Prime Media, Inc. v. Cty of Brentwood TN

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 05a0093p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
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Plaintiff-Appellee, -
PRIME MEDIA, INC.,
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No. 04-5012
v.
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CITY OF BRENTWOOD, TENNESSEE, -
Defendant-Appellant. -
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Appeal from the United States District Court
for the Middle District of Tennessee at Nashville.
No. 02-01034—Todd J. Campbell, District Judge.
Argued: December 2, 2004
Decided and Filed: February 24, 2005
Before: GILMAN and SUTTON, Circuit Judges; McKEAGUE, District Judge.*
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COUNSEL
ARGUED: Mary Byrd Ferrara, FARRAR & BATES, Nashville, Tennessee, for Appellant. E.
Adam Webb, WEBB & PORTER, LLC, Atlanta, Georgia, for Appellee. ON BRIEF: Mary Byrd
Ferrara, Kristin Ellis Berexa, FARRAR & BATES, Nashville, Tennessee, for Appellant. E. Adam
Webb, WEBB & PORTER, LLC, Atlanta, Georgia, for Appellee.
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OPINION
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SUTTON, Circuit Judge. At stake in this case is the constitutionality of an ordinance
promulgated by the City of Brentwood, Tennessee, that restricts the size and height of billboards
located within the city. Faced with a claim by an outdoor advertising company that the ordinance
violated the company’s First Amendment rights, the district court invalidated the law. Because we
conclude that the ordinance is a content-neutral restriction on the time, place and manner of speech,
and because Brentwood has satisfied the intermediate scrutiny applicable to such regulations, we
reverse.
*
The Honorable David W. McKeague, United States District Judge for the Western District of Michigan, sitting
by designation.
1
No. 04-5012 Prime Media, Inc. v. City of Brentwood, Tennessee Page 2
I.
In 1999, the City of Brentwood promulgated an ordinance limiting the use of billboards
within the city. The purpose of the ordinance was “to maintain and enhance the environment; to
promote the effective use of signs as a means of communication and economic growth; and to
advance the safety and welfare of the community as it relates to the use of exterior signs in the City.”
JA 483. Among other restrictions, the ordinance limited the size of billboards to a face area of 120
square feet and a height of six feet, the latter of which includes the length of any pole supporting the
sign. As originally enacted, the ordinance also prohibited off-premises signs—namely, signs “that
direct[] attention to a business, commodity, or service offered at a location other than the premises
on which the sign is erected.” JA 486.
In October 2002, Prime Media, Inc., an outdoor advertising company, applied for a permit
from Brentwood to build and place billboards near Interstate 65. Relying on the ordinance,
Brentwood denied the permit request on three grounds: it violated the face-size restriction because
the proposed billboards would be 672 square feet in size; it violated the height restriction because
the proposed billboards would rest on 50- to 73-foot poles and it violated the off-premises restriction
because the billboards would not be located on the premises that they were promoting.
After receiving this response, Prime Media filed a lawsuit challenging the constitutionality
of the sign ordinance on two grounds—that it violated the free-speech guarantees of the First (and
Fourteenth) Amendment and the equal-protection guarantees of the Fourteenth Amendment. While
the case was pending in the district court, Brentwood amended the ordinance to remove the off-
premises restriction. The amended ordinance also added a purpose and findings section. The
“[p]urpose” of the new ordinance is to “[i]mprove the visual appearance of the city while providing
for effective means of communication, consistent with constitutional guarantees.” JA 510. The
“[f]indings” of the new ordinance say that:
The city’s zoning regulations have always included the regulation of signs in an
effort to provide adequate means of expression and to promote the economic
viability of the business community, while protecting the city and its citizens from
a proliferation of signs of a type, size, location and character that would adversely
impact upon the aesthetics of the community and threaten the health, safety and
welfare of the community. The regulation of the physical characteristics of signs
within the city has had a positive impact on traffic safety and the appearance of the
community.
Id. The amendment did not alter the size and height restrictions. In response to this development,
Prime Media amended its complaint to challenge the constitutionality of the modified ordinance and
sought damages arising from injuries caused by the original ordinance.
