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8/10/2019 Petition for Certiorari before the United States Supreme Court in Wagner v. City of Garfield Heights, Ohio
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No.14-___
IN THE
Supreme Court of the United States
FRANK WAGNER,Petitioner,
v.
CITY OF GARFIELD HEIGHTS,OHIO;AND WILLIAM WERVEY,
Respondents.
On Petition for a Writ Of Certiorari
to the United States Court of Appeals
for The Sixth Circuit
PETITION FOR A WRIT OF CERTIORARI
CURT C.HARTMANCounsel of Record
THE LAW FIRM OF CURT C.HARTMAN7394 Ridgepoint Drive #8Cincinnati, OH 45230(513) 379-2923hartmanlawfirm@fuse.net
CHRISTOPHER P.FINNEYFINNEY LAW FIRM,LLC4270 Ivy Pointe Blvd.Suite 225Cincinnati, OH 45245chris@finneylawfirm.com
Counsel for Petitioners
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QUESTIONS PRESENTED
I. Whether the mere assertion by a government that its signregulations lack a discriminatory motive renders suchregulations to be content-neutral sign regulationsnotwithstanding the facially content-based aspects ofsuch sign regulations?
II. In order to constitutionally justify a content-neutral signregulation under intermediate scrutiny, must agovernment establish with evidence that the specific signregulation at issue actually advances a significantgovernmental interest and leaves open alternativechannels of communication or may a government relysimply upon ipse dixit and general pronouncements incase law concerning different forms or media ofcommunication in order to satisfy the requirements ofintermediate scrutiny?
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PARTIES TO THE PROCEEDING
Petitioner, who was Plaintiff-Appellee below, is FrankWagner.
Respondents, who were Defendants-Appellants below,are the City of Garfield Heights, Ohio, and William Wervey,the Building Commissioner for the City of Garfield Heights,Ohio, who is being sued in his individual and officialcapacities.
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TABLE OF CONTENTS
Page
iii
QUESTIONS PRESENTED ................................................. i
PARTIES TO THE PROCEEDING AND RULE 29.6STATEMENT ............................................................... ii
TABLE OF CONTENTS ................................................... iii
TABLE OF AUTHORITIES .................................................v
OPINIONS BELOW .............................................................1
JURISDICTION ....................................................................1CONSTITUTIONAL AND CITY ORDINANCE
PROVISIONS INVOLVED ......................................1
STATEMENT OF THE CASE .............................................1
REASONS FOR GRANTING THE PETITION...................4
1. The First Question Presented Is Already Beforethe Court Due to a Circuit Split......................................4
2. The Second Question Presented is raised as thedecision of the Sixth Circuit conflicts with
relevant decisions of this Court that have treatedand analyzed governmental interests supposedlybeing advanced by sign regulations based uponthe distinct medium and venue of the expressioninvolved and not with a one-size-fits-all approachlacking in any supporting evidence .................................8
CONCLUSION ...................................................................15
APPENDIX A: Opinion of the United States Court ofAppeals for the Sixth Circuit (August 19, 2014) .......... 1a
APPENDIX B: Order of the United States Court ofAppeals for the Sixth Circuit (October 3, 2014) ........ 31a
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ivTABLE OF CONTENTS
(continued)Page
APPENDIX C: Order of the United States DistrictCourt for the Northern District of Ohio (February12, 2013) ..................................................................... 32a
APPENDIX D: U.S. Const., amend. I .............................. 58a
APPENDIX E: Codified Ordinances of the City ofGarfield Heights, Ohio, 1140.362 .......................... 59a
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TABLE OF AUTHORITIES
Page(s)
v
CASES
Arlington County Republican Committee v. Arlington
County, Va., 983 F.2d 587 (4th Cir. 1993) .................... 8-9
Brown v. Town of Cary,706 F.3d 294 (4th Cir. 2013) ........................................... 6
City of Ladue v. Gilleo, 512 U.S. 43 (1994) .................. 10-11
City of Lakewood v. Plain Dealer Publ. Co.,
486 U.S. 750 (1988) .................................................. 10-11Florida Bar v. Went For It, Inc.,
515 U.S. 618 (1995) ...................................................... 13
H.D.V.-Greektown, LLC v. City of Detroit,568 F.3d 609 (6th Cir. 2009) .................................... 4-5, 6-7
Leverett v. City of Pinellas Park,775 F.2d 1536 (11th Cir. 1985) ...................................... 14
Matthews v. Town of Needham,764 F.2d 58 (1st Cir. 1985) ............................................. 5
Melrose, Inc. v. City of Pittsburgh,
613 F.3d 380 (3d Cir. 2010) ............................................ 7-8
Members of City Council of Los Angeles v. Taxpayers
for Vincent,466 U.S. 789 (1984) ................................... 10
Metromedia v. City of San Diego,453 U.S. 490 (1981) .................................................... 9-11
National Adver. Co. v. Town of Babylon,900 F.2d 551 (2d Cir. 1990) .......................................... 5-6
Neighborhood Enterprises, Inc. v. City of St. Louis,644 F.3d 728 (8th Cir. 2011) ........................................ 6, 9
Reed v. Town of Gilbert, Arizona,707 F.3d 1057 (9th Cir. 2013) .......................................... 7
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viTABLE OF AUTHORITIES
(continued)Page(s)
Reed v. Town of Gilbert, Arizona,Case No. 13-502 (oral arugment Jan. 12, 2015) ..... passim
Southeastern Promotions, Ltd. v. Conrad,420 U.S. 546 (1975) ......................................................... 9
Solantic, LLC v. City of Neptune Beach,
410 F.3d 1250 (11th Cir. 2005) ........................................ 6
Watseka v. Illinois Public Action Council,796 F.2d 1547 (7th Cir. 1986) ,aff'd,479 U.S. 1048 (1987) ............................................ 14
STATUTORY PROVISIONS
42 U.S.C. 1983 .................................................................. 3
COURT RULES
Sup. Ct. R.10(a) ................................................................ 15
Sup. Ct. R.10(c) ................................................................ 15
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OPINIONS BELOW
The Court of Appeals opinion (Pet.App.1a) reversingthe District Courts judgment is available at 2014 WL4067171. The District Courts opinion (Pet.App.32a) findingthe sign regulation at issue to be unconstitutional andenjoining its enforcement was not included in an unofficialreport.
JURISDICTION
The Sixth Circuit entered judgment on August 19, 2014,and denied rehearing en banc on October 3, 2014.(Pet.App.22a.) This Court has jurisdiction under 28 U.S.C. 1254(1).
CONSTITUTIONAL AND
CITY ORDINANCE PROVISIONS INVOLVED
Appended are: the First Amendment (Pet.App58a) andCodified Ordinances of the City of Garfield Heights, 1140.362 (Pet.App.59a).
STATEMENT OF THE CASE
In September 2011, Frank Wagner posted a single,sixteen-square-foot sign at his residence in Garfield Heightswhich was critical of Tracy Mahoney, a member of the CityCouncil of Garfield Heights. (R.1, Verified Complaint 20-25, PageID#5.) In particular, Mr. Wagner posted thefollowing single sign in his yard:
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(R.1, Verified Complaint 22, PageID#5; R.1-1, Exhibit A-2,PageID#14.)
