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. HARTMAN
Counsel of Record
THE LAW FIRM OF CURT C.
HARTMAN
7394 Ridgepoint Drive #8
Cincinnati, OH 45230
(513) 379-2923
hartmanlawfirm@fuse.net

CHRISTOPHER P. FINNEY
FINNEY LAW FIRM, LLC
4270 Ivy Pointe Blvd.
Suite 225
Cincinnati, OH 45245
chris@finneylawfirm.com

Counsel for Petitioners

QUESTIONS PRESENTED
I.

Whether the mere assertion by a government that its sign

regulations lack a discriminatory motive renders such
regulations to be content-neutral sign regulations
notwithstanding the facially content-based aspects of
such sign regulations?

II. In order to constitutionally justify a content-neutral sign

regulation under intermediate scrutiny, must a
government establish with evidence that the specific sign
regulation at issue actually advances a significant
governmental interest and leaves open alternative
channels of communication or may a government rely
simply upon ipse dixit and general pronouncements in
case law concerning different forms or media of
communication in order to satisfy the requirements of
intermediate scrutiny?

ii
PARTIES TO THE PROCEEDING
Petitioner, who was Plaintiff-Appellee below, is Frank
Wagner.
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 official
capacities.

iii
TABLE OF CONTENTS
Page
QUESTIONS PRESENTED ................................................. i
PARTIES TO THE PROCEEDING AND RULE 29.6
STATEMENT ............................................................... ii
TABLE OF CONTENTS ................................................... iii
TABLE OF AUTHORITIES .................................................v
OPINIONS BELOW .............................................................1
JURISDICTION ....................................................................1
CONSTITUTIONAL AND CITY ORDINANCE
PROVISIONS INVOLVED ......................................1
STATEMENT OF THE CASE .............................................1
REASONS FOR GRANTING THE PETITION...................4
1. The First Question Presented Is Already Before
the Court Due to a Circuit Split ......................................4
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 .................................8
CONCLUSION ...................................................................15
APPENDIX A: Opinion of the United States Court of
Appeals for the Sixth Circuit (August 19, 2014) .......... 1a
APPENDIX B: Order of the United States Court of
Appeals for the Sixth Circuit (October 3, 2014) ........ 31a

iv
TABLE OF CONTENTS
(continued)
Page
APPENDIX C: Order of the United States District
Court for the Northern District of Ohio (February
12, 2013) ..................................................................... 32a
APPENDIX D: U.S. Const., amend. I .............................. 58a
APPENDIX E: Codified Ordinances of the City of
Garfield Heights, Ohio, 1140.362 .......................... 59a

v
TABLE OF AUTHORITIES
Page(s)
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) .................................................. 10-11
Florida 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

vi
TABLE 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

1
OPINIONS BELOW
The Court of Appeals opinion (Pet.App.1a) reversing
the District Courts judgment is available at 2014 WL
4067171. The District Courts opinion (Pet.App.32a) finding
the sign regulation at issue to be unconstitutional and
enjoining its enforcement was not included in an unofficial
report.
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) and
Codified 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 Heights
which was critical of Tracy Mahoney, a member of the City
Council of Garfield Heights. (R.1, Verified Complaint 2025, PageID#5.) In particular, Mr. Wagner posted the
following single sign in his yard:

(R.1, Verified Complaint 22, PageID#5; R.1-1, Exhibit A-2,

PageID#14.)
Upon receiving a complaint concerning the sign from
the councilmember who was the target of the criticism within
Mr. Wagners sign, officials with the City of Garfield Heights
threatened Mr. Wagner with prosecution for violating the
Citys six-square-foot limitation on the size of any single
political sign. However, as the City acknowledged, [Mr.
Wagner] may display up to thirty (30) political signs on his
property 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:

but he is subject to prosecution for having the following:

The City posited (though never established with

evidence) the abstract concepts of traffic safety and aesthetic
interests as to why the latter, i.e., the single sign measuring
sixteen-square feet, was made illegal, but that the former, i.e.,
the strewing of over 30 signs in the yard just so long as no
single sign was larger than six-square feet, was
constitutionally permissible. (Citys Appellate Brief, at 38.)
Recognizing the absurdity and lack of any legitimate
justification for this dichotomy in what was permitted and not
permitted, Mr. Wagner commenced this civil rights action
pursuant 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

4
summary judgment, the District Court concluded the sign
regulation was a content-based restriction on core political
speech for which the City had not satisfied the requirements
of strict scrutiny. (R.57, Decision, PageID#1937-55.) On
appeal, though, the Sixth Circuit reversed the judgment of the
District Court, concluding that the sign regulation, on its face,
was content-neutral and satisfied the requirements of
intermediate scrutiny and, thus, directed that judgment
REASONS FOR GRANTING THE PETITION
First Question Presented: Whether the mere assertion by a
government that its sign regulations lack a discriminatory
motive renders such regulations to be content-neutral sign
regulations notwithstanding the facially content-based aspects
of such sign regulations?
1. The First Question Presented Is Already Before
the Court Due to a Circuit Split. In its opinion below, the
Sixth Circuit recognized that, in assessing a sign regulation, a
threshold inquiry concerns how to determine whether a
regulation 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, in
a published opinion, has taken a side. (Pet.App14a).
In H.D.V.-Greektown, LLC v. City of Detroit, 568 F.3d
609 (6th Cir. 2009), the Sixth Circuit had previously adopted
a motive-based test to determine whether a sign regulation is
content-based or content-neutral. In adopting this motivebased test, the court stated that an ordinance is not a contentbased regulation of speech if, among other things, the
regulation was not adopted because of disagreement with the
message the speech conveys. Id. at 621. Applying this test,
the Sixth Circuit found the code at issue in H.D.V.-Greektown
to be content-neutral, despite its facially content-based
provisions, because there was nothing in the record to

5
indicate that the distinctions between the various types of
signs reflect a meaningful preference for one type of speech
over another. Id.
Thus, bound to and applying circuit precedent, the Sixth
Circuit concluded in that the regulation of political signs in
the City of Garfield Heights was not content-neutral and,
thus, subjected such regulation to intermediate scrutiny in
ultimately concluding that such regulation was facially
constitutional. (Pet.App26a).
However, as noted above, the Sixth Circuit explicitly
recognized and acknowledged that [a] circuit split exists
with respect to how to determine whether a regulation is
content-based or content-neutral. (Pet.App11a & 14a). And
this issue and resolution of the acknowledged circuit split is
presently before this Court in Reed v. Town of Gilbert,
Arizona, Case No. 13-502 (oral argument scheduled for
January 12, 2015). As developed in the petition for certiorari
filed in Reed, as well as the merits briefs therein, there exists
a three-way circuit split by which courts determine whether a
sign regulation is content-neutral.
Presently, the First, Second, Eighth and Eleventh
Circuits follow a text-based test under which contentneutrality is determined objectively based on the regulations
plain terms:

Matthews v. Town of Needham, 764 F.2d 58, 60 (1st

Cir. 1985) (sign code found content-based where it
facially banned political signs but permitted for sale,
professional office, and religious and charitable cause
signs);

National Adver. Co. v. Town of Babylon, 900 F.2d

551, 557 (2d Cir. 1990) (sign code found contentbased because it facially exempted political signs and
signs identifying a grand opening, parade, festival,

6
fund drive or similar occasion from a general sign
ban);

Neighborhood Enterprises, Inc. v. City of St. Louis,

644 F.3d 728, 736 (8th Cir. 2011)(we conclude that
the zoning code's definition of sign is impermissibly
content-based because the message conveyed
determines whether the speech is subject to the
restriction)

Solantic, LLC v. City of Neptune Beach, 410 F.3d

1250, 1259 n.8 & 1266 (11th Cir. 2005)(relying on
the decision in City of Cincinnati v. Discovery
Network, Inc., 507 U.S. 410 (1993), recognized that
the Supreme Court has return[ed] to its focus on the
laws own terms, rather than its justification and,
thus, because some types of signs are extensively
regulated while others are exempt from regulation
based on the nature of the messages they seek to
convey, the sign code is undeniably a content-based
restriction on speech).

