Flawless Cosmetics 1,
TIMELESS COSMETICS FL, INC.,
a Florida corporation,
BRILLIANCE NEW YORK, LLC,
a New York limited liability company,
f.k.a. Brilliance New York, Inc.,
OCEANE FL COSMETICS, INC.,
Plaintiffs - Appellees,
versus
CITY OF MIAMI BEACH,
Defendant - Appellant.
________________________
Appeals from the United States District Court
for the Southern District of Florida
________________________
(August 10, 2017)
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Before MARCUS and DUBINA, Circuit Judges, and GOLDBERG, * Judge.
DUBINA, Circuit Judge:
In this consolidated interlocutory appeal, Appellant City of Miami Beach
(“City”) challenges the district court’s order granting Appellees FF Cosmetics FL
Inc., Timeless Cosmetics FL Inc., Brilliance New York LLC, and Oceane FL
Cosmetics Inc.’s (“Retailers”) renewed motion for a preliminary injunction, and
denying the City’s motions for clarification and for reconsideration. The
preliminary injunction enjoins the enforcement of two City ordinances that restrict
commercial solicitation and handbilling in sections of five streets in the Historic
Art Deco District.
After careful review, and having the benefit of oral argument, we affirm.
I. BACKGROUND
Retailers operate cosmetic stores along Lincoln Road in the City of Miami
Beach’s Historic District. Each store depends on solicitation as its primary, and
most effective, form of advertisement, employing several greeters to stand outside
the storefront and attract potential customers inside. Reports of the greeters’
methods range from benign salutations, offers of free samples, and distribution of
handbills to allegations of cat-calling, harassment, and uninvited touching. There
*
Honorable Richard W. Goldberg, Judge of the United States Court of International Trade,
sitting by designation.
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is no evidence presented to suggest that the Retailers engaged in direct sales
pitches of products outside of the stores.
The City is not primarily concerned with the individual actions of Retailers,
but rather with the collective effects of the numerous greeters employed by many
stores and restaurants along Lincoln Road and certain other areas of the City’s
Historic District. Visitors, storeowners, and residents of the Historic District
testified to the annoyance, inconvenience, and general unpleasantness of being
barraged with menus, free samples, and comments from greeters. The record
shows that individuals expressed concerns about the effects on tourism, property
values, quality of life, and the unique aesthetic of the City’s Historic District.
In response to the flood of complaints stemming from solicitation and
handbilling activities in the Historic District, the City began enforcing Section 74-
1, an anti-solicitation ordinance, and Section 46-92, an anti-handbilling ordinance.
Testimony from the Director of Code Compliance for the City indicated that the
number of complaints in the Historic District increased substantially, resulting in
Code Compliance staff being pulled from other locations to deal with the
commercial solicitation problem.
After receiving a number of citations pursuant to Section 74-1 and Section
46-92, Retailers brought suit against the City under 42 U.S.C. § 1983, challenging
the constitutionality of the ordinances. Specifically, Retailers argued that the
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ordinances were overbroad, unconstitutionally vague, and violative of the Due
Process Clause, the Equal Protection Clause, and the First Amendment. Retailers
sought permanent injunctive relief, as well as damages incurred from fines and lost
business resulting from the enforcement of the ordinances. Retailers also filed for
a preliminary injunction.
Both parties agreed to stay litigation pending the outcome of the City’s
attempts to amend the ordinances at issue. The City held public hearings to
address the problem and employed other fact-finding tactics, such as requesting
public feedback on social media, searching review websites such as Yelp, and
reviewing past complaints filed with the City.
The City presented evidence showing that it considered a number of
alternative prohibitions. First, the former Assistant City Manager testified that the
City considered “free speech ‘bubbles,’ which would essentially require that any
commercial solicitation activities take place beyond a minimum threshold distance
surrounding a pedestrian.” As to the viability of this regulation, he stated,
“[Free speech bubbles] would have never worked. First of all, what’s the
difference between 2 feet 8 inches and 3 feet? Evidentiary problem at a
hearing. And it’s so congested now. It’s a popular street, all of them are, it
would be a looser [sic]. You can’t keep that level of distance from people
on Lincoln Road without bumping into somebody else’s zone. You know, it
doesn’t exist in the one person vacuum so we just didn’t feel that that was
feasible.”