Faced with cross-motions for summary judgment, the district court concluded that the size
and height restrictions restricted speech in a content-neutral manner, but that Brentwood had failed
to show that those restrictions were “narrowly tailored” to promote Brentwood’s interests in
aesthetics and traffic safety. D. Ct. Op. at 9. The findings of the amended ordinance, the district
court reasoned, did not satisfy the tailoring requirement because they provided no comparison with
billboards of other sizes and were not supported by studies or analyses of alternative ways to achieve
the city’s interests:
Defendant has failed to show that a height maximum of six feet or a size maximum
of 120 square feet is narrowly tailored to further or advance its two interests. There
is no factual record on these points. The findings . . . of the Amended Ordinance are
insufficient to carry Defendant’s burden to show that the restrictions are narrowly
No. 04-5012 Prime Media, Inc. v. City of Brentwood, Tennessee Page 3
tailored to further the stated interests. For example, Defendant does not explain how
or why billboards which are six feet high are more threatening to safe driving or the
beauty of Brentwood than billboards which are slightly taller or even much taller.
There is no basis for concluding that the limit of six feet is not an arbitrary limitation.
Neither has Defendant shown how or why signs with sign face sizes of more than
120 square feet cause more danger to drivers or detract more from the aesthetics of
the City than signs with smaller sign face sizes. There is no factual record of careful
calculation of the costs and benefits of these restrictions. Defendant has produced
no studies, legislative history or factual analysis as evidence that it considered
alternatives and specifically determined that these restrictions were narrowly tailored
to further its interests.
D. Ct. Op. at 9–10. Turning to the prohibition on off-premises signs in the original ordinance, the
district court concluded that the restriction was content-based, that it was not the least restrictive
means to achieve Brentwood’s interests, that it was unconstitutional and that Prime Media would
be entitled to damages stemming from this provision (if it could prove them) at trial. Id. at 10–11.
Because the amended ordinance contained a severability clause, the district court did not invalidate
the entire law but instead severed the offending provisions from it. Id.
II.
The appeal from this decision raises three issues: (1) Brentwood argues that the district court
erred in invalidating the size and height restrictions; (2) Brentwood argues that, if the size and height
restrictions satisfy the First Amendment, then Prime Media’s money damages claim stemming from
the off-premises ban must be rejected because the permit request was denied on the basis of the size
and height restrictions as well; and (3) Prime Media, as alternative grounds for affirmance, urges
us to address its independent First Amendment facial challenge to the statute and its independent
Equal Protection Clause challenge to the statute, both of which the district court did not reach. We
review each issue de novo, see DiCarlo v. Potter, 358 F.3d 408, 414 (6th Cir. 2004) (order granting
summary judgment); McMullen v. Meijer, Inc., 355 F.3d 485, 489 (6th Cir. 2004) (order denying
summary judgment on purely legal grounds), and retain authority to review the denial of a summary
judgment motion when it is presented with an appeal of a successful summary judgment motion, see
id.
A.
Billboards and other visual signs, it is clear, represent a medium of expression that the Free
Speech Clause has long protected. But, in contrast to oral speech, they “pose distinctive problems”
that also have long been subjected to the “police powers” of States and cities because billboards and
signs “take up space and may obstruct views, distract motorists, displace alternative uses for land,
and pose other problems that legitimately call for regulation.” City of Ladue v. Gilleo, 512 U.S. 43,
48 (1994). It thus is “common ground that governments may regulate the physical characteristics”
of signs and billboards in much the same way that “they can, within reasonable bounds and absent
censorial purpose, regulate audible expression in its capacity as noise.” Id. (citing Ward v. Rock
Against Racism, 491 U.S. 781 (1989); Kovacs v. Cooper, 336 U.S. 77 (1949)).