In contrast, the Fourth, Sixth and Ninth Circuit follow a

subjective motive-based test, which permits content-based
distinctions on the face of a code so long as the government
can assert a neutral justification or lack of censorial motive
for the sign regulation:

Brown v. Town of Cary, 706 F.3d 294, 304 & 306 (4th
Cir. 2013)(finding sign regulation to be contentneutral because it was not adopted because of a
disagreement with the message conveyed and any
content-based distinctions had a reasonable relation
to the towns asserted neutral justifications for
enacting the code, i.e., traffic safety and aesthetic);

H.D.V.-Greektown, LLC v. City of Detroit, 568 F.3d

609, 621 (6th Cir. 2009)(an ordinance is not a

7
content-based regulation of speech if, inter alia, the
regulation was not adopted because of disagreement
with the message the speech conveys; with respect to
any content-based distinctions, there was nothing in
the record to indicate that the distinctions between the
various types of signs reflect a meaningful preference
for one type of speech over another);

Reed v. Town of Gilbert, Arizona, 707 F.3d 1057 (9th

Cir. 2013)(sign regulation is content-neutral because
government did not adopt its regulation of speech
because it disagreed with the message conveyed, and
any interests in regulating signs are unrelated to the
content), 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 a
code pursuant to a multi-part, convoluted balancing test that
purports to determine instances where the value of certain
speech in certain locations exceeds the governments
overarching regulatory purpose.

Melrose, Inc. v. City of Pittsburgh, 613 F.3d 380, 389

(3d Cir. 2010) (describing as a context-sensitive test
its assessment as to whether a sign regulation is
content-neutral so as to uphold a sign regulation when
the following conditions are met: (1) the government
exempts a sign from general sign regulations where
there is a significant relationship between the content
of particular speech and a specific location or its use,
(2) the exemption was not made in an attempt to
censor certain viewpoints or to control what issues are
appropriate for public debate, (3) the exception is
substantially related to advancing an important state
interest that is at least as important as the interests

8
advanced by the underlying regulation, (4) the
exception is no broader than necessary to advance the
special goal, and (5) the exception is narrowly
drawn so as to impinge as little as possible on the
overall goal. Rappa v. New Castle Cnty., 18 F.3d
1043, 1065 (3d Cir. 1994).
In the foregoing circuit split presently before this Court in
Reed v. Town of Gilbert, Arizona, Case No. 13-502 (oral
argument scheduled for January 12, 2015), upon the issuance
of a decision in Reed wherein clarification of the correct
analysis relating to regulation of signs under the First
Amendment should be provided, the petition for certiorari in
this case should be granted, the judgment below vacated, and
the matter remanded for further review in light of Reed.
Second Question Presented: In order to constitutionally
justify a content-neutral sign regulation under intermediate
scrutiny, must a government establish with evidence that the
specific sign regulation at issue actually advances a
significant governmental interest and leaves open alternative
channels of communication or may a government rely simply
upon ipse dixit and general pronouncements in case law
concerning different forms or media of communication in
order 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-sizefits-all approach lacking in any supporting evidence.
Regardless of the specific medium or venue of expression
being regulated, governments systematically invoke, usually
through ipse dixit, the concepts of aesthetics and traffic safety

9
as constitutionality justifying a content-neutral sign
regulation under intermediate scrutiny. See, e.g., Arlington
County Republican Committee v. Arlington County, Va., 983
F.2d 587, 590 (4th Cir. 1993)([t]he County defended [a twosign limit] on the basis that it furthered the County's
substantial interests in promoting aesthetics and traffic
safety); Neighborhood Enterprises, Inc. v. City of St. Louis,
644 F.3d 728, 732 (8th Cir. 2011)([t]he City justified its
outdoor sign restrictions principally on concerns for traffic
safety and aesthetics). And while aesthetics and traffic
safety may, in the abstract, constitute important governmental
interests, the decision of the Sixth Circuit below, directing the
entry of summary judgment in favor of the government,
treated such interests as clearly established based solely upon
ipse dixit and general pronouncements in case law concerning
different forms or media of communications. But the
precedent of this Court rejects such a one-size-fits-all
application that treats any claimed governmental interest as
equally applicable to residential yard signs as to commercial
billboards; the precedent of this Court rejects such blind
invocation of aesthetics and traffic safety as somehow
universally 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 of
applying the broad principles of the First Amendment to
unique forums of expression. Id. at 500. For each method
of communicating idea is a law unto itself, and that law
must reflect the differing natures, values, abuses and
dangers 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 to
it, for each may present its own problems)

10
Thus, in Metromedia, this Court constrained its analysis
and decision to dealing with the law of billboards.
Metromedia, 453 U.S. at 501. For this Court recognized that
the billboard remains a large, immobile, and permanent
structure which, like other structures, is subject to . . .
regulation. Moreover, because it is designed to stand out
and apart from its surroundings, the billboard creates a unique
set of problems for land use planning and development. Id.
at 502 (quoting Metromedia, Inc. v. City of San Diego, 164
Cal.Rptr. 510, 26 Cal.3d 848, 610 P.2d 407, 419 (1980)).
And, thus, in limiting its consideration in Metromedia to the
law of billboards involving commercial speech, this Court
found reasonable the conclusion that billboards are real and
substantial hazards to traffic safety, 453 U.S. at 509, and
that billboards, by their very nature, wherever located and
however constructed, can be perceived as an esthetic harm.
Id. at 510. And with respect to aesthetic interests justifying
the content-neutral regulation of billboards in Metromedia,
this Court similarly concluded in City of Lakewood v. Plain
Dealer Publ. Co., 486 U.S. 750 (1988), that such esthetic
considerations applies to newsracks as well as billboards.
Id. at 783.
In clear contrast to the law of billboards addressed in
Metromedia and the law relating to commercial newsracks
addressed in Lakewood, this Court addressed the permissible
regulation vel non of a distinctly different medium and venue
in City of Ladue v. Gilleo, 512 U.S. 43 (1994). Instead of
dealing with billboards or newsracks, this Court in Ladue
specifically addressed a venerable means of communication
that is both unique and important, id. at 54 (emphasis
added), when it ruled upon the constitutionality of a contentneutral regulation of residential yard signs. Cf. Members of
City Council of Los Angeles v. Taxpayers for Vincent, 466
U.S. 789, 812 (1984)(no indication that the posting of

11
political posters on public property is a uniquely valuable or
important mode of communication (emphasis added).)
Critical to this Courts assessment of the sign regulation
at issue in Ladue was the venue involved, i.e., an individual
private resident; in contrast, Metromedia and Lakewood
involved not only commercial speech, but also such speech at
a venue different than the commercial activity being
advertised. Thus, in Ladue, this Court implicitly recognized a
distinction in the venue is critical to assessing a governments
interest in regulating speech: Displaying a sign from one's
own residence often carries a message quite distinct from
placing the same sign someplace else, or conveying the same
text or picture by other means. Furthermore, a person who
puts up a sign at her residence often intends to reach
neighbors, an audience that could not be reached nearly as
well by other means. [And] [a] special respect for individual
liberty in the home has long been part of our culture and our
law; that principle has special resonance when the
government seeks to constrain a person's ability to speak
there. . [The governments need] to regulate temperate
speech from the home is surely much less pressing. Ladue,
512 U.S. at 56-58.
And this Court, thus, recognized clear and critical
distinctions in the governmental interests at issue in
Metromedia and Lakewood: It bears mentioning that
individual residents themselves have strong incentives to
keep their own property values up and to prevent visual
clutter in their own yards and neighborhoodsincentives
markedly different from those of persons who erect signs on
others land, in others neighborhoods, or on public property.
Residents self-interest diminishes the danger of the
unlimited proliferation of residential signs that concerns the
City of Ladue. Id. at 58-59.
Yet, notwithstanding this Courts recognition and
appreciation of the distinctions between governmental