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Second, the former Assistant City Manager stated the City considered
creating zones in which commercial solicitation would be permitted. This idea was
ultimately rejected because, “enforcement is a problem. We tried not to write
something that we couldn’t understand how to enforce. If everybody is just in this
box, it becomes a bazaar. There would be yelling. It would have had the opposite
effect in my opinion.”
Finally, the former Assistant City Manager testified that the City considered
banning only aggressive solicitation, but determined that establishing an
“aggressive” standard would be an enforcement nightmare, and that it wouldn’t
solve the problem of the volume of solicitation.
Ultimately, the City amended both ordinances to read as follows:
Sec. 74-1. Soliciting business in public.
(a) Prohibitions. It shall be unlawful to solicit any person for the purpose of
inducing such person to purchase any property, real or personal, or any
food, beverage, or service, or to solicit such person to enter any place of
business for the purpose of inducing or attempting to induce such person
to purchase any property, real or personal, or any food, beverage, or
service.
This Section shall apply when the solicitor or the person being solicited is
located on any public right-of-way, which means and includes, but is not
limited to, any street, sidewalk, street corner, curb, bicycle path, or
pedestrian walkway, in any of the following areas in the City of Miami
Beach. This Section shall also apply to any doorway, stairway, window
or other opening of a building abutting on or adjacent to such right-of-
way, in any of the following areas in the City of Miami Beach:
(1) The area bounded on the north by, but not including, 17th Street,
bounded on the east by, but not including, Washington Avenue,
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bounded on the south by Lincoln Lane, and bounded on the west
by Alton Road;
(2) Ocean Drive from 5th to 15th Streets;
(3) Collins Avenue from 5th to 15th Streets;
(4) Washington Avenue from 5th to Lincoln Road;
(5) All cross streets and bystreets bounded on the north by 15th Street,
bounded on the east by Ocean Drive, bounded on the south by 5th
Street, and bounded on the west by Washington Ave;
(6) Española Way from Pennsylvania Avenue to Collins Avenue; and
(7) Lummus Park.
Sec. 46-92. Litter; definitions; prohibitions on litter; penalties for litter
and commercial handbill violations; commercial handbill regulations,
fines, and rebuttable presumptions; seizure and removal of litter by the
city; enforcement; appeals; liens.
(a) Definitions. The following words, terms and phrases, when used in this
article, shall have the meanings ascribed to them in this section, except
where the context clearly indicates a different meaning:
...
(3) Handbill means any handbill, flyer, paper, document, dodger,
circular, folder, booklet, letter, card, pamphlet, sheet, poster, sticker,
banner, notice or other written, printed or painted matter or object that
conveys any information, except that “handbill” shall not include a
newspaper or its contents.
(4) Commercial handbill means any handbill that conveys any
information about any good or service provided by a business.
...
(g) Prohibitions on commercial handbill distribution.
(1) Historic Areas. It shall be unlawful for any person to distribute
commercial handbills on the right-of-way in any of the following
areas in the City of Miami Beach:
a. The area bounded on the north by, but not including, 17th
Street, bounded on the east by, but not including, Washington
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Avenue, bounded on the south by Lincoln Lane, and bounded
on the west by Alton Road;
b. Ocean Drive from 5th to 15th Streets;
c. Collins Avenue from 5th to 15th Streets;
d. Washington Avenue from 5th to Lincoln Road;
e. All cross streets and bystreets bounded on the north by 15th
Street, bounded on the east by Ocean Drive, bounded on the
south by 5th Street, and bounded on the west by Washington
Ave;
f. Española Way from Pennsylvania Avenue to Collins Avenue;
and
g. Lummus Park.
The prohibitions in this subsection (g) shall apply to the distribution
of commercial handbills on any right-of-way, including but not
limited to any doorway, stairway, window or other opening of a
building abutting on or adjacent to such right-of-way. All rights-of-
way identified as prohibited areas shall include the entire width of the
right-of-way, including all sidewalks.
