RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit I.O.P. 32.1(b) File Name: 18a0008p.06 

### UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

L EXINGTON H-L S ERVICES , I NC ., Plaintiff-Appellee ,

v

. L EXINGTON -F AYETTE U RBAN C OUNTY G OVERNMENT , Defendant-Appellant

. ┐ │ │ │ │ │ │ ┘ No. 17-5562

Appeal from the United States District Court for the Eastern District of Kentucky at Lexington. No. 5:17-cv-00154—Karen K. Caldwe ll, Chief District Judge. Argued: December 7, 2017 Decided and Filed: January 9, 2018 Before: CLAY, GIBBONS, and COOK, Circuit Judges.

_________________ COUNSEL

ARGUED: Keith Moorman, FROST BROWN TODD LLC, Lexington, Kentucky, for Appellant. John A. Bussian, THE BUSSIAN LAW FIRM, PLLC, Ra leigh, North Carolina, for Appellee. ON BRIEF: Keith Moorman, FROST BROWN TODD LLC, Lexington, Kentucky, for Appellant. John A. Bussian, THE BUSSI AN LAW FIRM, PLLC, Rale igh, North Carolina, Mark J. Prak, Charles E. Coble, Br ian C. Fork, BROOKS, PIERCE, MCLENDON, HUMPHREY & LEONARD, L. L.P., Raleigh, North Carolina, fo r Appellee. Stephen Kiehl, COVINGTON & BURLING LLP, Washingt on, D.C., for Amicus Curiae.

_________________ OPINION

_________________ CLAY, Circuit Judge. Defendant Lexingt on-Fayette Urban County Government (“the City”) appeals an order granting a preliminary in junction issued by the district court. The order 

### >No. 17-5562 Lexington H-L Servs. v. Lexingt on-Fayette Urban Cmty. Gov’t Page 2

enjoins the City’s enforcement of Ordinance 25 -2017 (the “Ordinance”) based on the First and Fourteenth Amendment claims of Plaintiff Lexington H-L Services, Inc., d/b/a Lexington Herald-Leader (“Plaintiff”), brought pursuant to 28 U.S.C. § 1343(a)(3) and 42 U.S.C. § 1983. For the reasons set forth below, we REVERSE the district court’s order and VACATE the injunction.

BACKGROUND
The facts of the case are straightforward, and the parties do not challenge the following summary set forth by the district court:

The Herald-Leader sells and distributes numerous publications, including The Community News , which is a weekly four- to six-page non-subscription publication. The Community News contains local news and advertising for the city of Lexington, Kentucky, and the su rrounding area. The Herald-Leader delivers The Community News to businesses and residents in Fayette and neighboring counties. The Community News is delivered free of charge to more than 100,000 households each week.

The Herald-Leader distributes The Community News by various means, including driveway delivery. However, the Herald -Leader’s driveway method of delivering The Community News would be prohibited by an or dinance that Lexington has adopted. That ordinance, which [was scheduled to] go into effect on May 1, 2017, permits the delivery of “unsolicited written material s” only to six specific locations: (1) on a porch, if one exists, nearest the front door; (2) securely att ached to the front door; (3) through a mail slot, if one exists; (4) between an exterior front door, if one exists and is unlocked, and an in terior front door; (5) in a distribution box located on or adjacent to the premises , if permitted; or (6) personally with the owner, occupant, or le ssee of the premises. Lexi ngton, Ky., Ordinance No. 25- 2017 (March 2, 2017). The ordinance provide s for civil penalties for violations. Id. Lexington H-L Servs., Inc. v. Lexington-Fayette Urban Cty. Gov’t , 259 F. Supp. 3d 659, 662 (E.D. Ky. 2017) (record citations omitted).
Shortly after the City adopted th e Ordinance, but before it went into effect, Plaintiff filed suit in the district court claiming that the Ordina nce would violate its free speech and free press rights under the First Amendment, as applied to the City through the Fourteenth Amendment.No. 17-5562 Lexington H-L Servs. v. Lexingt on-Fayette Urban Cmty. Gov’t Page 3

Plaintiff moved for a preliminary injunction to prevent enforcement of the Ordinance until the district court ruled on the merits of its claims. The district c ourt granted Plain tiff’s motion and enjoined enforcement of the Ordinance, finding that Plaintiff had demonstrated a likelihood of success on the merits. The City filed this timely appeal.