12
regulation of off-premises signs versus residential signs
displaying political messages, including the governmental
interests supposedly being advance by such regulation, the
Sixth Circuit in the decision below effectively merged
aesthetics and traffic safety into a singular, universal
justification for any and all types of sign regulations with
such interests dispositively established through nothing more
than ipse dixit and general pronouncements in case law
concerning different forms or media of communications.
For even though this case involved a governments
prohibition 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 exceeds

six square-feet in area):

13

the Sixth Circuit concluded the City of Garfield Heights was

entitled to summary judgment so as to uphold such a sign
regulation because [i]t is far too late to contend that traffic
safety and aesthetics are not substantial governmental
goals. (Pet.App21a). Of course, in so doing, the Sixth
Circuit arrived at this conclusion only through consideration
of the ipse dixit of the government and through exclusive
reliance upon case law concerning billboards containing
commercial messages, not yard signs containing political
speech. (Pet.App21a (citing to Metromedia, 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 resolved
an important question of constitutional law in a way that
conflicts with relevant decisions of this Court.
For in addition to this Court recognizing a critical
distinction between regulation of off-premises commercial
speech versus the exercise of core political speech through
the posting of a sign at ones residence, when examining a
content-neutral regulation of speech under intermediate
scrutiny, decisions of this Court have required the
government to not only assert a substantial interest in support
of its regulation, but to actually demonstrate that the
restrictiondirectly 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 Circuit
in the present case did not even consider or address whether
the summary judgment evidence actually established that the
restriction of all residential political signs to six square-feet
directly and materially advance[d] the claimed interest of
aesthetics and traffic safety. Instead, in a single paragraph
(Pet.App21a), the Sixth Circuit ignored the evidentiary
requirements of this Court for summary judgment standard
when it concluded as a fait accompli that aesthetics and

14
traffic safety justified any and all sign regulations sine
evidence. Cf. Watseka v. Illinois Public Action Council, 796
F.2d 1547 (7th Cir. 1986)(striking down an ordinance
restricting solicitation for, inter alia, lack of evidence
supporting the citys posited substantial interest), aff'd, 479
U.S. 1048 (1987); Leverett v. City of Pinellas Park, 775 F.2d
1536, 1540 (11th Cir. 1985)(the City made no showing as
to the factual basis for its articulated concerns and the
motivation for passage of Sec. 16-112 beyond the
conclusions stated in the ordinance itself.[W]e hold that
Krueger [v. City of Pensacola, 759 F.2d 851 (11th Cir.
1985),] requires more than a conclusory assertion of the
factual basis and motivation underlying an ordinance that
treads upon First Amendment rights. [T]he showing
required by Krueger would serve little purpose if it could be
made by simply pointing to an assertion of concern and
motivation unsupported by any factual record. Such a
minimal showing is an insufficient safeguard for fundamental
constitutional values. The statement of factual basis and
motivation contained in Sec. 16-112 does not justify its
infringement on protected expression). And in so doing, the
Sixth Circuit not only lessened the evidentiary standard
required by this Court and other circuit to justify a restriction
on First Amendment rights, but also ignored the summary
judgment evidence actually tendered by Petitioner refuted the
claimed (though unproven) interests of traffic safety and
aesthetics.
Thus, even if this Courts decision in Reed v. Town of
Gilbert, Arizona, Case No. 13-502, supports an analysis of
the sign regulation at issue herein as a content-neutral
regulation of speech so as to be subject to intermediate
scrutiny, the decision and analysis of the Sixth Circuit herein
resolved an important question of constitutional law in a way
that conflicts with relevant decisions of this Court and other

15
circuits. See Sup. Ct. R. 10(a) & 10(c). Thus, the petition
for a writ certiorari should be granted
CONCLUSION
With respect to the First Question Presented, as the issue
raised therein is presently before the Court, the petition for a
writ of certiorari should be held pending the Courts final
disposition of Reed v. Town of Gilbert, Arizona, Case No. 13502, and, then, disposed of consistent with the Courts
decision therein.
With respect to the Second Question Presented, should
the Court conclude that, in light of this Courts forthcoming
decision in Reed v. Town of Gilbert, Arizona, Case No. 13502, the Sixth Circuit still applied the correct legal standard
for how to determine whether a sign regulation is contentbased or content-neutral, potentially left unanswered in Reed
is the quantum and quality of proof as to how a government
establishes the requirements of intermediate scrutiny, i.e.,
whether ipse dixit and general pronouncements in case law
are sufficient in a one-size-fits-all methodology to satisfy the
requirements of intermediate scrutiny with respect to the
specific sign regulation at issue. For precedent of this Court
does not allow ipse dixit or generalized statements in cases
addressing restrictions on billboard or newsracks to be
bootstrapped so as established as dispositive evidence
justification for restrictions residential yard signs displaying
political messages.

16
Respectfully submitted,
CURT C. HARTMAN
Counsel of Record
THE LAW FIRM OF CURT C.
HARTMAN
7394 Ridgepoint Drive, Suite
8
Cincinnati, OH 45245
(513) 379-2923
hartmanlawfirm@fuse.net
January 2, 2015

CHRISTOPHER P. FINNEY
FINNEY LAW FIRM, LLC
4270 Ivy Pointe Blvd. Suite
225
Cincinnati, OH 45245

APPENDIX

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
PUBLICATION

FOR

FULL-TEXT

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. The
district court found that the Citys restriction on Wagners

2a

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
City
regulates 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;

3a

(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 in
height. 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 2feet wide; this would constitute a total sign-face area of 132

4a

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 in
residential districts. Suppose a homeowner has a corner 100foot-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 violation
occurs. 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 the
imposition of a trash tax. Specifically, the sign said: You do

5a

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 the
mayor of such. On September 17again, a SaturdayMayor

6a

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 with
prosecution 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 enjoin
enforcement of the ordinance. Additionally, he moved for a

7a

temporary restraining order and preliminary injunction

against the City. The district court granted Wagners motion
as to him but denied it as to others, and it ordered the City to
allow Wagner to display his 16-square-foot sign until
November 7, 2011.[3] The City counterclaimed, seeking a
declaratory judgment that the ordinances regulating political
signs were constitutional. The parties both moved for
summary judgment.
The district court found that ch. 1140.352 imposed a
content-based restriction on speech. Applying strict scrutiny,
the district court found that the Citys proferred interests in
traffic safety and aesthetics were not compelling and that the
ordinance, therefore, failed strict scrutiny. It also determined
that the ordinance was not narrowly tailored. The court held
the ordinance unconstitutional under the First Amendment,
granted summary judgment for Wagner, and denied summary
judgment for the City.
II
We review de novo a district courts grant of a
plaintiff's motion for summary judgment and a denial of the
defendants cross-motion for summary judgment. Ne. Ohio
Coal. for the Homeless v. City of Cleveland, 105 F.3d 110,
1109 (6th Cir. 1997). A district courts denial of summary
judgment is generally a non-appealable interlocutory order,
but we may properly review the denial when the appeal from

8a

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. at
50. 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, 340
U.S. 268, 28283 (1951). Traditionally, the Court

9a

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. With
rare 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 a
form 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 a
compelling state interest and if the restriction is narrowly

10a

tailored to achieve that end. Perry, 460 U.S. at 35. Contentneutral 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 strictscrutiny 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 overcome
upon any balancing process, then, of course, the test merely

11a

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 with
the 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

