NOT RECOMMENDED FOR FULL-TEXT PUBLICATION

File Name: 14a0647n.06

No. 13-3474 F L E D

UNITED STATES COURT OF APPEALS 1 92014

FOR THE SIXTH CIRCUIT

FRANK WAGNER, ) DEBORAH S. KtJNT 1Clerk

) Plaintiff-Appellee, )

)

v. ) ON APPEAL FROM THE UNITED

) STATES DISTRICT COURT FOR THE

) NORTHERN DISTRICT OF OHIO

CITY OF GARFIELD HEIGHTS, OHIO; ) WILLIAM WERVEY )

) Defendants-Appellants. )

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 City’s restriction on Wagner’s 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 City’s Codified Ordinances regulates the design

and placement of signs in the City. See Garfield Heights, Ohio, Codified Ordinances ch. 1140.01

1
(2013), available at http ://www.conwaygreene.comlGarfieldHts/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 ofthe motorizing public or pedestrians;

(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 City’s 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 lot’s frontage: 1.35 square feet of sign area per foot of frontage. See ch.

1140.27(a). For example, if a lot has a 100-foot-frontage, it has a maximum sign-face area of

135 square feet. But because of the maximum sign-face-area restriction, it could not display a

single 135 -square-foot sign. It could, however, display twenty-two signs that were each 3-feet

high and 2-feet wide; this would constitute a total sign-face area of 132 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.

2
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 100-foot-square

lot. Her 200-foot-frontage would afford her a maximum sign-face area of 270 square feet. The

homeowner could display only one personal or religious sign but could display forty-five

political signs measuring 6 square feet. In this respect, at least, the ordinance scheme favors

political speech over non-political speech.

A person in violation of any sign ordinance may face a fine of up to $1,000 per each day

that the sign violation occurs. Ch. 1140.99. Failure to remove a political sign within seventytwo 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 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 ofthe sign appears below:

3
Councilwoman Mahoney called Mayor Vic Collova to complain about Wagner’s sign.’

On September lO—a Saturday—Mayor Collova personally drove by Wagner’s 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 2and phone message

requesting that Wervey inspect Wagner’s 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 17—again, a Saturday—Mayor Collova received another complaint from

Councilwoman Mahoney who informed the mayor that the sign was again displayed on

Wagner’s 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 23—four 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.”

‘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.

4
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

temporary restraining order and preliminary injunction against the City. The district court

granted Wagner’s 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. 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 City’s 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 court’s grant of a plaintiffs motion for summary judgment

and a denial of the defendant’s 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 court’s denial of

summary judgment is generally a non-appealable interlocutory order, but we may properly

review the denial “when the appeal from a denial of summary judgment is presented together

with an appeal from a grant.” McMullen v. MeUer, Inc., 355 F.3d 485, 489 (6th Cir. 2004).

3Presumably, this was the day before election day.

5
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 GrfJIn, 303 U.S. 444, 450 (1938). But the freedom of speech is

not absolute. Konigsberg v. State Bar ofCal., 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 classifications—streets, parks, private buildings—are relevant. [Also relevant are]

[t]the location and size of a park. . . .“ Niemotko v. Maryland, 340 U.S. 268, 282—83 (1951).

Traditionally, the Court distinguishes among speech occurring in a public forum, a limited public

forum, or a non-public forum. See Perry Educ. Ass ‘n v. Perry Local Educators ‘Ass ‘n, 460 U.S.

37, 45—46 (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 ofLadue 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

6
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 Court’s 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 ifthe restriction is narrowly tailored to achieve

that end. Perry, 460 U.S. at 35. Content-neutral regulations, however, that restrict speech’s

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. Nat’list Movement, 505 U.S. 123, 134—35 (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 ofLadue, 512 U.S. at 59 (O’Connor, J., concurring).