(2) Sidewalk cafes. Commercial handbills shall not be distributed on the
right-of-way:
a. Within 20 feet in any direction from the outside perimeter of
any approved sidewalk cafe (as indicated in the approved site
plan attached to the city-issued permit); and
b. On any right-of-way within the approved sidewalk cafe.
(3) Beaches. Commercial handbills shall not be distributed on any city
beach east of the dunes.
The effect of the amendments was to limit the commercial solicitation and
handbilling prohibitions to within defined boundaries in the Historic District. The
Amended Ordinances regulate approximately 11.75% of the Art Deco District,
5.7% of the City’s Historic District, and 3% of the City of Miami Beach. All other
previous restrictions on solicitation and handbilling were rescinded.
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As support for the amended ordinances, the City cited ten interests: (1)
protecting the historic character of the District; (2) developing the high-end retail
and high-end sidewalk café promenades in the District; (3) promoting luxury
tourism; (4) minimizing harassment of pedestrians along the public right-of-way;
(5) minimizing congestion; (6) reducing litter; (7) improving the aesthetic of the
District for residents and visitors; (8) protecting pedestrians’ right to be left alone;
(9) maintaining the unique ambiance of the District; and (10) encouraging
expansion in other areas of the City where commercial solicitation is allowed.
On December 3, 2014, Retailers filed an amended complaint and renewed
their motion for a preliminary injunction, seeking to invalidate the amended
ordinances. The district court held five hearings over the course of several months
and ultimately granted Retailers’ motion for a preliminary injunction. Critically,
the district court held–while acknowledging that the City’s interests are substantial
and that the ordinances directly advance those interests–that the ordinances were
not narrowly tailored, and thus that Retailers were likely to succeed on the merits.
Additionally, the district court found that Retailers were likely to succeed on their
claim that the anti-handbilling ordinance was facially overbroad. The City filed
motions for clarification and reconsideration, which the district court denied. In
this appeal, the City challenges the district court’s grant of a preliminary injunction
with respect to the amended ordinances.
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II. STANDARDS OF REVIEW
Preliminary injunctions are reviewed for an abuse of discretion, and the legal
conclusions on which they are based are reviewed de novo. Am. Civil Liberties
Union of Fla., Inc. v. Miami-Dade Cty. Sch. Bd., 557 F.3d 1177, 1198 (11th Cir.
2009). Whether a regulation is narrowly tailored is a legal question that is
reviewed de novo. See Johnson v. Bd. of Regents of Univ. of Ga., 263 F.3d 1234,
1251 n.17.
Generally, if a district court makes a clearly erroneous finding of fact it is an
abuse of discretion. However, we review issues of constitutional fact de novo.
Am. Civil Liberties Union of Fla., 557 F.3d at 1198. Thus, if we disagree with the
district court’s findings of fact as to whether the ordinance is more extensive than
necessary, the decision to enter a preliminary injunction is an abuse of discretion.
See Don’s Porta Signs, Inc. v. City of Clearwater, 829 F.2d 1051, 1053 n.9 (11th
Cir. 1987) (“In cases involving first amendment claims, an appellate court must
make an independent examination of the whole record. . . . [A]n appellate court is
not bound by the ‘clearly erroneous’ standard of review in determining whether a
commercial speech regulation directly advances the government’s goals or is more
extensive than necessary.”); see also Am. Civil Liberties Union of Fla., 557 F.3d at
1198 (“[W]e review de novo the core constitutional fact relating to the Board’s
motive. That means if we disagree with the district court’s finding about the
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Board’s motive, its decision to enter a preliminary injunction was an abuse of
discretion.”).