12a

confer[s] benefits or imposes burdens on speech without

reference to the ideas or views expressed. Ibid.
1
The district court, after a thorough analysis, concluded
that ch. 1140.362 is a content-based regulation because it
treats political signs differently than non-political signs. The
district court notes that the City's political-sign ordinance
applies to all zoning districts, residential or not. Cf. ch.
1140.362 (Political signs, [sic] may be placed . . . in any
zoning district . . . .). Consequently, the district court
reasons, a non-political sign in a non-residential district may
exceed six square feet, whereas a political sign in a nonresidential district is subject to ch. 1140.362s size limitation.
Additionally, the district court argues that the ordinance
makes a content-based distinction in that it requires residents
to remove political signs after an election concludes. Cf. id.
(Political signs shall be removed after the political issue or
campaign is completed or no longer contested.). Essentially,
the district court found that the ordinance is content-based
because the City must determine whether a sign is political in
nature before it can determine which provision of the city
code applies; that is, the City must determine whether a sign
is political or not.
The City contends that the district court erred by
applying what the Fourth Circuit has called an absolutist

13a

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 an
absolutist 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

14a

imposed different height requirements on business and

identification signs than it did on real estate, construction,
and political signs. We did not view this as a content-based
regulation, writing that [t]here is simply nothing in the
record to indicate that the distinction between the various
types of signs reflect a meaningful preference for one type of
speech over another. Ibid. We declined to apply the
absolutist approach, which we viewed as an overly narrow
conception of the definition of content-neutral speech.
Ibid.[6]
A circuit split exists, and our circuit, in a published
opinion, has taken a side. Whether a municipality must
examine the content of a sign to determine which ordinance
to apply should merely be seen as indicative, not
determinative, of whether a government has regulated for
reasons related to content. Brown, 706 F.3d at 302. Just as
context matters when applying strict scrutiny, so too does
context matter when a court assesses content neutrality.
Under the Brown approach, a regulation is content neutral if
it is justified without reference to the content of regulated
speech . . . even if it facially differentiates between types of
speech. Brown, 706 F.3d at 303 (internal quotation marks
and citation omitted). In other words, there are content-based
distinctions and content-based distinctions, and in the
practical circuits, content based is a term of art that refers
to a distinction based on content because of an impermissible
purpose. The Fourth Circuit has said that the issue is not

15a

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 contentbased because political signs on non-residential property are
subject to ch. 1140.362s size limitation, whereas nonpolitical 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 the
weakness 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 entire
sign-ordinance chapteris constitutional. The district court's

16a

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 after
otherwise fulfilling its purpose. Ch. 1140.361. This is a
distinction without a difference: both political and nonpolitical 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 signordinance scheme is problematic because it subjects political

17a

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

18a

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 from
the 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. It
noted 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.

19a

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 is
generally 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 Citys
enactment or enforcement of this ordinance. Id. at 804. The

20a

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 municipal
resident wished to display an 8.5 by 11-inch sign in a secondstory 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 someplace
else, or conveying the same text by picture or other means.

21a

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 Citys
interests 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 (6th
Cir. 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 the
least restrictive means of furthering the government's

22a

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-squarefoot 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, he
may 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 to
satisfy the tailoring condition. The City's sign ordinances are

23a

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. In Ladue, 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 handheld
sign make the difference between participating and not

24a

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 his
lawn 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

25a

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.
Werveys personal 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 building
commissioner, 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 this
appeal does not present the question whether the City's

26a

enforcement of the
constitutional rights.

ordinance

violated

Wagner's

V
For these reasons, we hold the ordinance is
constitutional as it relates to residential signs. Todays
decision 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.

27a

[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 signordinance 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, 679
F.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 various
types of signs reflect a meaningful preference for one type of

28a

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, the

overbreadth 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

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 quotation marks omitted). A
plaintiff must demonstrate from the text of the statute and
from actual fact that a substantial number of instances exist in
which the law cannot be applied constitutionally. Id. at 878
(internal quotation marks omitted).
Here, the record does not contain information about whether
or how the political sign ordinance affects non-residential
districts. Therefore, Wagners challenge must fail. See Glenn
v. Holder, 690 F.3d 417, 422 (6th Cir. 2012) (holding statute
was not substantially overbroad where the record is utterly
barren about whether some, many, indeed any [others] are
affected by this proposed application of the statute);
Connection Distributing Co. v. Holder, 557 F.3d 321, 33839
(6th Cir. 2009).

30a

[8]

The case divided the Court and produced a number of

opinions. Justice White delivered a plurality opinion. Justice
Stevens dissented but joined Part IV of Justice Whites
opinion, which approved of the City's distinguishing between
advertising onsite and offsite goods and services. Justices
Brennan and Blackmun found the ordinance unconstitutional
not because of its distinction between commercial and
noncommercial speech but because its practical effect was to
eliminate the billboard as an effective medium of
communication. Metromedia, 453 U.S. at 525 (Brennan, J.,
concurring in the judgment). Thus, they analyzed the
ordinance under the Courts content-neutrality test, and they
concluded that the ordinance did not survive intermediate
scrutiny because the Citys proffered interests were
inadequate to justify a total ban of a medium of
communication. Id. at 52630. Chief Justice Burger and
Justices Stevens Rehnquist each dissented on different
grounds.
[9]

Courts refer to the kinds of interests that intermediate

scrutiny sanctions as important, significant, substantial,
and legitimate. We are careful, however, to avoid using the
word compellingthe term of art that signals strict
scrutiny is involved.
[10]

Five Justicesthe four plurality Justices and also Justice

Stevensjoined this part of the opinion.

31a

Appendix B
FRANK WAGNER, Plaintiff-Appellee,
v.
CITY OF GARFIELD HEIGHTS, OHIO; WILLIAM
WERVEY Defendants-Appellants.
No. 13-3474
United States Court of Appeals, Sixth Circuit
October 3, 2014
Before: BOGGS, NORRIS, and WHITE, Circuit
Judges.
The court received a petition for rehearing en banc. The
original panel has reviewed the petition for rehearing and
concludes that the issues raised in the petition were fully
considered upon the original submission and decision of the
case. The petition then was circulated to the full court. No
judge has requested a vote on the suggestion for rehearing en
banc.
Therefore, the petition is denied.

ENTERED BY ORDER OF THE COURT

Deborah S. Hunt, Clerk

32a

Appendix C
FRANK WAGNER, Plaintiff-Appellee,
v.
CITY OF GARFIELD HEIGHTS, OHIO; WILLIAM
WERVEY Defendants-Appellants.
No. 1:11cv2173
United States District Court, N.D. Ohio, Eastern Division.
February 12, 2013
ORDER
SOLOMON OLIVER, JR., District Judge.
Currently pending before the court is Defendants City of
Garfield Heights and William Werveys (Defendants or
the City) Motion for Summary Judgment (ECF No. 49)
and Plaintiff Frank Wagners (Plaintiff) Cross-Motion for
Summary Judgment (ECF No. 50). Plaintiff seeks nominal
damages, as well as injunctive relief and a declaratory
judgment, maintaining that Section 1140.362 of the Codified
Ordinances of Garfield Heights (the Ordinance) is invalid,
both facially and as applied to him, in violation of the First
Amendment of the Constitution. (Pl.s Mot. Summ. J. at 1,

33a

ECF No. 50.) Defendants seek a declaratory judgment that

the Ordinance does not violate the First Amendment. (Def.s
Mot Summ. J. at 8, ECF No. 49.) The court issued a
Temporary Restraining Order on October 24, 2011, enjoining
the City from enforcing the Ordinance against Plaintiff only
(ECF No. 8). For the following reasons, the court grants
Plaintiffs Motion for Summary Judgment and denies
Defendants Motion for Summary Judgment.
I. FACTS AND PROCEDURAL HISTORY
This case arises from Plaintiff having placed a sign in
his yard concerning an election for City Council in the City.
The sign made specific reference to controversial political
issues in the City: the use of cameras to enforce traffic laws,
and the imposition of a trash tax The facts are detailed in the
courts Temporary Restraining Order (ECF No. 8), and are
incorporated by reference herein.
A. The Ordinance
The Citys Sign Ordinance regulates the posting of signs
on properties within the City. At issue is Section 1140.362
of the Ordinance, entitled Political Signs, which
specifically regulates the posting of political signs. (Def.s
Ex. 2, ECF No. 49-2.) That Section is entitled Political
Signs. The section limits political signs being no more than
six (6) square feet, and four (4) feet in height. Id. In addition,

