Petition for Certiorari before the United States Supreme Court in Wagner v. City of Garfield...

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) [email protected]

CHRISTOPHER P.FINNEYFINNEY LAW FIRM,LLC4270 Ivy Pointe Blvd.Suite 225Cincinnati, OH [email protected]

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) [email protected]

CHRISTOPHER P.FINNEYFINNEY LAW FIRM,LLC4270 Ivy Pointe Blvd. Suite225Cincinnati, OH 45245

January 2, 2015


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APPENDIX


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1a

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
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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

Petition for Certiorari before the United States Supreme Court in Wagner v. City of Garfield...

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