Leibundguth Storage & Van Serv v. Village of Downers Grove

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 16-3055
LEIBUNDGUTH STORAGE & VAN SERVICE, INC.,
Plaintiff-Appellant,
v.
VILLAGE OF DOWNERS GROVE, ILLINOIS,
Defendant-Appellee.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 14 C 9851 — Edmond E. Chang, Judge.
____________________
ARGUED MARCH 27, 2017 — DECIDED SEPTEMBER 24, 2019
____________________
Before BAUER and EASTERBROOK, Circuit Judges, and
DEGUILIO, District Judge.*
EASTERBROOK, Circuit Judge. An ordinance in Downers
Grove, Illinois, limits the size and location of signs. Lei-
bundguth Storage & Van Service contends that this ordi-
nance violates the First Amendment to the Constitution (ap-
* Of the Northern District of Indiana, sitting by designation.
2 No. 16-3055
plied to the states by the Fourteenth) because it is riddled
with exceptions and therefore is a form of content discrimi-
nation that the Village has not justified. See Reed v. Gilbert,
135 S. Ct. 2218 (2015). But because the principal topic of the
ordinance is commercial speech, the district court concluded
that Central Hudson Gas & Electric Corp. v. Public Service
Commission, 447 U.S. 557 (1980), rather than Reed supplies the
rule of decision, and it found the ordinance valid. 150 F.
Supp. 3d 910 (N.D. Ill. 2015). We conclude that, whether or
not Reed applies, this does not do Leibundguth any good be-
cause it is not affected by the problematic exceptions.
Downers Grove has a comprehensive ordinance regulat-
ing signs. Section 9.020 sets out rules for all signs, including
a rule prohibiting “any sign painted directly on a wall”
(§9.020.P). Section 9.050.A sets a size limit: for buildings such
as Leibundguth’s, which are closer than 300 feet to a street,
the maximum is 1.5 square feet per linear foot of frontage—
which implies a limit of 159 square feet for Leibundguth’s
building. Section 9.050.C.1 provides that each business may
have only one sign, though an amendment in 2015 allows
businesses that face both a street and a railroad an extra sign
on the railroad side. Section 9.030 creates exceptions: the or-
dinance does not require permits for holiday decorations
(§9.030.D), temporary signs for personal events such as
birthdays (§9.030.E), “[n]oncommercial flags” (§9.030.G)
(flags can be used to send political messages), political and
noncommercial signs that do not exceed 12 square feet
(§9.030.I), “[m]emorial signs and tablets” (§9.030.K), and
about a dozen more. These exclusions set up Leibundguth’s
argument that the ordinance represents content discrimina-
tion prohibited by Reed.
No. 16-3055 3
The Village insists that the ordinance regulates commer-
cial speech only. We need not decide which decision—Reed
or Central Hudson—must give way when a commercial-sign
law includes content discrimination. (One circuit recently
held that Reed supersedes Central Hudson. See Thomas v.
Bright, 2019 U.S. App. LEXIS 27364 (6th Cir. Sept. 11, 2019).)
This ordinance is comprehensive. Section 9.010.B tells us so:
“The regulations of this article apply to all signs in the vil-
lage, unless otherwise expressly stated.” And if that were not
clear enough, the exceptions are revealing. Why exclude
modestly sized political signs (§9.030.I) from the permit re-
quirement unless they are included for other purposes?
Suppose we were to hold that commercial signs must be
treated the same as flags and political signs. Leibundguth’s
problems come from the ordinance’s size and surface limits,
not from any content distinctions. One of Leibundguth’s
signs is painted on a wall; another is too large; a third wall
has two signs (as the Village counts them); and the size of
these signs, conceded to exceed 500 square feet, vastly ex-
ceeds the limit of 159 square feet for Leibundguth’s building
(and the limit of 12 square feet for political signs).
Let us start with the largest of Leibundguth’s signs,
which faces the railroad tracks—and which Leibundguth
tells us leads to as much as 20% of its revenue, by appealing
to commuters who see the sign when going to and from
work.
4 No. 16-3055
This sign is 40 feet long and 10 feet high, or 400 square feet.