34a

Section 1140.362 states that [s]uch signs shall not be

placed in the Citys right-of-way, shall be maintained in good
condition, and shall be removed after the political issue is
completed or no longer contested. Id. Residents of the
City may exhibit as many political signs as they want, as long
as they meet the Maximum Sign Face Area Per Lot
requirement of Section 1140.27. Id. at 17. This section limits
the total maximum sign face area for any lot to 1.35 square
feet per foot of frontage. Id.
Section 1140.361 regulates Residence District
Signs. Id. This section places the same size and height
requirements for political signs on other signs, including
for-sale, for-rent, leasing, open house, religious, holiday,
or personal signs. Id. However, unlike Section 1140.362,
Section 1140.361 limits such signs to one sign per residence.
Sections 1140.361 and1140.362 also differ in another
important respect. Section 1140.362 applies to political signs
in any zoning district, whereas Section 1140.361 applies
only to signs in Residence Districts. Id.
B. Temporary Restraining Order
Plaintiff filed a Motion for a Temporary Restraining
Order on October 13, 2011. On October 24, this court
granted in part and denied in part Plaintiffs motion and
enjoined the City from enforcing the Ordinance against him.
(ECF No. 8.) The court found that the Ordinance was content-

35a

neutral, and applied intermediate scrutiny. Id. It further found

that Section 1140.362 was not narrowly tailored to serve a
substantial government interest. See Id. at 9.
II. SUMMARY JUDGMENT STANDARD
Federal Rule of Civil Procedure 56(a) governs summary
judgment motions and provides that
A party may move for summary judgment,
identifying each claim or defenseor the part of
each claim or defenseon which summary
judgment is sought. The court shall grant
summary judgment if the movant shows that there
is no genuine dispute as to any material fact and
the movant is entitled to judgment as a matter of
law. . . .
A party asserting there is no genuine dispute
as to any material fact or that a fact is genuinely
disputed must support the assertion by:
(A)
materials in
documents,
affidavits or
those made
admissions,

citing to particular parts of

the record, including depositions,
electronically stored information,
declarations, stipulations (including
for purposes of the motion only),
interrogatory answers, or other

36a

materials; or
(B)
showing that the materials
cited do not establish the absence or presence of a
genuine dispute, or that an adverse party cannot
produce admissible evidence to support the fact.
Fed. R. Civ. P. 56(c)(1).
In reviewing summary judgment motions, this court
must view the evidence in a light most favorable to the nonmoving party to determine whether a genuine issue of
material fact exists. Adickes v. S.H. Kress & Co., 398 U.S.
144, 153 (1970); White v. Turfway Park Racing Ass'n, Inc.,
909 F.2d 941, 943-44 (6th Cir. 1990). A fact is material
only if its resolution will affect the outcome of the lawsuit.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
Determination of whether a factual issue is genuine
requires consideration of the applicable evidentiary standards.
Thus, in most cases the court must decide whether
reasonable jurors could find by a preponderance of the
evidence that the [non-moving party] is entitled to a
verdict. Id. at 252. However, [c]redibility judgments and
weighing of the evidence are prohibited during the
consideration of a motion for summary judgment. Ahlers v.
Scheibil, 188 F.3d 365, 369 (6th Cir. 1999). The moving
party has the burden of production to make a prima facie
showing that it is entitled to summary judgment. Celotex
Corp. v. Catrett, 477 U.S. 317, 331 (1986). If the burden of

37a

persuasion at trial would be on the non-moving party, then

the moving party can meet its burden of production by either:
(1) submitting affirmative evidence that negates an essential
element of the nonmoving partys claim; or (2)
demonstrating to the court that the nonmoving partys
evidence is insufficient to establish an essential element of the
nonmoving partys claim. Id.
If the moving party meets its burden of production, then
the non-moving party is under an affirmative duty to point
out specific facts in the record which create a genuine issue
of material fact. Fulson v. City of Columbus, 801 F. Supp. 1, 4
(S.D. Ohio 1992). The non-movant must show more than a
scintilla of evidence to overcome summary judgment; it is not
enough to show that there is slight doubt as to material facts.
Id. Moreover, the trial court no longer has a duty to search
the entire record to establish that it is bereft of a genuine
issue of material fact. Street v. J.C. Bradford & Co., 886
F.2d 1472, 1479-80 (6th Cir. 1989) (citing Frito-Lay, Inc. v.
Willoughby, 863 F.2d 1029, 1034 (D.C. Cir. 1988)). In this
case, the material facts are undisputed.
III.

LAW AND ANALYSIS

A. Standing/Facial Challenge
As indicated above, Plaintiff seeks to assert a First
Amendment challenge, both facially and as-applied. The

38a

Supreme Court has held that a plaintiff may argue that a

statute is not only unconstitutional as applied to him, but also
unconstitutional on its face where any attempt to enforce
such legislation would create an unacceptable risk of
suppression of ideas. Members of City Council v. Taxpayers
for Vincent, 466 U.S. 789, 797 (1984). Ordinarily, if a court
finds a statute to be facially unconstitutional, it has concluded
that the statute restricts protected activity in every
conceivable application. N.A.A.C.P., Western Region v. City
of Richmond, 743 F.2d 1346, 1352 (9th Cir. 1984).
However, under the First Amendment overbreadth
doctrine, a plaintiff may also mount a facial challenge to a
statute even if his own speech may be constitutionally
prohibited under such statute. Broadrick v. Oklahoma, 413
U.S. 601, 615 (1973). The overbreadth of the statute must be
substantial and there must be a realistic danger that the
statute itself will significantly compromise recognized First
Amendment protections of parties not before the Court.
Board of Airport Comrs of City of Los Angeles v. Jews for
Jesus, Inc., 482 U.S. 569, 574 (citing City Council of Los
Angeles v. Taxpayers for Vincent, 466 U.S. 789, 801 (1984)).
While the general rule is that a person to whom a statute
may constitutionally be applied will not be heard to
challenge that statute on the ground that it may conceivably
be applied unconstitutionally to others, in other situations not
before the Court, an exception may be made where the
statutes very existence may cause others not before the court

39a

to refrain from constitutionally protected speech or

expression. Broadrick, 413 U.S. at 6100. The concern in
overbreadth cases is the potential chilling effect on
constitutionally protected speech. Id. However, there is no
standing based on mere allegations of a subjective chill.
There must be a claim of specific present objective harm or
a threat of specific future harm. Bigelow v. Virginia, 421
U.S. 809, 816-17 (1975) (quoting Laird v. Tatum, 408 U.S. 1,
13-14 (1972)).
It is generally the Plaintiffs burden to show that the
statute is overbroad. Virginia v. Hicks, 539 U.S. 113, 122
(2003). Facial challenges should be avoided where there is a
valid as- applied challenge. J.L. Spoons, Inc. v. Dragani,
538 F.3d 379, 384 (6th Cir. 2008)(the overbreadth
doctrine is only to be used as a last resort). However, the
Supreme Court has stated that in cases where there is no
core of easily identifiable and constitutionally proscribable
conduct that the statute prohibits...the statute is properly
subject to facial attack. Secretary of State of Md. v. Joseph
H. Munson Co., Inc., 467 U.S. 947, 965-67 (1984) (citing
Village of Schaumburg v. Citizens for a Better Environment,
444 U.S., at 637, 100 S.Ct., at 836; First National Bank of
Boston v. Bellotti, 435 U.S. 765, 786 (1978)).
In this case, Plaintiff argues that Section 1140.362 is
unconstitutional on its face because it is overbroad. (Pl.s Mot.
Summ. J. at 14, ECF No. 50.) Defendants argue that Plaintiff