In short, a content-based regulation triggers a strict-scrutiny test, whereas a content

neutral regulation triggers intermediate scrutiny. Although we are skeptical of ascribing too

much significance to the difference between an “important” or “significant” interest and a

“compelling” interest, that is the law. Justice Blackmun was never “able fully to appreciate what

7
a ‘compelling state interest’ is.” Ill. State Bd. ofElections 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

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 contentbased 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 important—but not dispositive—

inquiry. Turner, 512 U.S. at 642—43. 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 “confer[s] benefits or imposes burdens on speech without

reference to the ideas or views expressed.” Ibid.

8
1

The district court, after a thorough analysis, concluded that ch. 1140.362 is a contentbased 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 non-residential district is subject to ch.

1140.362’s 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” 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 Brown—a case

involving a substantively similar ordinance—the 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

9
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 ofthis circuit. See ibid.

That decision is HD. V-Greektown, LLC v. City of Detroit, 568 F.3d 609 (6th Cir.

2009), 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 imposed different height requirements on business and

identification signs than it did on real estate, construction, and political signs. We did not view

Brown identified three circuits that have adopted the “absolutist” approach: Neighborhood

Enters., Inc. v. City of St. Louis, 644 F.3d 728, 736 (8th Cir. 2011) (holding sign-ordinance

exemptions content-based because “one must look at the content of the object”); Serv, Emps.

Int’l Union, Local 5 v. City ofHouston, 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 contentbased regardless of its motivating purpose.” (internal quotation marks omitted)); Solantic, LLC v.

City of Neptune Beach, 410 F.3d 1250, 1263—66 (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 ofIll. 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.”); lID. V-Greektown, LLC v. City ofDetroit, 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 speech over another.”); G.K Ltd. Travel

v. City ofLake 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)).

The court denied rehearing en bane with no active judge ofthe court requesting a vote on the

petition. Order, HD. V-Greektown, LLC v. City ofDetroit, Nos. 08-1329/1361 (6th Cir. Aug.

17, 2009), ECFNo. 61.

10
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 ofthe 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 “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 ofthis case. First, the district court reasons that

the City’s code is content-based because political signs on non-residential property are subject to

ch. 1140.362’s size limitation, whereas non-political signs in non-residential districts do not have

that limitation. This is true—but the basis for the difference in treatment is not whether a sign is

6 HD. V -Greektown did not specifically implicate the constitutionality of the ordinances as they

related to political signs.

11
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, Wagner—perhaps 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 unconstitutional—and 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. 1140.362—and to the extent it is non-severable, the entire signordinance chapter—is constitutional. The district court’s order enjoined the City from enforcing

only ch. 1140.362, and the City appeals that order. Wagner cannot—either 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 Macy’s sign

71t 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, 483—84 (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 “rightly lighten this load in the context of freespeech 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).

12
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 fortyeight (48) hours of a contract for sale, a lease agreement, the end of the holiday, or after

otherwise ftilfilling its purpose.” Ch. 1140.361. This is a distinction without a difference: both

political and non-political signs must be removed after fulfilling their purpose. If anything, non

political signs are subject to a restriction that political signs are not: non-political signs receive a

48-hour removal window. Political signs, in contrast, must be removed “within seventy-two

hours after [an] election.” Ch. 1140.99.

The district court also suggests that the City’s sign-ordinance scheme is problematic

because it subjects political 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

Here, the record does not contain information about whether or how the political sign

ordinance affects non-residential districts. Therefore, Wagner’s 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, 33 8—39 (6th Cir. 2009).

13
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

maimer 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

We decide whether the City’s ordinance passes this scrutiny against a backdrop of several

Supreme Court cases addressing the constitutionality ofmunicipal 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 maimer

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 93—94. 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 maimer of the

speech signs. The township has not prohibited all lawn signs or all lawn signs of a particular size

14
or shape in order to promote aesthetic values . . . .“ Id. at 93. This case, however, involves

exactly that situation—a municipality proscribing all lawn signs of a certain size to promote

aesthetics.