III. DISCUSSION
“A district court may grant injunctive relief only if the moving party shows
that: (1) it has a substantial likelihood of success on the merits; (2) irreparable
injury will be suffered unless the injunction issues; (3) the threatened injury to the
movant outweighs whatever damage the proposed injunction may cause the
opposing party; and (4) if issued, the injunction would not be adverse to the public
interest.” Siegel v. LePore, 234 F.3d 1163, 1176 (11th Cir. 2000) (en banc). A
preliminary injunction is an “extraordinary and drastic remedy” and should not be
granted unless “the movant clearly establishe[s] the ‘burden of persuasion’ as to
each of the four prerequisites.” Id. (quoting McDonald’s Corp. v. Robertson, 147
F.3d 1301, 1306 (11th Cir.1998)) (quotations omitted). Although the initial burden
of persuasion is on the moving party, the ultimate burden is on the party who
would have the burden at trial. See Edenfield v. Fane, 507 U.S. 761, 770, 113 S.
Ct. 1792, 1800 (1993) (noting that a party who seeks to uphold a commercial
speech restriction bears the burden of justifying it).
The district court correctly noted that an ongoing violation of the First
Amendment constitutes an irreparable injury. See Elrod v. Burns, 427 U.S. 347,
373-74, 96 S. Ct. 2673, 2690 (1976). Likewise, the district court correctly
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concluded that in this case the injury to Retailers’ First Amendment rights
outweighs the City’s interests in aesthetics. See KH Outdoor, LLC v. Trussville,
458 F.3d 1261, 1272 (11th Cir. 2006). Finally, the district court correctly ruled
that enjoining the ordinances, if they were found to be in violation of the First
Amendment, would advance the public’s interest in freedom of speech. See id. at
1272-73.
Thus, the critical question we must decide is whether Retailers are
substantially likely to prevail on the claims that Sections 74-1 and 46-92 violate the
First Amendment. 1
A. THE DISTRICT COURT DID NOT ERR IN FINDING THAT RETAILERS WERE LIKELY
TO SUCCEED ON THE MERITS WITH RESPECT TO SECTION 74-1.
The law is clear that commercial speech is afforded lesser protections than
those traditionally given to noncommercial speech. See Bd. of Trs. of State Univ.
of N.Y. v. Fox, 492 U.S. 469, 477, 109 S. Ct. 3028, 3033 (1989). Thus, a
restriction on commercial speech is valid under the First Amendment if (1) the
speech is not misleading and does not concern unlawful activity, (2) the
government has a substantial interest in restricting the speech, (3) the regulation
directly advances the asserted government interest, and (4) the regulation “is not
1
Retailers make several other arguments as to why Sections 74-1 and 46-92 should be struck
down as unconstitutional. Specifically, Retailers argue that (1) Section 46-92 is underinclusive,
(2) the ordinances are void for vagueness, and (3) the ordinances violate equal protection. We
find these arguments unpersuasive.
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more extensive than is necessary to serve that interest.” Cent. Hudson Gas & Elec.
Corp. v. Pub. Serv. Comm’n of N.Y., 447 U.S. 557, 566, 100 S. Ct. 2343, 2351
(1980).
As an initial matter, the district court correctly discerned that the solicitation
ordinance targets commercial speech. See id. at 561, 100 S. Ct. at 2349 (defining
commercial speech as “expression related solely to the economic interests of the
speaker and its audience”). Furthermore, the district court also correctly found that
Retailers’ commercial speech falls under the protection of the First Amendment. 2
Moreover, the district court correctly found that the City’s asserted interests
are substantial: “substantial witness testimony” demonstrated that “solicitations
and handbilling in Miami Beach’s historic district is a problem that exists in fact,
and that it causes annoyance and aesthetic harm.” See also Members of City
Council of City of L.A. v. Taxpayers for Vincent, 466 U.S. 789, 806, 104 S. Ct.
2118, 2129 (1984) (“[M]unicipalities have a weighty, essentially esthetic interest
in proscribing intrusive and unpleasant formats for expression.”); Messer v. City of
2
The City alleges that Retailers’ speech is false and misleading, and provided expert witness
testimony showing that Retailers’ claims about the ingredients and effectiveness of the products
sold were “preposterous.” However, the district court did not abuse its discretion in finding that
there was no evidence proving that these sales pitches were made outside of the store. Because
the ordinance seeks to prohibit commercial solicitation on the public right-of-way–not to regulate
the efficacy of cosmetics–the district court correctly held that Retailers showed a substantial
likelihood of success on their claim that this commercial speech was entitled to First Amendment
protection. See Edenfield, 507 U.S. at 765, 113 S. Ct. at 1797 (“We need not parse [Plaintiff’s]
proposed communications to see if some parts are entitled to greater protection than the
solicitation itself. This case comes to us testing the solicitation, nothing more. That is what the
State prohibits and [Plaintiff] proposes.”).