DISCUSSION

A. Standard of Review
When reviewing an order granting a prelimin ary injunction in a First Amendment case, this Court “review[s] the District Court’s legal rulings de novo (including its First Amendment conclusion), and its ultimate conclusion as to whether to grant the preliminary injunction for abuse of discretion.” O’Toole v. O’Connor , 802 F.3d 783, 788 (6th Cir. 2015) (citations omitted). We have explained this hybrid review process as follows: Whether the movant is likely to succeed on the merits is a question of law we review de novo . We review for abuse of discre tion, however, the district court’s ultimate determination as to whether the four preliminary injunction factors weigh in favor of granting or denying preliminar y injunctive relief. This standard is deferential, but the court may reverse the district court if it improperly applied the governing law, used an erroneous legal st andard, or relied up on clearly erroneous findings of fact. City of Pontiac Retired Employees Ass’n v. Schimmel , 751 F.3d 427, 430 (6th Cir. 2014) (en banc) (interna l citations, quotatio n marks omitted).

B. Plaintiff’s First Amendment Claim
The freedom of the press protects the “his toric weapons in the defense of liberty.” Lovell v. City of Griffin, Ga. , 303 U.S. 444, 452 (1938). “Liberty of ci rculating is as es sential to that freedom as liberty of publishi ng; indeed, without th e circulation, the public ation would be of little value.” Ex parte Jackson , 96 U.S. 727, 733 (1877). Door-to- door dissemination of ideas is therefore entitled to sign ificant protection under the First Amen dment, with courts treating front porches in many ways like a public forum. See, e.g. , Watchtower Bible & Tract Soc’y of New York, Inc. v. Vill. of Stratton , 536 U.S. 150, 160 (2002). As such, the government may notNo. 17-5562 Lexington H-L Servs. v. Lexingt on-Fayette Urban Cmty. Gov’t Page 4

prohibit door-to-door distribution of pamphlets, periodicals, leaflets, or newspapers, and restrictions on such expression mu st withstand significant scrutiny. See Lovell , 303 U.S. at 452.

Our review of a restriction on circulation begins with the question of whether the restriction is content-based. Planet Aid v. City of St. Johns , 782 F.3d 318, 326 (6th Cir. 2015). Generally, content-based restrictio ns are subject to the most exacting form of scrutiny, in which we ask whether the “regulation is necessary to se rve a compelling state interest” and whether it is “narrowly drawn to achieve that end.” Jobe v. City of Catlettsburg , 409 F.3d 261, 266 (6th Cir. 2005) (quoting Perry Educ. Ass’n v. Perry Local Educators’ Ass’n , 460 U.S. 37, 45 (1983)). Meanwhile, content-neutral restric tions on the time, place, or manner of circulation must survive only an intermediate level of scrutiny, in whic h we ask whether the restriction is “narrowly tailored to serve a significant governmental interest” and, if so, whether it “leave[s] open ample alternative channels for communi cation of the information.” See Ward v. Rock Against Racism , 491 U.S. 781, 791 (1989) (internal quotation marks omitted).
The City argues that the district court incorr ectly applied strict scrutiny despite holding, correctly, that the Ordinance is content-neutral. The City further argues that Plaintiff’s First Amendment claim is unlikely to succeed when th e correct level of scru tiny is applied. For purposes of this appeal, Plaintiff concedes that the Ordinance is content-neutral 1 and that the interests invoked by the City to justify the Ordinance are substantial. 2 Thus, an intermediate level of scrutiny applies, and we must ask whet her Plaintiff can likely succeed in showing either that the Ordinance is not narrowly tailored or that the Ordinance does not leave open ample alternative channels for communication of the information. A likelihood of success on either issue would provide a basis to affirm the di strict court’s First Am endment conclusion. See Saieg

