NOT RECOMMENDED FOR FULL-TEXT PUBLICATION FileName: 14a0647n.06 No. 13-3474 

# F LED UNITED STATES COURT OFAPPEALS 

## 1 92014 FORTHE SIXTH CIRCUIT FRANKWAGNER, 

## ) DEBORAHS.KtJNT 1 Clerk ) Plaintiff-Appellee, 

## ) ) v. 

## ) ONAPPEAL FROM THE UNITED 

## ) STATES DISTRICT COURT FORTHE 

## ) NORTHERNDISTRICT OF OHIO CITY OF GARFIELD HEIGHTS, OHIO; 

## ) WILLIAMWERVEY 

## ) ) Defendants-Appellants. 

## )

Before: BOGGS, NORRIS, andWHITE, CircuitJudges. BOGGS, Circuit Judge. The City ofGarfield Heights (“City”) limits the size ofsigns, political and otherwise, that residents may place on their lawns. Frank Wagner, a City resident, placed apolitical sign on his lawn thatwas largerthanthe 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 ofspeech, and because the City has satisfiedthe intermediate scrutiny applicableto such regulations, wereverse. I A Garfield Heights is a municipality located in Cuyahoga County, Ohio and forms part of the Greater Cleveland area. Chapter 1140 ofthe City’s Codified Ordinances regulates the design andplacementofsigns inthe City. See GarfieldHeights, Ohio, Codified Ordinances ch. 1140.01 1(2013), available athttp://www.conwaygreene.comlGarfieldHts/lpext.dll?f=templates&fn=main h.htm&2.0. The Cityregulates signs forthese reasons: (a) To maintain high quality districts ofall 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 wouldbehazardousto the safety ofthe motorizingpublic orpedestrians; (d) To control the design and size ofall 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, andthe City’s MasterPlan. Ch. 1140.01. The City permitsresidentsto display a “single for-sale, sold, for-rent, leasing, open house, religious, holiday orpersonal sign” in awindow or on alawn. Ch. 1140.361. Such signs must be removed within forty-eight hours “ofa 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 subjectto the same size restriction: they may not exceed 6 square feet in area and mustbe 4 feetorless inheight. 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 offrontage. See ch. 1140.27(a). For example, ifa lot has a 100-foot-frontage, it has a maximum sign-face area of 135 square feet. But because ofthe 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. Ifa 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.
2What 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 of270 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 overnon-political speech. Aperson in violation ofany sign ordinance may face a fine ofup to $1,000 per each day that the sign violation occurs. Ch. 1140.99. Failure to remove a political sign within seventytwo hours afteran election constitutes a“minormisdemeanor.” Ibid. B In September 2011, Wagnerplaced apolitical sign on his lawn thatmeasured 4 feetby 4 feet, i.e., 16 square feet. The sign criticized City Councilmember Tracy Mahoney for her position on both the use oftraffic cameras and the imposition ofa trash tax. Specifically, the sign said: “You do the math Traffic Camera’s [sic] + RubbishTax = Mahoney Baloney.” Atthe far bottom, the sign said in small text: “Paid for by: Frank Wagner, private citizen, 13409 Oakpark Blvd., Garfield Hts., OH 44125.” Apicture ofthe sign appears below:

3Councilwoman Mahoney called Mayor Vic Collova to complain about Wagner’s sign.’ On September lO—a Saturday—MayorCollovapersonally droveby Wagner’s houseto viewthe 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 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 commissionerto send aletterto Wagnerto 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 letterrequestedthat Wagner give the sign violationhis “prompt attention.” It instructed thatthe violation “mustbe corrected” by September 23—four days from the date ofthe letter. The City maintains that it “did not threaten Mr. Wagner with prosecution in the Garfield Heights Municipal Court ifthe political sign was not removed by September 23, 2011.” The City’s letter, however, states: ifthe violation is not corrected “by September 23, 2011,” “we have no choicebutto proceed with legal action in the GarfieldHeights Municipal Court.”

‘Anotherresident also complainedto the City. 2 Itis unclearwhetherMahoney leftWervey aphysicalphotograph or sent oneby e-mail ortext. 4Wagnerremovedthe sign. He then suedthe City, seeking adeclaratoryjudgmentthatch. 1140.362, the political-sign ordinance, was unconstitutional under the Federal and Ohio Constitutions. He soughtto enjoin enforcement ofthe 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 declaratoryjudgmentthatthe ordinances regulating political signs were constitutional. Theparties bothmovedfor summaryjudgment. The district court found that ch. 1140.352 imposed a content-based restriction on speech. Applying strict scrutiny, the districtcourtfoundthatthe City’s proferredinterests intraffic safety and aesthetics were not compelling andthatthe ordinance, therefore, failed strict scrutiny. It also determined that the ordinance was not narrowly tailored. The court held the ordinance unconstitutional underthe FirstAmendment, granted summaryjudgmentforWagner, and denied summaryjudgmentforthe City. II We review de novo a district court’s grant ofaplaintiffs motion for summaryjudgment and a denial ofthe defendant’s cross-motion for summaryjudgment. Ne. Ohio Coal. for the Homeless v. City ofCleveland, 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 ofsummaryjudgment is presented together with an appeal from a grant.” McMullen v. MeUer, Inc., 355 F.3d485, 489 (6th Cir. 2004).

