Midwest Media v. Symmes Township ( 2007 )

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 07a0401p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
X
-
MIDWEST MEDIA PROPERTY, L.L.C.; CTI
Plaintiffs-Appellants, -
PROPERTIES, L.L.C.; and SPECKERT, L.L.C.,
-
-
No. 06-3828
,
v. >
-
-
Defendant-Appellee. -
SYMMES TOWNSHIP, OHIO,
-
N
Appeal from the United States District Court
for the Southern District of Ohio at Cincinnati.
No. 04-00604—Sandra S. Beckwith, Chief District Judge.
Argued: July 19, 2007
Decided and Filed: October 1, 2007
Before: CLAY and SUTTON, Circuit Judges; GREER, District Judge.*
_________________
COUNSEL
ARGUED: E. Adam Webb, THE WEBB LAW GROUP, Atlanta, Georgia, for Appellants. Kevin
Lantz, SURDYK DOWD & TURNER, Dayton, Ohio, for Appellee. ON BRIEF: E. Adam Webb,
THE WEBB LAW GROUP, Atlanta, Georgia, for Appellants. Kevin Lantz, Robert J. Surdyk,
SURDYK DOWD & TURNER, Dayton, Ohio, for Appellee.
SUTTON, J., delivered the opinion of the court, in which GREER, D. J., joined. CLAY, J.
(pp. 9-23), delivered a separate dissenting opinion.
_________________
OPINION
_________________
SUTTON, Circuit Judge. The district court granted summary judgment to Symmes
Township on plaintiffs’ claims that the township’s sign regulations violated the First (and
Fourteenth) Amendment because plaintiffs lack standing to challenge them. We affirm.
*
The Honorable J. Ronnie Greer, United States District Judge for the Eastern District of Tennessee, sitting by
designation.
1
No. 06-3828 Midwest Media Property, et al. v. Symmes Twp., Ohio Page 2
I.
Midwest Media, 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 the greater
Cincinnati metropolitan area, on behalf of its clients. Midwest Media filed one of the nine
applications on behalf of CTI Properties and another on behalf of Speckert.
To post a sign in Symmes Township, the applicant must comply with the township’s sign
regulations. At the time Midwest Media filed these applications, the regulations prohibited “off-
premise advertising sign[s] carrying a commercial message.” Symmes Twp., Hamilton County,
Ohio, Zoning Resolution art. XXXI, § 314.14; see id. § 312.40 (defining “[o]ff-premise [a]dvertising
sign” as “[a] sign which directs attention to a business, commodity, or commercial or non-
commercial service or entertainment which is not conducted, sold or offered upon the premises
where such sign is located or affixed”); id. § 323.1(2) (prohibiting “[o]ff premise advertising”).
They also imposed several height and size restrictions. See, e.g., id. § 321.2-1(3) (“No freestanding
pole sign located three hundred . . . feet from the right of way . . . shall exceed forty-five . . . feet in
height . . . and no sign within six hundred fifty . . . feet from the right of way . . . shall exceed
twenty . . . feet in height . . . .”); id § 321.2-2(4) (“No freestanding pole sign shall contain more than
one hundred twenty (120) square feet of sign area per side (maximum 2 sides).”).
According to the township, the regulations are designed to “minimize the possibility that sign
size, location, or character will create hazards adversely affecting the public safety,” id. § 311.4, to
“provide sign regulations which are directly related to land use and therefore to the functional and
economic need for signs of varying sizes, types and locations,” id. § 311.8, to “create a more
aesthetic environment,” id. § 311.10, and to “provide for the size, lighting and spacing of off-
premise advertising signs according to customary use and to provide special rules for retail areas
which are surrounded by Residence Districts,” id. § 311.12.
Midwest Media first sought permission to post a 40-foot-high, 672-square-foot, double-sided
sign. The zoning inspector for the Hamilton County Rural Zoning Commission, which contracts
with Symmes Township to oversee zoning matters, denied the application, noting that the proposed
sign violated the township’s height limit, see id. § 322.1-3, and its prohibition on off-premises
advertising, see id. § 323.1(2).
Midwest Media’s second application sought to display a 672-square-foot, single-face sign
that stood 40 feet high. The zoning inspector denied the application, reasoning that “Commercial
billboard[s] are not permitted in Symmes twp,” JA 77, the application exceeded the township’s
height and square-footage limits, see Zoning Resolution art. XXXI, § 321.2-2(3)–(4), and it violated
the prohibition on off-premises advertising, see id. § 323.1(2).
The third application sought permission to display a 672-square-foot, single-face sign
standing 40 feet high, and the zoning inspector denied the certificate for the same reasons as he did
the second one.
The fourth application sought permission to post a double-sided, 672-square-foot sign
standing 40 feet high. Once again, the zoning inspector denied the certificate because it violated the
township’s height and square-footage limits and its ban on off-premises advertising.
The fifth application sought permission to display another double-sided, 672-square-foot sign
measuring 40 feet high. In denying the certificate, the inspector cited sections of the township
regulations setting size and height limits and prohibiting off-premises advertising. See id.
§§ 321.2-2(3)–(4), 323.1(2).
No. 06-3828 Midwest Media Property, et al. v. Symmes Twp., Ohio Page 3
The sixth, seventh and eighth applications requested permission to erect a “monopole,”
double-sided, 672-square foot billboard measuring 40 feet high. The zoning-plans examiner denied
the certificates, citing the regulation prohibiting off-premises advertising signs, see id. § 323.1(2),
and noted later (in an affidavit) that she could have denied the requests on the basis of size and
height limits.
The ninth application sought to display a 40-foot-tall, three-sided sign measuring 672 square
feet on two of the sides and 288 on the third. The township rejected the application, citing the ban
on off-premises advertising, see id., and Midwest Media’s failure to seek a variance, and noting later
(in an affidavit from the zoning-plans examiner) that the proposed sign violated the township’s size
and height requirements.
After the denial of the ninth application, Midwest Media, CTI Properties and Speckert filed
this lawsuit against Symmes Township, challenging the validity of the off-premises advertising ban,
though not the size and height restrictions, and the validity of the permitting process because it
lacked “procedural safeguards.” Compl. ¶¶ 49–50, 54. The plaintiffs sought an injunction, damages
and attorney fees.
Soon after plaintiffs filed this lawsuit, Symmes Township amended the regulations to clarify
some of them, to remove others and to leave still others intact. Of particular interest to this lawsuit,
the township left in place its size and height requirements. See Zoning Resolution art. XXXI,
§ 313.3-5.
Symmes Township filed a motion for summary judgment, which the district court initially
denied because “the parties had given inadequate attention” to (1) whether the court could “require
the Township to permit the erection of signs in clear violation” of the size and height requirements,
which appeared to be “constitutionally permissible regulations,” simply “because [zoning] official[s]
failed to cite those regulations in denying” some of the applications, D. Ct. Order at 7, (2) whether
the size and height provisions were “severable and enforceable even if other provisions [were] not,”
id., and (3) whether the plaintiffs were “entitled to damages even though their applications would
have been subject to denial even in the complete absence of the contested portions of the Sign
Rules,” id. at 7–8. After additional briefing on these points, the court granted the township’s
supplemental motion for summary judgment on the ground that plaintiffs lack standing to bring their
claims.
II.
This appeal raises two “case[]” or “controvers[y]” issues under Article III: Is the dispute
moot in view of the township’s passage of the amendment to the sign-ordinance law? And, even
if the case is not moot, do plaintiffs have standing to bring this challenge?
A.
While standing restricts a party’s capacity to bring a lawsuit at the time the complaint is
filed, mootness restricts a party’s capacity to bring a lawsuit throughout the course of the litigation.
United States Parole Comm’n v. Geraghty, 445 U.S. 388, 396–97 (1980). Mootness occurs “when
the issues presented are no longer ‘live’ or the parties lack a legally cognizable interest in the
outcome.” Powell v. McCormack, 395 U.S. 486, 496 (1969). Even when an action presents a live
case or controversy at the time of filing, subsequent developments—including the passage of a new
law or an amendment to the original law—may moot the case. Hall v. Beals, 396 U.S. 45, 48
(1969).
In most cases, the repeal or amendment of a law moots challenges to the original law. But,
in this case, plaintiffs sought money damages arising from the township’s failure to approve their
No. 06-3828 Midwest Media Property, et al. v. Symmes Twp., Ohio Page 4
nine sign applications. The existence of this damages claim preserves the plaintiffs’ backward-
looking right to challenge the original law and to preserve a live case or controversy over that
dispute. Blau v. Fort Thomas Pub. Sch. Dist., 401 F.3d 381, 387 (6th Cir. 2005).
B.
To meet the “irreducible minimum” requirements of constitutional standing, plaintiffs must
demonstrate (1) that they “have suffered an injury in fact—an invasion of a legally protected interest
which is (a) concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical,”
Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992) (internal quotation marks and citations
omitted), (2) that a causal link exists “between the injury and the conduct complained of,” id.—i.e.,
that the “injury . . . fairly can be traced to the challenged action of the defendant,” Simon v. E. Ky.
Welfare Rights Org., 426 U.S. 26, 41 (1976), and (3) that it is “likely, as opposed to merely
speculative, that the injury will be redressed by a favorable decision,” Lujan, 504 U.S. at 561
(internal quotation marks omitted). Each requirement is “an indispensable part of the plaintiff’s
case” and “must be supported in the same way as any other matter on which the plaintiff bears the
burden of proof.” Id.