Just as the First Amendment “does not guarantee the right to communicate one’s views at
all times and places or in any manner,” Wheeler v. Comm’r of Highways, Commonwealth of
Kentucky, 822 F.2d 586, 589 (6th Cir. 1987), however, so it does not permit municipalities to
regulate methods of expression however, whenever and wherever they wish. Because the regulation
of a medium of expression “inevitably affects communication itself,” Gilleo, 512 U.S. at 48, the
Court has subjected time, place and manner restrictions on speech to the following test: They “are
valid provided [1] that they are justified without reference to the content of the regulated speech, [2]
No. 04-5012 Prime Media, Inc. v. City of Brentwood, Tennessee Page 4
that they are narrowly tailored [3] to serve a significant governmental interest, and [4] that they leave
open ample alternative channels for communication of the information.” Clark v. Community for
Creative Non-Violence, 468 U.S. 288, 293 (1984); accord Hill v. Colorado, 530 U.S. 703 (2000);
Ward, 491 U.S. 781; Members of City Council of Los Angeles v. Taxpayers for Vincent, 466 U.S.
789 (1984); Heffron v. Int’l Soc’y for Krishna Consciousness, Inc., 452 U.S. 640, 648 (1981).
The size and height restrictions of the Brentwood ordinance steer clear of several of the
obstacles that have claimed other regulators of speech. The restrictions have no censorial purpose,
as they are both viewpoint- and content-neutral and regulate only the non-expressive components
of billboards. Cf. Taxpayers for Vincent, 466 U.S. at 804 (“[T]he First Amendment forbids the
government to regulate speech in ways that favor some viewpoints or ideas at the expense of
others.”). The regulations advance legitimate governmental interests—aesthetics and traffic safety.
See id. at 806 (“[M]unicipalities have a weighty, essentially esthetic interest in proscribing intrusive
and unpleasant formats for expression.”); Metromedia, Inc. v. City of San Diego, 453 U.S. 490,
507–08 (1981) (plurality) (“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.
It is far too late to contend otherwise.”) (footnote omitted); Railway Express Agency, Inc. v. New
York, 336 U.S. 106, 109 (1949) (“We would be trespassing on one of the most intensely local and
specialized of all municipal problems if we held that this regulation had no relation to the traffic
problem of New York City.”). And the regulations leave open ample alternative communication
because they permit billboards that satisfy the height and size restrictions, see Wheeler, 822 F.2d
at 596, and do “not affect any individual’s freedom to exercise the right to speak and to distribute
literature in the same place where the posting of signs on public property is prohibited,” Taxpayers
for Vincent, 466 U.S. at 812.
The parties do not dispute any of this. They instead part company over whether the size and
height provisions are narrowly tailored. Ward goes a long way toward clarifying what the tailoring
requirement means in the context of time-place-and-manner scrutiny. In saying that a “narrowly
tailored” regulation is one that does not “burden substantially more speech than is necessary to
further the government’s legitimate interests,” 491 U.S. at 799, Ward contrasted this time-place-and-
manner requirement with the more rigorous tailoring mandated by strict scrutiny.
Lest any confusion on the point remain, we reaffirm today that a regulation of the
time, place, or manner of protected speech must be narrowly tailored to serve the
government’s legitimate, content-neutral interests but that it need not be the least
restrictive or least intrusive means of doing so. Rather, the requirement of narrow
tailoring is satisfied so long as the . . . regulation promotes a substantial government
interest that would be achieved less effectively absent the regulation. To be sure, this
standard does not mean that a time, place, or manner regulation may burden
substantially more speech than is necessary to further the government’s legitimate
interests. Government may not regulate expression in such a manner that a
substantial portion of the burden on speech does not serve to advance its goals. See
Frisby v. Schultz, [487 U.S. 474, 485 (1988)] (“A complete ban can be narrowly
tailored but only if each activity within the proscription’s scope is an appropriately
targeted evil.”). So long as the means chosen are not substantially broader than
necessary to achieve the government’s interest, however, the regulation will not be
invalid simply because a court concludes that the government’s interest could be
adequately served by some less-speech-restrictive alternative. The validity of time,
place, or manner regulations does not turn on a judge’s agreement with the
responsible decisionmaker concerning the most appropriate method for promoting
significant government interests or the degree to which those interests should be
promoted.
No. 04-5012 Prime Media, Inc. v. City of Brentwood, Tennessee Page 5
Ward, 491 U.S. at 798–800 (most citations, footnotes and quotation marks omitted).
Words are one thing, of course, their application by the courts another. If “word[s are]
known by the company [they] keep[],” Gutierrez v. Ada, 528 U.S. 250, 255 (2000), they surely also
are known by the actions they prompt. Ward, for example, upheld New York City’s requirement
that a city sound technician control the mixing board during concerts at a bandshell in Central Park.