3 Presumably, this was the daybefore electionday.
5III A. FirstAmendmentFramework “Congress shall make no law.

. . abridging the freedom ofspeech.” 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 ofGrfJIn, 303 U.S. 444, 450 (1938). But the freedom ofspeech is not absolute. Konigsbergv. State Bar ofCal., 366 U.S. 36, 49 (1961) (Harlan, J.). Relevanthere 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 Frankfurterhas asked, “Where does the speaking whichis regulatedtakeplace? Notonly the general classifications—streets, parks, private buildings—are relevant. [Also relevant are] [t]the location and size ofa park.

. . .“ Niemotko v. Maryland, 340 U.S. 268, 282—83 (1951). Traditionally, the Court distinguishes among speech occurring in apublic forum, alimitedpublic forum, or anon-public forum. See PerryEduc. Ass ‘n v. PerryLocalEducators ‘Ass ‘n, 460 U.S. 37, 45—46 (1983). This case, however, is different inthatit involves acitizen’s attemptto speakonhis own private property. “With rare exceptions, content discrimination in regulations ofthe speech of private citizens onprivate property.

. . is presumptivelyimpermissible, andthis 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

6government 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 ofexpression” 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 ofsigns.” 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 ifit can show the regulation is necessaryto serve a compelling state interest and ifthe restriction is narrowly tailoredto achieve that end. Perry, 460 U.S. at 35. Content-neutral regulations, however, that restrict speech’s time, place, or manner are permissible ifthe regulation promotes a significant interest unrelated to the suppression ofa message and ifthe regulation allows for ample alternative channels of communication. UnitedStates 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’listMovement, 505 U.S. 123, 134—35 (1992). Indeed, “[t]he normal inquiry that [Court] doctrine dictates is, first, to determine whether aregulation is content based or content neutral, and then, based on the answer to that question, to apply the properlevel ofscrutiny.” City of Ladue, 512 U.S. at 59 (O’Connor, J., concurring). In short, a content-based regulation triggers a strict-scrutiny test, whereas a content neutral regulation triggers intermediate scrutiny. Although we are skeptical of ascribing too much significance to the difference between an “important” or “significant” interest and a “compelling” interest, that is the law. Justice Blackmunwas never “able fully to appreciatewhat

7a ‘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 ofbeing overcome’ upon any balancing process, then, of course, the test merely

announces an inevitable result, andthetestis no testat 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-basedorContent-neutral? The implications ofthis 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 particularregulation is content based or content neutral is not always a simple task.” TurnerBroadcastingSys., Inc. v. F.C.C., 512 U.S. 622, 642 (1994).One key inquiry “is whether the government has adopted aregulation ofspeech because ofdisagreement withthe message it conveys.” Wardv. RockAgainstRacism, 491 U.S. 781, 791 (1989). A content-neutral regulation “serves purposes unrelatedto the content ofexpression.

even ifithas anincidental effecton some speakers ormessages butnot others.” Ibid. Whethera regulationhas a content-based or content-neutralpurpose is an important—butnot 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 ofthe ideas or views expressed” or whether it “confer[s] benefits or imposes burdens on speech without referenceto the ideas orviews expressed.” Ibid.

81 The district court, after a thorough analysis, concluded that ch. 1140.362 is a contentbased regulationbecause ittreats 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 ofthe city code applies; that is, the City must determine whether a sign is political ornot. The City contends that the district court erred by applying what the Fourth Circuit has called an “absolutist” testin determiningthatthe ordinance is content-based. See Appellants Br. 21 (citing Brown v. Town ofCary, 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 perproperty that did not exceed five square feet in area and three-and-a-halffeet 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 contentneutralitythatlooks onlyto the terms ofaregulation and insteadembrac[ed] a