The key problem with plaintiffs’ claim is one of redressability. Even if plaintiffs could show
that the township’s original off-premises advertising ban (or its sign-approval process) violated the
First Amendment, each of Midwest Media’s nine sign applications sought permission to post signs
that plainly violated the township’s size and height regulations. See JA 92 (denying application and
noting that sign exceeded height limit); JA 77 (denying application and citing general provision
containing size and height limits); JA 88 (same); JA 110 (same); JA 157 (affidavit from zoning
inspector stating that application “could have been denied” because the proposed sign “exceeded
the height limitation” and “exceeded the maximum square footage” permissible); JA 160 (affidavit
from zoning-plans examiner stating that three applications “could have been denied because” they
“exceeded height limitations” and “exceeded the maximum square footage” permissible); JA 163
(affidavit from zoning-plans examiner stating that application “could have been denied
because . . . it exceeded height limitations” and “exceeded the maximum square footage”
permissible). Yet plaintiffs chose not to challenge the size and height requirements in their
complaint—perhaps in view of the difficulty of such a challenge here. See Prime Media, Inc. v. City
of Brentwood, 398 F.3d 814, 818–21 (6th Cir. 2005) (rejecting challenge to sign ordinance’s size
and height requirements); see also Members of City Council of L.A. v. Taxpayers for Vincent, 466
U.S. 789, 807 (1984) (rejecting challenge to city’s ban on posting signs on public property).
Having chosen not to challenge the size and height regulations and having filed nine
applications to post a sign in the township that violated these regulations, plaintiffs cannot tenably
show that success in challenging other regulations of the sign ordinance will redress any injury
caused by these regulations. For even in the absence of these regulations—even if, consistent with
the relief sought in plaintiffs’ complaint, our court invalidated them—that would not redress
plaintiffs’ injury because the size and height restrictions still would preclude the township from
approving their sign applications and thus still would preclude plaintiffs from erecting each of these
signs.
In reaching this conclusion, we follow a path marked by several decisions from other
circuits, most of which not only presented the same redressability problem but also arose from
disputes over sign ordinances—and indeed disputes over sign ordinances litigated by the same law
firm. In Advantage Media, L.L.C. v. City of Eden Prairie, 456 F.3d 793 (8th Cir. 2006), the Eighth
Circuit identified a similar standing flaw. “[A] favorable decision for Advantage,” the court
reasoned, “even with respect to those sign code provisions which were factors in the denial of its
permit applications would not allow it to build its proposed signs, for these would still violate other
unchallenged provisions of the sign code like the restrictions on size, height, location, and setback.”
No. 06-3828 Midwest Media Property, et al. v. Symmes Twp., Ohio Page 5
Id. at 801; see id. at 802 (“[F]or even in victory [plaintiff] would be ‘no closer’ to erecting its
billboards or obtaining damages than when litigation began.”). To the same effect is KH Outdoor,
L.L.C. v. Clay County, 482 F.3d 1299 (11th Cir. 2007). Plaintiff “has not satisfied the redressability
requirement,” the court held: “Any injury [plaintiff] actually suffered from the billboard and offsite
sign prohibition is not redressible because the applications failed to meet the requirements of other
statutes and regulations not challenged.” Id. at 1303.
The Fourth Circuit reached a similar conclusion in a similar setting: “Because Covenant’s
application violated the spacing requirement, it could not have been approved regardless of whether
other substantive provisions of the Sign Regulation are held to be unconstitutional.” Covenant
Media of S.C., L.L.C. v. City of N. Charleston, 493 F.3d 421, 430 (4th Cir. 2007); see id. (Plaintiff
“does not have standing to challenge other substantive provisions of the Sign Regulation that could
have served as the basis for denying the December 2004 Application.”); Harp Adver. Ill., Inc. v. Vill.
of Chi. Ridge, 9 F.3d 1290, 1291 (7th Cir. 1993) (denying standing to company that challenged
city’s zoning and sign codes, but not its size provision, because the company “could not put up its
sign even if it achieved total victory in [the] litigation” given that its proposed sign was “six times
as large as Chicago Ridge allows”); see also Clark v. City of Lakewood, 259 F.3d 996, 1009 (9th Cir.
2001) (reasoning that because plaintiff did not challenge “an additional barrier” to his adult-
entertainment license application, “the district court could not redress his alleged injury in this
lawsuit”); Deeper Life Christian Fellowship v. Sobol, 948 F.2d 79, 83–84 (2d Cir. 1991) (holding
that church lacked standing to challenge permit procedure as granting “unbridled discretion” to
officials because the statute prohibited all religious organizations from receiving permits; thus “even
if [the church] were to change its tenets [to comply with the permit requirements] the statute would
still not allow appellant a permit so long as it remained a religious organization”); cf. Renne v.
Gerry, 501 U.S. 312, 319 (1991) (finding a dispute nonjusticiable where another unchallenged
statute “might be construed” to prohibit the same conduct as the challenged statute); 13 Charles Alan
Wright, et al., Federal Practice and Procedure § 3531.5.
We need not decide whether plaintiffs could resolve this standing defect by alleging that they
wish to post signs that would satisfy the township’s size and height restrictions. Nothing in their
complaint offers any indication that they have any such plans—and if the nine past applications
(none of which satisfied the size and height restrictions) are precedent, there is no reason to think
that they will file any such application in the future. There thus is no basis for alleging imminent
injury from the regulations, as they offer no basis for concluding that they will seek permission to
post a sign that would comply with the unchallenged portions of the ordinance.
Plaintiffs’ invocation of the overbreadth doctrine does not solve this problem. Yes, the
doctrine relaxes the traditional requirement “that a party may assert only a violation of its own
rights.” Virginia v. Am. Booksellers Ass’n, Inc., 484 U.S. 383, 392 (1988); see also Broadrick v.
Oklahoma, 413 U.S. 601, 612 (1973) (“Litigants . . . are permitted 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.”). But, earlier this year, our court reminded litigants that
overbreadth does not excuse a party’s failure to “allege an injury arising from the specific rule being
challenged, rather than an entirely separate rule that happens to appear in the same section of the
municipal code.” Prime Media, Inc. v. City of Brentwood, 485 F.3d 343, 351 (6th Cir. 2007); see
id. at 350 (“Because overbreadth creates an exception only to the prudential standing inquiry, the
Supreme Court has made clear that the injury in fact requirement still applies to overbreadth claims
under the First Amendment.”) (emphasis added); see also Am. Booksellers, 484 U.S. at 392 (“To
bring a cause of action in federal court requires that plaintiffs establish at an irreducible minimum
an injury in fact . . . .”); Sec’y of Md. v. Joseph H. Munson Co., 467 U.S. 947, 958 (1984) (noting
that a “crucial issue[]” for overbreadth standing is whether the plaintiff “satisfies the requirement
of ‘injury-in-fact’”).
No. 06-3828 Midwest Media Property, et al. v. Symmes Twp., Ohio Page 6
The similarities between this case and Prime Media, 485 F.3d 343, deserve emphasis. Prime
Media wanted to display signs that violated the city’s billboard ordinance, including its prohibition
on off-premises advertising and its size and height restrictions. Id. at 346. After holding that the
size and height limitations constituted valid time, place and manner restrictions, see Prime Media,
Inc. v. City of Brentwood, 398 F.3d 814, 821 (6th Cir. 2005), we remanded the case to the district
court to decide whether Prime Media had standing to challenge the entire billboard ordinance, id.
at 825. The district court concluded that it did not and dismissed the lawsuit, Prime Media, Inc. v.
City of Brentwood, No. 3:02-1034, 2005 WL 3754055, at *3 (M.D. Tenn. July 29, 2005), and we
affirmed, holding that Prime Media lacked constitutional standing to mount an overbreadth attack
on the ordinance, see Prime Media, 485 F.3d at 353–54. Because the size and height restrictions
were valid time, place and manner restrictions and because Prime Media’s signs violated these
provisions, the company necessarily did not suffer a redressable injury. See id. at 352 (“If it had
attempted to produce a billboard which complied with the height and size requirements, and was
threatened with rejection or regulation under the other challenged ordinance provisions, there would
arguably be a cognizable injury in fact. Even if it had articulated some plans that it had developed
to erect such a sign, but was discouraged from doing so because it was destined to lose based on one
of the ordinance’s substantive provisions . . . Prime Media might have a claim of an imminent,
threatened injury. However the record bears no evidence of such a development. As a result, Prime
Media has not been subject to or affected by the other ordinance provisions challenged in its
remaining claims.”).
As it was in Prime Media, so it is here: All of the signs plaintiffs sought to erect violated
Symmes Township’s size and height requirements, and they have not provided us with any facts
showing that they intend to display signs that comply with these provisions. Having suffered no
cognizable injury, they lack standing to mount an attack on the township’s sign
regulations—whether under the overbreadth doctrine or under any other doctrine. See Advantage
Media, 456 F.3d at 799 (“Under no circumstances . . . does the overbreadth doctrine relieve a
plaintiff of its burden to show constitutional standing.”); CAMP Legal Def. Fund, Inc. v. City of
Atlanta, 451 F.3d 1257, 1270 (11th Cir. 2006) (“The overbreadth doctrine does not relieve a plaintiff
of the burden to prove constitutional standing, which requires that the plaintiff himself has suffered
some threatened or actual injury resulting from the putatively illegal action.”) (internal quotation
marks omitted); Gospel Missions of Am. v. City of L.A., 328 F.3d 548, 554 (9th Cir. 2003) (noting
that overbreadth standing requires “injury-in-fact”); Harp Adver., 9 F.3d at 1292 (“[The overbreadth
doctrine] does not imply, however, that the requirement of standing to sue has been elided.”).
