International Outdoor, Inc. v. City of Troy, Mich. ( 2020 )

RECOMMENDED FOR PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 20a0294p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
INTERNATIONAL OUTDOOR, INC., ┐
Plaintiff-Appellant, │
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> Nos. 19-1151/1399
v. │
│
│
CITY OF TROY, MICHIGAN, │
Defendant-Appellee. │
┘
Appeal from the United States District Court
for the Eastern District of Michigan at Detroit.
No. 2:17-cv-10335—George Caram Steeh III, District Judge.
Argued: October 16, 2019
Decided and Filed: September 4, 2020
Before: BOGGS, SUHRHEINRICH, and WHITE, Circuit Judges.
_________________
COUNSEL
ARGUED: J. Adam Behrendt, BODMAN PLC, Troy, Michigan, for Appellant. Allan T.
Motzny, CITY ATTORNEY’S OFFICE, Troy, Michigan, for Appellee. ON BRIEF: J. Adam
Behrendt, Serena G. Rabie, BODMAN PLC, Troy, Michigan, for Appellant. Allan T. Motzny,
Lori Grigg Bluhm, CITY ATTORNEY’S OFFICE, Troy, Michigan, for Appellee.
BOGGS, J., delivered the opinion of the court in which WHITE, J., joined, and
SUHRHEINRICH, J., joined in part. SUHRHEINRICH, J. (pg. 24), delivered a separate opinion
concurring in part and dissenting in part.
Nos. 19-1151/1399 Int’l Outdoor, Inc. v. City of Troy, Mich. Page 2
_________________
OPINION
_________________
BOGGS, Circuit Judge. International Outdoor, Inc. (“International Outdoor”) sought to
erect billboards in the City of Troy, Michigan. After the City of Troy denied International
Outdoor’s application for a permit and then for a variance from the limitations imposed by the
City’s sign ordinance, International Outdoor brought suit challenging the constitutionality of the
City’s ordinance under 42 U.S.C. § 1983 and alleging that the sign ordinance violated
International Outdoor’s First Amendment rights.
For the reasons stated below, we affirm the district court’s grant of the City of Troy’s
motion for summary judgment on International Outdoor’s claim that the City’s sign ordinance
constitutes an unconstitutional prior restraint. However, we vacate the district court’s grant of
the City of Troy’s motion to dismiss International Outdoor’s claim that the City’s sign ordinance
imposes content-based restrictions without a compelling government interest, and we remand for
reconsideration under the Reed standard. We also vacate and remand the district court’s denial
of International Outdoor’s motion for attorney’s fees, pending reconsideration of the City of
Troy’s motion to dismiss.
I
International Outdoor is an outdoor advertising company that erects billboards throughout
Southeast Michigan on properties it either leases or owns. It earns revenue by charging
advertisers for displaying their messages on its billboards. In September 2015, International
Outdoor sought to erect two digital billboards in two separate locations within the City of Troy.
The billboards came under the definition of a “ground sign” pursuant to Section 85.01.03 of the
City of Troy Sign Ordinance.
Under Section 85.02.05.C.5 of the Sign Ordinance, each property was allowed one
ground sign not exceeding 12 feet in height with a maximum area of 100 square feet, if set back
at least 10 feet from the right of way, and one additional ground sign subject to the following
requirements:
Nos. 19-1151/1399 Int’l Outdoor, Inc. v. City of Troy, Mich. Page 3
1. The sign is set back a minimum of 200 feet from any street right of way.
2. The sign is located at least 1,000 feet from any sign exceeding 100 square
feet.
3. The sign does not exceed 300 square feet.
4. The sign does not exceed 25 feet in height.
International Outdoor sought to erect in two locations a two-sided billboard that would be 14 feet
by 48 feet (672 square feet per side for a total of 1,344 square feet area) and 70 feet in height
when mounted. Both locations were less than 200 feet from a right of way and less than 1,000
feet from other signs exceeding 100 square feet. Because the proposed billboards exceeded the
Sign Ordinance’s size and height limitations as well as its setback requirements based on the
zoning classification of the properties, the City denied International Outdoor’s application for a
permit. International Outdoor applied for variances. The variance application was presented to
the City’s Building Code Board of Appeals on November 4, 2015 and was considered at a
special meeting and public hearing on November 18, 2015. The Board denied the application on
November 20, 2015 for failure to meet the criteria set forth in Section 85.01.08.B.1 of the Sign
Ordinance, which were a necessary but not a sufficient condition for grant of a variance:
a. The variance would not be contrary to the public interest or general purpose
and intent of this Chapter; and
b. The variance does not adversely affect properties in the immediate vicinity of
the proposed sign; and
c. The petitioner has a hardship or practical difficulty resulting from the unusual
characteristics of the property that precludes reasonable use of the property.
International Outdoor filed an appeal of the Board’s decision in the Oakland County Circuit
Court, but on July 11, 2016 the appeal was dismissed as abandoned due to appellant’s failure to
file a brief. On February 2, 2017 International Outdoor filed a complaint in the Eastern District
of Michigan under 42 U.S.C. § 1983, seeking declaratory and injunctive relief as well as
damages and alleging that the City of Troy Sign Ordinance violated its First Amendment rights.
Count I alleged that the Ordinance constituted an unconstitutional prior restraint because it
lacked narrow, objective, and definite standards to guide the decision of the City of Troy’s
Building Code Board of Appeals in issuing variances and thus granted the Board unfettered
discretion. Count II alleged that the Ordinance contained unconstitutional content-based
Nos. 19-1151/1399 Int’l Outdoor, Inc. v. City of Troy, Mich. Page 4
restrictions as it exempted from permit requirements certain categories of signs, such as flags and
“temporary signs,” which “include but are not limited to” various real estate signs, “garage,
estate or yard sale” signs, “non-commercial signs[,]” “[p]olitical signs[,]” “holiday or other
seasonal signs[,]” and “construction[s] signs . . . .” The City of Troy moved to dismiss the
complaint under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6).
The district court denied the City of Troy’s motion as to Count I, holding that
International Outdoor had stated a cognizable claim that the City’s variance process was an
unconstitutional prior restraint. The district court also rejected the City’s argument of
severability because the Sign Ordinance on the record did not contain a severability clause and
the district court found that the variance procedure could not be severed under state law. The
district court dismissed Count II because it determined that the speech at issue was commercial
speech and therefore its regulation was not subject to strict scrutiny. Applying Central Hudson
Gas & Electric Corp. v. Public Service Commission, 447 U.S. 557, 563 (1980), the district court
found that the ordinance provisions satisfied an intermediate level of scrutiny.