It is painted on a brick wall. The ordinance’s size limit and
no-paint-on-walls rules independently forbid this sign. It
would fare no berer if it were a flag or carried a political
message. It exceeds 12 square feet, so it would not be saved
by §9.030.I. And the exemptions for flags (§9.030.G) and po-
litical signs pertain only to the permit requirement; they do
not exempt flags or political signs from §9.020.P, which bars
signs painted on walls. Likewise with the exception for tem-
porary signs (§9.030.E)—not that “temporary” is a form of
content discrimination in the first place. Anyway, Leibund-
guth does not want to use temporary signs.
Leibundguth insists that the exclusions in §9.030 remove
the size and no-paint-on-walls rules for flags and other listed
subjects. But that’s not what §9.030 itself says. It begins by
stating that the excluded signs do not require permits; it
does not say that rules for all signs stated elsewhere in the
ordinance drop out. Section 9.010.B says that all of the ordi-
nance’s rules apply to all signs unless they are “expressly”
excluded; §9.030 does not expressly remove any signs from
No. 16-3055 5
the size and no-paint-on-walls rules. Leibundguth’s argu-
ment rests on a report prepared by a Village official suggest-
ing that the ordinance does not prohibit purely decorative
murals and flags. But the Village itself disclaims this non-
textual reading. The Village’s understanding of its own or-
dinance carries the day, see Forsyth County v. Nationalist
Movement, 505 U.S. 123, 131 (1992), in the absence of some
indication that it has enforced the ordinance in a way that
permits large political signs or flags painted on walls. See
Construction & General Laborers Union v. Grand Chute, 915
F.3d 1120 (7th Cir. 2019). And Leibundguth has not offered
any evidence that the Village has enforced the ordinance as
Leibundguth reads it, rather than as how the Village tells us
the ordinance works.
A limit on the size and presentation of signs is a standard
time, place, and manner rule, a form of aesthetic zoning. The
Supreme Court has told us that aesthetic limits on signs are
compatible with the First Amendment. Members of City
Council v. Taxpayers for Vincent, 466 U.S. 789, 810–12 (1984).
Like other time, place, and manner restrictions, an aesthetic
rule must serve its ends; it cannot be arbitrary. The rule must
be justified without reference to the content or viewpoint of
speech, must serve a significant government interest, and
must leave open ample channels for communication. See
Clark v. Community for Creative Non-Violence, 468 U.S. 288, 293
(1984).
As the district court explained, 150 F. Supp. 3d at 922–24,
the Village gathered evidence that signs painted on walls
tend to deteriorate faster than other signs (Leibundguth’s
own sign is full of chipped paint and flaking bricks) and,
when revised or painted over, can become downright ugly.
6 No. 16-3055
Old paint may show through; efforts to remove paint may
leave a ghost image or bleach the brick so that the building
becomes morled. Leibundguth tells us that those effects are
too slight to justify legislation, but de gustibus non dispu-
tandum est. (“There’s no accounting for taste.”) People’s aes-
thetic reactions are what they are; if a large number of peo-
ple find paint-on-brick ugly, and paint-over-paint-on-brick
worse, this is a raw fact that a governmental body may con-
sider. It need not try to prove that aesthetic judgments are
right.
Likewise with size. Many people view signs as a neces-
sary evil and believe that smaller = less evil. Unless the gov-
ernment has engaged in content or viewpoint discrimina-
tion, that aesthetic judgment supports legislation. The Vil-
lage’s ordinance contains content discrimination, but as we
have explained that discrimination does not aggrieve Lei-
bundguth. And the parties agree that enforcement of the
sign ordinance leaves open plenty of ways to communicate.
Advertising does not depend on applying paint to brick—
and although 159 square feet of signage on Leibundguth’s
building is less than it prefers to use, 159 square feet is still a
large sign. Leibundguth also is free to advertise in print or
over the Internet.
The parties dispute how the Village’s ordinance applies
to the signs on two other faces of Leibundguth’s building,
but none of the possibilities poses a constitutional issue dis-
tinct from the ones we have already addressed. What we
have said is enough to show that the ordinance, as applied to
Leibundguth, does not violate the First Amendment.
AFFIRMED