Plaintiffs do no better by contending that they have brought a facial challenge. See Covenant Media,
493 F.3d at 429–30 (“Although there is broad latitude given facial challenges in the First
Amendment context, a plaintiff must establish that he has standing to challenge each provision of
an ordinance by showing that he was injured by application of those provisions.”) (internal citations
and quotation marks omitted).
Plaintiffs next argue that, even if the size and height restrictions are constitutional and even
if they would defeat their claims, they cannot be severed from the rest of the statute, including the
allegedly unconstitutional parts of it. As a result, they say, they should be permitted to pursue their
claims against other parts of the law. “Severability of a local ordinance is a question of state
law . . . .” City of Lakewood v. Plain Dealer Publ’g Co., 486 U.S. 750, 772 (1988). Ohio has
established a three-part inquiry to determine whether severability is appropriate: “(1) Are the
constitutional and the unconstitutional parts capable of separation so that each may be read and may
stand by itself? (2) Is the unconstitutional part so connected with the general scope of the whole as
to make it impossible to give effect to the apparent intention of the Legislature if the clause or part
is stricken out? (3) Is the insertion of words or terms necessary in order to separate the
constitutional part from the unconstitutional part, and to give effect to the former only?” State v.
Hochhausler, 668 N.E.2d 457, 466–67 (Ohio Ct. App. 1996) (internal quotation marks omitted).
No. 06-3828 Midwest Media Property, et al. v. Symmes Twp., Ohio Page 7
The valid size and height restrictions on the one hand and the purportedly unconstitutional
off-premises ban and procedural provisions on the other satisfy Ohio’s severability requirements.
All of the provisions comfortably stand on their own; even without the challenged provisions, the
height and size restrictions further several goals of the sign regulations—most especially the goal
of “public safety” and “aesthetic[s].” Zoning Resolution art. XXXI, §§ 311.4, 311.10. And no
words or terms need be added to separate the challenged portions from those not challenged or to
give meaning to the size and height provisions. See, e.g., Norwood v. Horney, 853 N.E.2d 1115,
1150–51 (Ohio 2006); State ex. rel. Maurer v. Sheward, 644 N.E.2d 369, 377–78 (Ohio 1994); Bd.
of Lucas County Comm’rs v. Waterville Twp. Bd. of Trs., 870 N.E.2d 791, 801–03 (Ohio Ct. App.
2007). Because the size and height requirements are severable from the allegedly unconstitutional
provisions and because they prohibited plaintiffs from obtaining relief on their damages and
injunction claims, the district court properly relied on those provisions in concluding that plaintiffs
lacked standing to bring this lawsuit.
Several of our sister circuits have reached a like conclusion in like circumstances. See
Covenant Media, 493 F.3d at 430 (severing height and size restriction in holding that “[b]ecause
Covenant’s application violated the spacing requirement, it could not have been approved regardless
of whether other substantive provisions of the Sign Regulation are held to be unconstitutional.
Covenant, therefore, could not have suffered any substantive constitutional injury due to other
provisions of the Sign Regulation that may have been unconstitutional.”); Advantage Media, 456
F.3d at 801 (“The district court properly considered the provisions of the sign code to be severable
in making its overbreadth standing determination.”); Tanner Adver. Group, L.L.C. v. Fayette
County, 451 F.3d 777, 797 (11th Cir. 2006) (en banc) (“[T]he Tanner panel opinion’s conclusion
that the overbreadth doctrine allows a litigant who was only injured under § A-1 of a statute also to
challenge § A-2 or even all of § A of a statute is incorrect . . . .”).
Plaintiffs, lastly, contend that the district court “ignore[d]” the claims of Speckert and CTI
Properties or erroneously “lump[ed] them in with” Midwest Media’s claims. Br. at 22. But they
give us no reason to treat the claims of the various companies as distinct. The only Speckert-specific
evidence that the plaintiffs provide is an affidavit from the company’s managing member, Robert
Speckert, who never mentions the size and height regulations, let alone questions their
constitutionality. And the plaintiffs offer nothing—save the application that Midwest Media filed
on CTI Properties’ behalf—setting forth a unique claim for CTI Properties. Neither Speckert nor
CTI Properties has alleged, for instance, that it plans to apply for signs that would comply with
Symmes Township’s size and height limits. As with Midwest Media’s claims, theirs too fail for
want of standing.
In brief response to the extensive analysis offered by our dissenting colleague, we make the
following observations. The Fourth, Seventh, Eighth, Ninth and Eleventh Circuits have rejected
virtually identical claims—most of them arising from the same types of sign ordinances, concerning
the same types of challenges and relying on the same standing problem. The dissent’s concern that
“the district court analyzed the constitutionality of the sign regulations and used the resolution of
that issue to deny standing,” Dissent at 13, is not presented by this case. Instead, the district court
simply did what these other circuits have done: It reasoned that a plaintiff who attacks, say, four out
of five substantive provisions of a sign ordinance does not raise a redressible injury because “[a]n
injunction against the portions of the sign and zoning codes that it has challenged would not let it
erect the proposed sign; the village could block the sign simply by enforcing another, valid,
ordinance already on the books.” Harp Adver., 9 F.3d at 1292. The concern that plaintiffs did
challenge the size and height restrictions because the complaint mentioned article XXXI of the
township’s code does not change matters. The substantive counts of the complaint did not mention
the size and height restrictions, and the counts of the complaint—as well as the pleadings and other
submissions before the district court and this court—make it clear that, while plaintiffs challenged
several other provisions, they did not challenge the size and height restrictions.
No. 06-3828 Midwest Media Property, et al. v. Symmes Twp., Ohio Page 8
III.
For these reasons, we affirm.
No. 06-3828 Midwest Media Property, et al. v. Symmes Twp., Ohio Page 9
_________________
DISSENT
_________________
CLAY, Circuit Judge, dissenting. The majority argues that Plaintiffs Midwest Media
Property, L.L.C. (“Midwest”), CTI Properties, L.L.C. (“CTI”), and Speckert, L.L.C. (“Speckert”),
lack standing to bring this action, under 42 U.S.C. § 1983, against Defendant Symmes Township
(“Defendant” or “Township”), a municipality in Ohio. This result rests on the erroneous conclusion
that Plaintiffs “chose[ ] not to challenge the size and height regulations” imposed by Defendant.
Maj. Op. at 4. Because Plaintiffs’ complaint expressly challenges Township’s sign regulations in
their entirety, this court has jurisdiction to reach the merits of this case. I would reverse the district
court’s decision and remand this case to the district court for further proceedings.
BACKGROUND
Plaintiffs allege that the Township violated their First and Fourteenth Amendment rights by
enforcing unconstitutional restrictions on signs. Between July 30, 2004, and August 30, 2004,
Midwest filed nine applications for commercial advertisement signs on behalf of CTI, Speckert, and
other property owners in the Township. The sign applications were denied because off-premises
advertising signs carrying commercial messages are expressly banned under the Township’s sign
regulations. The Township does not allow any exceptions from this prohibition. The plain terms
of the sign regulations clearly distinguish different types of speech – including political,
commercial, and noncommercial speech – and set forth different restrictions and distinct regulations
based on the type of speech that is being communicated and the message being disseminated. In this
case, Plaintiffs challenged the constitutionality of the sign regulations; specifically, Plaintiffs
contend that the sign regulations contain impermissible content-based restrictions on speech. The
district court dismissed this case, finding that Plaintiffs lack standing, and granted summary
judgment in favor of the Township.
The Township Sign Regulations
In this case, the principal issue concerns the sign regulations enacted by the Township. The
Township justifies its restrictive measures on the grounds of “public safety and welfare,
advancement of aesthetic characteristics, business promotion and property value preservation.”
(Def. Br. at 6) The contested sign regulations provide numerous restrictions on the size and type
of signs which may appear in various locations throughout the Township. In pertinent part, the sign
regulations prohibit commercial advertising off the premises of the business being advertised. They
require all signs to be set back ten feet from pavement and rights-of-way, and five feet from
adjoining property, and they provide disparate standards for different categories of signs, such as
signs identifying non-profit organizations, construction signs, real estate signs, traffic control signs
and political signs.
With respect to “Commercial signage,” the regulations provide additional instruction. The
regulations permit only one “free standing pole sign” per parcel of land located within 650 feet of
a federal interstate highway. The signs must be at least ten feet from any right of way, and twenty
feet from adjacent property. Finally, the regulations provide limits of the height and size of
commercial signs:
3. No freestanding pole sign located three hundred (300) feet
from the right of way of a federal interstate highway shall exceed
forty-five (45) feet in height from the finished grade level and no sign
No. 06-3828 Midwest Media Property, et al. v. Symmes Twp., Ohio Page 10
within six hundred fifty (650) feet from the right of way of a federal
interstate highway shall exceed twenty (20) feet in height from the
finished grade level.
4. No freestanding pole sign shall contain more than one
hundred twenty (120) square feet of sign area per side (maximum 2
sides).