The City of Troy moved for reconsideration of the district court’s order denying its
motion to dismiss as to Count I. That motion was denied.
At the conclusion of discovery, on September 20, 2018, International Outdoor moved for
summary judgment. Four days later, on September 24, 2018, the City of Troy amended its Sign
Ordinance (“Amended Ordinance”), with changes effective as of October 4, 2018. The
Amended Ordinance rendered the challenges to the variance provisions stated in Count I
inapplicable by removing content-based restrictions, clarifying the standards for issuance of a
variance, and making issuance of a variance mandatory if specific criteria are met. The
Amended Ordinance also prohibited off-premise signs carrying commercial messages, limited
ground signs to 100 square feet in size and 20 feet in height, and provided that no variance would
be granted for signs exceeding the size and height limitations by more than twenty-five percent.
Then, on October 22, 2018, the City of Troy submitted a response to International
Outdoor’s motion for summary judgment and, on October 31, 2018, filed a cross-motion for
summary judgment, arguing in part that its amendment of the Sign Ordinance rendered
Nos. 19-1151/1399 Int’l Outdoor, Inc. v. City of Troy, Mich. Page 5
International Outdoor’s remaining claims moot. The City of Troy alleged that both the Sign
Ordinance and the Amended Ordinance contained a severability provision, and that International
Outdoor attached to its complaint a version of the Sign Ordinance that was posted on the City’s
website, while the official version of the ordinance—the one that contained severability and
other unposted provisions—was available from the City of Troy’s Clerk upon request. The City
of Troy explained its decision not to post a complete version of the ordinance online as an effort
to avoid “confusion and an unwieldly document” with “hundreds of these recitations.”
On January 18, 2019, the district court denied International Outdoor’s motion for
summary judgment and granted the City of Troy’s cross-motion for summary judgment on the
only remaining count, Count I, prior restraint. The district court found that under the Amended
Ordinance, International Outdoor’s large off-premises advertising signs would neither qualify for
a permit nor for a variance, thus rendering moot its injunctive and declaratory relief claims, but
not its damage claim, which apparently would be only for damages until October 4, 2018, the
effective date of the amendment. However, the district court found that the severability of the
variance provisions precluded Plaintiff’s damage claim for past injury, and it granted summary
judgment for the City of Troy.
International Outdoor then filed a motion for attorney’s fees as a prevailing party under
42 U.S.C. § 1988, claiming that it had established that the City of Troy’s variance process was an
unconstitutional prior restraint. The district court ruled that International Outdoor was not a
prevailing party as it had failed to obtain court-ordered relief, and it denied the motion.
Subsequently, International Outdoor appealed the dismissal of Count II, the summary judgment
as to Count I, and the denial of attorney’s fees. These appeals were consolidated.
II
International Outdoor now appeals the district court’s grant of the City of Troy’s motion
for summary judgment on a claim that the City of Troy’s sign ordinance imposes an
unconstitutional prior restraint.
The court reviews de novo the district court’s grant of summary judgment, applying the
same standards as the district court. F.T.C. v. E.M.A. Nationwide, Inc., 767 F.3d 611, 629 (6th
Nos. 19-1151/1399 Int’l Outdoor, Inc. v. City of Troy, Mich. Page 6
Cir. 2014). Summary judgment is appropriate “if the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.
R. Civ. P. 56(a). In deciding whether summary judgment is appropriate, the court views the
“evidence in the light most favorable to the nonmoving party.” Himmel v. Ford Motor Co.,
342 F.3d 593, 598 (6th Cir. 2003) (internal quotation marks and citations omitted). “[T]he mere
existence of some alleged factual dispute between the parties will not defeat an otherwise
properly supported motion for summary judgment; the requirement is that there be no genuine
issue of material fact.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247–48 (1986).
The court must decide “whether the evidence presents a sufficient disagreement to require
submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.”
Id. at 251–52.
The First Amendment, applicable to states through the Fourteenth Amendment, protects
freedom of speech from laws that would abridge it. “A prior restraint is any law ‘forbidding
certain communications when issued in advance of the time that such communications are to
occur.’” McGlone v. Bell, 681 F.3d 718, 733 (6th Cir. 2012) (quoting Alexander v. United States,
509 U.S. 544, 550 (1993)). “Prior restraints are presumptively invalid because of the risk of
censorship associated with the vesting of unbridled discretion in government officials and the
risk of indefinitely suppressing permissible speech when a licensing law fails to provide for the
prompt issuance of a license.” Bronco’s Ent., Ltd. v. Charter Twp. of Van Buren, 421 F.3d 440,
444 (6th Cir. 2005) (citation and internal quotation marks omitted).
To be constitutional, a prior restraint must be content-neutral, narrowly tailored to serve a
significant governmental interest, and leave open ample alternatives for communication. Forsyth
Cty. v. Nationalist Movement, 505 U.S. 123, 130 (1992). It must also not delegate overly broad
licensing discretion to official decision-makers: “[i]f the permit scheme involves appraisal of
facts, the exercise of judgment, and the formation of an opinion by the licensing authority, the
danger of censorship and of abridgment of our precious First Amendment freedoms is too great
to be permitted.” Id. at 131 (internal quotation marks and citations omitted). Furthermore, the
“decision whether or not to grant” a permit “must be made within a specified, brief period, and
the status quo must be preserved pending a final judicial determination on the merits.” Deja Vu
Nos. 19-1151/1399 Int’l Outdoor, Inc. v. City of Troy, Mich. Page 7
of Nashville, Inc. v. Metro. Gov’t of Nashville, 274 F.3d 377, 400 (6th Cir. 2001) (discussing
Freedman v. Maryland, 380 U.S. 51, 57–59 (1965)) (citations and internal quotation marks
omitted).
The original City of Troy Sign Ordinance imposed a prior restraint because the right to
display a sign that did not come within an exception as a flag or as a “temporary sign” depended
on obtaining either a permit from the Troy Zoning Administrator or a variance from the Troy
Building Code Board of Appeals. The standards for granting a variance contained multiple
vague and undefined criteria, such as “public interest,” “general purpose and intent of this
Chapter,” “adversely affect[ing],” “hardship,” and “practical difficulty.” Additionally, even
meeting these criteria did not guarantee grant of a variance, since the Board retained discretion to
deny it. The variance scheme therefore gave unbridled discretion to the Troy Building Code
Board of Appeals and did not meet the “narrow, objective, and definite standards” required for
constitutionality. See Forsyth Cty., 505 U.S. at 131. It “g[ave] a government official or agency
substantial power to discriminate based on the content or viewpoint of speech by suppressing
disfavored speech or disliked speakers,” allowing a facial challenge to the permitting scheme.