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 ofSan Diego,

453 U.S. 490, 493—97 (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 ofsigns on

public property. See Members of City Council ofL.A. v. Taxpayersfor Vincent, 466 U.S. 789,

791 (1984). In Taxpayers, a candidate for public office sought to attach cardboard political signs

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 White’s 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

Court’s content-neutrality test, and they concluded that the ordinance did not survive

intermediate scrutiny because the City’s proffered interests were inadequate to justify a “total

ban of a medium of communication.” Id. at 526—3 0. Chief Justice Burger and Justices Stevens

Rebnquist each dissented on different grounds.

15
to utility poles around Los Angeles. Id. at 792—93. The Court held the ordinance to be a

content-neutral regulation because there was “not even a hint of censorship or bias in the City’s

enactment or enforcement of this ordinance.” Id. at 804. The 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 815—17.

In 1994, the Court again addressed a residential sign ordinance—one that prohibited

residents from displaying any signs on their property except “for sale” signs, “residence

identification” signs, and signs warning of safety hazards. City ofLadue v. Gilleo, 512 U.S. 43,

45 (1994). A municipal resident wished to display an 8.5 by 11-inch sign in a second-story

window that said “For Peace in the Gulf.” Id. at 46. The Court assumed the ordinance to be a

content-neutral regulation, id. at 53, but invalidated the ordinance because the ban on almost all

residential signs “completely foreclosed a venerable means of communication that is both unique

and important.” Id. at 54. The challenged ordinance did not leave open ample alternative means

of communication because “[d]isplaying a sign from one’s residence often carries a message

quite distinct from placing the same sign someplace else, or conveying the same text by picture

or other means.” Id. at 56. The Ladue ordinance confronted the Court with a near total ban on

residential signs—not “regulations short of a ban.” Id. at 58 n.17.

2

16
With this context in mind, we conclude that the City’s 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.” Taxpayersfor 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 507_08.b0

This court has also deemed aesthetics and traffic safety to be important governmental interests.

See Prime Media, Inc. v. City ofFranklin, 181 F. App’x 536, 539 (6th Cir. 2006); Prime Media,

Inc. v. City ofBrentwood, 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 scrutiny’s 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 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 City’s interests

in aesthetics and traffic safety are achieved more effectively by the presence—than by the

absence—of 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 property—but does not allow him to post a single 16-squareCourts 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

“compelling”—the term of art that signals strict scrutiny is involved.

10 Five Justices—the four plurality Justices and also Justice Stevens—joined this part of the

opinion.

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foot sign. This, Wagner argues, proves the lack of narrow tailoring. See Appellee Br. 38—42.

The sign ordinances permit 1.35 square feet of sign area per foot of lot frontage. See ch.

1140.27(a). Because Wagner’s 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 area—and even more signs, if smaller. Thus, the signordinance 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 satisf,r the tailoring condition. The City’s sign ordinances are perhaps not

the exact ones we would write were we policymakers—but 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.” Taxpayersfor 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 scrutiny’s 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 ofLadue. See

512 U.S. at 57—58. In Ladue, the city’s nearly total ban on residential signs left residents with no

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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 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 ofFran/din, 181 F. App’x at 541 (finding a

sign-size ordinance to leave open “other lawful means of expression” because the city allowed

smaller signs); City of Breniwood, 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 City’s 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 conimunication. The Supreme Court has said “[ut is common ground

that governments can regulate the physical characteristics of signs.” City ofLadue, 512 U.S. at

48. That is exactly what Garfield Heights has done here.

Iv

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 Wagner’s sign did not influence his decision to inform Wagner of the ordinance

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violation. Wervey’s personal decision may not have been motivated by the sign’s content.

Rather, his decision to contact Wagner was motivated by the mayor’s 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 content—not 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 City’s

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 City’s sign-ordinance scheme is unconstitutional as it relates to residential

districts, and this appeal does not present the question whether the City’s enforcement of the

ordinance violated Wagner’s constitutional rights.

V

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

Today’s 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 540—41 (ordinance limiting

free-standing signs to 32 square feet); City ofBrentwood, 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.

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