(J.A. 132)
Defendant amended the sign regulations on May 5, 2005.1 In the amended regulations,
Defendant stated that it was committed to the “public’s right to receive and display” messages
protected by the First Amendment “subject, however, to reasonable regulations to assure safety and
minimize visual blight.” (J.A. 142) The amended regulations eliminated certain restrictions on
political signs and clarified that off-premises advertising excluded noncommercial signs. Defendant
now permits the display of political signs and “First Amendment Protected Messages” without a
zoning certificate, subject to area, height, and setback requirements. (J.A. 143-44)
Defendant also created a “special appeals process.” (Def. Br. at 16) Under the amended
regulations, Defendant is charged with making a determination with respect to a zoning application
within fifteen days. Defendant’s decision may be appealed to the Board of Zoning Appeals (the
“Board”) within twenty days. The Board is required to set a hearing within twenty to forty days, and
must provide written notice to all interested parties. The Board must make a final decision within
fourteen days after the hearing. If the Board fails to meet the procedural requirements set forth in
the regulations, the zoning application is deemed granted.
Notably, the amended regulations did not change restrictions concerning freestanding signs
and poles. Under the amended regulations, “[w]hether a sign displays a commercial message or a
Free Speech message, each sign shall still be subject to the dimensional regulations imposed in each
zoning district including, but not limited to size, height, area and setback in the same manner as if
it were displaying a commercial message.” (J.A. 144) The amended regulations also retain an
express ban on all off-premises commercial advertisements.
“Midwest is . . . in the business of erecting and operating advertising signs that are utilized
by businesses, churches, organizations, and individuals . . . to communicate commercial and
noncommercial messages.” (J.A. 8) CTI and Speckert are companies that “operate[ ] a business and
own[ ] property interests in land within” the Township. Both companies “seek[ ] to display and
view noncommercial and commercial messages on signs within the Township,” and “seek[ ] the
freedom to post [their] own or others’ signs on [their] property located in the Township.” (J.A. 9)
They have “signed lease agreements authorizing Midwest to operate signs,” but have “refrained
from posting signs in the Township due to the chilling effect of the Sign Regulations.” (Plaintiffs’
Br. at 4)
Midwest submitted nine sign applications, including applications on behalf of CTI and
Speckert, to the Township. Each of these applications sought a forty-foot tall “freestanding pole
sign on commercial property,” with 672 square feet of sign space per side. Each of these
applications were rejected by the Township either for failing to comply with the prohibition on “off
premises signage,” for proposing a billboard “not next to interstate highway,” for failing to comply
with limits on the number of signs which could be constructed on a particular parcel, or for
1
Plaintiffs did not amend the complaint after Defendant amended the sign regulations.
No. 06-3828 Midwest Media Property, et al. v. Symmes Twp., Ohio Page 11
exceeding height and area restrictions. Additionally, the Township now argues that, in denying each
application, it initially gave only a few of several valid justifications for denial under the sign
regulations. Specifically, the Township argues that each proposed sign violates the restrictions on
height and area and that they violate the rule against off-premises advertising.
Procedural History
After the denial of the nine applications, Plaintiffs filed a complaint against the Township
on September 3, 2004, alleging that the sign regulations are unconstitutional. Plaintiffs contend that
the sign restrictions are content-based because the regulations define and prohibit signs solely by
the content or message to be displayed and impermissibly favor commercial over noncommercial
speech. Additionally, they allege that the regulations lack procedural safeguards and grant
unfettered discretion to the Board. Finally, Plaintiffs maintain that Defendant’s regulations unduly
burden fundamental methods of communication and violate equal protection.
Significantly, Plaintiffs’ complaint alleges that the entirety of Township’s sign
regulations–including the height and area restrictions–are unconstitutional:
As used herein, “Sign Regulations” refers specifically to Article
XXXI of the Symmes Township Zoning Resolution and, collectively
to those sections of the Resolution that define [sic] otherwise regulate
signs . . . .2
(J.A. 13)
On June 13, 2005, Defendant filed a motion for summary judgment, which the district court
denied because the parties failed to adequately brief certain issues. In pertinent part, the district
court stated:
The Court perceives a number of issues to which the parties have
given inadequate attention . . . . [t]he first such issue is the effect of
the fact that the proposed signs were in clear violation of provisions
of the Sign Rules not cited by the Zoning Inspector in denying or
refusing Plaintiffs’ applications but also not challenged on
constitutional grounds by Plaintiffs. Can the Court require the
Township to permit the erection of signs in clear violation of
apparently constitutionally permissible regulations because its official
failed to cite those regulations in denying an application? Are the
constitutionally permissible provisions severable and enforceable
even if other provisions are not? Are Plaintiffs entitled to damages
even though their applications would have been subject to denial
even in the complete absence of the contested portions of the Sign
Rules? Resolution of those issues in favor of Defendant may
eliminate the necessity of the Court’s resolving certain constitutional
issues in this case.
2
Each of the thirteen counts in the complaint alleging that the Township ordinances are constitutionally deficient
use the words “Sign Regulations” to describe the specific regulations being challenged. See e.g., (J.A. 17) (“THE SIGN
REGULATIONS UNCONSTITUTIONALLY FAVOR COMMERCIAL OVER NONCOMMERCIAL SPEECH”).
The height and area restrictions are contained in Article XXXI of the sign regulations. (J.A. 132)
No. 06-3828 Midwest Media Property, et al. v. Symmes Twp., Ohio Page 12
Midwest Media Prop., L.L.C. v. Symmes Twp., Ohio, No. 04-CV-604, 2006 WL 143476, at *3 (S.D.
Ohio Jan. 18, 2006) (unpublished case).
After further briefing, the district court granted summary judgment in favor of Defendant on
May 22, 2006, finding that
the Township denied or refused each of Plaintiffs’ applications
because it contemplated a sign both taller and larger than permitted
by the Sign Regulations. Plaintiffs do not deny that each of the
contemplated signs exceeded the Sign Regulations’ height and size
restrictions, and the evidence of record plainly demonstrates that the
signs were not permitted under those provisions of the Regulations.
Midwest Media Property, L.L.C. v. Symmes Tp., Ohio, No. 04-CV-604, 2006 WL 2347489, at *3
(S.D. Ohio May 22, 2006) (unpublished case). Despite the express language of Plaintiffs’
complaint, the district court found “that Plaintiffs do not challenge the constitutionality of the height
and size restrictions per se” and that “[s]uch restrictions are routinely permitted to reduce visual
blight and promote traffic safety.” Id. at *4 (citations omitted). The court noted that height and size
“restrictions have been invalidated in the absence of evidence that safety and aesthetics were the
motivation for their adoption,” but found that “the Sign Regulations in this case include explicit
statements of purpose and intent identifying public safety and aesthetics.” Id. More specifically,
the district court “concluded as a matter of law that Plaintiffs cannot prove an actual or threatened
injury-in-fact,” and that Plaintiffs “lack standing to assert an overbreadth challenge to the Sign
Regulations on behalf of third-parties.” Id. at *6. Plaintiffs filed a timely notice of appeal on June
6, 2006.
DISCUSSION
I. Standard of Review
The dismissal of a claim for lack of standing is reviewed de novo. Prime Media, Inc. v. City
of Brentwood, 485 F.3d 343, 348 (6th Cir. 2007); see also Am. Canoe Ass’n, Inc. v. City of Louisa
Water & Sewer Comm’n, 389 F.3d 536, 540 (6th Cir. 2004).
Moreover, this Court reviews a district court’s denial of summary judgment de novo.
Dickerson v. McClellan, 110 F.3d 1151, 1157 (6th Cir. 1996). Summary judgment is proper “if the
pleadings, depositions, answers to interrogatories, and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to any material fact and that the moving
party is entitled to a judgment as a matter of law.” Fed. R. Civ. P. 56(c); Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 247-48 (1986). “A fact is ‘material’ and precludes grant of summary judgment
if proof of that fact would have [the] effect of establishing or refuting one of essential elements of
a cause of action or defense asserted by the parties, and would necessarily affect application of
appropriate principle of law to the rights and obligations of the parties.” Kendall v. Hoover Co., 751
F.2d 171, 174 (6th Cir. 1984) (citations omitted).
The party seeking summary judgment bears the initial burden of demonstrating the absence
of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 333 (1986). If
Defendants carry their burden of showing that there is an absence of evidence to support a claim,
id. at 325, Plaintiffs must come forward with “specific facts showing that there is a genuine issue
for trial,” First Nat’l Bank of Ariz. v. Cities Servs. Co., 391 U.S. 253, 270 (1968).
No. 06-3828 Midwest Media Property, et al. v. Symmes Twp., Ohio Page 13
II. THE DISTRICT COURT ERRED IN GRANTING SUMMARY JUDGMENT IN
FAVOR OF THE TOWNSHIP
A. Standing
1. Constitutional Standing Generally
As a threshold matter, Plaintiffs argue that the district court improperly decided the merits
of the constitutional claim before addressing the issue of standing. In Steel Co. v. Citizens for a
Better Env’t, 523 U.S. 83 (1998), the Supreme Court held that courts must decide jurisdictional
questions as a threshold matter. Id. at 94-95. “The requirement that jurisdiction be established as
a threshold matter spring[s] from the nature and limits of the judicial power of the United States and
is inflexible and without exception.” Id. (internal quotation marks and citations omitted). A court
should not analyze or resolve substantive issues before addressing the issue of standing. “Before
turning to the merits, [a court] must address the plaintiffs’ standing to raise several constitutional
claims and [ ] must do so even though some of those constitutional claims are easier to resolve than
the standing question attached to them.” 1064 Old River Road, Inc. v. City of Cleveland, 137 F.