“Absent this requirement, the city’s interest would have been served less well . . . . The alternative
regulatory methods hypothesized by the Court of Appeals reflect nothing more than a disagreement
with the city over how much control of volume is appropriate or how that level of control is to be
achieved.” Ward, 491 U.S. at 800. This reasoning, together with the district court’s finding that the
city’s technician did not interfere with the quality—as opposed to volume—of the sound, sufficed
to uphold the requirement. Id. at 802. At no point in Ward did the Court require the city to justify
the particular decibel limits that the city technician imposed by controlling the mixing board.
The Court’s sign and billboard cases follow a similar route. In Taxpayers for Vincent, the
Court upheld a complete ban on posting signs on telephone poles (and their cross-wires), stating that
“[t]he District Court found that the signs prohibited by the ordinance do constitute visual clutter and
blight. By banning these signs, the City did no more than eliminate the exact source of the evil it
sought to remedy.” 466 U.S. at 808. The Court distinguished the case from Schneider v. State, 308
U.S. 147 (1939), which invalidated a ban on leafletting. Unlike such a rule, which banned protected
speech in an effort to prevent the recipients from discarding leaflets on streets after receiving the
message, a ban on posting signs on telephone poles and wires was directly related to the evil sought
to be averted—the presence of the signs on the poles and wires. Id. at 809. Once the Court
identified the direct link between the regulation and the interest, it was satisfied that the tailoring
prong of time-place-and-manner scrutiny had been established.
In Gilleo, the Court invalidated a regulation banning residents from displaying most signs
on their property, but not because the law failed the tailoring requirement. Rather, it was because
the regulation “almost completely foreclosed a venerable means of communication that is both
unique and important. It has totally foreclosed that medium to political, religious, or personal
messages.” Gilleo, 512 U.S. at 54. The Court struck the regulation, in other words, because it was
not “persuaded that adequate substitutes exist for the important medium of speech that Ladue has
closed off.” Id. at 56.
Similarly, in Metromedia, the Court invalidated San Diego’s prohibitions on outdoor
advertising not because they failed to satisfy the tailoring requirement but because they were
content-based. As to the tailoring requirement, a majority of the Court concluded that the ban
directly served the visual-blight and traffic-safety concerns that prompted passage of the ordinance.
See Metromedia, 453 U.S. at 508 (plurality) (“If the city has a sufficient basis for believing that
billboards are traffic hazards and are unattractive, then obviously the most direct and perhaps the
only effective approach to solving the problems they create is to prohibit them. The city has gone
no further than necessary in seeking to meet its ends. Indeed, it has stopped short of fully
accomplishing its ends: It has not prohibited all billboards, but allows onsite advertising and some
other specifically exempted signs.”); id. at 541 (Stevens, J., dissenting in part) (agreeing with the
plurality opinion on this point); id. at 570 (Rehnquist, J., dissenting) (“In my view, the aesthetic
justification alone is sufficient to sustain a total prohibition of billboards within a community.”); see
Taxpayers for Vincent, 466 U.S. at 817 (relying on the above passage from the plurality opinion in
Metromedia in upholding a billboard regulation).
This court has followed suit in two cases upholding regulations of roadside advertising.
Wheeler rejected an argument that a ban on certain types of advertising signs was not sufficiently
tailored because, by permitting other types of signs, the ban did not completely achieve the interests
of aesthetics and traffic safety. Finding that such an incomplete (yet content-neutral) ban
No. 04-5012 Prime Media, Inc. v. City of Brentwood, Tennessee Page 6
nonetheless directly advanced legitimate interests, the court concluded that the ban satisfied time-
place-and-manner scrutiny. Wheeler, 822 F.2d at 595.