1 Plaintiff concedes that the Ordina nce is content-neutral on its face because it applies to all unsolicited materials distributed door-to-door, regardless of the messages or viewpoints they contain.
2 The City’s proffered interests (reducing blight, reducing litter, and protecting private property) are indisputably substantial for purposes of the First Amendment inquiry. See, e.g. , Jobe v. City of Catlettsburg , 409 F.3d 261, 268 (6th Cir. 2005) (“[T]he ordinance advances two significant government interests: (1) It furthers the government’s interest in prohibiting litter and visual b light; and (2) it furthers individuals’ interests in having their private property left alone by those who do not have permission to use it.”) (citing Members of City Council of City of Los Angeles v. Taxpayers for Vincent , 466 U.S. 789, 805 (1984) and Lloyd Corp. v. Tanner , 407 U.S. 551, 570 (1972)). Plaintiff argues that “further factual development” will reveal that these governmental purposes are merely pretext for the City’s intent to disrup t the distribution of Plaintiff’s publication, The Community News . ( See Pl. Br. 47–48.)No. 17-5562 Lexington H-L Servs. v. Lexingt on-Fayette Urban Cmty. Gov’t Page 5

v. City of Dearborn , 641 F.3d 727, 740 (6th Cir. 2011) (“The re quirements for a time, place, and manner restriction are conjunctive.”). We address the two issues in turn.
1. Narrow Tailoring
In order to meet the narrow tailoring require ment, a restriction on circulation must be reasonable in light of the significant interests proffered by the government. See Prime Media, Inc. v. City of Brentwood , 398 F.3d 814, 821 (6th Cir. 2005) (“Th e fit between the City’s means and ends [must be] a reasonable one.”) There must be a sufficient basis—more than mere “speculation or conjecture”—to demonstrate that the restriction will further the governmental interests. See Prime Media, Inc. v. City of Brentwood, Tenn. , 398 F.3d 814, 823 (6th Cir. 2005) (citing Ibanez v. Florida Department Bu siness & Professional Regulation , 512 U.S. 136 (1994) (applying intermediate scrutiny to commercial speech)).
A restriction must not burden “substantially more speech than necessary to achieve the [government]’s asserted interests.” McCullen v. Coakley , 134 S. Ct. 2518, 2535–37 (2014). But the regulation “need not be the least restrictiv e or least intrusive means” of promoting a substantial governmental inte rest, nor is there any “stri ngent duty of calibration.” Prime Media , 398 F.3d at 823; see Ward , 491 U.S. at 798–99. Indeed, a regulat ion does not violate the First Amendment “simply because there is some imaginab le alternative that might be less burdensome on speech.’” Ward , 491 U.S. at 797. In all but the most “exceptional case,” McCullen , 134 S. Ct. at 2535–37, “the requirement of narrow tailoring is satisfied ‘s o long as the . . . substantial government interest [] would be achieved less effectively absent the regulation,’” Ward , 491 U.S. at 799.
The City advances the following three substant ial interests: (1) re ducing visual blight; (2) reducing litter; and (3) pr eventing damage to and interfe rence with private property. 3 For purposes of this appeal, we conclude that the Or dinance is narrowly tailored to further two of these interests.

3 Although the parties treat “reducing litter” and “reducing visual blight” as a single governmental interest, we find the interests to be analytically distinct for purposes of determining whether the Ordinance is narrowly tailored.No. 17-5562 Lexington H-L Servs. v. Lexingt on-Fayette Urban Cmty. Gov’t Page 6

i. Reducing Visual Blight
At this stage, there is a reasonable basis to c onclude that the Ordinanc e furthers the City’s interest in reducing visual blight. This Cour t has previously explained that a government’s power to reduce blight ex tends from its “weighty, essentially esthetic interest in proscribing intrusive and unpleasant formats for expression.” Jobe , 409 F.3d at 268 (quoting Taxpayers for Vincent, 466 U.S. at 806). Thus, governments may prohibit certain forms of billboards, Metromedia, Inc. v. San Diego , 453 U.S. 490, 510, 522, 559–61, 570 (1981), and they may prohibit distribution of handbills on windshields, Jobe , 409 F.3d at 268. Similarly, the “visual assault . . . presented by an accumulation of signs posted on public property” justifies a restriction on posting signs on utility poles. Taxpayers for Vincent , 466 U.S. at 807.
In this case, the City argues that the Ordi nance will reduce the visual blight caused by “haphazard” delivery of unsolicited materi als. In support, the City explains: By [Planitiff’s] own account, it is re sponsible for placing approximately 135,000 packets of unsolicited written material s on yards and driveways around Fayette County every week—a total of more than seven million packets of unsolicited materials each year. And that does not include the other unsolicited written materials that are distributed by ot her individuals and entities – phone books, flyers, discount offers, etc. (Def. Br. 25.) Although some might disagree that the “haphazard” delivery of unsolicited materials constitutes visual blight, it is the City’s es thetic opinion that matters at this stage of the First Amendment inquiry. See Taxpayers for Vincent , 466 U.S. at 821 (Bre nnan, J., dissenting) (explaining preferred anal ysis under which “before deferring to a city’s judgment, a court must be convinced that the city is seriously and co mprehensively addressing aes thetic concerns with respect to its environment”).
The City’s invocation of its esthetic interest doe s not appear to be spec ulative. In light of the millions of unsolicited materials delivered in its community each year, the City has a reasonable basis to believe that restricting such deliveries to the six locations set forth in the Ordinance will bring about a more consistent esthetic. In addition, requiring all unsolicited materials to be delivered to consistent, predic table locations could further reduce the visual impact of such materials by increasing the chan ces that recipients wi ll find and collect theNo. 17-5562 Lexington H-L Servs. v. Lexingt on-Fayette Urban Cmty. Gov’t Page 7