App’x 760, 764 (6th Cir. 2005) (citation omitted) (unpublished opinion). A district court may not
avoid the standing issue and proceed to a determination on the merits because “standing in no way
depends on the merits of the plaintiff’s contention that particular conduct is illegal.” McConnell v.
Fed. Election Comm’n, 540 U.S. 93, 227 (2003) (quoting Warth v. Seldin, 422 U.S. 490, 500
(1975)). In the instant case, since the district court analyzed the constitutionality of the sign
regulations and used the resolution of that issue to deny standing, the court’s decision is procedurally
improper.
In this case, the district court erred in finding that Plaintiffs lack standing to bring this action.
To make a determination with respect to standing, this Court must determine whether Plaintiffs
“have suffered an injury in fact – an invasion of a legally protected interest which is (a) concrete and
particularized, and (b) actual or imminent, not conjectural or hypothetical.” Lujan v. Defenders of
Wildlife, 504 U.S. 555, 560-61 (1992) (internal quotation marks and citation omitted). “Second,
there must be a causal connection between the injury and the conduct complained of—the injury has
to be ‘fairly . . . trace[able] to the challenged action of the defendant, and not . . . th[e] result [of] the
independent action of some third party not before the court.” Id. (internal quotation marks and
citation omitted) “Third, it must be likely, as opposed to merely speculative, that the injury will be
redressed by a favorable decision.” Id. (internal quotation marks and citation omitted). Each
element of standing will be discussed below.
Plaintiffs can demonstrate an injury in fact that satisfies the first element of the standing
inquiry. Notably, the district court’s opinion addressed only Midwest’s standing claims and did not
make a determination with respect to CTI’s and Speckert’s standing claims. Since CTI’s and
Speckert’s claims are separate and independent from Midwest’s claims, the district court erred in
failing to address those claims.
The record shows that Midwest submitted sign applications to the Township specifically on
behalf of CTI and Speckert. Defendant denied the applications. The denial of the applications
precluded CTI and Speckert from disseminating commercial speech and messages, and may have
had a chilling effect on protected speech. See Bd. of County Com’rs, Wabaunsee County, Kan. v.
Umbehr, 518 U.S. 668, 674 (1996) (recognizing that a chilling effect is a “constitutional violation[ ]
[that] may arise from the deterrent, or chilling, effect of governmental [efforts] that fall short of a
direct prohibition against the exercise of First Amendment rights.” (quoting Laird v. Tatum, 408
U.S. 1, 11 (1972)). Since the Township used the sign regulations to deny the sign applications, CTI
and Speckert can demonstrate a direct injury and have standing to challenge the regulations. See,
No. 06-3828 Midwest Media Property, et al. v. Symmes Twp., Ohio Page 14
e.g., Epicenter of Steubenville, Inc. v. City of Steubenville, 924 F. Supp. 845, 849-50 (S.D. Ohio
1996) (holding that the inability to obtain a municipal zoning permit constitutes injury in fact); see
also V. Jacobs & Sons v. Saginaw County Dep’t of Pub. Health, 284 F. Supp. 2d 711, 716 (E.D.
Mich. 2003); Horizon Outdoor, L.L.C. v. City of Industry, 228 F. Supp. 2d 1113, 1125 (C.D. Cal.
2002).
Although Midwest does not have an injury as direct as the injury alleged by CTI and
Speckert, the record clearly shows that Midwest lost income it would have received if the sign
applications had been approved. Midwest’s economic loss qualifies as an injury for standing
purposes. Cf. Int’l Ass’n of Firefighters of St. Louis v. City of Ferguson, 283 F.3d 969, 974 (8th Cir.
2002) (noting that indirect economic injury may constitute an injury in fact); Biggs v. Best, Best &
Krieger, 189 F.3d 989, 998 (9th Cir. 1999) (same); Horstkoetter v. Dep’t of Pub. Safety, 159 F.3d
1265, 1279 (10th Cir. 1998) (same). Since the denial of the applications directly curtailed CTI’s and
Speckert’s speech and reduced Midwest’s income, Plaintiffs have suffered a requisite injury in fact.
Plaintiffs also satisfy the second element of the standing inquiry because there is a causal
connection between their alleged injuries and the Township’s conduct. See Am. Canoe Ass’n, 389
F.3d at 542. Plaintiffs’ alleged injuries are fairly traceable to the Township’s sign regulations,
particularly because Defendant used the sign regulations to deny the sign applications. See
Lockridge v. City of Oldsmar, Fla., 475 F. Supp. 2d 1240, 1249-50 (finding that the denial of a sign
application was “causally connected to the allegedly unconstitutional ordinance upon which the
application denials were based.”). Finally, Plaintiffs satisfy the third element in the standing inquiry
because it is likely that their injuries would be redressed by a favorable decision.
The majority avers that Plaintiffs lack standing to bring this action because the complaint
failed to challenge the size and height restrictions set forth in the Township’s sign regulations. This
contention is simply wrong and demonstrates a flagrant disregard for the plain language and express
allegations contained in Plaintiffs’ complaint. In this case, the complaint expressly challenges “the
Township’s Sign Regulations” and “refers specifically to Article XXXI of the Symmes Township
Zoning Resolution and, collectively to those sections of the Resolution that define [or] otherwise
regulate signs, including provisions located in Articles III (Definitions), XVIII (Board of Zoning
Appeals), XIX (Zoning Certificates), and XXVIII (Violations and Penalties).” (J.A. 13) The
Township’s size and height restrictions are found in Article XXXI, and Plaintiffs expressly
challenge this article and all of its provisions in the complaint. Moreover, the complaint repeatedly
alleges that all aspects of the Township’s sign restrictions “are constitutionally invalid and
inseparable from the remainder of the regulations,” (J.A. 25), and that “no valid regulation
prohibited [the] requested signs,” (J.A. 23)
Contrary to the majority’s assertions, Plaintiffs do not challenge a discrete piece of Article
XXXI; rather, the allegations in the complaint challenge all provisions contained in the article. The
majority’s reading of the complaint is simply wrong because this Court is charged with applying a
liberal standard of review to the complaint and with viewing the pleadings and evidence in the
record in the light most favorable to the plaintiffs. Pagan v. Fruchey, 492 F.3d 766, 770 (6th Cir.
2007) (en banc)(discussing Fed. R. Civ. P. 56); Hildebrand v. Bd. of Trs. of Mich. State Univ., 607
F.2d 705, 709 (6th Cir. 1979) (“Under the liberal pleading allowances of the Federal Rules of Civil
Procedure, allegations made in pleadings must be broadly construed.”); see also Fed. R. Civ. P. 8.
The notice pleading requirement is satisfied because Plaintiffs’ allegations are sufficient to put
No. 06-3828 Midwest Media Property, et al. v. Symmes Twp., Ohio Page 15
Defendant on notice of the injury being alleged.3 Conley v. Gibson, 355 U.S. 41, 48 (1957) (“The
Federal Rules reject the approach that pleading is a game of skill in which one misstep by counsel
may be decisive to the outcome and accept the principle that the purpose of pleading is to facilitate
a proper decision on the merits.”); see also Evans-Marshall v. Bd. of Educ. of Tipp City Exempted
Village Sch. Dist., 428 F.3d 223, 228 (6th Cir. 2005) (noting that “under the notice pleading standard
of the Federal Rules, courts are reluctant to dismiss colorable claims which have not had the benefit
of factual discovery”) (citing Conley, 355 U.S. at 48). In the absence of a heightened pleading
requirement, there is no basis for finding that the allegations of Plaintiffs’ complaint fail to challenge
the size and height limitations set forth in the Township’s sign regulations.
2. Standing Under the Overbreadth Doctrine
While the reasons stated above are sufficient to hold that Plaintiffs have standing, their case
is further bolstered by the overbreadth doctrine. The Supreme Court has found that broadly written
statutes may have a powerful deterrent effect on free speech and expression. Thornhill v. Alabama,
310 U.S. 88, 97 (1940) (establishing the overbreadth doctrine). The Supreme Court has held “that
the very existence of some broadly written statutes may 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.” Members of City Council of City of Los Angeles v. Taxpayers for Vincent, 466 U.S.
789, 798-99 (1984). Indeed, “such a statute may be challenged on its face even though a more
narrowly drawn statute would be valid as applied to the party in the case before it.” Id. “Litigants
. . . are permitted 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 v.
Oklahoma, 413 U.S. 601, 612 (1973).
“The First Amendment doctrine of overbreadth was designed as a ‘departure from traditional
rules of standing,’ to enable persons who are themselves unharmed by the defect in a statute
nevertheless ‘to challenge that statute on the ground that it may conceivably be applied
unconstitutionally to others, in other situations not before the Court.’” Bd. of Trs. of State Univ. of
N.Y. v. Fox, 492 U.S. 469, 484 (1989) (quoting Broadrick, 413 U.S. at 613); see also Dambrot v.
Cent. Mich. Univ., 55 F.3d 1177, 1183 (6th Cir. 1995). There is “no requirement that the person
3
Admittedly, the notice pleading requirement was amended slightly by the Supreme Court’s recent decision
in Bell Atlantic Co. v. Twombly, 127 S. Ct. 1955 (2007), which held that “a plaintiff’s obligation to provide the ‘grounds’
of his ‘entitlement to relief’ requires more than labels and conclusions, and a formulaic recitation of the elements of a
cause of action will not do . . . .” Id. at 1964-65. Twombly does not apply here, however, because Plaintiff has coupled
its allegations with facts which suggest that Defendant has deprived it of its alleged right to post signs.