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Douglasville, Ga., 975 F.2d 1505, 1510 (11th Cir. 1992) (“A government has a
more significant interest in the aesthetics of designated historical areas than in
other areas.”).
Relatedly, the district court correctly noted that the anti-solicitation
ordinance likely directly advances the City’s interest, finding that “[t]he City
adduced sufficient evidence . . . that the anti-solicitation ordinance has helped to
reduce solicitations.” See also Lorillard Tobacco Co. v. Reilly, 533 U.S. 525, 555,
121 S. Ct. 2404, 2422 (2001) (permitting the use of consensus, anecdotes, and
“simple common sense” to justify speech restrictions) (quotations omitted). As
such, the only remaining question is whether Section 74-1 is narrowly tailored to
serve the substantial interests of the City. Because the preliminary record shows
that the City disregarded numerous and obvious less-burdensome alternatives, the
district court did not err when it concluded that Section 74-1 is not narrowly
tailored.
The City bears the burden of demonstrating that Section 74-1 is
appropriately tailored in light of the substantial interests it seeks to achieve. See
Edenfield, 507 U.S. at 770-71, 113 S. Ct. at 1800. To survive First Amendment
scrutiny, a commercial speech prohibition must employ “a fit that is not necessarily
perfect, but reasonable; that represents not necessarily the single best disposition
but one whose scope is in proportion to the interest served, that employs not
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necessarily the least restrictive means but . . . a means narrowly tailored to achieve
the desired objective. Within those bounds we leave it to governmental
decisionmakers to judge what manner of regulation may best be employed.” Fox,
492 U.S. at 480, 109 S. Ct. at 3035 (quotations and citation omitted). “By
declining to impose . . . a least-restrictive-means requirement, we take account of
the difficulty of establishing with precision the point at which restrictions become
more extensive than their objective requires, and provide the Legislative and
Executive Branches needed leeway in a field (commercial speech) traditionally
subject to governmental regulation.” Id. at 480-81, 109 S. Ct. at 3035 (quotations
omitted).
In Fox, the Supreme Court provided concrete examples of what does and
does not violate the First Amendment. The Court explained,
None of our cases invalidating the regulation of commercial speech involved
a provision that went only marginally beyond what would adequately have
served the governmental interest. To the contrary, almost all of the
restrictions disallowed under Central Hudson’s fourth prong have been
substantially excessive, disregarding far less restrictive and more precise
means. On the other hand, our decisions upholding the regulation of
commercial speech cannot be reconciled with a requirement of least
restrictive means. In Posadas, for example, where we sustained Puerto
Rico’s blanket ban on promotional advertising of casino gambling to Puerto
Rican residents, we did not first satisfy ourselves that the governmental goal
of deterring casino gambling could not adequately have been served (as the
appellant contended) not by suppressing commercial speech that might
encourage such gambling, but by promulgating additional speech designed
to discourage it. Rather, we said that it was up to the legislature to decide
that point, so long as its judgment was reasonable. Similarly, in
Metromedia, Inc. v. San Diego, where we upheld San Diego’s complete ban
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of off-site billboard advertising, we did not inquire whether any less
restrictive measure (for example, controlling the size and appearance of the
signs) would suffice to meet the city’s concerns for traffic safety and
esthetics.
Id. at 479, 109 S. Ct. at 3034 (citations and quotations omitted) (emphasis in
original).