City of Lakewood v. Plain Dealer Pub. Co., 486 U.S. 750, 759 (1988). Therefore, the City of
Troy Sign Ordinance as in effect before the 2018 amendment created through its variance
scheme an unconstitutional prior restraint on speech.
A
The City of Troy amended the variance provision to set forth additional standards for
granting variances, and it submitted that the amendment rendered the issue of prior restraint
moot. International Outdoor conceded that the amended ordinance rendered moot its claims for
declaratory and injunctive relief arising from the application of the Sign Ordinance and variance
process, but not its claim for damages. This court has stated that, although a change in law
renders moot pertinent challenges to the original law, claims for damages are nonetheless
preserved. Midwest Media Prop. LLC v. Symmes Twp., 503 F.3d 456, 460–61 (6th Cir. 2007).
Such damages would presumably run from the time the variance was denied, November 20,
2015, until October 4, 2018, when the Amended Ordinance took effect.
Nos. 19-1151/1399 Int’l Outdoor, Inc. v. City of Troy, Mich. Page 8
A voluntary amendment does not always render First Amendment claims moot. For
example, such claims may survive where there is no guarantee that the amendment will remain,
or where the change raises suspicion of not being genuine. See Speech First, Inc. v. Schlissel,
939 F.3d 756, 769–70 (6th Cir. 2019). But in spite of the somewhat suspicious timing of the
amendment of the Sign Ordinance within days after International Outdoor filed its motion for
summary judgment, there is no indication that the City of Troy intends to repeal the amendment.
In Speech First, the change concerned an ad hoc regulatory action and an assurance from a Vice
President for Student Affairs who was not shown to have authority over the policies of the
University of Michigan. Id. at 769. Here, by contrast, the City of Troy enacted an amendment to
its Sign Ordinance that concerned not only the challenged variance provision, but also made
extensive changes to other terms. The change of the unconstitutional variance provisions by the
City of Troy appears therefore to be genuine and does not shift the burden of showing mootness
to the City of Troy. See Speech First, 939 F.3d at 770.
We agree with the district court that the amendment of the Sign Ordinance renders
pending challenges to the original law moot, and that the district court properly dismissed on that
basis International Outdoor’s claims for declaratory and injunctive relief. But even where the
claim for injunctive and declaratory relief is rendered moot, “the existence of a damages claim
ensures that this dispute is a live one and one over which Article III gives us continuing
authority.” Blau v. Fort Thomas Pub. Sch. Dist., 401 F.3d 381, 387 (6th Cir. 2005).
International Outdoor’s damages claim was therefore properly preserved even after the dismissal
of its claim for injunctive and declaratory relief.
B
The City of Troy argues that International Outdoor’s claim for damages on the prior
restraint count must be dismissed, because the variance provision was severable from the original
Sign Ordinance and International Outdoor would not qualify for a permit without a variance, due
to the excessive size, height, and setback of its proposed billboards. International Outdoor does
not challenge the permitting scheme of the City of Troy as a whole in Count I, but only its
variance provisions. The variance provisions introduce an impermissible prior restraint, see Part
II supra, pp. 5–7. If those provisions can be severed, so that no grant of a variance would be
Nos. 19-1151/1399 Int’l Outdoor, Inc. v. City of Troy, Mich. Page 9
possible, the remaining permitting scheme would not allow International Outdoor to erect its
proposed billboards in any case, because International Outdoor would need a variance from the
otherwise generally applicable dimensional and setback limitations.
“Severability of a local ordinance is a question of state law.” City of Lakewood, 486 U.S.
at 772. Michigan courts have long recognized that “[i]t is the law of this State that if invalid or
unconstitutional language can be deleted from an ordinance and still leave it complete and
operative then such remainder of the ordinance be permitted to stand.” In re Request for
Advisory Opinion Regarding Constitutionality of 2011 PA 38, 806 N.W.2d 683, 713 (Mich.
2011) (quoting Eastwood Park Amusement Co. v. Stark, 38 N.W.2d 77, 81 (Mich. 1949)). The
Supreme Court of Michigan held in Melconian that where “the provisions of the ordinance are
valid and enforceable” except for “[t]he sections or parts of sections which are invalid” and
which “are distinctly separable from the remainder,” the provisions “held valid constitute in
themselves a complete enactment, and may be enforced.” Melconian v. City of Grand Rapids,
188 N.W. 521, 527 (Mich. 1922), accord Genesee Land Corp. v. Leon Allen & Assocs.,
213 N.W.2d 283, 285–86 (Mich. Ct. App. 1973).
The official and applicable version of the Sign Ordinance contained a severability clause.
The challenged variance scheme is a distinct provision of the Sign Ordinance, 85.01.08.B.1,
within the Appeals section, 85.01.08. Removal of the variance provision does not invalidate the
entire ordinance, and the remaining provisions are not challenged by International Outdoor.
Therefore, the variance provision may be severed.
But severing the variance provision also means that International Outdoor loses its claim
to damages under Midwest Media, 503 F.3d at 464–65, since it needed the variance precisely
because it did not qualify for a permit under the size, height, and setback requirements for signs
under the City of Troy Sign Ordinance.
***
The amendment of the ordinance rendered International Outdoor’s claim for injunctive
and declaratory relief moot, while the severability of the variance did the same to its claim for
damages.
Nos. 19-1151/1399 Int’l Outdoor, Inc. v. City of Troy, Mich. Page 10
We therefore affirm the district court’s grant of the City of Troy’s cross-motion for
summary judgment on Count I, prior restraint.
III
International Outdoor also appeals the district court’s grant of the City of Troy’s motion
to dismiss the claim that the City of Troy’s sign ordinance imposes content-based restrictions
without a compelling government interest.
Before filing its motion for summary judgment on Count II, see Part II supra, pp. 5–10,
the City of Troy moved the district court to dismiss Count I, unconstitutional prior restraint, and
Count II, content-based restrictions. In its motion to dismiss, the City of Troy cited only Federal
Rule of Civil Procedure 12(b)(6) but not Rule 12(b)(1), even though it alleged that International
Outdoor both lacked standing and failed to state a claim upon which relief may be granted. The
City of Troy argued that International Outdoor did not state a claim upon which relief might be
granted when it alleged its unconstitutional-prior-restraint and content-based-restrictions claims.