materials. Finding no argument by Plaintiff to the contrary, we conclude that Plaintiff is unlikely to prove that the City’s esthet ic interest “would be achieved less effectively absent the regulation.” See Ward , 491 U.S. at 797.
ii. Reducing Litter

There is also a reasonable basis to conclude th at the Ordinance furthers the City’s interest in reducing litter. The City makes several arguments in support of this finding, only some of which are persuasive. We are not persuaded, for in stance, by the City’s asse rtion that the act of delivering unsolicited written materials to lawns and driveways itself constitutes littering. Written materials left in a front yard maintain their expressive nature and cannot, as Plaintiff suggests, be equated with those scattered “from the window of a tall bu ilding or a low flying airplane.” (Def. Br. 27.) Ind eed, door-to-door circul ation is one of America’s most important “vehicles for the dissemination of ideas,” and pe ople expect to receive information in their yards—even from anonymous and unexpected sources. Watchtower Bible , 536 U.S. at 162; see Lovell , 303 U.S. at 452. The City cannot demons trate that the Ordinance will reduce litter merely by reducing the amount of written ma terials sitting on la wns and driveways.
The City’s more compelling argument is that some unsolicited materials can and do migrate to public property, whereupon they become litter. In support, the City cites evidence of unsolicited written materials becoming litter that was compiled by another city before enacting a similar ordinance. See Courier-Journal, Inc. v. Loui sville/Jefferson Cty. Metro Gov’t , No. CIVA 3:09CV-449-S, 2009 WL 2982923, at *6 (W.D. Ky. Sept . 11, 2009). Cities may generally rely on such data without enduring the expens e of conducting their own research. See Renton v. Playtime Theatres, Inc. , 475 U.S. 41, 51 (1986). Additionally, the district court concluded that the City in this case “had comparable evidence to consider before enacting its ordinance.” Lexington H-L Servs. , 259 F. Supp. 3d 659, 665–66 (E.D. Ky. 2017) . Two members of the city council reported that they “observed unsolicited materials bei ng washed into storm sewers,” and one of the council members “raised concerns that the impact on storm sewers may cause problems under a consent decree be tween the EPA and [the City] regarding, among other things, storm water issues.” (Def. Br. 6.) There is a su fficient basis to conclude that the Ordinance willNo. 17-5562 Lexington H-L Servs. v. Lexingt on-Fayette Urban Cmty. Gov’t Page 8