Similarly, this court has upheld prohibitions on commercial speech despite
the availability of potentially less-restrictive alternatives. See, e.g., Messer, 975
F.2d at 1511 (upholding a complete ban on off-premises signs in the City of
Douglasville’s historic district); Supersign of Boca Raton, Inc. v. City of Fort
Lauderdale, 766 F.2d 1528, 1532 (11th Cir. 1985) (“The district court also reached
an erroneous conclusion under the fourth part of the Central Hudson analysis. It
found that less restrictive means were available to effectuate the desired goals
because the city could have employed time, place and manner restrictions on the
operation of advertising vehicles rather than impose an outright ban. . . . In this
case, Fort Lauderdale has not attempted to prohibit any advertising that offers no
threat to traffic safety or aesthetic improvement: each advertising vehicle and craft
contributes to the problem.”).
However, there is a significant distinction between failing to employ less-
restrictive means and completely disregarding obvious less-burdensome
alternatives. While our analysis is “limited to whether the means are reasonably
and narrowly drawn to further the objective,” and we “should not attempt to
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speculate as to whether less restrictive means exist,” Harnish v. Manatee Cty., 783
F.2d 1535, 1540 (11th Cir. 1986), “if there are numerous and obvious less-
burdensome alternatives to the restriction on commercial speech, that is certainly a
relevant consideration in determining whether the ‘fit’ between ends and means is
reasonable.” City of Cincinnati v. Discovery Network, Inc., 507 U.S. 410, 417
n.13, 113 S. Ct. 1505, 1510 n.13 (1993). By ignoring far less restrictive and
precise means, it is likely that an ordinance burdens substantially more speech than
necessary. See Fox, 492 U.S. at 479, 109 S. Ct. at 3034.
Here, we affirm the preliminary injunction prohibiting the enforcement of
Section 74-1 because the record suggests that the ordinance is not narrowly
tailored–specifically that the City failed to consider numerous and obvious less-
burdensome alternatives.3 We need not speculate about potential alternatives
because this preliminary record is replete with numerous and obvious less-
burdensome options. The City itself offered these alternatives for the trial court’s
consideration. Thus, for example, the former Assistant City Manager testified that
“things like charitable solicitations” are allowed in the same areas but are regulated
3
The district court found that Section 74-1 was a disfavored “blanket ban,” and
consequently not narrowly tailored. It is unclear whether Section 74-1 is a blanket ban, and
whether such status warrants an injunction. See Metromedia, Inc. v. City of San Diego, 453 U.S.
490, 508, 101 S. Ct. 2882, 2893 (1981) (stating that a blanket ban is permissible when it is “the
most direct and perhaps only effective approach”). Because the record suggests that there are
numerous and obvious less-burdensome alternative commercial speech restrictions, we conclude
that Section 74-1 is not narrowly tailored, and we decline to reach the blanket ban issue.
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by permits. Further, artists and vendors are allowed to sell their goods, but they
are regulated “by a lottery,” “they are spaced appropriately,” their “volume is
regulated,” and “[t]he footprint[s] of the[ir] display[s] . . . [are] also heavily
regulated.” The City offered no explanation why it did not even consider these
less-restrictive alternatives, which currently regulate charities, artists, and vendors,
or why these alternatives could not also be used to regulate commercial
solicitation.
Comparing Section 74-1 to the Key West ordinance at issue in Sciarrino v.
City of Key West further highlights the existence of numerous and obvious less-
burdensome alternatives. 83 F.3d 364 (11th Cir. 1996). While the Key West
ordinance completely banned solicitation on public parking lots and public
beaches, solicitation “was significantly restricted, but not banned, on five historic
streets heavily trafficked by pedestrians.” Id. at 366. Importantly, Key West
allowed solicitation through a permitting system, which gave each business a
certain number of solicitation permits and set other restrictions on solicitation. See
id. Again, here, the City failed to even address the potential viability of such a
system. While the law does not require the use of the least-restrictive means, such
as a permitting system, an ordinance cannot be said to be narrowly tailored if the
record shows that obvious less-burdensome alternatives were completely
disregarded.
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In short, the clear availability of obvious less-restrictive alternatives suggests,
as it did to the district court on this preliminary record, that Retailers have
established a substantial likelihood of success on the merits. As such, we affirm
the grant of a preliminary injunction with respect to Section 74-1.