Relying on Midwest Media, 503 F.3d at 460–62, the City of Troy also argued that International
Outdoor lacked standing, because it had not specifically alleged that the section of the ordinance
regulating the size, height, and setback of signs was invalid, and that such restrictions would
preclude International Outdoor from erecting its billboards regardless of other provisions of the
Sign Ordinance. Consequently, the City of Troy argued, International Outdoor could not show
redressability of its claimed injuries, which deprived it of standing to challenge the ordinance.
The district court stated that the City of Troy had moved to dismiss the case pursuant to
Federal Rule of Civil Procedure 12(b)(6), but that it had also argued that International Outdoor
lacked standing. The district court then concluded that the City of Troy had “move[d] under the
wrong rule” and that “[the district] [c]ourt, therefore, shall consider the argument under Fed. R.
Civ. P. 12(b)(1),” because “the Rule 12(b)(6) challenge becomes moot if this court lacks subject
matter jurisdiction.” The district court disagreed, however, with the City of Troy’s argument that
Midwest Media was controlling, because it held that International Outdoor challenged the entire
ordinance, not just its individual provisions, and that, consequently, International Outdoor could
show redressability of its injury. The district court therefore concluded that International
Nos. 19-1151/1399 Int’l Outdoor, Inc. v. City of Troy, Mich. Page 11
Outdoor had standing to bring an action against the City of Troy. Having thus clarified its
subject-matter jurisdiction, the district court proceeded to a Rule 12(b)(6) analysis of Count I,
prior restraint, and of Count II, content-based restriction. It dismissed only Count II after
concluding that Central Hudson, rather than Reed, was the controlling precedent in this case, and
upon finding that the ordinance provisions satisfied an intermediate level of scrutiny. The
district court denied the motion to dismiss as to Count I, thus allowing it to proceed to discovery.
We review de novo a district court’s decision to dismiss for lack of subject-matter
jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1). Cartwright v. Garner,
751 F.3d 752, 760 (6th Cir. 2014). A district court’s factual findings are reviewed for clear error,
and its application of the law to the facts is reviewed de novo. Ibid. We also review de novo a
district court’s dismissal of a complaint under Federal Rule of Civil Procedure 12(b)(6). Benzon
v. Morgan Stanley Distribs., Inc., 420 F.3d 598, 605 (6th Cir. 2005). “[W]e accept as true all
non-conclusory allegations in the complaint and determine whether they state a plausible claim
for relief.” Delay v. Rosenthal Collins Grp., LLC, 585 F.3d 1003, 1005 (6th Cir. 2009).
A
Midwest Media held, following Prime Media, Inc. v. City of Brentwood, 398 F.3d 814,
824 (6th Cir. 2005), that the plaintiffs there lacked standing to challenge the sign ordinance
because they failed to show redressability. Midwest Media, 503 F.3d at 465. However, both
Midwest Media and Prime Media, which presented very similar issues, are distinguishable from
our case.
In Midwest Media, the plaintiffs filed nine applications for permits to build billboards in
Symmes Township. Id. at 458–59. All nine applications were denied based on two grounds:
(1) off-site advertising was prohibited, and (2) the proposed billboards exceeded the township’s
size and height restrictions. Id. at 459–60. The plaintiffs challenged the off-premises advertising
ban as unconstitutional and challenged the permitting process as lacking procedural safeguards.
Id. at 450. This court had previously rejected a challenge to size and height restrictions of a sign
ordinance in Prime Media, and the plaintiffs in Midwest Media did not challenge those. Ibid.;
see Prime Media, 398 F.3d at 818–21. Plaintiffs sought an injunction, damages, and attorney’s
Nos. 19-1151/1399 Int’l Outdoor, Inc. v. City of Troy, Mich. Page 12
fees. Ibid. Symmes Township subsequently amended its ordinance, thus rendering the
plaintiffs’ injunctive claim moot. Ibid. Midwest Media held that the mootness of the injunctive
claim did not render plaintiffs’ damages claim moot. Id. at 460–61. However, Midwest Media
also held that the plaintiffs failed to show standing to bring the action in the first place. Id. at
461. Quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 560–61 (1992), and Simon v. E. Ky.
Welfare Rights Org., 426 U.S. 26, 41 (1976), the Midwest Media court enumerated the required
elements of standing:
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,” (2) that a causal link
exists “between the injury and the conduct complained of,”—i.e., that the “injury
. . . fairly can be traced to the challenged action of the defendant,” and (3) that it is
“likely, as opposed to merely speculative, that the injury will be redressed by a
favorable decision.” 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.”
Midwest Media, 503 F.3d at 461 (citations omitted). Following the reasoning in Prime Media,
the Midwest Media court found that the plaintiffs failed the redressability test: even if they
succeeded at challenging the constitutionality of the original sign ordinance based on its
prohibition on off-site advertising, the off-site-advertising-ban provision was nonetheless
severable, and plaintiffs would still fail to qualify for a permit based on the size and height
restrictions of the ordinance, which provisions they chose not to challenge after Prime Media
upheld similar restrictions as constitutional. Id. at 461–62; see Prime Media, 398 F.3d at 824
(“[T]he height and size restrictions directly advance [government’s] interest because billboards
that are smaller and shorter are less apt to interfere with aesthetic or traffic safety concerns.” Id.
at 822.); see also Metromedia, Inc. v. City of San Diego, 453 U.S. 490, 507–08 (1981) (“Nor can
there be substantial doubt that the twin goals that the ordinance seeks to further—traffic safety
and the appearance of the city—are substantial governmental goals.”). Since the plaintiffs failed
to show redressability of their claim, Midwest Media held that the plaintiffs lacked Article III
standing to bring their claims. Id. at 461, 464.
 Nos. 19-1151/1399 Int’l Outdoor, Inc. v. City of Troy, Mich. Page 13
But as mentioned above, this case is distinguishable from both Midwest Media and Prime
Media: the variance provision of the City of Troy Sign Ordinance challenged in Count I is not
independent from other provisions of the ordinance, but rather inextricably linked to them by
providing a way of relaxing the very restrictions imposed by the Sign Ordinance. It would
amount to circular logic to say that International Outdoor lacks standing to challenge the
ordinance because it challenges the very provision that gives it standing to challenge the
ordinance. Such an approach would render the constitutionality of most variance provisions
unreviewable. Contrary to Midwest Media and Prime Media, the facts of this case allow
International Outdoor to retain standing and proceed with its remaining claims as to Count II,
content-based restrictions, even after its claim for damages under Count I fails.1 Consequently,
the size and height restrictions of the ordinance cannot be used to deny International Outdoor
standing on its content-based restrictions claim due to lack of redressability, because the variance
provision would allow International Outdoor to obtain redress.