Twombly involved a claim under § 1 of the Sherman Antitrust Act, which requires the plaintiff to prove that
the defendants engaged in a “contract, combination . . . or conspiracy, in restraint of trade or commerce.” Id. at 1961.
Rather than alleging that such collusion existed, however, the Twombly plaintiff merely alleged that the defendants were
operating their businesses in a manner which is consistent with collusion, and then invited the courts to conclude that
a conspiracy must follow from this circumstantial evidence. Id. at 1962-63. The Supreme Court held that, under § 1
of the Sherman Act, a “bare assertion of conspiracy” is not sufficient to state a claim. Id. at 1967. Instead, the Twombly
plaintiff was also required to plead facts which “raise[] a suggestion” of actual collusion. Id.
In other words, Twombly was a case where the plaintiff invoked a statute banning collusion, but failed to
actually state any facts suggesting collusion. This stands in stark contrast to the instant case. Here, Plaintiff alleges a
violation of the First Amendment’s Free Speech Clause, and supports its allegation with specific examples of instances
where the challenged regulations denied it the ability to speak freely. Plaintiff expressly states that it has been unable
to post signs “[a]s a result of the Township’s enforcement of its Sign Regulations.” (J.A. 8) (emphasis added). It cites
nine specific examples where it was denied its alleged rights as a direct result of the Township’s denial of Plaintiff’s
applications to post signs.
No. 06-3828 Midwest Media Property, et al. v. Symmes Twp., Ohio Page 16
making the attack demonstrate that his own conduct could not be regulated by a statute drawn with
the requisite narrow specificity.” Vincent, 466 U.S. at 798-99, n. 17 (internal quotation marks and
citation omitted). “Facial overbreadth claims have also been entertained where statutes, by their
terms, purport to regulate the time, place, and manner of expressive or communicative conduct, and
where such conduct has required official approval under laws that delegated standardless
discretionary power to local functionaries, resulting in virtually unreviewable prior restraints on First
Amendment rights.” Broadrick, 413 U.S. at 613 (citations omitted).
Midwest argues that, as an advertising company, it may raise a facial overbreadth challenge
to Defendant’s sign regulations. In Metromedia, Inc. v. City of San Diego, 453 U.S. 490 (1981), the
Supreme Court held that sign companies may use overbreadth standing to challenge sign regulations.
As the Supreme Court expressly stated,
[it] ha[s] never held that one with a ‘commercial interest’ in speech
also cannot challenge the facial validity of a statute on the grounds of
its substantial infringement of the First Amendment interests of
others. Were it otherwise, newspapers, radio stations, movie theaters
and producers—often those with the highest interest and the largest
stake in a First Amendment controversy—would not be able to
challenge government limitations on speech as substantially
overbroad.
Id. at 505 n.11; see also City of Lakewood v. Plain Dealer Pub. Co., 486 U.S. 750, 755-56 (1988)
(holding that “one who is subject to the law may challenge it facially without the necessity of first
applying for, and being denied, a license.”).
Case law clearly establishes that Midwest, as an advertising company, has standing to
challenge the constitutionality of the sign regulations at issue in this case because the complaint in
this case clearly alleges that Defendant’s zoning ordinances are overbroad. See, e.g., Lac Vieux
Desert Band of Lake Superior Chippewa Indians v. Mich. Gaming Control Bd., 172 F.3d 397, 407
(6th Cir. 1999) (finding that “given the First Amendment context . . . a facial challenge is
appropriate, and any need for [a party] to participate in the allegedly unconstitutional [ ] process in
order to establish standing is obviated.”); Desert Outdoor Adver., Inc. v. City of Moreno Valley, 103
F.3d 814, 818 (9th Cir. 1996) (finding that advertising companies “have standing to challenge the
[municipal sign] permit requirement, even though they did not apply for permits, because applying
for a permit would have been futile.”); Nat’l Adver. Co. v. City of Fort Lauderdale, 934 F.2d 283,
285 (11th Cir. 1991) (finding that advertisement company “has a commercial interest in the speech
regulated by the sign code” and “has the right to assert a claim, in its own behalf and for third
parties, that the code is unconstitutional.”); Nat’l Adver. Co. v. Town of Babylon, 900 F.2d 551, 555
(2d Cir. 1990) (finding that “because of its commercial interest in the speech appellants seek to
restrict, [advertising company] has standing to challenge the ordinances . . . . as facially invalid.”).
The majority’s finding to the contrary plainly contravenes well-established precedent from this
Court and the Supreme Court. Therefore, Midwest has overbreadth standing to challenge the
Township’s sign regulations. Because Plaintiffs have constitutional standing, the district court erred
in dismissing this case.
B. The First Amendment
1. Underlying Jurisprudence
“Just as the First Amendment does not guarantee the right to communicate one’s views at
all times and places or in any manner . . . so it does not permit municipalities to regulate methods
No. 06-3828 Midwest Media Property, et al. v. Symmes Twp., Ohio Page 17
of expression however, whenever and wherever they wish. Prime Media, 398 F.3d at 818 (citing
Wheeler v. Comm’r of Highways, Commw. of Ky., 822 F.2d 586, 589 (6th Cir.1987)) (internal
quotation marks omitted). In order to determine whether or not the municipal ordinances at issue
impermissibly regulate speech in violation of the First Amendment, however, a court must first
determine which level of scrutiny it should apply in weighing the Township’s interest in regulating
speech against Plaintiffs’ interest in speaking. The courts give great deference to legislatures in
most cases, generally deferring to legislative judgment so long as a law appears supported by some
rational basis. See, e.g., Minnesota v. Clover Leaf Creamery Co., 449 U.S. 456, 464 (1981). When
fundamental interests are limited by a legislative act, however, courts will apply the strictest level
of scrutiny, and invalidate the law unless it is deemed necessary to serve a compelling government
interest. See, e.g., Burson v. Freeman, 504 U.S. 191, 199-200 (1992). Finally, the Supreme Court
has also recognized some interests which, while not constituting fundamental interests triggering
strict scrutiny, still must be examined under a heightened level of review. See, e.g., McConnell, 504
U.S. at 108.
Ordinarily, when the government seeks to regulate commercial speech which is neither
misleading nor concerning illegal activity, this Court should apply an intermediate level of scrutiny
in weighing the restriction. Under this intermediate scrutiny, the speech restriction will be upheld
only if it 1) directly advances a substantial government interest; and 2) is not “more extensive than
necessary to serve that interest.” Cent. Hudson Gas & Elec. Corp., 447 U.S. 557, 566 (1980); see
also Edenfield v. Fane, 507 U.S. 761, 767 (1993) ( “[L]aws restricting commercial speech, unlike
laws burdening other forms of protected expression, need only be tailored in a reasonable manner
to serve a substantial state interest in order to survive First Amendment scrutiny.”). “Unlike
rational-basis review, [intermediate scrutiny] does not permit us to supplant the precise interests put
forward by the State with other suppositions.” Edenfield, 507 U.S. at 768. Rather, the burden rests
with the Defendant to proffer the specific government interests which it deems sufficient to
overcome intermediate scrutiny. Id. at 770-71.
Under intermediate scrutiny, “the party seeking to regulate commercial speech, [has] the
burden of affirmatively establishing that the ordinance” is constitutional with respect to all aspects
of this test. Desert Outdoor Adver., Inc. v. City of Moreno Valley, 103 F.3d 814, 819 (9th Cir. 1996)
(citing Bd. of Trs. of the State Univ. of N.Y., 492 U.S. at 480); see also Edenfield, 507 U.S. at 770-
771 (1993) (“It is well established that [t]he party seeking to uphold a restriction on commercial
speech carries the burden of justifying it.” (quoting Bolger v. Youngs Drug Prod. Corp., 463 U.S.
60, 71 n.20 (1983)) (quotation marks omitted) (alteration in original)). “This burden is not satisfied
by mere speculation or conjecture; rather, a governmental body seeking to sustain a restriction on
commercial speech must demonstrate that the harms it recites are real and that its restriction will in
fact alleviate them to a material degree.” Edenfield, 507 U.S. at 770-71. “Without this requirement,
[Defendant] could with ease restrict commercial speech in the service of other objectives that could
not themselves justify a burden on commercial expression.” Id.
This framework was recently reaffirmed by this Court in our en banc decision in Pagan v.
Fruchey. In Pagan, a commercial speech case that was decided by the same district court judge who
decided the instant matter,4 this Court expressly held that a municipality must produce sufficient
evidence to justify the restrictions on commercial speech imposed by an ordinance. 492 F.3d at 771.
This Court found that “the evidence adduced by the [municipality] [was] insufficient to satisfy [its]
burden” because more than “a conclusory articulation of government interests” is required under
Supreme Court precedent. Id. at 772-73. This Court specifically noted that the district court cannot
4
Since the en banc Court recently decided Pagan, the district court did not have the benefit of Pagan when it
was deciding the instant case.
No. 06-3828 Midwest Media Property, et al. v. Symmes Twp., Ohio Page 18
apply a “deferential standard” or “place[ ] the burden on [Plaintiffs] to demonstrate the
unconstitutionality of the ordinance.” Id. at 773.
In Pagan, the municipality argued “that it would be difficult, expensive, and time-consuming
to conduct studies and provide empirical evidence in support of” its zoning ordinance. Id.