reduce litter because it requi res written materials to be securely fastened to a front door, left near a front door, or delivered di rectly to a resident.
Plaintiff admits that residents do not always pick up the unsolicited materials it delivers but insists that litter is nevert heless a minimal concern because Plai ntiff maintains an opt-out list, “samples neighborhoods by the end of each week,” and “picks up any publication[s] remaining” in the sampled neighborhoods. (Pl. Br. 20.) But by admitting that Plaintiff reduces the environmental impact of its publication in some neighborhoods, Plaintiff admits that its environmental impact remains unchecked everywhe re else. Plaintiff is therefore unlikely to succeed in showing that the City’s interest in reducing litter “woul d be achieved less effectively absent the regulation.” See Ward , 491 U.S. at 797.
iii. Reducing Damage To and Interference With Private Property
The City has provided no basis to conclude that the Ordinance will further it s interest in protecting private proper ty. Some Americans will inevit ably be annoyed when unsolicited materials are delivered to their homes. They might even disagree with the content of such materials, particularly when they find the conten t to be shocking or offensive. But the First Amendment does not promise insulation from mere annoyance or offense, see, e.g. , Cohen v. California , 403 U.S. 15 (1971) (discussing expressive va lue of wearing a jack et emblazoned with a vulgar phrase), and irritation alone does not tr ansform speech into an interference with or damage to private property.
This is not to say that the City could not prohibit door-to-door messengers from engaging in harmful conduct such as harassment or destruc tion of property. But th e City does not suggest that the Ordinance is designed with such conduct in mind. Rather, the City defends its interest in protecting private property as aninterest in protecting reside nts from encountering unwanted messages. The City also emphasizes that the Ordinance prevents unsolicited materials from being delivered to haphazard locat ions such as private sidewalks, driveways, and rights of way, but it fails to explain how the placement of unsolicited materials in these locations damages private property. To the contra ry, private sidewalks, driveways, and rights of way are locations where homeowners are perhaps the most likely to find the material s, pick them up, and receiveNo. 17-5562 Lexington H-L Servs. v. Lexingt on-Fayette Urban Cmty. Gov’t Page 9

their messages. At best, the City’s assertions amount to “speculation or conjecture”—an insufficient basis to invoke even the most significant governmental interests. See Prime Media, Inc. v. City of Brentwood, Tenn. , 398 F.3d 814, 823 (6th Cir. 2005). As such, Plaintiff can likely show that the Ordinance is not narrowly tailored to further the City’s interest in protecting private property.

iv. Overbreadth
Rather than seriously disputing whether th e Ordinance will furthe r any of the City’s interests, Plaintiff asserts that the Ordinance burdens “substantially more speech than necessary to achieve the [government]’s asserted interests.” McCullen , 134 S. Ct. at 2537. Plaintiff argues, incorrectly, that the dist rict court reached its First Amendment conclusion on this basis. (P. Br. 25.) Regardless, we find Plain tiff’s overbreadth argument unavailing.
As an initial matter, the district court did not engage in the overbreadth analysis from McCullen . Instead, the district court concluded that Plaintiff “has shown a likelihood of success on the merits of its claim th at the opt-out option is a less restrictive alternative .” Lexington H-L Servs. , 259 F. Supp. 3d at 667 (emphasi s added). Plaintiff argued be low, as it does here, that it permits residents to opt-out of its distribution list and that the City ’s less restrictive option is to promote the use of such opt-out lists. Alth ough we are skeptical th at opt-out lists are a comparable alternative to the restrictions of the Ordinance, Plaintiff’s argument has a more fundamental flaw: the Supreme Court has repeated ly rejected the notion that restrictions on the time, place, or manner of speech violate the Firs t Amendment merely becau se a less restrictive alternative is available. In Ward , the Court explained:
Indeed, in Community for Creative Non-Violence , we squarely rejected reasoning identical to that of the court below: “We are unmoved by the Court of Appeals’ view that the challenged regulation is unnecessary, and hence invalid, because there are less speech-restrictive a lternatives that could have satisfied the Government interestin preserving park lands. . . . Lest any confusion on the point remain, we reaffirm today that a regulation of the time, place, or manner of protected speech must be narrowly tailored to serve theNo. 17-5562 Lexington H-L Servs. v. Lexingt on-Fayette Urban Cmty. Gov’t Page 10

government’s legitimate, content-neutral inte rests but that it need not be the least restrictive or least intrusive means of doi ng so. Rather, the requirement of narrow tailoring is satisfied “so long as the . . . regulation promotes a substantial government interest that would be ach ieved less effectively absent the regulation.” United States v. Albertini , 472 U.S. 675, 689, 1 05 S.Ct. 2897, 2906, 86 L.Ed.2d 536 (1985); see also Community for Creative Non-Violence , supra , 468 U.S., at 297, 104 S.Ct., at 3071. To be su re, this standard does not mean that a time, place, or manner regulation may bur den substantially more speech than is necessary to further the government’s legi timate interests. Government may not regulate expression in such a manner that a substantial portion of the burden on speech does not serve to advance its goals. See Frisby v. Schultz , 487 U.S., at 485, 108 S.Ct., at 2502 (“A complete ban can be narrowly tailored but only if each activity within the proscription’s scope is an appropriately targeted evil”). So long as the means chosen are not s ubstantially broader than necessary to achieve the government’s interest, howev er, the regulation will not be invalid simply because a court concludes thatthe government’s interest could be adequately served by some less-speech-restrictive alternative. “The validity of [time, place, or manner] re gulations does not turn on a judge’s agreement with the responsible decisionmaker concerning th e most appropriate method for promoting significant government intere sts” or the degree to whic h those interests should be promoted. United States v. Albertini , 472 U.S., at 689, 105 S.Ct., at 2906; see Community for Creative Non-Violence , supra , 468 U.S., at 299, 104 S.Ct., at 3072.