B
Under the First Amendment applicable to the states through the Fourteenth Amendment,
a government, such as a municipal government vested with state authority, “has no power to
restrict expression because of its message, its ideas, its subject matter, or its content.” Reed v.
Town of Gilbert, 576 U.S. 155, 163 (2015) (quoting Police Dept. of Chicago v. Mosley, 408 U.S.
92, 95 (1972)). Laws that “target speech based on its communicative content . . . are
presumptively unconstitutional and may be justified only if the government proves that they are
1Additionally, the dissent contends that International Outdoor lacks standing to challenge the ordinance’s
treatment of certain signs, including temporary signs, because International Outdoor does not seek to erect
temporary signs. In the dissent’s view, International Outdoor cannot demonstrate an independent injury in fact
arising from application of these provisions. We disagree.
International Outdoor alleges that the ordinance regulates signs differently based on the sign’s
content. One of the provisions International Outdoor cites in the complaint as an example of such differential
treatment is the ordinance’s requirement that an erector obtain a permit in advance of erecting all signs but
exempting from this requirement certain signs based on their content, including temporary signs. International
Outdoor’s complaint alleges that because its signs are not exempt from the permitting process, it paid for and
applied for a permit to erect its billboards. Construing the complaint’s allegations in the light most favorable to it,
International Outdoor has sufficiently alleged facts showing, at a minimum, that it incurred costs that other erectors
were exempt from because its proposed signs were not afforded the same favored treatment under the
ordinance. This is sufficient to confer Article III standing.
Nos. 19-1151/1399 Int’l Outdoor, Inc. v. City of Troy, Mich. Page 14
narrowly tailored to serve compelling state interests.” Reed, 576 U.S. at 163. Regulation of
speech is content-based and therefore subject to strict scrutiny “if a law applies to particular
speech because of the topic discussed or the idea or message expressed”; some obvious facial
distinctions based on a message include “defining regulated speech by particular subject matter”
or “by its function or purpose.” Reed, 576 U.S. at 163–64. The “crucial first step in the content-
neutrality analysis” involves “determining whether the law is content neutral on its face.” Reed,
576 U.S. at 165. A facially content-based law is “subject to strict scrutiny regardless of the
government’s benign motive, content-neutral justification, or lack of ‘animus toward the ideas
contained’ in the regulated speech.” Ibid. (quoting Cincinnati v. Discovery Network, Inc.,
507 U.S. 410, 429 (1993)). As the Court in Reed explained, “[b]ecause strict scrutiny applies
either when a law is content based on its face or when the purpose and justification for the law
are content based, a court must evaluate each question before it concludes that the law is content
neutral and thus subject to a lower level of scrutiny.” Id. at 166.
It follows that the intermediate-scrutiny standard applicable to commercial speech under
Central Hudson, 447 U.S. at 563, applies only to a speech regulation that is content-neutral on its
face. That is, a regulation of commercial speech that is not content-neutral is still subject to strict
scrutiny under Reed.
1
Subsequent to Reed, several circuit courts have held that, notwithstanding Reed, the
Central Hudson standard still applies to the regulation of commercial speech.
In Aptive Environmental, LLC v. Town of Castle Rock, 959 F.3d 961 (10th Cir. 2020), the
Tenth Circuit considered an ordinance imposing curfew and registration requirements on
commercial solicitors but exempting non-commercial solicitors from such requirements.
Differentiating between commercial and non-commercial speech, Aptive stated:
While the Supreme Court has indicated that commercial speech is entitled to
“lesser protection” than noncommercial speech, Cent. Hudson, 447 U.S. at 562–
63, 100 S. Ct. 2343, this most certainly does not mean that commercial speech is
entitled to no protection, see, e.g., Discovery Network, 507 U.S. at 420–21, 113 S.
Ct. 1505 (“Speech likewise is protected . . . even though it may involve a
Nos. 19-1151/1399 Int’l Outdoor, Inc. v. City of Troy, Mich. Page 15
solicitation to purchase or otherwise pay or contribute money.” (citations
omitted)).
959 F.3d at 981.
Analogizing to Cincinnati v. Discovery Network, Inc., 507 U.S. 410, 412–13, 428–29
(1993), where the Supreme Court struck down a law that banned commercial but not
noncommercial newsracks, the Tenth Circuit recognized that the curfew requirement was content
based and rejected arguments that the curfew was either not subject to First Amendment scrutiny
at all or that it could be analyzed as a mere content-neutral restriction on time, place, and
manner. Aptive, 959 F.3d at 982–83. However, instead of applying the Reed standard, the court
proceeded without much explanation to apply the Central Hudson standard: “Our prior cases and
the parties agree that—assuming that the Curfew implicates the First Amendment, as we have
just decided—our analysis is governed by Central Hudson Gas & Electric Corporation v. Public
Service Commission, supra.” Aptive, 959 F.3d at 986.
Although Aptive held that the ordinance failed to satisfy even that less stringent
intermediate standard of review, id. at 999, the court did not state correctly or apply the Reed
standard, under which content-based restrictions should be analyzed. Aptive discusses Reed only
in a footnote, merely focusing on Reed’s “rel[iance] on Discovery Network to reject the argument
that ‘[a] law that is content based on its face’ should be analyzed as a ‘content neutral’ regulation
because the distinctions drawn ‘can be justified without reference to the content of the regulated
speech.’” Aptive, 959 F.3d at 982 n.6 (quoting Reed, 576 U.S. at 165–68). But Aptive does not
discuss the standard explicitly adopted by Reed, even though it was set forth in the very same
passage that Aptive quoted:
Because strict scrutiny applies either when a law is content based on its face or
when the purpose and justification for the law are content based, a court must
evaluate each question before it concludes that the law is content neutral and thus
subject to a lower level of scrutiny.
Reed, 576 U.S. at 166. We therefore disagree with Aptive’s reliance on the Central Hudson
standard even when analyzing content-based restrictions on speech.
Nos. 19-1151/1399 Int’l Outdoor, Inc. v. City of Troy, Mich. Page 16
In Greater Philadelphia Chamber of Commerce v. City of Philadelphia, 949 F.3d 116 (3d
Cir. 2020), the Third Circuit considered a Philadelphia ordinance that prohibited employers from
inquiring into a prospective employee’s wage history in setting or negotiating that employee’s
wage. Id. at 121. The Third Circuit reversed the ruling of the district court that the inquiry
provision of the ordinance violated the First Amendment. Ibid. It found that the ordinance
regulated commercial speech that proposed a commercial transaction and as such satisfied
intermediate scrutiny under Central Hudson. Id. at 136–37, 156–57.