9more 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 adecision ofthis circuit. See ibid. That decision is HD. V-Greektown, LLC v. City ofDetroit, 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 ofSt. Louis, 644 F.3d 728, 736 (8th Cir. 2011) (holding sign-ordinance exemptions content-based because “one must look at the content ofthe object”); Serv, Emps. Int’l Union, Local 5 v. City ofHouston, 595 F.3d 588, 596 (5th Cir. 2010) (“Aregulatory scheme thatrequires the governmentto examine the content ofthe message that is conveyed is contentbasedregardless ofits motivating purpose.” (internal quotation marks omitted)); Solantic, LLCv. City ofNeptune 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. SeeAm. CivilLiberties 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 ofan 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 ofthe sign’s content

. . . does not by itselfconstitute a lack ofneutrality as to specific content.”); lID. V-Greektown, LLC v. City ofDetroit, 568 F.3d 609, 622 (6th Cir. 2009) (“There is simply nothing intherecordto indicate thatthe distinctions betweenthe varioustypes ofsigns reflect a meaningful preference for one type ofspeech over another.”); G.K Ltd. Travel v. City ofLake Oswego, 436 F.3d 1064, 1079 (9th Cir. 2006) (“[The regulation] does notrequire Lake Oswego officials to evaluate the substantive message

. . . [and] certainly does not favor speechbased onthe idea expressed.” (internal quotationmarks omitted)).

The courtdeniedrehearing enbane withno activejudge ofthe courtrequesting avote onthe petition. Order, HD. V-Greektown, LLCv. City ofDetroit, Nos. 08-1329/1361 (6th Cir. Aug. 17, 2009), ECFNo. 61. 10this as a content-based regulation, writing that “[t]here is simply nothing in therecordto 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 ofcontent-neutral speech.” Ibid. 6 A circuit split exists, and our circuit, in apublished opinion, has taken a side. Whether a municipality must examine the content ofa 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, aregulation is contentneutral ifit is ‘justified withoutreference to the content ofregulated 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 ofcontent.” Brown, 706 F.3d at 304. We agree. 2 This approachmakes sense inthe context ofthis case. First, the districtcourtreasons that the City’s code is content-based because political signs on non-residentialproperty are subjectto ch. 1140.362’s size limitation, whereas non-political signs in non-residential districts do nothave thatlimitation. This is true—butthe basis forthe difference in treatmentis notwhether a sign is

6 HD. V-Greektown did not specifically implicate the constitutionality ofthe ordinances as they relatedto political signs. 11political or non-political but whether it is in or outside ofa residential district. This case does notinvolve signs innon-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 declaratoryjudgment that the political sign ordinance is faciallyunconstitutional—and to the extentthatprovisionis non-severable, that the entire ordinance scheme is unconstitutional. Similarly, in its counterclaim, the City sought a declaratoryjudgment that ch. 1140.362—and to the extent it is non-severable, the entire signordinance chapter—is constitutional. The district court’s order enjoinedthe 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 ofwhether an ordinance scheme that allows a giantMacy’s sign

7 1tis truethat inthe FirstAmendmentcontext, “the overbreadth doctrine allows aparty to whom the law may constitutionally be applied to challenge the statute on the ground that it violates the First Amendmentrights ofothers.” UnitedStates v. Stevens, 559 U.S. 460, 483—84 (2010). In most constitutional cases, “that exceptional remedy requires the claimant to show one oftwo 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 ofthe 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 offreespeech challenges to the facial validity ofa law.” Ibid In view ofthe riskthat “enforcement of an overbroad law may deterpeople from engaging in constitutionally protected speech and may inhibitthe free exchange ofideas, the overbreadth doctrine permits courts to invalidate a law on its face ifa substantial number ofits applications are unconstitutional,judged in relation to the statute’s plainly legitimate sweep.” Ibid. (internal quotation and alteration marks omitted). But “[i]fthe law does not reach a substantial amount ofconstitutionally protected conduct, then the overbreadth challenge must fail.” Speet v. Schuette, 726 F.3d 867, 873 (6th Cir. 2013) (internal quotation marks omitted). “A plaintiffmust demonstrate from the text ofthe statute and from actual fact that a substantial number of instances exist in which the law cannot be applied constitutionally.” Id. at 878 (internal quotationmarks omitted). 12in a non-residential district, but not an equally sized political sign, would offend the First Amendment. The second reasonthe district court gives for finding thatthe sign ordinances are content based is that ch. 1140.362 limits the length oftime 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. Ifa 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 mustbe removed after fulfilling theirpurpose. Ifanything, non political signs are subjectto arestrictionthatpolitical 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 nottrue; that is, political signs are not subjectto 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 thatthe 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 ofthe statute”); Connection Distributing Co. v. Holder, 557 F.3d 321, 338—39 (6th Cir. 2009). 13speech.” Appellee Br. 21. Butthe exactopposite is true: itis non-political speechthat 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 ifit is “narrowly tailored to serve a significant government interest” and ifit “leave{s] open alternative channels ofcommunication.” Grace, 461 U.S. at 177. 1 We decide whetherthe City’s ordinance passes this scrutiny against abackdrop ofseveral Supreme Courtcases addressingthe constitutionality ofmunicipal sign ordinances. In 1977, the Court addressed the constitutionality of a municipal ordinance that prohibited “for sale” signs on residential lawns, enactedby atown to stem white flight from the municipality. See Linmark Assocs., Inc. v. Twp. ofWillingboro, 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 ofcommunicationbecause “for sale” signs play acentralrole inmarketingrealty; and itprohibited “particulartypes ofsigns 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 ofsignage wouldbepermissible. It notedthat a law “requiring [lawn] signs to appear in [aparticular] form would raise very different constitutional questions.” Id. at 98 (internal quotation marks omitted). “Willingboro[’s] ordinance is not genuinely concerned with