Upon receiving a complaint concerning the sign fromthe councilmember who was the target of the criticism withinMr. Wagners sign, officials with the City of Garfield Heightsthreatened Mr. Wagner with prosecution for violating theCitys six-square-foot limitation on the size of any singlepolitical sign. However, as the City acknowledged, [Mr.Wagner] may display up to thirty (30) political signs on hisproperty as long as each individual sign is no larger than six(6) square feet. (R.6, Citys Memo. in Opp. to Motion for
Preliminary Injunction, at 7 & 12, PageID#86 & 91.) Thus,Mr. Wagner may legally post the following in his yard:
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but he is subject to prosecutionfor having the following:
The City posited (though never established withevidence) the abstract concepts of traffic safety and aestheticinterests as to why the latter, i.e., the single sign measuringsixteen-square feet, was made illegal, but that the former, i.e.,the strewing of over 30 signs in the yard just so long as nosingle sign was larger than six-square feet, wasconstitutionally permissible. (Citys Appellate Brief, at 38.)
Recognizing the absurdity and lack of any legitimatejustification for this dichotomy in what was permitted and notpermitted, Mr. Wagner commenced this civil rights actionpursuant to 42 U.S.C. 1983, challenging the
constitutionality of the Citys regulation of political signs,both facially and as applied. In considering cross-motions for
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summary judgment, the District Court concluded the signregulation was a content-based restriction on core politicalspeech for which the City had not satisfied the requirementsof strict scrutiny. (R.57, Decision, PageID#1937-55.) Onappeal, though, the Sixth Circuit reversed the judgment of theDistrict Court, concluding that the sign regulation, on its face,was content-neutral and satisfied the requirements ofintermediate scrutiny and, thus, directed that judgment
REASONS FOR GRANTING THE PETITION
First Question Presented: Whether the mere assertion by agovernment that its sign regulations lack a discriminatorymotive renders such regulations to be content-neutral signregulations notwithstanding the facially content-based aspectsof such sign regulations?
1. The First Question Presented Is Already Beforethe Court Due to a Circuit Split. In its opinion below, theSixth Circuit recognized that, in assessing a sign regulation, athreshold inquiry concerns how to determine whether aregulation is content-based or content-neutral. (Pet.App11a).And with respect to this critical question, the Sixth Circuit
acknowledged that [a] circuit split exists, and our circuit, ina published opinion, has taken a side. (Pet.App14a).
In H.D.V.-Greektown, LLC v. City of Detroit, 568 F.3d609 (6th Cir. 2009), the Sixth Circuit had previously adopteda motive-based test to determine whether a sign regulation iscontent-based or content-neutral. In adopting this motive-based test, the court stated that an ordinance is not a content-based regulation of speech if, among other things, theregulation was not adopted because of disagreement with themessage the speech conveys. Id. at 621. Applying this test,the Sixth Circuit found the code at issue inH.D.V.-Greektown
to be content-neutral, despite its facially content-basedprovisions, because there was nothing in the record to
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indicate that the distinctions between the various types ofsigns reflect a meaningful preference for one type of speechover another.Id.
Thus, bound to and applying circuit precedent, the SixthCircuit concluded in that the regulation of political signs inthe City of Garfield Heights was not content-neutral and,thus, subjected such regulation to intermediate scrutiny inultimately concluding that such regulation was faciallyconstitutional. (Pet.App26a).
However, as noted above, the Sixth Circuit explicitlyrecognized and acknowledged that [a] circuit split existswith respect to how to determine whether a regulation iscontent-based or content-neutral. (Pet.App11a & 14a). Andthis issue and resolution of the acknowledged circuit split ispresently before this Court in Reed v. Town of Gilbert,Arizona, Case No. 13-502 (oral argument scheduled forJanuary 12, 2015). As developed in the petition for certiorarifiled inReed, as well as the merits briefs therein, there existsa three-way circuit split by which courts determine whether asign regulation is content-neutral.
Presently, the First, Second, Eighth and Eleventh
Circuits follow a text-based test under which content-neutrality is determined objectively based on the regulationsplain terms:
Matthews v. Town of Needham, 764 F.2d 58, 60 (1stCir. 1985) (sign code found content-based where itfacially banned political signs but permitted for sale,professional office, and religious and charitable causesigns);
National Adver. Co. v. Town of Babylon, 900 F.2d551, 557 (2d Cir. 1990) (sign code found content-based because it facially exempted political signs and
signs identifying a grand opening, parade, festival,
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fund drive or similar occasion from a general signban);
Neighborhood Enterprises, Inc. v. City of St. Louis,644 F.3d 728, 736 (8th Cir. 2011)(we conclude thatthe zoning code's definition of sign is impermissiblycontent-based because the message conveyeddetermines whether the speech is subject to therestriction)
Solantic, LLC v. City of Neptune Beach, 410 F.3d1250, 1259 n.8 & 1266 (11th Cir. 2005)(relying onthe decision in City of Cincinnati v. DiscoveryNetwork, Inc., 507 U.S. 410 (1993), recognized thatthe Supreme Court has return[ed] to its focus on thelaws own terms, rather than its justification and,thus, because some types of signs are extensivelyregulated while others are exempt from regulationbased on the nature of the messages they seek toconvey, the sign code is undeniably a content-basedrestriction on speech).
In contrast, the Fourth, Sixth and Ninth Circuit follow a
subjective motive-based test, which permits content-baseddistinctions on the face of a code so long as the governmentcan assert a neutral justification or lack of censorial motivefor the sign regulation:
Brown v. Town of Cary, 706 F.3d 294, 304 & 306 (4thCir. 2013)(finding sign regulation to be content-neutral because it was not adopted because of adisagreement with the message conveyed and anycontent-based distinctions had a reasonable relationto the towns asserted neutral justifications forenacting the code, i.e., traffic safety and aesthetic);
H.D.V.-Greektown, LLC v. City of Detroit, 568 F.3d609, 621 (6th Cir. 2009)(an ordinance is not a
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content-based regulation of speech if, inter alia, theregulation was not adopted because of disagreementwith the message the speech conveys; with respect toany content-based distinctions, there was nothing inthe record to indicate that the distinctions between thevarious types of signs reflect a meaningful preferencefor one type of speech over another);
Reed v. Town of Gilbert, Arizona, 707 F.3d 1057 (9thCir. 2013)(sign regulation is content-neutral becausegovernment did not adopt its regulation of speechbecause it disagreed with the message conveyed, and
any interests in regulating signs are unrelated to thecontent), cert. granted, __ U.S. __, 134 S.Ct. 2900(2014).
And the Third Circuit employs a context-sensitive test,which permits content-based distinctions on the face of acode pursuant to a multi-part, convoluted balancing test thatpurports to determine instances where the value of certainspeech in certain locations exceeds the governmentsoverarching regulatory purpose.
Melrose, Inc. v. City of Pittsburgh, 613 F.3d 380, 389(3d Cir. 2010) (describing as a context-sensitive testits assessment as to whether a sign regulation iscontent-neutral so as to uphold a sign regulation whenthe following conditions are met: (1) the governmentexempts a sign from general sign regulations wherethere is a significant relationship between the contentof particular speech and a specific location or its use,(2) the exemption was not made in an attempt tocensor certain viewpoints or to control what issues areappropriate for public debate, (3) the exception is
substantially related to advancing an important stateinterest that is at least as important as the interests
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advanced by the underlying regulation, (4) theexception is no broader than necessary to advance thespecial goal, and (5) the exception is narrowlydrawn so as to impinge as little as possible on theoverall goal. Rappa v. New Castle Cnty., 18 F.3d1043, 1065 (3d Cir. 1994).
In the foregoing circuit split presently before this Court inReed v. Town of Gilbert, Arizona, Case No. 13-502 (oralargument scheduled for January 12, 2015), upon the issuanceof a decision in Reed wherein clarification of the correctanalysis relating to regulation of signs under the First
Amendment should be provided, the petition for certiorari inthis case should be granted, the judgment below vacated, andthe matter remanded for further review in light ofReed.