In its analysis, Greater Philadelphia rejected the application of strict scrutiny to
commercial speech, stating that “the Supreme Court has consistently applied intermediate
scrutiny to commercial speech restrictions, even those that were content- and speaker-based,
particularly when the challenged speech involves an offer of employment.” Id. at 138. To
support this statement, Greater Philadelphia cites Supreme Court decisions from the 1990s and
does not mention Reed anywhere in its opinion. While Greater Philadelphia concedes that
“[w]e realize, of course, that it may be appropriate to apply strict scrutiny to a restriction on
commercial speech that is viewpoint-based,” id. at 139, it limits strict scrutiny to cases such as
“[i]f the regulation has the practical effect of promoting some messages or some speakers based
on the content of the speech or the identity of the speaker, something more than intermediate
scrutiny may be necessary to survive a First Amendment inquiry.” Ibid.
Greater Philadelphia relies on R.A.V. v. City of St. Paul, 505 U.S. 377, 387 (1992), in
asserting that “the rule that content-based speech restrictions are subject to strict scrutiny is ‘not
absolute’ and is inapplicable when the restriction does not ‘raise[ ] the specter that the
Government may effectively drive certain ideas or viewpoints from the marketplace.’” Greater
Philadelphia, 949 F.3d at 139 (quoting R.A.V., 505 U.S. at 387). But such an approach has been
rejected in Reed when speech other than commercial is involved. See 576 U.S. at 166
(“[S]trict scrutiny applies either when a law is content based on its face or when the purpose and
justification for the law are content based.”). Because the ordinance in Greater Philadelphia
regulated commercial speech only, and the ordinance of the City of Troy regulated also non-
commercial speech, Greater Philadelphia is distinguishable from this case.
Nos. 19-1151/1399 Int’l Outdoor, Inc. v. City of Troy, Mich. Page 17
In Vugo, Inc. v. City of New York, the Second Circuit ruled in favor of the City on a First
Amendment challenge to City rules prohibiting video advertising in for-hire vehicles (“FHVs”)
such as Uber and Lyft, but not in yellow or green taxicabs. Vugo, Inc. v. City of New York, 931
F.3d 42, 44–45 (2d Cir. 2019), cert. denied sub nom. Vugo, Inc. v. New York, NY, No. 19-792,
2020 WL 1978946 (U.S. Apr. 27, 2020). The Second Circuit analyzed the restriction under
Central Hudson, stating that “[t]he parties agree that the prohibition on advertising in FHVs is a
content-based restriction on commercial speech and, as such, is subject to intermediate scrutiny.”
Id. at 44. The court then found that the rule satisfied intermediate scrutiny.
Vugo discussed Reed in a footnote, id. at 49 n.6, stating that the City
does not dispute that the ban, construed as applying only to commercial
advertising, is content-based. We see no reason to conclude otherwise.
“Government regulation of speech is content-based if a law applies to particular
speech because of the topic discussed or the idea or message expressed.”
Id. at 49 n.6 (quoting Reed, 576 at 163). Vugo distinguished application of the strict-scrutiny
standard to some commercial-speech restrictions under Sorrell, stating that “[h]ere, by contrast,
the City’s ban covers the full range of commercial advertising. There is no suggestion that the
City is trying to ‘quiet[ ]’ truthful speech with a particular viewpoint that it ‘fear[s] . . . might
persuade.’” Id. at 50 n.7 (quoting Sorrell v. IMS Health Inc., 564 U.S. 552, 576 (2011)).
Vugo is distinguishable from our case, because the City of New York’s rule regulated
commercial speech only, as was stipulated by the parties. See id. at 48 n.5. As the Supreme
Court explained in Sorrell, “the First Amendment does not prevent restrictions directed at
commerce or conduct from imposing incidental burdens on speech.” Sorrel, 564 U.S. at 567
(2011). But when an enacted law “does not simply have an effect on speech, but is directed at
certain content and is aimed at particular speakers,” it may run afoul of the First Amendment.
Ibid. Vugo considered the City of New York’s restrictions on FHV advertising and concluded
that they did not merit strict-scrutiny review. Vugo, 931 F.3d at 50 n.7. Since International
Outdoor challenges an ordinance that regulates both commercial and non-commercial speech, the
Reed standard applies in this case, and the Vugo reasoning that relies on Central Hudson is not
applicable.
Nos. 19-1151/1399 Int’l Outdoor, Inc. v. City of Troy, Mich. Page 18
In Lone Star Security & Video, Inc. v. City of Los Angeles, 827 F.3d 1192, 1200 (9th Cir.
2016), the Ninth Circuit considered a First Amendment challenge to five municipal ordinances
regulating mobile billboards. Following Reed, Lone Star first considered whether the regulations
were content neutral. Concluding that the ordinances regulated advertising, it held that “the
mobile billboard bans regulate the manner—not the content—of affected speech,” and are
therefore content-neutral restrictions on speech. Id. at 1200. However, commenting on the
plaintiff’s conflating “advertising” speech with “commercial” speech, where the plaintiff sought
to display political as well as commercial messages on its mobile billboards, Lone Star added in
a footnote:
although laws that restrict only commercial speech are content based, see Reed [v.
Town of Gilbert], 135 S. Ct. at 2232, such restrictions need only withstand
intermediate scrutiny. See Central Hudson Gas & Elec. Corp. v. Public Serv.
Comm’n of New York, 447 U.S. 557, 564, 100 S. Ct. 2343, 65 L. Ed. 2d 341
(1980) (requiring that laws affecting commercial speech seek to implement a
substantial governmental interest, directly advance that interest, and reach no
further than necessary to accomplish the given objective).
Lone Star, 827 F.3d at 1198 n.3. It then concluded that the mobile-billboard regulations were
narrowly tailored as they “promote[d] a substantial government interest that would be achieved
less effectively absent the regulation.” Id. at 1200 (quoting Ward v. Rock Against Racism,
491 U.S. 781, 799 (1989)). It also held that the mobile-billboard ordinances were “a time, place,
and manner regulation” that “l[eft] open ample alternative channels for communication,”
satisfying the First Amendment. Id. at 1201 (second quoting Clark v. Cmty. for Creative
Non-Violence, 468 U.S. 288, 293 (1984)).