B. THE DISTRICT COURT CORRECTLY FOUND THAT RETAILERS WERE LIKELY TO
SUCCEED ON THE MERITS WITH RESPECT TO SECTION 46-92.
Unlike Section 74-1, the district court proceeded directly to an overbreadth
analysis when it considered Section 46-92, the anti-handbilling ordinance. To
determine whether Section 46-92 is unconstitutionally overbroad, first it must be
determined that the ordinance regulates more than just commercial speech. See
Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 494-
95, 102 S. Ct. 1186, 1191-92 (1982). Second, if non-commercial speech is
prohibited, there must be a substantial risk that Section 46-92 will have an
impermissible chilling effect on protected speech. Broadrick v. Oklahoma, 413
U.S. 601, 612-13, 93 S. Ct. 2908, 2916 (1973). Although overbreadth challenges
are a disfavored mechanism for invalidating an ordinance, given the fact that
Section 46-92 prohibits the distribution of “any handbill that conveys any
information about any good or service provided by a business,” the district court
properly found that Retailers showed a substantial likelihood of success on their
claim that the handbilling ordinance was overbroad.
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In Dimmitt, we noted that the “overbreadth doctrine does not apply where
the entire scope of the statute restricts only commercial speech.” Dimmitt v. City
of Clearwater, 985 F.2d 1565, 1571 (11th Cir. 1993) (emphasis in original).
However, “[w]here the statute governs both commercial and noncommercial
speech . . . a litigant with a commercial speech interest may nonetheless qualify by
virtue of the overbreadth rule to assert the speech rights of third parties with
noncommercial speech interests.” Id.The Supreme Court in Fox considered the State University System of New
York’s (SUNY’s) prohibition of “private commercial enterprises [] operat[ing] on
State University campuses or in facilities furnished by the University.” Fox, 492
U.S. at 471-72, 109 S. Ct. at 3030 (quotations omitted). SUNY defined prohibited
commercial speech as speech “where the end result is the intent to make a profit by
the invitee.” Id. at 482, 109 S. Ct. at 3036 (quotations omitted). The Court
concluded that such a broad definition covered more than just “speech that
proposes a commercial transaction,” e.g., newspapers, and political advertisements.
Id. (emphasis omitted). As such, the prohibition regulated both commercial and
non-commercial speech and was subject to an overbreadth attack. Id.Similarly, in Solomon, we found that Section 29-100(b)(2) of the Gainesville
code, which prohibited “street graphics: signs or any other street graphics
displaying any statement, word, character or illustration of an obscene, indecent or
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immoral nature,” regulated both commercial and non-commercial speech.
Solomon v. City of Gainesville, 763 F.2d 1212, 1213 (11th Cir. 1985). This court
looked at the stated intent, “to authorize street graphics, large enough to
sufficiently convey a message about the owner or occupants of a particular
property, the products or services available on such property, or the business
activities conducted on such property, yet small enough to preserve and protect the
natural beauty of the City and limit distractions to motorists,” id. at 1214(quotations and alteration omitted), and concluded “[n]owhere does the ordinance
explicitly differentiate between commercial and non-commercial speech. Indeed,
owners or occupants of a particular property in Gainesville may wish to display a
street graphic with no commercial purposes but which involves protected speech.”
Id.In contrast, while not analyzing the language under an overbreadth
challenge, this court upheld the Key West ordinance that defined off-premise
canvassing as the “distribution of information or solicitation of customers . . . in
connection with a business.” Sciarrino, 83 F.3d at 370.
Here, Section 46-92 prohibits the “distribution of commercial handbills,”
defined as “any handbill that conveys any information about any good or service
provided by a business.” The district court found that the prohibition extends to
non-commercial speech. Specifically, the district court provided a number of
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examples of non-commercial speech seemingly prohibited by Section 46-92, such
as an animal-rights activist protesting McDonalds, the distribution of bumper
stickers protesting the Seaquarium’s treatment of whales, and a food critic who
distributes flyers listing restaurant reviews in order to attract more visitors to her
website.