Rzadkowolski v. Village of Lake Orion, 845 F.2d 653 (6th Cir. 1988), upheld a billboard
regulation as sufficiently tailored to achieve the interests of aesthetics and traffic safety even though
the regulations banned billboards in all but the small village’s one industrial zone. The court upheld
the restrictions because most of the village was residential, and the restrictions “promote[d]
significant and legitimate aesthetic interests which enhance property values and psychological well-
being for individuals and families. They may [have] also minimize[d] traffic obstructions and
possible visual hazards.” Id. at 655. Without more, this court concluded that the restrictions
satisfied time-place-and-manner scrutiny. Id.; see also Valley Outdoor, Inc. v. County of Riverside,
337 F.3d 1111, 1115 (9th Cir. 2003) (upholding, among other restrictions, a 300-square-foot-size
and a 30-foot-height restriction on billboards as valid time-place-and-manner restrictions); Outdoor
Sys., Inc. v. City of Mesa, 997 F.2d 604, 611 (9th Cir. 1993) (upholding various billboard regulations
as valid time-place-and-manner restrictions); id. (“[T]he sign codes here go no further than
necessary in seeking to accomplish the cities’ goals. Indeed, the cities have stopped short of
achieving their goals because they have not banned outdoor signs entirely.”) (citations and quotation
marks omitted).
Measured by the requirements of these cases, Brentwood’s size and height restrictions satisfy
the tailoring requirements for a content-neutral regulation of the time, place and manner of speech.
The fit between the City’s means and ends is a reasonable one. The agreed-upon evils of billboards
are visual blight and traffic safety. And the City did not regulate “a possible byproduct” of this
problem, see Taxpayers for Vincent, 466 U.S. at 810, but the problem itself—“the medium of
expression,” id. As it was in Taxpayers for Vincent, so it is here: “By banning these signs, the City
did no more than eliminate the exact source of the evil it sought to remedy.” Id. at 808; see
Metromedia, 453 U.S. at 508 (plurality) (“If the city has a sufficient basis for believing that
billboards are traffic hazards and are unattractive, then obviously the most direct and perhaps the
only effective approach to solving the problems they create is to prohibit them.”).
Of course, unlike Taxpayers for Vincent, where the city banned all signs and billboards on
utility poles, Brentwood did not ban all billboards, only those of a certain height and size. But that
does not mean that the City has gone further than necessary to satisfy its ends; it means “it has
stopped short of fully accomplishing its ends: It has not prohibited all billboards.” Metromedia, 453
U.S. at 508 (plurality). See Taxpayers for Vincent, 466 U.S. at 808 n.27 (noting that “a majority of
the Court [in Metromedia] concluded that a prohibition on billboards was narrowly tailored to the
visual evil San Diego sought to correct”). And the height and size restrictions directly advance this
interest because billboards that are smaller and shorter are less apt to interfere with aesthetic or
traffic safety concerns.
Nor must Brentwood eliminate all billboards in order to satisfy the tailoring requirement.
Strange as it may seem, the First Amendment may forbid the regulation of “too much” speech
(because the law bans expression unrelated to the governmental interest or leaves inadequate
channels of alternative communication) as well as the regulation of “too little” speech (because
exemptions to the regulation remove an entire topic of speech from debate, advantage one side of the
debate over another or undermine the credibility of the government’s explanation for restricting
speech at all). See Gilleo, 512 U.S. at 51–52. But just as the Brentwood ordinance does not prohibit
too much speech, it does not restrict too little. The exemption is not based on content or viewpoint.
And it does not undermine the City’s rationale for the regulation because the banned billboards and
the permitted billboards are not “equally unattractive.” Taxpayers for Vincent, 466 U.S. at 811. A
city may fairly prefer smaller objects of visual blight over larger ones. Plus, “by not extending the
ban to all [billboards], a significant opportunity to communicate by” other means is permitted, which
generally constitutes a First Amendment virtue rather than vice. Id.
No. 04-5012 Prime Media, Inc. v. City of Brentwood, Tennessee Page 7
While the district court and Prime Media have acknowledged that a least-restrictive-means
test does not govern this inquiry, the analysis of the district court on this issue comes perilously close
to being just that. See D. Ct. Op. at 9–10 (“Defendant does not explain how or why billboards which
are six feet high are more [perhaps less] threatening to safe driving or the beauty of Brentwood than
billboards which are slightly taller or even much taller. . . . Neither has Defendant shown how or why
signs with sign face sizes of more than 120 square feet cause more danger to drivers or detract more
from the aesthetics of the City than signs with smaller sign face sizes.”). Contrary to this analysis,
the question is not whether a municipality can “explain” why a 120-square-foot limitation “detract[s]
more from the aesthetics of the City than signs with smaller sign face sizes”; it is whether the
regulation is “substantially broader than necessary to protect the City’s interest in eliminating visual
clutter” and advancing traffic safety. Taxpayers for Vincent, 466 U.S. at 808 (emphasis added). Cf.