At the end of last term, the Supreme Court decided Barr v. American Ass’n of Political
Consultants, Inc., 140 S. Ct. 2335, 2346–50, 2356 (2020), holding that a government-debt-
collection exception to a prohibition on robocalls to cell phones under the Telephone Consumer
Protection Act constituted a content-based restriction that failed strict scrutiny, but that the
exception could be severed without invalidating the statute restricting robocalls. American
Association of Political Consultants thus repudiated the approach taken earlier by some of the
circuit courts discussed above. Pursuant to American Association of Political Consultants, strict
scrutiny applies to content-based restrictions.
Nos. 19-1151/1399 Int’l Outdoor, Inc. v. City of Troy, Mich. Page 19
2
The Supreme Court has flatly confirmed the requirement to apply Reed’s strict-scrutiny
standard, after this court had applied intermediate scrutiny by using a less stringent “‘practical’
test for assessing content neutrality” in Wagner v. City of Garfield Heights, 577 F. App’x 488,
494 (6th Cir. 2014), cert. granted, judgment vacated, 135 S. Ct. 2888 (2015). In Wagner, a City
of Garfield Heights ordinance treated political and non-political signs differently, including
restricting the size of political signs more than the size of certain non-political signs, but
subjecting political signs to fewer overall restrictions. 577 F. App’x at 493. Wagner, a resident
of Garfield Heights, Ohio, placed on his lawn a political sign that was larger than the City
allowed for this type of sign. Id. at 489. The district court found that the ordinance was content
based because the City was required to determine whether or not a sign is political before it can
determine which provision of the City code applies. Id. at 493. The district court further found
that the City’s restriction on Wagner’s political speech violated the First Amendment. Id. at 489.
This court applied a “‘practical’ test for assessing content neutrality,” concluded that the
ordinance imposed only a content-neutral restriction on the time, place, and manner of speech,
determined that the City had satisfied the intermediate scrutiny applicable to such regulations,
and reversed. Id. at 489, 493–94. The Supreme Court granted a petition for writ of certiorari,
vacated our judgment, and remanded the case to us for further consideration in light of Reed.
135 S. Ct. at 2888. On remand, we applied strict scrutiny to Garfield Heights’s sign restrictions
and concluded that the ordinance was not narrowly tailored to further the city’s interest in
promoting aesthetic appeal and traffic safety, thus failing strict scrutiny. Wagner v. City of
Garfield Heights, 675 F. App’x 599, 607 (6th Cir. 2017) (per curiam). We therefore affirmed the
initial decision of the district court to award Wagner an injunction. Id. at 600, 607.
Similarly, this court has since applied strict scrutiny to a constitutional challenge to
Tennessee’s Billboard Act based on the “on-premises exception” from permitting requirements
for signs relating to the use or purpose of the real property on which the sign is physically
located, such as signs advertising the activities, products, or services offered on those premises.
Thomas v. Bright, 937 F.3d 721, 724 (6th Cir. 2019). Thomas posted a sign supporting the 2012
U.S. Summer Olympics Team on a billboard he owned on an otherwise vacant lot. Ibid.
Nos. 19-1151/1399 Int’l Outdoor, Inc. v. City of Troy, Mich. Page 20
Tennessee had denied Thomas a permit and ordered the sign removed since it did not qualify for
the on-premises exception: there were no Olympics-related activities on an empty lot. Ibid.
Thomas sued, and the district court found that the Act violated the First Amendment, since “the
on-premises exception was content-based and thus subject to strict scrutiny, failed to survive
strict scrutiny, and was not severable from the rest of the Act.” Ibid. This court affirmed,
recognizing that Reed had overruled Sixth Circuit precedent on this point, Wheeler v. Comm’r of
Highways, 822 F.2d 586 (6th Cir. 1987). Thomas, 937 F.3d at 724.
In Wheeler, the appellees were denied a permit to display a political or religious message
on a billboard, which was adjacent to an interstate highway and which would not qualify as an
on-premise sign. 822 F.2d at 588. The district court held that the Kentucky Billboard Act and
its implementing regulations were “unconstitutional on their face because they discriminated
against non-commercial speech in favor of commercial speech.” Id. at 587. This court reversed,
finding that “the statute and regulations are content neutral and narrowly tailored to serve
substantial state interests” of preserving Kentucky’s aesthetic values and highway safety. Id. at
587, 595. But after Reed, Thomas v. Bright expressly overruled Wheeler. See Thomas, 937 F.3d
at 724.
To be sure, both Wagner and Thomas concerned non-commercial speech. But the
regulations in both cases were deemed unconstitutional due to their content-based nature: they
required an inspection of the message to determine whether it was political, as in Wagner, or
related to any on-premises activity, as in Thomas, in order to determine the sign’s permissibility
under the regulations.
Here, the district court determined that the speech at issue—erecting advertising
billboards—was commercial speech and therefore not subject to strict scrutiny. It held that the
ordinance provisions satisfied intermediate scrutiny under Central Hudson, 447 U.S. at 563, and
granted the City of Troy’s motion to dismiss Count II.
However, in so doing, the district court applied the wrong standard: the Sign Ordinance
imposed a content-based restriction by exempting certain types of messages from the permitting
requirements, such as flags and “temporary signs” that included on- and off-premises real-estate
Nos. 19-1151/1399 Int’l Outdoor, Inc. v. City of Troy, Mich. Page 21
signs, “garage, estate or yard sale” signs, “non-commercial signs[,]” “[p]olitical signs[,]”
“holiday or other seasonal signs[,]” and “constructions signs . . . . ” Thus, the ordinance
regulated both commercial and non-commercial speech but treated them differently, requiring
the City of Troy to consider the content of the message before deciding which treatment it should
be afforded. But for content-based restrictions on speech, strict and not intermediate scrutiny
applies pursuant to Reed. 135 S. Ct. at 2224; see also Am. Ass’n of Political Consultants, Inc.,
140 S. Ct. at 2346–50, 2356; Wagner, 675 F. App’x at 607; Thomas, 937 F.3d at 724.
We therefore vacate the district court’s grant of the City of Troy’s motion to dismiss
Count II, content-based restriction, and remand for consideration consistent with the holding in
Reed.
IV
International Outdoor also appeals the denial of an award of its attorney’s fees as a
prevailing party under 42 U.S.C. § 1988.
A district court’s decision to grant or deny attorney’s fees is reviewed for abuse of
discretion. Morrison v. Lipscomb, 877 F.2d 463, 469 (6th Cir. 1989). “A district court abuses its
discretion when it relies upon clearly erroneous findings of fact, applies the law improperly, or
uses an erroneous legal standard.” The Ne. Ohio Coal. for the Homeless v. Husted, 831 F.3d
686, 702 (6th Cir. 2016) (citation omitted).