Ward , 491 U.S. at 798–800. The districtcourt therefore e rred in its analysis ; a less restrictive alternative, even if prov en, would not affect Plaintiff’s success on the merits. See id.
In the context of intermediate scrutiny, a fi nding of overbreadth requires a showing that Plaintiff has not made. In McCullen , the Supreme Court examined a Massachusetts statute that it described as “truly exce ptional.” 134 S. Ct. at 2537. The law criminalized the act of knowingly standing on a “public way or sidewalk” within 35 feet of an entrance or driveway to any place, other than a hospital, wher e abortions are performed. Id. at 2525. Finding th e statute to be content-neutral and applying intermediate scrutiny, the Court concluded that the law was not narrowly tailored to further the state’s substantial interests in “public safety, patient access to healthcare, and the un obstructed use of public sidewalks and roadways” because the law’s practical effect was to prohibit allface-to-face interaction—incl uding all conversation and all pamphleteering. See id. at 2535–37. Face-to-face interaction, the Court noted, is “the essence of First Amendment expression” and has no adequate substitute. Id. at 2536 (quoting McIntyre v. Ohio Elections Comm’n , 514 U.S. 334, 347 (1995)). Cutting off direct interaction and allowingNo. 17-5562 Lexington H-L Servs. v. Lexingt on-Fayette Urban Cmty. Gov’t Page 11

little more than chanting and holding signs from 35 feet away therefor e burdened “substantially more speech than necessary to achieve the Commonwealth’s asserted interests.” Id. The Court also noted that the state failed to defend the overbreadth of its law with any evidence that it had first “look[ed] to less intrusive mean s of addressing its concerns.” Id. at 2539.
In this case, Plaintiff fails to develop an overbreadth argument. As McCullen illustrates, a government’s failure to consider less restrictive alternatives is only relevant once a restriction is shown to be overbroad. See id. at 2535–37. Because Plaintiff argue s that its opt-out idea is a less restrictive alternative to the Ordinance but does not show that the Ordinance is overbroad, Plaintiff’s overbreadth argument cannot succeed on the merits.
Accordingly, Plaintiff has not shown a likelihood of success on the issue of narrow tailoring, and we proceed to the second question before us.

2. Alternative Channels
In applying intermediate scrutiny, we must al so determine whether the Ordinance leaves open ample alternative channels of communication. Jobe , 409 F.3d at 267. We conclude that it does. Although the Ordinance restricts the distribu tion of unsolicited written materials, it has no impact on other forms of expression in front ya rds. In this way, the Ordinance resembles the restriction in Frisby , which prohibited “picketing focuse d on, and taking place in front of, a particular residence.” See Frisby v. Schultz , 487 U.S. 474, 483 (1988). The Supreme Court found the Fribsy restriction permissible because, muchlike the Ordinance in this case, it preserved the right for individuals to ma rch through neighborhoods, tr avel door-to-door to proselytize, and leave lite rature with residents. See id.
The restrictions of the Ordinance also preserve numerous methods for distributing written materials. The Ordinance targets only “unsolicite d” written materials; with consent, written materials may be delivered wit hout restriction. Without consen t, unsolicited written materials still may be distributed so long as the materials are: (1) left on the front porch; (2) securely attached to a front door; (3) inserted through a mail slot; (4) placed between an exterior and interior front door; (5) placed in a distribution box; or (6) deliv ered personally to the owner,No. 17-5562 Lexington H-L Servs. v. Lexingt on-Fayette Urban Cmty. Gov’t Page 12

occupant and/or lessee. Rather than encu mbering speech, these requirements appear to increase the likelihood that written materials will successfully deliver their messages.