Lorillard Tobacco Co. v. Reilly, 533 U.S. 525, 556 (2001) (“[T]he case law requires a reasonable ‘fit
between the legislature’s ends and the means chosen to accomplish those ends.’”) (quoting Bd. of Trs.
of State Univ. of New York v. Fox, 492 U.S. 469, 480 (1989), among other cases). The City has
satisfied this more modest test.
Prime Media also errs in making a related point—in arguing that Brentwood failed to provide
sufficient evidence to support its regulation and in relying on Ibanez v. Florida Department Business
& Professional Regulation, 512 U.S. 136 (1994), among other cases, to support this contention. See
id. at 143 (“Mere speculation or conjecture will not suffice; rather the [government] must demonstrate
that the harms it recites are real and that its restriction will in fact alleviate them to a material
degree.”) (citations and quotation marks omitted). Brentwood did not merely rely on “speculation
or conjecture” in promulgating this ordinance. The “purpose and intent” and “findings” sections of
the amended ordinance not only establish that the Brentwood Board of Commissioners considered
the costs and benefits of the restriction but also establish that the City determined that the physical
restrictions, including the size and height restrictions, “[have] had a positive impact” on Brentwood’s
stated interests since 1999. JA 510.
Nor is it clear what more a municipality should be required to do after Taxpayers for Vincent
and Metromedia. These cases (and others as well) make it plain that billboard regulations, whatever
other strengths and weaknesses they may have, advance a police power interest in curbing community
blight and in promoting traffic safety. See, e.g., Rzadkowolski, 845 F.2d at 655; Valley Outdoor, 337
F.3d at 1115; Outdoor Sys., 997 F.2d at 611; Wheeler, 822 F.2d at 595 (“Although the record in the
present case contains little evidence regarding Kentucky’s interests in traffic safety, we conclude that
the interest in promoting the recreational value of public travel and preserving natural beauty along
interstate highways is substantial and sufficient to support the content neutral restrictions.”). Since
no one claims that Brentwood’s cited interest in aesthetics is a mere pretext for an ulterior motive,
Brentwood deserves reasonable deference with regard to this determination. As the Supreme Court
has noted:
It is not speculative to recognize that billboards by their very nature, wherever located
and however constructed, can be perceived as an “esthetic harm.” . . . Such esthetic
judgments are necessarily subjective, defying objective evaluation, and for that reason
must be carefully scrutinized to determine if they are only a public rationalization of
an impermissible purpose. But there is no claim in this case that San Diego has as an
ulterior motive the suppression of speech, and the judgment involved here is not so
unusual as to raise suspicions in itself.
Metromedia, 453 U.S. at 510 (plurality). See id. at 508 (plurality) (concluding that tailoring
requirement was satisfied); id. at 541 (Stevens, J., dissenting in part) (joining on this point).
What Prime Media seems to demand is evidence establishing something akin to what the
district court required, an explanation of why the regulation limits billboards to less than six feet in
No. 04-5012 Prime Media, Inc. v. City of Brentwood, Tennessee Page 8
height and 120 square feet in size, as opposed to some greater height or size increment. While Prime
Media is right to insist that governments be forced to weigh the costs and benefits of regulating
speech and be forced to do so more rigorously than in other areas of legislation, we do not think the
Supreme Court’s cases (or our own) impose such a stringent duty of calibration—at least in the
context of a content-neutral time, place and manner restriction. It is enough here that billboards, all
agree, cause visual blight and interfere with traffic safety and that these dimensional restrictions have
ameliorated the problems the government sought to address since 1999, when the law went into
effect. To ask the City to justify a size restriction of 120 square feet over, say, 200 square feet or 300
square feet would impose great costs on local governments and at any rate would do little to improve
our ability to review the law—because any further explanation assuredly would contain the kind of
aesthetic and subjective judgment that judges are not well-equipped to second guess. Better, in our
view, to save such demanding review for situations where the regulation is not content-neutral, where
it does not leave ample alternative channels for communication because it is (or nearly is) a complete
ban, or where the “broad sweep of the regulations” themselves show that the government did not
reasonably weigh the costs and benefits of regulating speech. Lorillard, 533 U.S. at 561. At any rate,
this is not such a regulation.