Nevertheless, this Court declined to “adopt a standard of ‘obviousness’ or ‘commonsense,’ under
which [to] uphold a speech regulation in the absence of evidence of concrete harm,” and found that
“the Supreme Court has made quite clear that” there is an “evidentiary requirement the state must
meet under intermediate scrutiny.” Id. at 774. “[T]he standard established by the Supreme Court
depends neither on obviousness nor common sense. [Supreme Court precedent] requires some
evidence to establish that a speech regulation addresses actual harms with some basis in fact.” Id.
(emphasis in original).
As difficult as it may be for a law to survive this intermediate level of scrutiny, under certain
circumstances, laws burdening commercial speech must survive an even stricter test. When a
restriction on commercial or other speech engages in “content-based restriction,” the law “can stand
only if it satisfies strict scrutiny.” United States v. Playboy Entm’t Group, Inc., 529 U.S. 803, 813
(2000); see also Turner Broad. Sys., Inc. v. Fed. Commc’ns Comm’n, 512 U.S. 622, 635 (1994)
(noting that a regulation may “warrant strict scrutiny as a content-based regulation.”).
Under strict scrutiny, a content-based restriction on speech must be “necessary to serve a
compelling state interest” and “narrowly drawn to achieve that end.” Perry Educ. Ass’n v. Perry
Local Educators’ Ass’n, 460 U.S. 37, 45 (1983); see Playboy, 529 U.S. at 813. The requirement that
a restriction on speech be narrowly drawn requires the regulation to be the least restrictive
alternative available. Ward v. Rock Against Racism, 491 U.S. 781, 798 n. 6 (1989). The Supreme
Court has recognized that “it is the rare case in which . . . a law survives strict scrutiny.” Burson v.
Freeman, 504 U.S. 191, 211 (1992). “With rare exceptions, content discrimination in regulations
of the speech of private citizens on private property . . . is presumptively impermissible, and this
presumption is a very strong one.” City of Ladue v. Gilleo, 512 U.S. 43, 58 (1994) (O’Connor, J.,
concurring).
The Supreme Court has defined laws which are content-based—and thereby are subject to
strict scrutiny—as those which cannot be justified “without reference to the content of the regulated
speech.” Virginia Pharmacy Bd. v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748, 771
(1976). Laws which engage in “discrimination among different users of the same medium for
expression” are generally held to be content-based. Police Dept. of City of Chicago v. Mosley, 408
U.S. 92, 96 (1972); see also First Nat’l Bank of Boston v. Bellotti, 435 U.S. 765, 784-85 (1978) (“In
the realm of protected speech, the legislature is constitutionally disqualified from dictating the
subjects about which persons may speak and the speakers who may address a public issue.”). Thus,
for example, a law which prohibits picketing, except when engaged in as part of a labor dispute, is
content-based because it gives preferential treatment to people using picketing to speak on one
particular subject. Carey v. Brown, 447 U.S. 445, 460-61 (1980). Similarly, a law which prohibits
signs critical of a foreign-government, while permitting all other signs, is content-based and must
survive strict scrutiny, Boos v. Barry, 485 U.S. 312, 318-19 (1988), even though a law banning all
signs would be permitted. “In short, [if] some types of signs are extensively regulated while others
are exempt from regulation based on the nature of the messages they seek to convey, [a] sign code
[would be] undeniably a content-based restriction on speech.” Solantic, LLC v. City of Neptune
Beach, 410 F.3d 1250, 1266 (11th Cir. 2005).
Case law from our sister circuits suggests that whether or not a law which burdens
commercial speech is content-based weighs heavily on whether or not a sign ordinance will survive
constitutional muster. While a plurality of the Supreme Court has held that “traffic safety and the
No. 06-3828 Midwest Media Property, et al. v. Symmes Twp., Ohio Page 19
appearance of the city are substantial government goals,” and thus sufficient to satisfy intermediate
scrutiny, Metromedia, Inc. v. San Diego, 453 U.S. 490, 507-08 (1981) (plurality opinion), at least
two Courts of Appeal have questioned whether these interests are sufficient to survive strict scrutiny.
See Solantic, 410 F.3d at 1268 (finding that a “sign code is not narrowly tailored to accomplish the
City’s asserted interests in aesthetics and traffic safety” and that case law “[does not] recognize[ ]
those interests as ‘compelling’”); Whitton v. City of Gladstone, Mo., 54 F.3d 1400, 1408 (8th Cir.
1995) (“[A] municipality’s asserted interests in traffic safety and aesthetics, while significant, have
never been held to be compelling.”).
2. The Constitutionality of the Sign Regulations
Turning now to the question of which level of scrutiny to apply to the Township’s sign
regulations, it is apparent that at least some of the restrictions are content-based, and thus must
survive strict scrutiny.5 Section 314.14, for example, states that “[n]o off-premise advertising sign
carrying a commercial message shall be permitted.” Section 314.30 bans “banner signs,” including
most flags, but creates an exception for “federal, state and local flags.” Much of § 316 creates
special rules which signs containing certain content, such as “political signs” or “domestic
advertising,” must follow. Section 321.1-2 permits signs that identify the name of a shopping center,
but allows signs with no other content.
What all of these provisions have in common is content discrimination. Each of them
identifies particular types of signs on the basis of their content, and then creates rules specific only
to those signs so identified. These provisions are content-based, and thus are subject to strict
scrutiny. When applying strict scrutiny, the defendant bears the burden to justify its speech
regulations. Johnson v. California, 543 U.S. 499, 505 (2005). Defendant, in the instant case, asserts
that the sign regulations are necessary because of aesthetic interests and public safety concerns, but
these concerns are insufficient to survive strict scrutiny.
The Eleventh Circuit’s decision in Dimmitt v. City of Clearwater, 985 F.2d 1565 (1993) is
helpful in explaining why Defendant’s aesthetic and safety concerns are insufficient to sustain the
sign regulations. Dimmitt struck down a local ordinance limiting the kind and number of flags
which the plaintiff car dealership could display. Id. at 1568. The Eleventh Circuit held that the
ordinance must withstand strict scrutiny, and the city responded by asserting its interests in
“promoting aesthetics and in minimizing visual distractions to motorists.” Id. at 1569.
As the Eleventh Circuit noted, “only the most extraordinary circumstances will justify
regulation of protected expression based upon its content.” Id. The court added that neither the
need to preserve international relations nor the threat of criminal violence are sufficient grounds to
allow content-based government censorship. Id.; see Boos v. Barry, 485 U.S. 312, 321-29 (1988)
(prohibition on display of signs critical of a foreign government within 500 feet of foreign embassy
is unconstitutional); Brandenburg v. Ohio, 395 U.S. 444, 446-48 (1969) (government may only
forbid incitement of violence “where such advocacy is directed to inciting or producing imminent
lawless action and is likely to incite or produce such action”).
5
Alternatively, even assuming arguendo that the sign regulations are not content-based, the sign regulations
would not be able to withstand the intermediate standard of review afforded to commercial speech. “Under intermediate
scrutiny, the Government may employ the means of its choosing so long as the . . . regulation promotes a substantial
governmental interest that would be achieved less effectively absent the regulation, and does not burden substantially
more speech than is necessary to further that interest.” Turner, 520 U.S. at 213-14 (internal quotation marks and citation
omitted). In the course of applying intermediate scrutiny, the district court must review evidence adduced by the parties.
See id. at 214. Even applying intermediate scrutiny, the sign regulations are invalid because they deter significantly more
speech than necessary to protect the Township’s asserted interests.
No. 06-3828 Midwest Media Property, et al. v. Symmes Twp., Ohio Page 20
The Township’s asserted interests in this case are hardly more compelling justifications for
allowing such censorship than the government’s interest in preserving international relations or
preventing criminal violence. Accordingly, the content-based provisions of the sign regulations
should be struck down as inconsistent with the First Amendment.
C. Prior Restraint
As an additional claim, Plaintiff alleges that the sign regulations constitute an unlawful prior
restraint on speech. A prior restraint occurs when speech is conditioned on the prior approval of
government officials. Deja Vu of Nashville, Inc. v. Metro. Gov’t of Nashville and Davidson County,
274 F.3d 377, 400 (6th Cir. 2001). The Supreme Court has held that “prior restraints on speech and
publication are the most serious and the least tolerable infringement on First Amendment rights.”
Nebraska Press Assn. v. Stuart, 427 U.S. 539, 559 (1976). Accordingly, “[a]ny system of prior
restraints comes to this Court bearing a heavy presumption against its constitutional validity.”
Freedman v. Maryland, 380 U.S. 51, 57 (1965). In order to overcome this heavy presumption, a
prior restraint scheme must possess three procedural safeguards:
First, the decision whether or not to grant a license must be made within a specified,
brief period, and the status quo must be preserved pending a final judicial
determination on the merits. Second, the licensing scheme “must also assure a
prompt judicial decision, to minimize the deterrent effect of an interim and possibly
erroneous denial of a license.” Third, the licensing scheme must place the burden of
instituting judicial proceedings and proving that expression is unprotected on the
licensor rather than the exhibitor.
Deja Vu of Nashville, 274 F.3d at 400 (quoting Freedman, 380 U.S. at 59) (citations omitted).
As this Court held in Deja Vu of Nashville, “[a] ‘prior restraint’ exists when the exercise of
a First Amendment right depends on the prior approval of public officials.” Id. The Township’s
sign regulations do just that; they require persons wanting to post signs containing protected speech
to first obtain permission from government officials. Under § 325.1 of the regulations, “it shall be
unlawful to erect, enlarge, expand, alter (including face changes), relocate, or reconstruct any sign
without first filing with the Township Zoning Inspector an application in writing and obtaining a
Zoning Certificate.” (J.A. 136) In other words, a person’s right to post First Amendment protected
speech on a sign is contingent upon their receiving the Township’s prior approval of that sign, and
this restriction applies to the entirety of the sign regulations; all signs, regardless of height and area,
and regardless of the content or location of the sign are subject to a prior restraint.