In Schneider v. State of New Jersey, Town of Irvington , the Supreme Court analyzed a law that prohibited altogether the door-to-door distribution of handbills. 308 U.S. 147, 164 (1939). In finding the la w unconstitutional, the Court explai ned the First Amendment concerns in the context of door-to-door circulation: [P]amphlets have proved most effectiv e instruments in the dissemination of opinion. And perhaps the most effective way of bringing them to the notice of individuals is their distribution at the ho mes of the people. On this method of communication the ordinance imposes censo rship, abuse of which engendered the struggle in England which ev entuated in the establishm ent of the doctrine of the freedom of the press embodied in our Constitution.

Id. By contrast, the Ordinance in this case pres erves the right for indi viduals to distribute materials directly to residents and to place themon and around residents’ front doors. On its face, then, the Ordinance does not censor or oppr ess; it merely prohibits materials from being delivered to locations where residents ar e unlikely to receive their messages. See Jobe , 409 F.3d at 270 (“There is nothing special about . . . a lawn . . . that invites others to place leaflets or advertisements on it without the ow ner’s consent.”). This suggest s that the Ordinance preserves ample channels for expression.
Nevertheless, Plaintiff argues that its own particular ci rcumstances demonstrate an insidious constitutional concern. Plaintiff argu es that the methods of distribution preserved under the Ordinance are not ample because they are not as efficient or affordable as its current method of driveway delivery. Indeed, Plaintiff a sserts that complying with the Ordinance will double the delivery costs for one of its publications, The Community News , and that the additional cost will lead to that publication’s immediate demise. We are not persuaded that this argument is likely to succeed on the merits.

In Jobe , the plaintiff made the same argument with regard to an ordina nce that proscribed the distribution of leaflets on car windshields. See 409 F.3d at 272–73. Although we found that cost-effectiveness and efficiencyare indeed relevant to th e First Amendment inquiry, weNo. 17-5562 Lexington H-L Servs. v. Lexingt on-Fayette Urban Cmty. Gov’t Page 13

explained that some methods of expression can be prohibited despite a lack of equally cheap and efficient alternatives:
[Plaintiff argues that] the ordinance does not leave open ample alternative channels because “the unique efficiencyof leafletting [sic] cars downtown cannot be replicated [ ] by driving door to door throughout a rural county, by handdelivering to people as they walk by, or by leafleting drivers.” “To the contrary,” he continues, “the only e fficient and effective way to leaflet those who come to town (residents and visitors) is to leaflet cars that congregate in a finite area.” Jobe has a fair point here because the Supreme Court in fact has been quite sensitive to the need to permit inexpe nsive methods of spreading ideas and information. See Gilleo , 512 U.S. at 57, 114 S.Ct. 2038 (striking ordinance that prevented homeowners from displayi ng signs in their own windows and commenting that “[r]esidential signs are an unusually cheap and convenient form of communication”); Martin , 319 U.S. at 146, 63 S.Ct. 862 (“Door to door distribution of circulars is essential to the poorly financed causes of little people.”); Watchtower Bible & Tract Soc’y of New York , 536 U.S. at 162, 122 S.Ct. 2080 (“[P]erhaps the most effective way of bringing [pamphlets] to the notice of individuals is th eir distribution at the homes of the people.”) (quoting Schneider , 308 U.S. at 164, 60 S.Ct. 146). But “[a]lthough the Court has shown special solicitude for forms of expression that are much less expensive than feas ible alternatives and hence may be important to a large segment of the c itizenry, this solicitude has practical boundaries.” Taxpayers for Vincent , 466 U.S. at 812 n. 30, 104 S.Ct. 2118 (citations omitted). “That more people may be more easily and cheaply reached by sound trucks,” the Court has noted, “is not enough to call forth constitutional protection for what those charged with publ ic welfare may reasonably think is a nuisance when easy means of publicity are open.” Kovacs v. Cooper , 336 U.S. 77, 88-89, 69 S.Ct. 448, 93 L.Ed. 513 (1949); see also Taxpayers for Vincent , 466 U.S. at 812 n. 30, 104 S.Ct. 2118 (citing Metromedia , 453 U.S. at 549-50, 101 S.Ct. 2882 (Stevens, J., dissenting in pa rt), for the proposition that a “ban on graffiti [was] constitutionally permissibl e even though some creators of graffiti may have no equally effec tive alternative means of public expression”). . . . In the end, the fact that a means of co mmunication is efficient and inexpensive does not automatically trump other government interests. At some point, the very cheapness of a mode of communication may lead to its abuse. As the Court explained in Taxpayers for Vincent : “A distributor of leaflets has no right simply to scatter his pamphlets in the air-or to toss large quantities of paper from the window of a tall building or a low flying ai rplane. Characterizing such an activity as a separate means of communication doe s not diminish the State’s power to condemn it as a public nuisance.” 466 U.S. at 809, 104 S.Ct. 2118.