40a

has not met his burden of showing that substantial

overbreadth exists because he fails to offer any arguments
or evidence in support of his overbreadth claim beyond those
proferred in support of his as-applied challenge. (Defs.
Resp. at 3, ECF No. 52.) Defendants argue that this means the
court should not consider Plaintiffs facial challenge. Plaintiff,
in briefing his arguments for his as-applied challenge, has also
identified the core reasons why the Ordinance may be
overbroad that is, the Ordinance has a potential chilling
effect on the speech of residents of the City. The court finds
that Plaintiffs arguments are adequate to satisfy his burden
and demonstrate this chilling effect. See North Olmsted
Chamber of Commerce v. City of North Olmsted, 86
F.Supp.2d 755, 762 (N.D. Ohio 2000).
As described in the Merits section of this opinion below,
this is a case where there is no core of easily identifiable and
constitutionally proscribable conduct that the statute prohibits.
Joseph H. Munson Co., 467 U.S. at 965-67. In this case, the
manner in which Section 1140.362 of the Ordinance is written
would allow for few, if any constitutionally proscribable
applications, because of the distinctions between the
Political Signs section and the sections of the
Ordinance. The Political Signs section applies to all zoning
areas, allowing for larger non-political signs in non-

41a

residential areas, which makes the Ordinance content-based.1

Even if the Political Signs section applied only to
residential zoning areas, the Ordinance would still be
content-based 2 because of the different regulatory scheme
applied to political signs, which includes, for example, the
requirement that such signs be removed after a political issue
is no longer contested. Therefore, the court finds that there is
no core of constitutionally proscribable conduct that comes
within the realm of Section 1140.362, or at least that such a core
is not easily identifiable. Id. Looking only at Plaintiffs asapplied challenge would involve speculation about the
potential applications of the statute, which the court declines
to do.
Plaintiff was sanctioned under the Ordinance because
his political sign was too large. While it is possible for the
City to regulate the size of signs in residential districts, the
Political Signs section goes beyond this by applying further
restrictions on political signs. Though the City may in
theory regulate the size of Plaintiffs sign, there are other
restrictions in the Ordinance unrelated to a signs size.
Therefore, Plaintiffs overbreadth challenge must be
allowed to proceed.

See Part III.B infra, for the courts discussion of the

Id.

merits

42a

B. Merits
The First Amendment of the constitution of the United
States protects the right of free expression. U.S. Const.
amend. I. The Supreme Court has stated that signs are a
protected form of expression and restrictions must meet
the appropriate level of scrutiny in order to be
constitutional. City of Ladue v. Gilleo, 512 U.S. 43 (1994).
Thus, the court must first determine the appropriate level of
scrutiny to apply to the Citys Ordinance. Id. A state may
impose general and non-discriminatory time, place, and
manner restrictions on First Amendment activities. Assoc.
of Comty. Orgs. for Reform Now v. City of Dearborn, 696
F.Supp. 268, 271 (E.D. Mich. 1988). A valid time, place, or
manner restriction must meet intermediate scrutiny. Under
this test, a restriction must meet the following requirements:
(1) it must be content- neutral; (2) it must be narrowly
tailored to further substantial governmental interests; and (3)
it must leave open ample alternative means for
communicating the desired message. Fehribach v. City of
Troy, 341 F.Supp.2d 727, 730 (E.D. Mich. 2004) (citing Perry
Education Assn. v. Perry Local Educators Assn., 460 U.S. 37,
44 (1983)). Content-neutral restrictions are those that are
justified without reference to the content of the regulated
speech. Fehribach, 341 F.Supp.2d at 730. If the restriction is
not content-neutral, and is content-based, it is subject to strict
scrutiny. Ohio Citizen Action v. City of Mentor-On-The-Lake,
272 F. Supp.2d 671, 683 (N.D. Ohio 2003). Under this test, a

43a

restriction will survive if it is shown that the regulation is

necessary to serve a compelling state interest and that it is
narrowly drawn to achieve that end. Boos v. Barry, 485 312,
321 (1988). A restriction is content-based when the content
of the speech determines whether the ordinance applies.
Clear Channel Outdoor Inc. v. Town Bd. Of Windham, 325 F.
Supp.2d 297, 303 (N.D.N.Y. 2005) (citing Forsyth Cnty. v.
Natist Movement, 505 U.S. 123, 134 (1992)). Typically,
when a statute or other government action is alleged to
infringe on the exercise of First Amendment rights, the state or
municipality bears the burden of demonstrating the
constitutionality of the action. Dearborn, 696 F.Supp. at
272 (internal citations omitted).
1.

Whether

the

Statute

is

Content-Based

Plaintiff argues that the Ordinances restrictions on

political signs is content-based and that the court should
apply strict scrutiny in reviewing it. (Pl.s Resp. at 3, ECF
No. 53.) Defendants contend that the Ordinance is not contentbased because, even though it has a section specifically
pertaining to political signs, the purpose of the regulation is not
to limit a certain type of speech. (Defs. Reply at 6, ECF No.
54.) Instead, Defendants argue, the Ordinance is contentneutral and intermediate scrutiny should be applied. Id.
To determine whether an ordinance is content-based, the
principal inquiry focuses on whether the government has

44a

adopted [the] regulation of speech because of disagreement

with the message it conveys. Ward v. Rock Against Racism,
491 U.S. 781, 791 (1989). A regulation is content-neutral if it
can be justified without reference to the content of the
regulated speech, even if regulation has an incidental effect
on some but not all speakers or messages. King
Enterprises, Inc. v. Thomas Township, 215 F. Supp. 2d 891,
908 (E.D. Mich. 2002) (quoting Ward, 491 U.S. at 791).
However, viewpoint-neutrality does not necessarily make an
ordinance content-neutral. XXL of Ohio v. City of Broadview
Heights, 341 F.Supp.2d 765, 780 (N.D. Ohio) (2004). A
regulation may still be deemed content-based if it targets a
category of speech for differential treatment.
Plaintiff argues that the Ordinance is content-based
because Section 1140.362 (Political Signs) singles out
political signs for different treatment than all other signs. (Pl.
Resp. at 3, ECF No. 53.) Defendants argue in response that
the different section for Political Signs actually allows for
more speech, because it is not subject to the single-sign
limitation in Section 1140.361. Defendants further point out
that the restriction on residential signs size is the same (no
more than six (6) square feet and no more than four (4) feet
in height) as for political signs. (Defs. Mot. Summ. J. at 18,
ECF No. 49.) However, to resolve the dispute, its is clear that
the court must look to the entirety of the section regulating sign
size. Section 1140.362 applies throughout all zoning districts,
and therefore must be considered not only with respect to
Section 1140.361, but also to the rest of the Ordinance.

45a

Viewing Section 1140.362 in this manner, the court finds

Plaintiffs argument to be well- taken. Contrary to the
courts determination in its Temporary Restraining Order
that the Ordinance was content-neutral, the court now finds,
after further briefing by the parties, that the Ordinance is in
fact content-based. First, Section 1140.362 applies to
political signs in any zoning district, whereas Section
1130.361 applies only to residence districts. This means that
although residents of the City may place more than one
political sign on their property, such political signs face size
restrictions not faced by non-political signs outside of residence
districts. For example, under Section 1140.04, window signs
in a non-residence district may be up to ten (10) square feet in
size. However, if such a window sign is political in nature,
Section 1140.362 would limit its size to six (6) square feet.
Similarly, the Temporary Signs section, Section 1140.37,
allows the use of temporary signs for civic or community
affairs of a public or semi- public nature. Such signs, though
they can only be displayed for 30 days, can be as large as
thirty-two (32) square feet. Id. Again, no political sign,
regardless of its duration of placement, could be more than
six (6) square feet under the Ordinance.
In addition, although the size restrictions on political
signs may be similar to those on non-political signs in
residential areas, the Ordinance does differentiate between the
two in other significant respects. These differentiations
require City officials to determine whether a sign is political

46a

in nature before they can determine which section of the

Ordinance applies. Even in a residential area, the Ordinance
imposes certain limitations on political signs, such as the
length of time they may remain posted, which do not apply or
apply differently to non-political signs. For example, under
Section 1140.362, political signs shall be removed after the
political issue or campaign is completed or no longer
contested. (Defs. Ex. 2, ECF No. 49-2.) Under Section
1140.361, non-political signs in residential districts must be
removed within forty-eight (48) hours of a contract for sale, a
lease agreement, the end of the holiday, or after otherwise
fulfilling its purpose. Id. Though this distinction may or
may not allow for more political speech in residential areas
it is in any event a distinction based on content.
These distinctions proves too much. Every political
sign, whether it is placed in a residence district or any other
district, is subject to limitations not faced by other types of
signs. While in certain cases, such as the number of signs
allowed on a residential district lot, political signs may
actually face fewer restrictions than non-political signs, the
Ordinance generally treats political signs differently than
other signs in important respects. This is the very essence
of content-based regulation. U.S. v. Playboy Entertainment
Group, Inc., 529 U.S. 803, 811 (2000) In carrying out their
responsibilities to enforce the rules and restrictions of the
Political Signs section, the Ordinance requires City
officials to first determine whether a sign is political in

47a

nature. This clearly makes the Ordinance content-based.