Furthermore, the licensing scheme lacks the third procedural safeguard required of all prior
restraints. According to the sign regulations, “[a]ny party adversely affected by a decision of the
[Township] may appeal to the Court of Common Pleas of Hamilton County on the ground that such
decision was unreasonable or unlawful.” (J.A. 118) Even assuming that this proceeding fulfils the
requirement that a “prompt judicial decision” is provided “to minimize the deterrent effect of an . . .
erroneous denial of a license,” this process unconstitutionally places the burden of instituting judicial
proceedings on the shoulders of the person restrained by the sign regulations. This process flies in
the face of this Court’s holding that “the licensing scheme must place the burden of instituting
judicial proceedings . . . on the licensor rather than the exhibitor.” Deja Vu of Nashville, 274 F.3d
at 400; see Freedman, 380 U.S. at 59.
Additionally, the sign regulations may violate the first Freedman prong’s requirement that
“the decision whether or not to grant a license must be made within a specified, brief period.” Id.
According to the regulations, a zoning inspector must approve or deny an application for a permit
No. 06-3828 Midwest Media Property, et al. v. Symmes Twp., Ohio Page 21
to erect a sign within 15 business days of its filing. An adverse decision may then be appealed
within 20 days of this decision. Upon receiving notice of such an appeal, the Board of Zoning
Appeals must “fix a reasonable time for the hearing of the appeal,” (J.A. 118) (emphasis added),
and give any interested parties 10 days notice before convening a hearing. A party adversely
affected may appeal through the state courts system.
Under this process, the swiftest application will languish for almost a month in the
administrative process. Furthermore, because the Board of Appeals must only “fix a reasonable time
for the hearing of the appeal,” there is no specified period within which the decision to grant or deny
a license must be made. Under Freedman, a prior restraint scheme must ensure that “within a
specified brief period, [the government will] either issue a license or go to court to restrain” the
undesired speech. 380 U.S. at 60. This scheme, however, provides for nothing of the sort. A
promise of a hearing within a “reasonable time” does not meet the requirement that either a license
is issued or a court preceding initiated “within a specified brief period.”
The sign regulations constitute a prior restraint on speech. Furthermore, they lack the
necessary procedural safeguards to render such a scheme constitutional. Accordingly, this Court
should declare them unconstitutional.
D. Severance Analysis
Having determined both that portions of the sign regulations engage in unconstitutional
content discrimination, and that the overall scheme constitutes a prior restraint, the regulations must
next be examined to determine whether the unconstitutional provisions of the ordinance may be
severed from the portions which do not violate the Constitution. See, e.g., Alaska Airlines v. Brock,
480 U.S. 678, 684 (1987); Regan v. Time, 468 U.S. 641, 652 (1984); see also United States v.
Booker, 543 U.S. 220, 282 (2005) (Scalia, J., dissenting) (“Usually the Court first declares
unconstitutional a particular provision of law, and only then does it inquire whether the remainder
of the statute can be saved.”).
1. The Content-Based Provisions
As a general rule, the severability of a local ordinance is a question of state law. City of
Lakewood v. Plain Dealer Publ’g Co., 486 U.S. 750, 772 (1988). The Ohio Supreme Court has
established a three-part test for determining whether an unconstitutional provision may be severed
from a larger legislative scheme:
(1) Are the constitutional and the unconstitutional parts capable of separation so that
each may be read and may stand by itself? (2) Is the unconstitutional part so
connected with the general scope of the whole as to make it impossible to give effect
to the apparent intention of the Legislature if the clause or part is stricken out? (3)
Is the insertion of words or terms necessary in order to separate the constitutional
part from the unconstitutional part, and to give effect to the former only?
State v. Hochhausler, 668 N.E.2d 457, 466-67 (Ohio 1996) (citations omitted).
Applying this test reveals that much of the content-neutral portions of the sign regulations
are severable from the content-based provisions. The sign regulations are structured largely by
classifying different kinds of signs by names such as “bench billboard sign,” “free standing sign,”
or “political sign.” (J.A. 119-24) Different rules are then applied to each of these classifications.
While some of these categories, such as “political signs” are content-based, others, such as “free
standing signs” are content-neutral. Most of the rules governing these content-neutral categories
are likewise content-neutral. Section 321.2-2, for example, places content-neutral restrictions on
No. 06-3828 Midwest Media Property, et al. v. Symmes Twp., Ohio Page 22
“[a]ll freestanding pole signs” in certain portions of Symmes Township. (J.A. 132) Under this
section:
1. No freestanding pole sign shall be closer than ten (10) feet to any right of way
line.
2. No freestanding pole sign shall be closer than twenty (20) feet to any adjacent
property line.
3. No freestanding pole sign located three hundred (300) feet from the right of way
of a federal interstate highway shall exceed forty-five (45) feet in height from the
finished grade level and no sign within six hundred fifty (650) feet from the right of
way of a federal interstate highway shall exceed twenty (20) feet in height from the
finished grade level.
4. No freestanding pole sign shall contain more than one hundred twenty (120)
square feet of sign area per side (maximum two sides)
(J.A. 132)
These provisions meet all three prongs of the Ohio severability test. These height, area and
distance limits each may be read independent of the remainder of the sign regulations and still be
given their full meaning. Furthermore, they give effect to an express purpose of the sign regulations,
“to establish reasonable regulations governing the size, character, and location of signs within the
Township.” (J.A. 119) Finally, no insertion of words or terms is necessary to separate them from
other, content-based portions of the ordinance. Accordingly, were the sign regulations’ content
discrimination their only constitutional flaw, it would be possible to sever the content-neutral
provisions and give them their full effect.
2. The Prior Restraint Provisions
The sign regulations, however, also constitute an unconstitutional prior restraint, and this
alone is sufficient to declare them unconstitutional in their entirety. In Deja Vu of Nashville, Inc. v.
Metro. Gov’t of Nashville and Davidson County, we held a prior restraint affecting “sexually
oriented” businesses unconstitutional for lack of sufficient judicial process. 274 F.3d at 402-03.
Rather than allow some portions of the law to be severed, Deja Vu of Nashville held that when a
prior restraint lacks the proper judicial safeguards, this “renders the entire statute facially
unconstitutional.” Id. at 403. Under such circumstances, this Court has no choice but to “enjoin
enforcement of the entire Ordinance.” Id.; see City of Lakewood v. Plain Dealer Pub. Co., 486 U.S.
750, 757-59 (1988) (holding that a licensing scheme containing a prior restraint is unconstitutional
on its face and must be struck down in its entirety).
Just like the ordinance in Deja Vu of Nashville, the instant sign regulations constitute a prior
restraint lacking sufficient judicial safeguards. Accordingly, we are bound by Deja Vu of Nashville,
and may not sever any portion of the Township’s ordinance, and must declare it unconstitutional in
its entirety.
E. Damages
Lastly, the majority does not address the district court’s summary denial of Plaintiffs claim
for damages. Plaintiffs argue that they should be compensated for the damages they suffered as a
result of the enforcement of the unconstitutional sign regulations. The Supreme Court has held that
“‘the basic purpose of a § 1983 damages award should be to compensate persons for injuries caused
No. 06-3828 Midwest Media Property, et al. v. Symmes Twp., Ohio Page 23
by the deprivation of constitutional rights.’” Farrar v. Hobby, 506 U.S. 103, 112 (1992) (quoting
Carey v. Piphus, 435 U.S. 247, 254 (1978)). However, “no compensatory damages may be awarded
in a § 1983 suit absent proof of actual injury.” Id. at 112.
The Township’s post-lawsuit amendment to its sign regulations has no effect on the damages
claims. See, e.g., Buckhannon Bd. & Care Home, Inc. v. West Va. Dep’t of Health & Human Res.,
532 U.S. 598, 608-09 (2001) (“for so long as the plaintiff has a cause of action for damages, a
defendant’s change in conduct will not moot the case.”); see Memphis Light Gas & Water Div. v.
Craft, 436 U.S. 1, 8 (1978) (“damages arising from [defendant’s] termination of service saves this
cause from the bar of mootness.”); see also Blau v. Fort Thomas Pub. Sch. Dist., 401 F.3d 381, 387
(6th Cir. 2005). Indeed, courts allow damages, under 42 U.S.C. § 1983, against municipalities for
the enforcement of unconstitutional zoning ordinances. See Oldsmar, 475 F. Supp. 2d at 1253
(holding that plaintiff is entitled to the full measure of monetary damages available after successfully
challenging a content-based sign ordinance). At a minimum, where a deprivation of rights has
occurred, nominal damages must be awarded, see, e.g., Ferrar, 506 U.S. at 112, but such a nominal
award may not be sufficient in this case. Plaintiffs have experienced an ongoing and costly
deprivation of their First Amendment rights, for which they may be entitled to compensation. Since
Plaintiffs may seek damages for the violation of their constitutional rights, the district court erred
in summarily denying Plaintiffs’ claim for damages.
CONCLUSION
Plaintiffs have pled and sufficiently demonstrated standing to challenge the sign regulations.
Additionally, the sign regulations cannot withstand constitutional review and are not severable. For
the foregoing reasons, I would reverse the district court’s decision and remand this case to the
district court for further proceedings consistent with opinion.