Second Question Presented: In order to constitutionallyjustify a content-neutral sign regulation under intermediatescrutiny, must a government establish with evidence that thespecific sign regulation at issue actually advances asignificant governmental interest and leaves open alternativechannels of communication or may a government rely simply
upon ipse dixit and general pronouncements in case lawconcerning different forms or media of communication inorder to satisfy the requirements of intermediate scrutiny?
2. The Second Question Presented is raised as the
decision of the Sixth Circuit conflicts with relevant
decisions of this Court that have treated and analyzed
governmental interests supposedly being advanced by
sign regulations based upon the distinct medium and
venue of the expression involved and not with a one-size-
fits-all approach lacking in any supporting evidence.
Regardless of the specific medium or venue of expression
being regulated, governments systematically invoke, usuallythrough ipse dixit, the concepts of aesthetics and traffic safety
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as constitutionality justifying a content-neutral signregulation under intermediate scrutiny. See, e.g.,ArlingtonCounty Republican Committee v. Arlington County, Va., 983F.2d 587, 590 (4th Cir. 1993)([t]he County defended [a two-sign limit] on the basis that it furthered the County'ssubstantial interests in promoting aesthetics and trafficsafety);Neighborhood Enterprises, Inc. v. City of St. Louis,644 F.3d 728, 732 (8th Cir. 2011)([t]he City justified itsoutdoor sign restrictions principally on concerns for trafficsafety and aesthetics). And while aesthetics and trafficsafety may, in the abstract, constitute important governmental
interests, the decision of the Sixth Circuit below, directing theentry of summary judgment in favor of the government,treated such interests as clearly established based solely uponipse dixit and general pronouncements in case law concerningdifferent forms or media of communications. But theprecedent of this Court rejects such a one-size-fits-allapplication that treats any claimed governmental interest asequally applicable to residential yard signs as to commercialbillboards; the precedent of this Court rejects such blindinvocation of aesthetics and traffic safety as somehowuniversally justifying any and all regulation of signs
regardless of the medium or venue involved.In Metromedia v. City of San Diego, 453 U.S. 490
(1981), this Court expressly recognized the problem ofapplying the broad principles of the First Amendment tounique forums of expression. Id.at 500. For each methodof communicating idea is a law unto itself, and that lawmust reflect the differing natures, values, abuses anddangers of each method. Id. at 501 (quoting Kovacs v.Cooper, 336 U.S. 77, 97 (1949)(Jackson, J., concurring));accord Southeastern Promotions, Ltd. v. Conrad, 420 U.S.546, 557 (1975)([e]ach medium of expressionmust be
assessed for First Amendment purposes by standards suited toit, for each may present its own problems)
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Thus, in Metromedia, this Court constrained its analysisand decision to dealing with the law of billboards.Metromedia,453 U.S. at 501. For this Court recognized thatthe billboard remains a large, immobile, and permanentstructure which, like other structures, is subject to . . .regulation. Moreover, because it is designed to stand outand apart from its surroundings, the billboard creates a uniqueset of problems for land use planning and development. Id.at 502 (quoting Metromedia, Inc. v. City of San Diego, 164Cal.Rptr. 510, 26 Cal.3d 848, 610 P.2d 407, 419 (1980)).And, thus, in limiting its consideration inMetromediato the
law of billboards involving commercial speech, this Courtfound reasonable the conclusion that billboards are real andsubstantial hazards to traffic safety, 453 U.S. at 509, andthat billboards, by their very nature, wherever located andhowever constructed, can be perceived as an esthetic harm.Id. at 510. And with respect to aesthetic interests justifyingthe content-neutral regulation of billboards in Metromedia,this Court similarly concluded in City of Lakewood v. PlainDealer Publ. Co., 486 U.S. 750 (1988), that such estheticconsiderations applies to newsracks as well as billboards.Id.at 783.
In clear contrast to the law of billboards addressed inMetromedia and the law relating to commercial newsracksaddressed inLakewood,this Court addressed the permissibleregulation vel non of a distinctly different medium and venuein City of Ladue v. Gilleo, 512 U.S. 43 (1994). Instead ofdealing with billboards or newsracks, this Court in Laduespecifically addressed a venerable means of communicationthat is both unique and important, id. at 54 (emphasisadded), when it ruled upon the constitutionality of a content-neutral regulation of residential yard signs. Cf. Members ofCity Council of Los Angeles v. Taxpayers for Vincent, 466
U.S. 789, 812 (1984)(no indication that the posting of
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political posters on public propertyis a uniquely valuable orimportant mode of communication (emphasis added).)
Critical to this Courts assessment of the sign regulationat issue in Laduewas the venue involved, i.e., an individualprivate resident; in contrast, Metromedia and Lakewoodinvolved not only commercial speech, but also such speech ata venue different than the commercial activity beingadvertised. Thus, inLadue, this Court implicitly recognized adistinction in the venue is critical to assessing a governmentsinterest in regulating speech: Displaying a sign from one'sown residence often carries a message quite distinct from
placing the same sign someplace else, or conveying the sametext or picture by other means. Furthermore, a person whoputs up a sign at her residence often intends to reachneighbors, an audience that could not be reached nearly aswell by other means. [And] [a] special respect for individualliberty in the home has long been part of our culture and ourlaw; that principle has special resonance when thegovernment seeks to constrain a person's ability to speakthere. . [The governments need] to regulate temperatespeech from the home is surely much less pressing. Ladue,512 U.S. at 56-58.
And this Court, thus, recognized clear and criticaldistinctions in the governmental interests at issue inMetromedia and Lakewood: It bears mentioning thatindividual residents themselves have strong incentives tokeep their own property values up and to prevent visualclutter in their own yards and neighborhoodsincentivesmarkedly different from those of persons who erect signs onothers land, in others neighborhoods, or on public property.Residents self-interest diminishes the danger of theunlimited proliferation of residential signs that concerns theCity of Ladue. Id.at 58-59.
Yet, notwithstanding this Courts recognition andappreciation of the distinctions between governmental
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regulation of off-premises signs versus residential signsdisplaying political messages, including the governmentalinterests supposedly being advance by such regulation, theSixth Circuit in the decision below effectively mergedaesthetics and traffic safety into a singular, universaljustification for any and all types of sign regulations withsuch interests dispositively established through nothing morethan ipse dixit and general pronouncements in case lawconcerning different forms or media of communications.
For even though this case involved a governmentsprohibition of any political sign larger than six square-feet at
a residence such that the following was made criminal:
while the following is permitted (as no single sign exceedssix square-feet in area):
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the Sixth Circuit concluded the City of Garfield Heights wasentitled to summary judgment so as to uphold such a signregulation because [i]t is far too late to contend that trafficsafety and aesthetics are not substantial governmentalgoals. (Pet.App21a). Of course, in so doing, the SixthCircuit arrived at this conclusion only through considerationof the ipse dixit of the government and through exclusivereliance upon case law concerning billboards containingcommercial messages, not yard signs containing politicalspeech. (Pet.App21a (citing toMetromedia, Prime Media, Inc.
v. City of Franklin, 181 F. Appx 536, 539 (6th Cir. 2006),and Prime Media, Inc. v. City of Brentwood, 398 F.3d 814,819 (6th Cir. 2005). In so doing, the Sixth Circuit resolvedan important question of constitutional law in a way thatconflicts with relevant decisions of this Court.
For in addition to this Court recognizing a criticaldistinction between regulation of off-premises commercialspeech versus the exercise of core political speech throughthe posting of a sign at ones residence, when examining acontent-neutral regulation of speech under intermediatescrutiny, decisions of this Court have required the
government to not only assert a substantial interest in supportof its regulation, but to actually demonstrate that therestrictiondirectly and materially advances that interest.Florida Bar v. Went For It, Inc., 515 U.S. 618, 624 (1995).