Fehribach v. City of Troy, 412 F.Supp.2d 639, 645 (E.D.
Mich. 2006); Dimas v. City of Warren, 939 F.Supp. 554 (E.D.
Mich. 1996). The court also notes that the Ordinances
Political Signs section seems to be targeted at campaign
signs and other election-centered political issues because
Section 1140.362 requires all political signs to be removed
after the political issue or campaign is completed or no longer
contested. (Defs. Ex. 2, ECF No. 49-2). However, the
Ordinance does not detail how a sign regarding a long-term
political issue, such as Free Palestine or Dont Tread on
Me, would be treated. If these were not treated as political
signs, and instead regulated under other sections of the
Ordinance, this would lead to certain kinds of political signs
being regulated differently than others. This is a further
content-based distinction, which places some political speech
in one regulatory category, while treating other political
speech differently.
Defendants correctly state that the primary purpose of
applying higher scrutiny to content-based regulations is to
prevent the government from regulating content it disagrees
with. (Defs. Reply at 7, ECF No. 54.) However, this is only
part of the inquiry. The Citys focus on the fact that the
Ordinance is viewpoint neutral, even if true, is not
dispositive. Id. ([T]he express language of Section
1140.362 of the Ordinances demonstrates that the City does
not disagree with any particular political message its citizens

48a

wish to convey; rather, the ordinance merely regulates the

size of political signs, regardless of the content of the
message....The Plaintiff cannot dispute that Chapter 1140 of
the Ordinances regulates speech without regard to the
viewpoint of the message; this is the principal inquiry in
determining content neutrality.) In fact, a regulation may be
viewpoint neutral while being content-based. Boos at 319
([W]e have held that a regulation that does not favor either
side of a political controversy is nonetheless impermissible
because the First Amendments hostility to content-based
regulation extends...to prohibition of public discussion of an
entire topic.)(citing Consolidated Edison Co. v. Public
Service Comm'n, 447 U.S. 530, 537 (1980)). Further, the fact
that the Ordinance does not intend to suppress political
speech does not make it content-neutral. North Olmsted
Chamber of Commerce, 86 F.Supp.2d at 765 (Based on
well-settled Supreme Court precedent, this Court finds
unpersuasive the Citys argument that its admittedly contentbased ordinance should be presumed content neutral
because it does not intend to suppress speech.) (emphasis
in the original). Although there is no evidence that the
Ordinance is intended to suppress political speech, or to treat
it differently than other speech, this is its effect as it is written.
See Simon & Schuster, Inc. v. Members of the N.Y. State
Crime Victims Bd., 502 U.S. 105, 117 (1991)(expressly
rejecting the argument that discriminatory...treatment is
suspect under the First Amendment only when the

49a

legislature intends to suppress.). Therefore, the court finds

that Section 1140.362 of the Ordinance is content-based.
Even if one were to assume that Defendants might have
been able to constitutionally regulate Plaintiffs sign under
Section 1140.362, this argument must be rejected because that
is not the context in which we find ourselves. Section
1140.362 makes the Ordinance substantially overbroad
because it applies to political signs in all districts, and
subjects them to different restrictions than other, nonpolitical signs. XXL of Ohio at 789 (The ordinance also
makes content-based restrictions between non-commercial
signs by allowing certain kinds of displays depending upon
content, allowing certain kinds of displays depending upon
the speaker, and providing exemptions from restrictions
depending upon content.). Since Plaintiff makes a facial
challenge to Section 1140.362, it must be considered in the
context of the entire Ordinance.
Therefore, the court finds that the statute is content-based,
and will proceed with the time, place, and manner analysis
using this baseline.
2.

Strict Scrutiny

Even if a regulation is determined to be content-based, it

will be upheld if the government can meet the strict scrutiny
standard of review. See Burson v. Freeman, 504 U.S. 191

50a

(1992); Speet v. Schuette, 2012 WL3865394 at *5 (W.D.

Mich., Aug. 24, 2012); City of North Olmsted, 86 F.Supp.2d
at 767 (These content-based restrictions on noncommercial
speech receive strict scrutiny.). When strict scrutiny is
applied in the case of time, place, and manner regulations,
the government must demonstrate that the statute is narrowly
tailored to achieve a compelling state interest. Id., citing
United States v. Grace, 461 U.S. 171, 177 (1983).
The City argues that two interests justify the Ordinances
sign restrictions: aesthetics, and traffic safety. (Defs. Mot.
Summ. J. at 20, ECF No. 49.) These interests are clearly
stated in Section 1140.01, the Purpose and Intent section of
the Ordinance. (Defs. Ex. 2, ECF No. 49- 2.) In its briefs, the
City argues that these interests are substantial. 3 3 (Defs.
3

The City only discusses these interests in its argument

that the Ordinance is content-neutral and therefore only
requires a substantial interest to be asserted. These are also the
interests asserted in the preamble to the Ordinance. Although
the City has not made the argument that aesthetics and traffic
safety are compelling state interests, the court will assume
that these are the Citys primary interests in enacting this
Ordinance, and will perform its strict scrutiny analysis based
on these interests.

51a

Mot. Summ. J. at 20, ECF No. 49.) In Gilleo, the Supreme

Court agreed with the court of appeals finding that the
ordinance in question could not be justified based on
aesthetics as it was content-based. Gilleo, at 58-59. In XXL of
Ohio, Inc., a court in this district found that the stated interests
of aesthetics and traffic safety were not sufficient to be deemed
compelling and withstand strict scrutiny. XXL of Ohio, Inc., at
789-90 (The ordinance makes clear that the interests served
by the ordinance are traffic safety, aesthetics, and the
protection of property values and neighborhood character.
No court has found any of these concerns to be a compelling
government interest sufficient to withstand strict scrutiny.)
(citing United States v. Play Entertainment Group, Inc., 529
U.S. 803, 815 (2000); Gilleo, 512 U.S. at 48; Whitton v. City
of Gladstone, 54 F.3d 1400, 1408 (8th Cir. 1995)). In
general, courts have not found that the interests of aesthetics
and traffic safety are compelling. King Enterprises at 910.
Defendants have not shown why this case merits an
exception to this general rule. Therefore, this court finds that
the Citys stated interests do not rise to a level meeting strict
scrutiny.
Even assuming, arguendo, that aesthetics and traffic
safety did meet the compelling interest standard, the law
would still not be sufficiently narrowly tailored to withstand
strict scrutiny. As the City acknowledges several times in
its briefs, Plaintiff was free to post numerous 6'x4' signs
instead of his larger sign without violating the Ordinance.