Id. (record citations omitted).No. 17-5562 Lexington H-L Servs. v. Lexingt on-Fayette Urban Cmty. Gov’t Page 14

The same principles apply in this case. Although written materials thrown onto lawns and driveways are probably not as likely to beco me litter as those left on the windshields of unoccupied vehicles, see id. , or scattered from low-flying airplanes, see Taxpayers for Vincent , 466 U.S. at 809, Plaintiff cannot di spute that the millions of unso licited materials it delivers are capable of causing similar public harms. The mere fact that Plai ntiff’s business cannot survive without this harmful method of delivery does not render the Ordinance unconstitutional. See The Pitt News v. Fisher , 215 F.3d 354, 366 (3d Cir. 2000) (“The fact that The Pitt News is a newspaper does not give it a consti tutional right to a certain level of profitability, or even to stay in business at all. The Pitt News ‘proceeds on the erroneous premise that it has a constitutional right not only to speak, but to speak profitably.’”). Because the Ordinance preserves a wide range of alternative methods for e xpression that are inexpensive, effi cient, and effec tive, Plaintiff has not shown a likelihood of success on the merits.
The district court came to the opposite conc lusion, finding that the Ordinance would not “leave open ‘inexpensive’ alternative routes fo r communication, at least in the case of The Community News .” Lexington H-L Servs. , 259 F. Supp. 3d at 668. The court highlighted language from Jobe suggesting that restrictions on expressi on must preserve “numerous ways to distribute literature and information in an inexpensive , efficient and productive manner.” Id. (quoting Jobe and adding emphasis). Expense, however, cannot be considered in isolation; it must be balanced against the harms that ca n arise when cheap and efficient methods of circulating written materials are abused. See 409 F.3d at 272. The district court erred by failing to consider this additional factor.

Plaintiff therefore has not shown a likelihood of success on the merits with regard to its First Amendment claims.
C. Preliminary Injunction

The district court’s discretion extends to “whether the four preliminary injunction factors weigh in favor of granting or denyi ng preliminary injunctive relief.” City of Pontiac Retired Employees Ass’n v. Schimmel , 751 F.3d 427, 430 (6th Cir. 2014) (en banc) (internal citations, quotation marks omitted). These four factors ar e: “(1) whether the movant has a strongNo. 17-5562 Lexington H-L Servs. v. Lexingt on-Fayette Urban Cmty. Gov’t Page 15

likelihood of success on the merits; (2) whether the movant would suffer irreparable injury without the injunction; (3) whet her issuance of the injunction w ould cause substantial harm to others; and (4) whether the public interest would be served by issuance of the injunction.” Id.
Because we find that Plaintiff is unlikely to succeed on the merits of its First Amendment claim, we conclude that the district court abused its discretion in granting Plaintiff’s motion for a preliminary injunction. See Obama for Am. v. Husted , 697 F.3d 423, 436 (6th Cir. 2012) (“When a party seeks a preliminary injunction on th e basis of a potential c onstitutional violation, ‘the likelihood of success on the merits often wi ll be the determinativ e factor.’”) (quoting Jones v. Caruso , 569 F.3d 258, 265 (6th Cir. 2009)).

CONCLUSION
In conclusion, Plaintiff has not shown a likelihood of success on the merits of its First Amendment Claim. The City has provided a reas onable basis to conclude that the Ordinance will further two of its substantial interests. Th e Ordinance also preserves numerous alternative methods for expression that are inexpensive, effici ent, and effective. Co nsequently, the district court erred in its First Amendmen t analysis and abused its disc retion when it issued an order granting a preliminary injunction.
For the foregoing reasons, we REVERSE the district court’s order and VACATE the injunction.