But, in contrast to other circuit courts, the Sixth Circuitin the present case did not even consider or address whetherthe summary judgment evidence actually established that therestriction of all residential political signs to six square-feetdirectly and materially advance[d] the claimed interest ofaesthetics and traffic safety. Instead, in a single paragraph(Pet.App21a), the Sixth Circuit ignored the evidentiary
requirements of this Court for summary judgment standardwhen it concluded as a fait accompli that aesthetics and
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traffic safety justified any and all sign regulations sineevidence. Cf. Watseka v. Illinois Public Action Council,796F.2d 1547 (7th Cir. 1986)(striking down an ordinancerestricting solicitation for, inter alia, lack of evidencesupporting the citys posited substantial interest), aff'd, 479U.S. 1048 (1987);Leverett v. City of Pinellas Park, 775 F.2d1536, 1540 (11th Cir. 1985)(the City made no showing asto the factual basis for its articulated concerns and themotivation for passage of Sec. 16-112 beyond theconclusions stated in the ordinance itself.[W]e hold thatKrueger [v. City of Pensacola, 759 F.2d 851 (11th Cir.
1985),] requires more than a conclusory assertion of thefactual basis and motivation underlying an ordinance thattreads upon First Amendment rights. [T]he showingrequired by Kruegerwould serve little purpose if it could bemade by simply pointing to an assertion of concern andmotivation unsupported by any factual record. Such aminimal showing is an insufficient safeguard for fundamentalconstitutional values. The statement of factual basis andmotivation contained in Sec. 16-112 does not justify itsinfringement on protected expression). And in so doing, theSixth Circuit not only lessened the evidentiary standard
required by this Court and other circuit to justify a restrictionon First Amendment rights, but also ignored the summaryjudgment evidence actually tendered by Petitioner refuted theclaimed (though unproven) interests of traffic safety andaesthetics.
Thus, even if this Courts decision in Reed v. Town ofGilbert, Arizona, Case No. 13-502, supports an analysis ofthe sign regulation at issue herein as a content-neutralregulation of speech so as to be subject to intermediatescrutiny, the decision and analysis of the Sixth Circuit hereinresolved an important question of constitutional law in a way
that conflicts with relevant decisions of this Court and other
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circuits. SeeSup. Ct. R. 10(a) & 10(c). Thus, the petitionfor a writ certiorari should be granted
CONCLUSION
With respect to the First Question Presented, as the issueraised therein is presently before the Court, the petition for awrit of certiorari should be held pending the Courts finaldisposition ofReed v. Town of Gilbert, Arizona, Case No. 13-502, and, then, disposed of consistent with the Courtsdecision therein.
With respect to the Second Question Presented, shouldthe Court conclude that, in light of this Courts forthcomingdecision in Reed v. Town of Gilbert, Arizona, Case No. 13-502, the Sixth Circuit still applied the correct legal standardfor how to determine whether a sign regulation is content-based or content-neutral, potentially left unanswered inReedis the quantum and quality of proof as to how a governmentestablishes the requirements of intermediate scrutiny, i.e.,whether ipse dixit and general pronouncements in case laware sufficient in a one-size-fits-all methodology to satisfy therequirements of intermediate scrutiny with respect to the
specific sign regulation at issue. For precedent of this Courtdoes not allow ipse dixit or generalized statements in casesaddressing restrictions on billboard or newsracks to bebootstrapped so as established as dispositive evidencejustification for restrictions residential yard signs displayingpolitical messages.
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Respectfully submitted,
CURT C.HARTMANCounsel of Record
THE LAW FIRM OF CURT C.HARTMAN7394 Ridgepoint Drive, Suite8Cincinnati, OH 45245(513) 379-2923hartmanlawfirm@fuse.net
CHRISTOPHER P.FINNEYFINNEY LAW FIRM,LLC4270 Ivy Pointe Blvd. Suite225Cincinnati, OH 45245
January 2, 2015
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APPENDIX
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Appendix A
FRANK WAGNER, Plaintiff-Appellee,
v.
CITY OF GARFIELD HEIGHTS, OHIO; WILLIAM
WERVEY Defendants-Appellants.No. 13-3474
United States Court of Appeals, Sixth Circuit
August 19, 2014
NOT RECOMMENDED FOR FULL-TEXT
PUBLICATION
ON APPEAL FROM THE UNITED STATES
DISTRICT COURT FOR THE NORTHERN DISTRICT OF
OHIO
Before: BOGGS, NORRIS, and WHITE, Circuit
Judges.
BOGGS, Circuit Judge.
The City of Garfield Heights (City) limits the size of
signs, political and otherwise, that residents may place on
their lawns. Frank Wagner, a City resident, placed a political
sign on his lawn that was larger than the City allows. Thedistrict court found that the Citys restriction on Wagners
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political speech violates the First Amendment. Because we
conclude that the ordinance imposes a content-neutral
restriction on the time, place, and manner of speech, and
because the City has satisfied the intermediate scrutiny
applicable to such regulations, we reverse.
I
A
Garfield Heights is a municipality located in Cuyahoga
County, Ohio and forms part of the Greater Cleveland area.
Chapter 1140 of the Citys Codified Ordinances regulates the
design and placement of signs in the City. See Garfield
Heights, Ohio, Codified Ordinances ch. 1140.01 (2013),
available at http://www.conwaygreene.com/GarfieldHts/
lpext.dll?f=templates&fn=main-h.htm&2.0. The Cityregulates signs for these reasons:
(a) To maintain high quality districts of all
land uses, and attractive public and private
facilities of all types, by permitting only signs
appropriate to their environs;
(c) To eliminate any conflict between traffic
control signs and other signs which would be
hazardous to the safety of the motorizing
public or pedestrians;
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(d) To control the design and size of all signs
so that their appearance will be aesthetically
harmonious with an overall urban design for
the area, in accordance with commonly
accepted community planning and design
practices, and the Citys Master Plan.
Ch. 1140.01. The City permits residents to display a single
for-sale, sold, for-rent, leasing, open house, religious, holiday
or personal sign in a window or on a lawn. Ch. 1140.361.
Such signs must be removed within forty-eight hours of a
contract for sale, a lease agreement, the end of the holiday, or
after otherwise fulfilling [their] purpose. Ibid. Political
signs, however, are not subject to the express single-sign
limitation. See ch. 1140.362. All lawn signs, political or
otherwise, are subject to the same size restriction: they may
not exceed 6 square feet in area and must be 4 feet or less inheight. Ch. 1140.361, .362.
Additionally, the City imposes a maximum sign-face
area for a single lot that is proportional to the lots frontage:
1.35 square feet of sign area per foot of frontage. See ch.
1140.27(a). For example, if a lot has a 100-foot-frontage, it
has a maximum sign-face area of 135 square feet. But
because of the maximum sign-face-area restriction, it could
not display a single 135-square-foot sign. It could, however,
display twenty-two signs that were each 3-feet high and 2-feet wide; this would constitute a total sign-face area of 132
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square feet. If a lot fronts two or more streets, each street
frontage shall be calculated separately, and such individual
totals shall apply separately and only to signs directed at
those individual streets.Ibid.
What this scheme means, practically, is that the City
permits more political signs than non-political signs inresidential districts. Suppose a homeowner has a corner 100-
foot-square lot. Her 200-foot-frontage would afford her a
maximum sign-face area of 270 square feet. The homeowner
could display only one personal or religious sign but could
display forty-five political signs measuring 6 square feet. In
this respect, at least, the ordinance scheme favors political
speech over non-political speech.