52a

However, as this court explained in its Temporary Restraining

Order in this case (ECF No. 8), the Ordinance was not
narrowly tailored because [t]he Citys stated interests
of...traffic control and aesthetics are not furthered by allowing
a person to have many different signs dotting a persons
property, as opposed to one large sign like Plaintiffs sign.
Instead, those goals are likely diminished, if not completely
defeated in some cases, by allowing residents to put up a
multitude of signs rather than one or a few large signs.
(TRO at 8-9, ECF No.8). The courts analysis in this regard
remains the same. The restrictions imposed on political signs
in residential districts do not fit the Citys stated interests of
traffic safety and aesthetics. The City has not shown that a
sign the size of Plaintiffs sign would be any more detrimental
to traffic safety or aesthetics than a series of smaller signs, as
allowed by the restriction. While the City may be correct that
its asserted interests could withstand the narrow tailoring
prong of an intermediate scrutiny analysis, they fail under the
more stringent strict scrutiny test.
Viewing Section 1140.362 in the context of the whole
Ordinance further demonstrates that it is not narrowly
tailored. As explained above, political signs are restricted in
size, even in districts where larger signs are permissible. The
City does not explain how political signs would cause more
harm to the stated interests of traffic safety and aesthetics.
Defendants have provided no evidence that traffic safety and
aesthetics would likely not be improved by having a large

53a

number of small political signs next to larger commercial,

directional or temporary signs. Further, allowing large
commercial signs while restricting political sign sizes shows
a lack of narrow tailoring. This is especially true considering
the size restriction is on political signs. The court notes that
political speech has traditionally been afforded more protection
than commercial speech. See Mills v. State of Ala., 384 U.S.
214, 218-19 (1966). In the Ordinance, political speech is
limited to smaller signs, and the City has failed to show why
this regulatory scheme is narrowly tailored to advancing its
stated interests.
The court also notes that Section 1140.362 is ambiguous as
to what constitutes a political sign. As noted above, Section
1140.362 appears to only target campaign signs and other
temporary political signs. However, it is unclear how the
Ordinance would treat long-term political signs, such as
Dont Tread on Me or Free Palestine, as discussed
previously. Again, this ambiguity reflects a lack of narrow
tailoring. The court notes that in North Olmsted Chamber
of Commerce, a court in this district found a similar political
signs section in a city sign ordinance to lack narrow tailoring.
North Olmsted, 86 F.Supp.2d at 768 (It is unclear why an
informational sign may have a changeable copy, but a sign
presenting an issue to the public - say, counting the number
of days an unconstitutional ordinance has been on the books
- may not...The content of one type of sign is certainly not
safer or inherently more aesthetically pleasing than the

54a

other.). The First Amendment does not allow the

government to constrain residents of business districts to
having smaller signs simply for being political in nature. See
id.; Fehribach, 412 F.Supp.2d at 645.
As a result, the court finds that Section 1140.362 is
unconstitutional as violating the First Amendment, and that
summary judgment should be granted in favor of Plaintiff on
this issue.
3.

Severability

In light of the fact that the court has determined that Section
1140.362 is unconstitutional, it must now decide whether
Section 1140.362 is severable from the rest of the
Ordinance, or whether its presence makes the entire
Ordinance unconstitutional. In general, courts are
encouraged to leave statutes as intact as possible when they
contain unconstitutional sections. Ayotte v. Planned
Parenthood of Northern New England, 546 U.S. 320, 328-29
(2006) (Generally speaking, when confronting a
constitutional flaw in a statute, we try to limit the solution to
the problem. We prefer, for example, to enjoin only the
unconstitutional applications of a statute while leaving other
applications in force, or to sever its problematic portions
while leaving the remainder intact.)(citing United States v.
Raines, 362 U.S. 17, 2022 (1960); United States v. Booker,
543 U.S. 220, 227229 (2005)). In many cases, statutes

55a

contain severability clauses, which allow courts to determine

whether individual sections are severable. See Broncos
Entertainment, Ltd. v. Charter Tp. of Van Buren, 421 F.3d 440,
449 (6th Cir. 2005). Where such a clause exists, courts must,
if possible, give effect to the Ordinance's severability clause
so as not to invalidate the entire act. Deja Vu of
Nashville, Inc. v. Metropolitan Government of Nashville
and Davidson County, Tennessee, 274 F.3d 377, 389 (6th Cir.
2001).
Even where there is no severability clause, courts may
still determine whether the unconstitutional provision in
question is severable. Severability of a local ordinance is
a question of state law. City of Lakewood v. Plain Dealer
Pub. Co., 486 U.S. 750, 772 (1988). In Ohio, courts use a
three-part inquiry to determine whether a portion of a statute
is severable:
(1) Are the constitutional and the unconstitutional parts
capable of separation so that each may be read and may stand
by itself? (2) Is the unconstitutional part so connected with the
general scope of the whole as to make it impossible to give
effect to the apparent intention of the Legislature if the clause
or part is stricken out? (3) Is the insertion of words or terms
necessary in order to separate the constitutional part from the
unconstitutional part, and to give effect to the former only?

56a

State ex rel. Maurer v. Sheward, 644 N.E.2d 369, 377

(Ohio 1994) (citing Geiger v. Geiger, 160 N.E. 28, 33 (Ohio
1927)). Using this inquiry, the court finds that Section
1140.362 is severable from the remainder of the Ordinance.
Most of the Ordinance contains content-neutral regulations
regarding general size, location and placement of signs. In
fact, the court notes that this is what makes the Political
Signs section so odd. The Ordinance is not generally
organized by content, except for Section 1140.362. The
Ordinance can stand by itself even without reference to Section
1140.362. Striking out Section 1140.362 would not make it
impossible to give effect to the apparent intention of the
Legislature, as the section only addresses a small segment of all
possible signs and most of the Ordinance is not drafted with
political signs in mind. Finally, striking Section 1140.362
does not require the addition of words to the constitutional
parts of the Ordinance - the rest of the Ordinance does not
make specific reference to Section 1140.362. Therefore, the
court finds Section 1140.362 to be severable.
For the reasons stated above, the court therefore
grants Plaintiffs Motion for Summary Judgment denies
Defendants Motion for Summary Judgment, and strikes
Section 1140.362 of the Ordinance
C. Attorneys Fees Under 42 U.S.C. 1988

57a

Defendants briefed the issue of whether attorneys fees

should be awarded to Plaintiff under 42 U.S.C. 1988, and
argue that Plaintiff should not be awarded attorneys fees.
(Defs. Mot. Summ. J. at 30, ECF No. 49.) However, this
argument is premature. Plaintiff has not yet moved for
attorneys fees under this statute. If Plaintiff wishes to seek
an award of attorneys fees, he should file a motion for such
fees with the court within thirty days of the date of this
Order. If Defendants oppose such a motion, they must file
their opposition within 15 days after Plaintiff files his motion.
IV.

CONCLUSION

In conclusion, the court finds that there are no genuine

disputes as to any material facts. For the foregoing reasons,
the court grants Plaintiffs Motion for Summary Judgment
(ECF No. 50) and denies Defendants Motion for Summary
Judgment (ECF No. 49). Therefore, the City is permanently
enjoined from enforcing Section 1140.362 of the Ordinance.
IT IS SO ORDERED.
/s/ SOLOMON OLIVER, JR.
CHIEF JUDGE
UNITED STATES DISTRICT COURT
February 11, 2013

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Appendix D
Relevant Constitutional Provision Involved

United States Constitution, Amendment I:

Congress shall make no law respecting an
establishment of religion, or prohibiting the free
exercise thereof; or abridging the freedom of
speech, or of the press; or the right of the people
peaceably to assemble, and to petition the
Government for a redress of grievances

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Appendix E
Relevant City Ordinance Involved

Codified Ordinances Of The City Of Garfield Heights, Ohio,

1140.362:
Political signs, may be placed in a window or on
the lawn in any zoning district and shall not
exceed six (6) square feet per sign, and shall not
exceed four (4) feet in height. Such signs shall not
be placed in the Citys right-of-way, shall be
maintained in good condition, and shall be
removed after the political issue or campaign is
completed or no longer contested.