Neither does Prime Media gain traction by invoking the Court’s commercial-speech cases.
As the Supreme Court has held, the “framework for analyzing regulations of commercial speech [
] is ‘substantially similar’ to the test for time, place, and manner restrictions.” Id. at 554 (quoting
Fox, 492 U.S. at 477). And the commercial-speech tailoring requirement—a reasonable “‘fit’
between the legislature’s ends and the means chosen to accomplish those ends,” Fox, 492 U.S. at
480—is a close cousin, if not a fraternal twin, of the test that we have applied here.
B.
Having upheld Brentwood’s height and size restrictions on billboards, we must consider
Prime Media’s damages claim regarding the ban on off-premises billboards. The district court
invalidated this provision on the ground that it was content-based (because it favored commercial
speech over non-commercial speech) and did not survive scrutiny. The city has amended the
ordinance to remove the ban and does not challenge the district court’s decision regarding the
invalidity of the ban. Nor does Brentwood contend that Prime Media’s claim for damages arising
from the ban is moot. See Boag v. MacDougall, 454 U.S. 364 (1982) (transfer to another prison did
not moot prisoner’s damages claim arising from placement in earlier prison); Utah Animal Rights
Coalition v. Salt Lake City Corp., 371 F.3d 1248, 1257 (10th Cir. 2004) (injunctive relief could no
longer redress the injury and the “capable of repetition, yet evading review” doctrine did not apply,
but plaintiff’s damages claim saved the action from mootness).
Instead, Brentwood challenges Prime Media’s continuing ability to satisfy the elements of this
damages claim. As the city sees it, Prime Media’s application was rejected on three grounds—that
it violated the off-premises ban, the height restriction and the size restriction—and each of these
grounds independently sufficed to deny the application. Because two of those grounds, it turns out,
satisfy the First Amendment’s requirements in this area and because all of Prime Media’s billboard
proposals exceeded the size and height restrictions, Brentwood argues that Prime Media cannot
establish that the off-premises ban caused it any injury. We agree. See Brower v. County of Inyo,
489 U.S. 593, 599 (1989) (holding that § 1983 claimant must establish “proximate causality” between
government’s unconstitutional action and injury). In view of Brentwood’s permissible rejection of
the application on size and height grounds, we agree that Prime Media’s claim for actual or nominal
damages is flawed as a matter of law. Cf. Carey v. Piphus, 435 U.S. 247, 266–67 (1978).
No. 04-5012 Prime Media, Inc. v. City of Brentwood, Tennessee Page 9
C.
Prime Media, lastly, raises two alternative grounds for affirming the judgment below. It
claims that we should address its First Amendment facial challenge to the entire ordinance, including
its challenge to numerous provisions of the ordinance that do not affect Prime Media. See 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.”). And it claims that we should address its equal-
protection challenge to the ordinance. Because the district court did not address either of these
claims, we leave it to the district court in the first instance to consider them—as well as Prime
Media’s standing to raise them—keeping in mind that “a law’s application to protected speech [must]
be substantial, not only in an absolute sense, but also relative to the scope of the law’s plainly
legitimate applications, before applying the strong medicine of overbreadth invalidation.” Virginia
v. Hicks, 539 U.S. 113, 119–20 (2003) (citations and quotation marks omitted); see also Taxpayers
for Vincent, 466 U.S. at 800 (“[T]he mere fact that one can conceive of some impermissible
applications of a statute is not sufficient to render it susceptible to an overbreadth challenge.”).
Because both parties agree that Prime Media is entitled to attorney’s fees only if it is a “prevailing
party,” Farrar v. Hobby, 506 U.S. 103, 109 (1992), we leave this issue as well for the district court
to determine after considering the remainder of Prime Media’s claims.
III.
For these reasons, we reverse and remand for further proceedings consistent with this opinion.