A person in violation of any sign ordinance may face a
fine of up to $1, 000 per each day that the sign violationoccurs. Ch. 1140.99. Failure to remove a political sign within
seventy-two hours after an election constitutes a minor
misdemeanor.Ibid.
B
In September 2011, Wagner placed a political sign on
his lawn that measured 4 feet by 4 feet, i.e., 16 square feet.
The sign criticized City Councilmember Tracy Mahoney for
her position on both the use of traffic cameras and theimposition of a trash tax. Specifically, the sign said: You do
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the math Traffic Camera's [sic] + Rubbish Tax = Mahoney
Baloney. At the far bottom, the sign said in small text: Paid
for by: Frank Wagner, private citizen, 13409 Oakpark Blvd.,
Garfield Hts., OH 44125. A picture of the sign appears
below:
Councilwoman Mahoney called Mayor Vic Collova to
complain about Wagners sign.[1]On September 10a
SaturdayMayor Collova personally drove by Wagners
house to view the sign, which the mayor felt was obviously
larger than the maximum 6-square-foot limit. That same
Saturday, Councilwoman Mahoney also contacted William
Wervey, the city's building commissioner, to complain about
the sign; she left Wervey a photograph[2]and phone message
requesting that Wervey inspect Wagners sign. On Monday,
September 12, Commissioner Wervey drove by Wagner's
house, and the sign was not displayed. He informed themayor of such. On September 17again, a SaturdayMayor
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Collova received another complaint from Councilwoman
Mahoney who informed the mayor that the sign was again
displayed on Wagners property. Councilwoman Mahoney
specifically requested that the City enforce the maximum
sign-area limitation against Wagner. That Monday, Mayor
Collova instructed the building commissioner to send a letter
to Wagner to address the matter.
Wagner received a letter from the City, informing him
that his sign was too large and asking him to remove the sign
or reduce the size to conform. The letter, dated September 19,
informed Wagner that a building inspector recently had
occasion to visit your property. The letter requested that
Wagner give the sign violation his prompt attention. It
instructed that the violation must be corrected by
September 23four days from the date of the letter. The City
maintains that it did not threaten Mr. Wagner withprosecution in the Garfield Heights Municipal Court if the
political sign was not removed by September 23, 2011. The
City's letter, however, states: if the violation is not corrected
by September 23, 2011, we have no choice but to proceed
with legal action in the Garfield Heights Municipal Court.
Wagner removed the sign. He then sued the City,
seeking a declaratory judgment that ch. 1140.362, the
political-sign ordinance, was unconstitutional under the
Federal and Ohio Constitutions. He sought to enjoinenforcement of the ordinance. Additionally, he moved for a
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a denial of summary judgment is presented together with an
appeal from a grant.McMullen v. Meijer, Inc., 355 F.3d 485,
489 (6th Cir. 2004).
III
A. First Amendment Framework
Congress shall make no law . . . abridging the freedom
of speech. U.S. const. amend. I. Neither may the states,
Gitlow v. New York, 268 U.S. 652, 666 (1925), nor their
political subdivisions, Lovell v. City of Griffin, 303 U.S. 444,
450 (1938). But the freedom of speech is not absolute.
Konigsberg v. State Bar of Cal., 366 U.S. 36, 49 (1961)
(Harlan, J.). Relevant here is the doctrine permitting general
regulatory statutes, not intended to control the content of
speech but incidentally limiting its unfettered exercise.Id. at50. The First Amendment tolerates such restrictions on
unfettered speech when they have been found justified by
subordinating valid governmental interests.Id. at 51.
The applicable substantive rules depend greatly on
where the regulated speech occurs. Justice Frankfurter has
asked, Where does the speaking which is regulated take
place? Not only the general classificationsstreets, parks,
private buildingsare relevant. [Also relevant are] [t]the
location and size of a park . . . . Niemotko v. Maryland, 340U.S. 268, 28283 (1951). Traditionally, the Court
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distinguishes among speech occurring in a public forum, a
limited public forum, or a non-public forum. See Perry Educ.
Assn v. Perry Local Educators Assn, 460 U.S. 37, 4546
(1983).
This case, however, is different in that it involves a
citizen's attempt to speak on his own private property. Withrare exceptions, content discrimination in regulations of the
speech of private citizens on private property . . . is
presumptively impermissible, and this presumption is a very
strong one. City of Ladue v. Gileo, 512 U.S. 43, 59 (1994)
(O'Connor, J., concurring). The Court has said that the First
Amendment operates with special resonance when the
government seeks to constrain a person's ability to speak in
the home.Id. at 58 (majority opinion).
There is no doubt that, as a general matter, signs are aform of expression involving speech protected by the First
Amendment.Id. at 48. This case concerns the extent to which
a municipality may exercise its police powers to regulate the
physical characteristics of signs.Ibid.
Given the Courts special solicitude for speech in the
home, we apply the same analytical structure that the Court
applies to traditional public fora. Under this framework, the
government may impose a content-based regulation on
speech if it can show the regulation is necessary to serve acompelling state interest and if the restriction is narrowly
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tailored to achieve that end. Perry, 460 U.S. at 35. Content-
neutral regulations, however, that restrict speechs time,
place, or manner are permissible if the regulation promotes a
significant interest unrelated to the suppression of a message
and if the regulation allows for ample alternative channels of
communication. United States v. Grace, 461 U.S. 171, 177
(1983).
The Court differentiates between content-based and
content-neutral restrictions on speech. See, e.g., Forsyth Cnty.
v. Nationalist Movement, 505 U.S. 123, 13435 (1992).
Indeed, [t]he normal inquiry that [Court] doctrine dictates is,
first, to determine whether a regulation is content based or
content neutral, and then, based on the answer to that
question, to apply the proper level of scrutiny. City of
Ladue, 512 U.S. at 59 (O'Connor, J., concurring).
In short, a content-based regulation triggers a strict-
scrutiny test, whereas a content-neutral regulation triggers
intermediate scrutiny. Although we are skeptical of ascribing
too much significance to the difference between an
important" or significant interest and a compelling
interest, that is the law. Justice Blackmun was never able
fully to appreciate what a compelling state interest is. Ill.
State Bd. of Elections v. Socialist Workers Party, 440 U.S.
173, 188 (1979) (Blackmun, J., concurring). He felt that if
compelling interest meant incapable of being overcomeupon any balancing process, then, of course, the test merely
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announces an inevitable result, and the test is no test at all.
Ibid. Nonetheless, we adhere to the Court's traditional
framework and determine whether the City's ordinance is
content-based or content-neutral.
B. Content-based or Content-neutral?
The implications of this threshold inquiry are clear
enough: the decision determines the applicable standard. Less
clear, though, is how to determine whether a regulation is
content-based or content-neutral. Deciding whether a
particular regulation is content based or content neutral is not
always a simple task. Turner Broadcasting Sys., Inc. v.
F.C.C., 512 U.S. 622, 642 (1994).
One key inquiry is whether the government has
adopted a regulation of speech because of disagreement withthe message it conveys. Ward v. Rock Against Racism, 491
U.S. 781, 791 (1989). A content-neutral regulation serves
purposes unrelated to the content of expression . . . even if it
has an incidental effect on some speakers or messages but not
others. Ibid. Whether a regulation has a content-based or
content-neutral purpose is an importantbut not
dispositive inquiry. Turner, 512 U.S. at 64243. A second,
important inquiry is whether a challenged regulation
distinguish[es] favored speech from disfavored speech on
the basis of the ideas or views expressed or whether it
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test in determining that the ordinance is content-based. See
Appellants Br. 21 (citing Brown v. Town of Cary, 706 F.3d
294, 302 (4th Cir. 2013)). In Browna case involving a
substantively similar ordinancethe Fourth Circuit upheld a
municipal ordinance that permitted two residential signs per
property that did not exceed five square feet in area and
three-and-a-half feet in height but that exempted holiday
decorations and public art. See Brown, 706 F.3d at 298.