The Civil Rights Attorney’s Fees Awards Act of 1976, 42 U.S.C. § 1988, provides:
In any action or proceeding to enforce a provision of sections 1981, 1982, 1983,
1985, and 1986 of this title, title IX of Public Law 92–318 . . . , or title VI of the
Civil Rights Act of 1964 . . . , the court, in its discretion, may allow the prevailing
party, other than the United States, a reasonable attorney’s fee as part of the costs.
42 U.S.C. § 1988(b). “Congress intended to permit the . . . award of counsel fees only when a
party has prevailed on the merits of at least some of his claims.” Hanrahan v. Hampton,
446 U.S. 754, 758 (1987) (per curiam). “The plaintiff must obtain an enforceable judgment
against the defendant from whom fees are sought or comparable relief through a consent decree
Nos. 19-1151/1399 Int’l Outdoor, Inc. v. City of Troy, Mich. Page 22
or settlement.” Farrar v. Hobby, 506 U.S. 103, 111 (1992) (internal citations omitted) (citing
Hewitt v. Helms, 482 U.S. 755, 760 (1987) and Maher v. Gagne, 448 U.S. 122, 129 (1980)).
In Hewitt v. Helms, the Court answered in the negative “the peculiar-sounding question
whether a party who litigates to judgment and loses on all of his claims can nonetheless be a
‘prevailing party.’” 482 U.S. at 757. Helms obtained no relief in his § 1983 action for alleged
due process violations by state prison officials, and “[t]he most that he obtained was an
interlocutory ruling that his complaint should not have been dismissed for failure to state a
constitutional claim.” Id., at 760. More on point, “a judicial pronouncement that the defendant
has violated the Constitution, unaccompanied by an enforceable judgment on the merits, does not
render the plaintiff a prevailing party.” Farrar v. Hobby, 506 U.S. at 112–13. Standing alone,
“the moral satisfaction [that] results from any favorable statement of law” does not establish
prevailing party status. Hewitt, 482 U.S. at 762.
The district court ruled that International Outdoor was not a prevailing party because it
did not obtain court-ordered relief. International Outdoor alleges that it had established that the
City of Troy’s variance process was an unconstitutional prior restraint and that the City amended
its ordinance because of the court’s finding to that effect. As the district court stressed in its
order denying the motion for attorney’s fees, “it did not declare the City of Troy’s variance
procedure to be facially unconstitutional. Rather, the court ruled that Count I did not fail to state
a claim.” Such a judicial pronouncement does not bestow prevailing party status on International
Outdoor. See Hobby, 506 U.S. at 112–13. Instead, the district court disposed of the claims of
International Outdoor by issuing an order against it on both counts, thus rendering the City of
Troy the prevailing party.
The City of Troy amended its Sign Ordinance without a judgment, court-ordered consent
decree, or even preliminary injunction. But “[a] defendant’s voluntary change in conduct,
although perhaps accomplishing what the plaintiff sought to achieve by the lawsuit, lacks the
necessary judicial imprimatur on the change.” Buckhannon Bd. & Care Home, Inc. v. W.
Virginia Dep’t of Health & Human Res., 532 U.S. 598, 605 (2001). The voluntary amendment
of the ordinance by the City of Troy does not constitute court-ordered relief necessary to
Nos. 19-1151/1399 Int’l Outdoor, Inc. v. City of Troy, Mich. Page 23
establish prevailing-party status. International Outdoor is therefore not a prevailing party and is
not entitled to attorney’s fees under 42 U.S.C. § 1988.
Consequently, the district court did not abuse its discretion by denying International
Outdoor’s motion for an award of attorney’s fees based on its rulings on the merits. See Hescott
v. City of Saginaw, 757 F.3d 518, 522 (6th Cir. 2014). However, since we reverse and remand
the district court’s ruling granting the City of Troy’s motion to dismiss a claim of
unconstitutional content-based restriction, we must also vacate and remand the district court’s
denial of International Outdoor’s motion for attorney’s fees pending reconsideration of the
motion to dismiss. Any future entitlement to attorney’s fees will await the outcome of further
proceedings below.
V
For the reasons explained above, we AFFIRM the district court’s grant of the City of
Troy’s motion for summary judgment on Count I regarding unconstitutional prior restraint, but
VACATE the district court’s grant of the City of Troy’s motion to dismiss Count II, content-
based restriction, and REMAND for reconsideration under the Reed standard. We also
VACATE and REMAND the district court’s denial of International Outdoor’s motion for
attorney’s fees pending reconsideration of the City of Troy’s motion to dismiss.
Nos. 19-1151/1399 Int’l Outdoor, Inc. v. City of Troy, Mich. Page 24
_______________________________________________________
CONCURRING IN PART AND DISSENTING IN PART
_______________________________________________________
SUHRHEINRICH, J., concurring in part and dissenting in part. I concur in the majority’s
resolution of International Outdoor’s prior-restraint claim (Count I), but I dissent from the
portion of the opinion directing the district court to apply strict scrutiny to a provision in Troy’s
sign ordinance that defines “temporary signs” based on their content (Count II). Because
International Outdoor seeks to erect permanent 70-foot billboards, not temporary signs, I would
hold that it lacks standing to challenge the temporary-sign provision.
The “irreducible constitutional minimum of standing” requires (1) a concrete injury that
is (2) “fairly traceable to the defendant’s allegedly unlawful conduct” and is (3) “likely to be
redressed by the requested relief.” Lujan, 504 U.S. at 560. The injury in this case—being denied
permission to erect billboards that are vastly larger than permitted by the height and size
restrictions of Troy’s sign ordinance—is not traceable to the temporary-sign provision. Thus,
International Outdoor does not have standing to contest that provision. See Prime Media, Inc. v.
City of Brentwood, 485 F.3d 343, 348, 353 (6th Cir. 2007) (holding that an outdoor-advertising
company seeking to erect an oversized billboard lacked standing to challenge unrelated
provisions of a city’s sign ordinance (including sections that gave favorable treatment to flags,
holiday signs, and temporary real-estate signs) because “none of th[ose] challenges [were]
supported by an independent injury in fact”); id. at 350–51 (determining that “[t]he plaintiff’s
standing with regard to the size and height requirements does not magically carry over to allow it
to litigate other independent provisions of the ordinance without a separate showing of an actual
injury under those provisions”).
For these reasons, I dissent from Section III of the majority opinion. Because I would
affirm the dismissal of both underlying claims, I also dissent from the majority’s decision to
vacate and remand the district court’s denial of International Outdoor’s motion for attorney’s
fees, as moot.