By defining commercial handbills to include any information about a
business, the language of Section 46-92 is similar to the prohibition in Fox. The
ordinance seemingly covers more than just speech proposing a commercial
transaction. Although the City argues that the ordinance distinguishes between
commercial and non-commercial messages because it explicitly targets only
commercial speech, the City’s definition of “commercial handbilling” is
problematic. The language is unlike the prohibition in Sciarrino where the text of
the ordinance clearly stated that the prohibition applies when the target audience is
a “customer.” In contrast, a prohibition on “any” message about “any” good or
service provided by a business can reasonably be read to prohibit non-commercial
messages. Thus, Retailers have shown a substantial likelihood of success on their
claim that Section 46-92 is susceptible to an overbreadth attack.
To succeed on an overbreadth challenge, Retailers “bear[] the burden of
demonstrating, ‘from the text of [the law] and from actual fact,’ that substantial
overbreadth exists.” Virginia v. Hicks, 539 U.S. 113, 122, 123 S. Ct. 2191, 2198
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(2003) (quoting N.Y. State Club Ass’n, Inc. v. City of N.Y., 487 U.S. 1, 14, 108 S.
Ct. 2225, 2234 (1988)). The overbreadth doctrine is designed to remedy the
chilling effects of overbroad statutes–statutes that “have such a deterrent effect on
free expression that they should be subject to challenge even by a party whose own
conduct may be unprotected.” Taxpayers for Vincent, 466 U.S. at 798, 104 S. Ct.
at 2125. Given the threat to freedom of expression, traditional rules of standing are
altered to permit litigants “to challenge a statute not because their own rights of
free expression are violated, but because of a judicial prediction or assumption that
the statute’s very existence may cause others not before the court to refrain from
constitutionally protected speech or expression.” Broadrick, 413 U.S. at 612, 93 S.
Ct. at 2916. Thus, a statute found to be overbroad is “totally forbidden until and
unless a limiting construction or partial invalidation so narrows it as to remove the
seeming threat or deterrence to constitutionally protected expression.” Id. at 613,
93 S. Ct. at 2916.
The Supreme Court, however, has recognized the overbreadth doctrine as
“strong medicine” that should be “employed . . . sparingly and only as a last
resort.” Id. Thus, “the overbreadth of a statute must not only be real, but
substantial as well, judged in relation to the statute’s plainly legitimate sweep.” Id.
at 615, 93 S. Ct. at 2918. The fact that there may be some conceivable
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impermissible applications is not enough to render a statute overbroad. Taxpayers
for Vincent, 466 U.S. at 800, 104 S. Ct. at 2126.
In Board of Airport Commissioners of City of Los Angeles v. Jews for Jesus,
Inc., the Supreme Court struck down an ordinance banning all First Amendment
activity within Los Angeles International Airport as unconstitutional under the
overbreadth doctrine. 482 U.S. 569, 574-75, 107 S. Ct. 2568, 2572 (1987). The
Court found that the resolution
[D]oes not merely regulate expressive activity in the Central Terminal Area
that might create problems such as congestion or the disruption of the
activities of those who use LAX. . . . [I]t prohibits even talking and reading,
or the wearing of campaign buttons or symbolic clothing. Under such a
sweeping ban, virtually every individual who enters LAX may be found to
violate the resolution.
Id.Similarly, here, the prohibition on “any” message about “any” good or
service provided by a business is overbroad. Section 46-92 burdens substantially
more speech than necessary to further the City’s interests. As the district court
correctly points out, everything from a PETA demonstrator passing out flyers
about a fast-food chain’s treatment of animals to a Rabbi distributing a list of
restaurants that serve kosher meals could potentially be prohibited under Section
46-92.
Moreover, there is no evidence in the record that this traditional non-
commercial speech presents the same problems that commercial handbilling does.
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The City acknowledges that the problems stem from commercial handbilling and it
seeks to regulate only commercial handbilling. However, Section 46-92 is not
worded in a sufficiently narrow manner to target only commercial handbilling.
Thus, the district court correctly concluded that Retailers showed a substantial
likelihood of success on their claim that Section 46-92 is overbroad.
IV. CONCLUSION
For the aforementioned reasons, we affirm the district court’s order granting
the preliminary injunction.
AFFIRMED.
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