The court differentiated between content-based
discrimination and mere content distinctions. See id. at 301
02. The court eschew[ed] a formalistic approach to
evaluating content neutrality that looks only to the terms of a
regulation and instead embrac[ed] a more practical inquiry.
Id. at 301 (internal alterations omitted). According to the
Brown court, the notion that any content distinction is
intrinsically content based misapprehends the proper
analysis.Ibid. The court identified a circuit split between anabsolutist and practical test for assessing content
neutrality.[4]See id. at 302 (collecting cases). It sided with the
latter approach, citing a decision of this circuit. See ibid.
That decision is H.D.V.-Greektown, LLC v. City of
Detroit, 568 F.3d 609 (6th Cir. 2009)[5], where we reviewed a
municipal sign ordinance that required a permit to erect
business signs. In that case, various city ordinances
distinguished among various kinds of signs and contained
separate definitions for advertising signs, business signs,and political signs. Id. at 622. The ordinance scheme also
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whether the Sign Ordinance has distinguished content [but
is] whether it has distinguished because of content. Brown,
706 F.3d at 304. We agree.
2
This approach makes sense in the context of this case.First, the district court reasons that the Citys code is content-
based because political signs on non-residential property are
subject to ch. 1140.362s size limitation, whereas non-
political signs in non-residential districts do not have that
limitation. This is truebut the basis for the difference in
treatment is not whether a sign is political or non-political but
whether it is in or outside of a residential district. This case
does not involve signs in non-residential districts.
At oral argument, Wagnerperhaps recognizing theweakness in his own position spent considerable time
recasting the discussion to one about political signs in
commercial districts. But this case does not involve plaintiffs
seeking to display oversized signs in non-residential districts.
In his complaint, Wagner sought a declaratory judgment that
the political-sign ordinance is facially unconstitutionaland
to the extent that provision is non-severable, that the entire
ordinance scheme is unconstitutional. Similarly, in its
counterclaim, the City sought a declaratory judgment that ch.
1140.362and to the extent it is non-severable, the entiresign-ordinance chapteris constitutional. The district court's
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order enjoined the City from enforcing only ch. 1140.362,
and the City appeals that order. Wagner cannoteither on
appeal or in the first instance before the district court
successfully challenge the City's sign ordinances at large.[7]
We reserve the question of whether an ordinance scheme that
allows a giant Macys sign in a non-residential district, but
not an equally sized political sign, would offend the First
Amendment.
The second reason the district court gives for finding
that the sign ordinances are content based is that ch. 1140.362
limits the length of time that residents may display political
signs. A resident must remove a political sign after the
political issue or campaign is completed or no longer
contested. Ch. 1140.362. If a sign is non-political, it must
be removed within forty-eight (48) hours of a contract for
sale, a lease agreement, the end of the holiday, or afterotherwise fulfilling its purpose. Ch. 1140.361. This is a
distinction without a difference: both political and non-
political signs must be removed after fulfilling their purpose.
If anything, non-political signs are subject to a restriction that
political signs are not: non-political signs receive a 48-hour
removal window. Political signs, in contrast, must be
removed within seventy-two hours after [an] election. Ch.
1140.99.
The district court also suggests that the Citys sign-ordinance scheme is problematic because it subjects political
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signs to different restrictions than non-political signs. This is
not true. Non-political signs in residential districts are subject
to all the same restrictions that political signs face. But the
converse is not true; that is, political signs are not subject to
all the same restrictions of non-political signs. Non-political
signs are subject to a single-sign limitation, whereas political
signs are not. The failure to regulate political signs as heavily
as non-political signs does not constitute content-based
regulation. Wagner maintains that the City singles political
speech out for harsher and more restrictive regulation than
non-political speech. Appellee Br. 21. But the exact opposite
is true: it is non-political speech that is subject to more
restrictive regulation. Because political signs are subject to no
greater restrictions than are non-political signs, we do not
find that ch. 1140.362 imposes a content-based regulation.
Accordingly, we apply intermediate scrutiny.
C. Intermediate Scrutiny
A challenged regulation passes intermediate scrutiny as
a reasonable time, place, or manner restriction if it is
narrowly tailored to serve a significant government interest
and if it leave[s] open alternative channels of
communication. Grace, 461 U.S. at 177.
1
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We decide whether the Citys ordinance passes this
scrutiny against a backdrop of several Supreme Court cases
addressing the constitutionality of municipal sign ordinances.
In 1977, the Court addressed the constitutionality of a
municipal ordinance that prohibited for sale signs on
residential lawns, enacted by a town to stem white flight fromthe municipality. See Linmark Assocs., Inc. v. Twp. of
Willingboro, 431 U.S. 85, 86 (1977). A unanimous Court
held that the ordinance was not a content-neutral time, place,
or manner restriction for two reasons: it did not leave open
alternative channels of communication because for sale
signs play a central role in marketing realty; and it prohibited
particular types of signs based on their content, as it feared
the signs would fuel white flight. Id. at 9394. In so holding,
the Court strongly suggested that an ordinance merely
regulating the manner of signage would be permissible. Itnoted that a law requiring [lawn] signs to appear in [a
particular] form . . . would raise very different constitutional
questions. Id. at 98 (internal quotation marks omitted).
Willingboro['s] ordinance is not genuinely concerned with . .
. the manner of the speech signs. The township has not
prohibited all lawn signs or all lawn signs of a particular size
or shape in order to promote aesthetic values . . . . Id. at 93.
This case, however, involves exactly that situationa
municipality proscribing all lawn signs of a certain size to
promote aesthetics.
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Four years later, the Court considered a San Diego
ordinance that effectively banned almost all outdoor
advertising displays in the city. See Metromedia, Inc. v. City
of San Diego, 453 U.S. 490, 49397 (1981). The case
concerned the law of billboards, Metromedia, 453 U.S. at
490. The Court first held that a large exemption that allowed
billboards to advertise onsite businesses and activities did not
render the ordinance constitutionally infirm. See id. at 511
12. The Court nonetheless struck down the ordinance. The
plurality opinion reasoned that the problem was not San
Diego's differentiation between advertising onsite and offsite
services; rather, the problem was that the city allowed
billboards to be used for certain commercial speech but not
for non-commercial speech.[8]The use of onsite billboards to
carry commercial messages related to the commercial use of
the premises is freely permitted, but the use of otherwise
identical billboards to carry noncommercial messages isgenerally prohibited.Id. at 513.
In 1984, the Court upheld a Los Angeles ordinance that
prohibited the posting of signs on public property. See
Members of City Council of L.A. v. Taxpayers for Vincent,
466 U.S. 789, 791 (1984). In Taxpayers, a candidate for
public office sought to attach cardboard political signs to
utility poles around Los Angeles. Id. at 79293. The Court
held the ordinance to be a content-neutral regulation because
there was not even a hint of censorship or bias in the Citysenactment or enforcement of this ordinance.Id. at 804. The
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Court deemed it well settled that the state may legitimately
exercise its police powers to advance esthetic values, id. at
805, and Los Angeles's interest in promoting aesthetics and in
combating the visual assault on residents was significant
enough to withstand scrutiny, id. at 807. The Court also
determined that the ordinance was sufficiently tailored
because it respond[ed] precisely to the substantive problem
which legitimately concerns the City, id. at 810; that the
ordinance left open ample alternative means of
communication, id. at 812; and that the ordinance was not
overbroad, id. at 81517.
In 1994, the Court again addressed a residential sign
ordinanceone that prohibited residents from displaying any
signs on their property except for sale signs, residence
identification signs, and signs warning of safety hazards.
City of Ladue v. Gilleo,512 U.S. 43,45 (1994). A municipalresident wished to display an 8.5 by 11-inch sign in a second-
story window that said For Peace in the Gulf.Id. at 46. The
Court assumed the ordinance to be a content-neutral
regulation, id. at 53, but invalidated the ordinance because the
ban on almost all residential signs completely foreclosed a
venerable means of communication that is both unique and
important.Id. at 54. The challenged ordinance did not leave
open ample alternative means of communication because
[d]isplaying a sign from ones residence often carries a
message quite distinct from placing the same sign someplaceelse, or conveying the same text by picture or other means.
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Id. at 56. The Ladue ordinance confronted the Court with a
near total ban on residential signsnot regulations short of
a ban.Id. at 58 n.17.
2
With this context in mind, we conclude that the Citysinterests are significant ones.[9] The City enacted its sign
ordinances to promote its interests in traffic safety and
aesthetics. See ch. 1140.01. As noted, a state may
legitimately exercise its police powers to advance esthetic
values. Taxpayers for Vincent, 466 U.S. at 805. It is far too
late to contend that traffic safety and aesthetics are not
substantial governmental goals. Metromedia, 453 U.S. at
50708.[10]This court has also deemed aesthetics and traffic
safety to be important governmental interests. See Prime
Media, Inc. v. City of Franklin, 181 F.Appx 536, 539 (6thCir. 2006); Prime Media, Inc. v. City of Brentwood, 398 F.3d
814, 819 (6th Cir. 2005).
Chapter 1140.362 also satisfies intermediate scrutiny's
narrow-tailoring requirement because the ordinance is a
modest infringement on residents rights to use their lawns
for speech. Intermediate scrutinys tailoring requirement
differs importantly from the more rigorous tailoring
mandated by strict scrutiny. To survive intermediate scrutiny,
a regulation must be narrowly tailored, but it need not be theleast restrictive means of furthering the government's
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important interest. Ward v. Rock Against Racism, 491 U.S.
781, 798 (1989). All that is necessary to satisfy narrow
tailoring is that the regulation promotes a substantial
government interest that would be achieved less effectively
absent the regulation.Id. at 799. Here, the Citys interests in
aesthetics and traffic safety are achieved more effectively by
the presencethan by the absenceof ch. 1140.362.
Consequently, the ordinance satisfies the tailoring condition.
Wagner highlights the fact that the City's sign-ordinance
scheme allows him to post dozens of smaller signs across his
propertybut does not allow him to post a single 16-square-
foot sign. This, Wagner argues, proves the lack of narrow
tailoring. See Appellee Br. 3842. The sign ordinances permit
1.35 square feet of sign area per foot of lot frontage. See ch.
1140.27(a). Because Wagners lot has a frontage of 35 feet on
Oak Park Boulevard and 100 feet on East 135st Street, hemay display a total of 147.24 square feet of signage. That
means he could potentially display twenty-four political signs
on his lawn even if each sign measured the maximum lawful
6-square-feet in areaand even more signs, if smaller. Thus,
the sign-ordinance scheme permits a great deal of political
speech, without what some would consider the type of visual
blight from very large signs in residential areas.
Wagner's point here is factually accurate, but a
regulation need not represent everyone's view of rationality tosatisfy the tailoring condition. The City's sign ordinances are
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perhaps not the exact ones we would write were we
policymakersbut that is not the test. 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. Ward, 491 U.S. at 800 (internal
quotation marks and alterations omitted). Plausible policy
arguments might well be made in support of [a different
ordinance], but it by no means follows that it is
constitutionally mandated. Taxpayers for Vincent, 466 U.S.
at 816. A regulation is not invalid simply because a court
concludes that the government's interest could be adequately
served by some less-speech-restrictive alternative. Ward,
491 U.S. at 800. Intermediate scrutinys tailoring requirement
does not demand perfect tailoring. Here, it is satisfied.
Lastly, we find that ch. 1140.362 leaves open ample
alternative channels of communication. This is the
requirement that doomed the sign ordinance in City of Ladue.
See 512 U.S. at 5758. InLadue, the city's nearly total ban on
residential signs left residents with no adequate substitute. In
the Court's view, [r]esidential signs are an unusually cheap
and convenient form of communication. Id. at 57. For the
poor and affluent alike, the added costs in money or time of
taking out a newspaper advertisement, handing out leaflets on
the street, or standing in front of one's house with a handheldsign make the difference between participating and not
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participating in some public debate. Id. at 57. The present
case, though, unlike Ladue, is not one where the City is
banning an entire form of expression.
Wagner retains numerous alternative ways to
communicate his message. Not only may he hand out leaflets
or take out newspaper advertisements, but he may blanket hislawn in signs that declare Mahoney Baloney. The one thing
he may not do is post a sign that exceeds 6 square feet in area
and 4 feet in height. See City of Franklin, 181 F.Appx at 541
(finding a sign-size ordinance to leave open other lawful
means of expression because the city allowed smaller signs);
City of Brentwood, 398 F.3d at 819 (finding a billboard-size
ordinance to leave open ample alternative channels of
communication because the city allowed billboards that
satisfied the size restrictions).
The Citys political-sign ordinance survives
intermediate scrutiny because it serves significant
government interests, is narrowly tailored to promote those
interests, and leaves open alternative channels of
communication. The Supreme Court has said [i]t is common
ground that governments can regulate the physical
characteristics of signs. City of Ladue, 512 U.S. at 48. That
is exactly what Garfield Heights has done here.
IV
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That ch. 1140.362 is facially constitutional does not
mean that the City acted in good faith in enforcing the
ordinance against Wagner. Commissioner Wervey maintains
that the content of Wagners sign did not influence his
decision to inform Wagner of the ordinance violation.
Werveyspersonal decision may not have been motivated by
the sign's content. Rather, his decision to contact Wagner was
motivated by the mayors personal request. And the mayor's
request, in turn, was motivated by a complaint from
Councilwoman Mahoney. And it seems safe to assume that
Councilwoman Mahoney, in deciding to complain to the
mayor, was offended by the sign's contentnot its
noncompliance with the maximum sign-face restriction of
City of Garfield Heights Codified Ordinance 1140.362.
After Councilwoman Mahoney complained about
Wagner's sign directly to the Citys mayor and buildingcommissioner, the City issued Wagner a letter, giving him
less than one week to correct his ordinance violation.
Otherwise, the City threatened it would prosecute Wagner in
municipal court.
Under these circumstances, the district court enjoined
the City from enforcing the sign ordinances against Wagner
until the November 2011 election. The facts here, however,
prohibit a finding that the Citys sign-ordinance scheme is
unconstitutional as it relates to residential districts, and thisappeal does not present the question whether the City's
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enforcement of the ordinance violated Wagner's
constitutional rights.
V
For these reasons, we hold the ordinance is
constitutional as it relates to residential signs. Todaysdecision joins others from our circuit that have upheld
municipal ordinances prescribing the size and height of signs.
See City of Franklin, 181 F.App'x at 54041 (ordinance
limiting free-standing signs to 32 square feet); City of
Brentwood, 398 F.3d at 814 (ordinance limiting billboards to
120 square feet in area and 6 feet in height).
We REVERSE the judgment of the district court,
REMAND the case, and direct the district court to enter
judgment for defendants on this issue.
---------
Notes:
[1]Another resident also complained to the City.
[2] It is unclear whether Mahoney left Wervey a physical
photograph or sent one by e-mail or text.
[3]Presumably, this was the day before election day.
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[4] Brown identified three circuits that have adopted the
absolutist approach: Neighborhood Enters., Inc. v. City of
St. Louis, 644 F.3d 728, 736 (8th Cir. 2011) (holding sign-
ordinance exemptions content-based because one must look
at the content of the object); Serv. Emps. Int'l Union, Local 5
v. City of Houston, 595 F.3d 588, 596 (5th Cir. 2010) (A
regulatory scheme that requires the government to examine
the content of the message that is conveyed is content-based
regardless of its motivating purpose. (internal quotation
marks omitted)); Solantic, LLC v. City of Neptune Beach, 410
F.3d 1250, 126366 (11th Cir. 2005) (applying the absolutist
approach).
The Fourth Circuit identified four circuits that have adopted
a more practical test for assessing content neutrality,
Brown, 706 F.3d at 302, and it expressly followed that
approach. See Am. Civil Liberties Union of Ill. v. Alvarez, 679F.3d 583, 603 (7th Cir. 2012) (A law is not considered
'content based' simply because a court must look at the
content of an oral or written statement in order to determine
whether a rule of law applies. (internal quotation marks
omitted)); Melrose, Inc. v. City of Pittsburgh, 613 F.3d 380,
389 (3d Cir. 2010) ([A] consideration of the sign's content . .
. does not by itself constitute a lack of neutrality as to specific
content.); H.D.V.-Greektown, LLC v. City of Detroit, 568
F.3d 609, 622 (6th Cir. 2009) (There is simply nothing in the
record to indicate that the distinctions between the varioustypes of signs reflect a meaningful preference for one type of
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speech over another.); G.K. Ltd. Travel v. City of Lake
Oswego, 436 F.3d 1064, 1079 (9th Cir. 2006) ([The
regulation] does not require Lake Oswego officials to
evaluate the substantive message . . . [and] certainly does not
favor speech based on the idea expressed. (internal quotation
marks omitted)).
[5]The court denied rehearing en banc with no active judge of
the court requesting a vote on the petition. Order, H.D.V.-
Greektown, LLC v. City of Detroit, Nos. 08-1329/1361 (6th
Cir. Aug. 17, 2009), ECF No. 61.
[6] H.D.V.-Greektown did not specifically implicate the
constitutionality of the ordinances as they related to political
signs.
[7]
It is true that in the First Amendment context, theoverbreadth doctrine allows a party to whom the law may
constitutionally be applied to challenge the statute on the
ground that it violates the First Amendment rights of others.
United States v. Stevens, 559 U.S. 460, 48384 (2010). In
most constitutional cases, that exceptional remedy requires
the claimant to show one of two things: (1) that there truly are
no or at least few circumstances in which the Act would be
valid; or (2) that a court cannot sever the unconstitutional
textual provisions of the law or enjoin its unconstitutional
applications. Carey v. Wolnitzek, 614 F.3d 189, 201 (6th Cir.2010) (internal citations and quotation marks omitted). Courts
http://lawriter.net/CaseView.aspx?scd=FED&DocId=6567&Index=%5c%5c192%2e168%2e1%2e175%5cdtsearch%5cindex%5cFED%5cFED06CASEUNPB&HitCount=2&hits=1a21+1a27+&hc=9&fcount=4&fn=13-3474&id=0&ct=1%23FN5http://lawriter.net/CaseView.aspx?scd=FED&DocId=6567&Index=%5c%5c192%2e168%2e1%2e175%5cdtsearch%5cindex%5cFED%5cFED06CASEUNPB&HitCount=2&hits=1a21+1a27+&hc=9&fcount=4&fn=13-3474&id=0&ct=1%23FN5http://lawriter.net/CaseView.aspx?scd=FED&DocId=6567&Index=%5c%5c192%2e168%2e1%2e175%5cdtsearch%5cindex%5cFED%5cFED06CASEUNPB&HitCount=2&hits=1a21+1a27+&hc=9&fcount=4&fn=13-3474&id=0&ct=1%23FN5http://lawriter.net/CaseView.aspx?scd=FED&DocId=6567&Index=%5c%5c192%2e168%2e1%2e175%5cdtsearch%5cindex%5cFED%5cFED06CASEUNPB&HitCount=2&hits=1a21+1a27+&hc=9&fcount=4&fn=13-3474&id=0&ct=1%23FN6http://lawriter.net/CaseView.aspx?scd=FED&DocId=6567&Index=%5c%5c192%2e168%2e1%2e175%5cdtsearch%5cindex%5cFED%5cFED06CASEUNPB&HitCount=2&hits=1a21+1a27+&hc=9&fcount=4&fn=13-3474&id=0&ct=1%23FN6http://lawriter.net/CaseView.aspx?scd=FED&DocId=6567&Index=%5c%5c192%2e168%2e1%2e175%5cdtsearch%5cindex%5cFED%5cFED06CASEUNPB&HitCount=2&hits=1a21+1a27+&hc=9&fcount=4&fn=13-3474&id=0&ct=1%23FN6http://lawriter.net/CaseView.aspx?scd=FED&DocId=6567&Index=%5c%5c192%2e168%2e1%2e175%5cdtsearch%5cindex%5cFED%5cFED06CASEUNPB&HitCount=2&hits=1a21+1a27+&hc=9&fcount=4&fn=13-3474&id=0&ct=1%23FN7http://lawriter.net/CaseView.aspx?scd=FED&DocId=6567&Index=%5c%5c192%2e168%2e1%2e175%5cdtsearch%5cindex%5cFED%5cFED06CASEUNPB&HitCount=2&hits=1a21+1a27+&hc=9&fcount=4&fn=13-3474&id=0&ct=1%23FN7http://lawriter.net/CaseView.aspx?scd=FED&DocId=6567&Index=%5c%5c192%2e168%2e1%2e175%5cdtsearch%5cindex%5cFED%5cFED06CASEUNPB&HitCount=2&hits=1a21+1a27+&hc=9&fcount=4&fn=13-3474&id=0&ct=1%23FN7http://lawriter.net/CaseView.aspx?scd=FED&DocId=6567&Index=%5c%5c192%2e168%2e1%2e175%5cdtsearch%5cindex%5cFED%5cFED06CASEUNPB&HitCount=2&hits=1a21+1a27+&hc=9&fcount=4&fn=13-3474&id=0&ct=1%23FN7http://lawriter.net/CaseView.aspx?scd=FED&DocId=6567&Index=%5c%5c192%2e168%2e1%2e175%5cdtsearch%5cindex%5cFED%5cFED06CASEUNPB&HitCount=2&hits=1a21+1a27+&hc=9&fcount=4&fn=13-3474&id=0&ct=1%23FN6http://lawriter.net/CaseView.aspx?scd=FED&DocId=6567&Index=%5c%5c192%2e168%2e1%2e175%5cdtsearch%5cindex%5cFED%5cFED06CASEUNPB&HitCount=2&hits=1a21+1a27+&hc=9&fcount=4&fn=13-3474&id=0&ct=1%23FN58/10/2019 Petition for Certiorari before the United States Supreme Court in Wagner v. City of Garfield Heights, Ohio
53/83
29a
rightly lighten this load in the context of free-speech
challenges to the facial validity of a law.Ibid. In view of the
risk that enforcement of an overbroad law may deter people
from engaging in constitutionally protected speech and may
inhibit the free exchange of ideas, the overbreadth doctrine
permits courts to invalidate a law on its face if a substantial
number of its applications are unconstitutional, judged in
relation to the statute's plainly legitimate sweep. Ibid.
(internal quotation and alteration marks omitted). But [i]f
the law does not reach a substantial amount of
constitutionally protected conduct, then the overbreadth
challenge must fail. Speet v. Schuette, 726 F.3d 867, 873
(6th Cir. 2013) (internal
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