. . . the maimer ofthe speech signs. The township has notprohibited all lawn signs or all lawn signs ofaparticular size

14or 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 firstheld 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 opinionreasoned that the problem was not San Diego’s differentiation between advertising onsite and offsite services; rather, the problem was thatthe city allowed billboards to be used for certain commercial speech butnot fornon-commercial speech. 8 “Theuse ofonsitebillboards 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 generallyprohibited.” Id. at 513. In 1984, the Courtupheld aLos Angeles ordinancethatprohibitedtheposting ofsigns on public property. See Members ofCity Council ofL.A. v. Taxpayersfor Vincent, 466 U.S. 789, 791 (1984). In Taxpayers, acandidate forpublic office soughtto attach cardboardpolitical signs

8 The case divided the Court and produced a number of opinions. Justice White delivered a plurality opinion. Justice Stevens dissented butjoinedPart IV ofJustice White’s opinion, which approved ofthe 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 eliminatethe billboard as an effective medium ofcommunication.” 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 tojustify a “total ban ofa medium ofcommunication.” Id. at 526—30. ChiefJustice Burger and Justices Stevens Rebnquisteach dissented on differentgrounds. 15to 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 ahint ofcensorship or bias in the City’s enactment or enforcement ofthis ordinance.” Id. at 804. The Court deemed it “well settledthat the state may legitimately exercise its police powers to advance esthetic values,” id. at 805, and Los Angeles’s interest inpromoting aesthetics and in combating the “visual assault” onresidents

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 ofcommunication, id. at 812; andthatthe 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 ofsafety 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 avenerable means ofcommunicationthatis bothunique and important.” Id. at 54. The challenged ordinance didnot 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 neartotal ban on residential signs—not“regulations shortofaban.” Id. at 58 n.17. 2

16Withthis context in mind, we conclude thatthe City’s interests are significantones. 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 fartoo late to contend” thattraffic 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 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 amodest infringement onresidents’ rights to use theirlawns for speech. Intermediate scrutiny’s tailoring requirement differs importantly fromthe 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 offurthering 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 absentthe 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—ofch. 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 ofsmaller 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 ofartthat signals strict scrutiny is involved. 10 Five Justices—the four plurality Justices and also Justice Stevens—joined this part ofthe opinion. 17foot sign. This, Wagner argues, proves the lack ofnarrow 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 lothas afrontage of35 feet on Oak ParkBoulevard and 100 feet

on East 135st Street, he may display a total of 147.24 square feet ofsignage. That means he could potentially display twenty-fourpolitical signs on his lawn even ifeach sign measured the maximum lawful 6-square-feet in area—and even more signs, if smaller. Thus, the signordinance schemepermits a great deal ofpolitical speech, withoutwhat some would considerthe type ofvisual blightfromvery large signs inresidential areas. Wagner’s pointhere is factually accurate, but aregulation need notrepresent everyone’s view ofrationality to satisf,r the tailoring condition. The City’s sign ordinances are perhaps not the exact ones we would write were we policymakers—butthat is notthe test. “The validity of time, place, or manner regulations does not turn on ajudge’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. Aregulation is notinvalid “simplybecause

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 notdemandperfecttailoring. Here, itis 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. InLadue, the city’s nearlytotal ban onresidential signs leftresidents withno

18adequate substitute. In the Court’s view, “[r]esidential signs are an unusually cheap and convenient form ofcommunication.” Id. at 57. Forthe poor and affluent alike, “the added costs in money or time oftaking out a newspaper advertisement, handing out leaflets on the street, or standing in front ofone’s house with a handheld sign make the difference between participating and notparticipating in some public debate.” Id. at 57. The presentcase, though, unlike Ladue, is not one wherethe City is banning an entire form ofexpression. Wagner retains numerous alternative ways to communicate his message. Not only may he hand out leaflets or take out newspaper advertisements, but he may blankethis 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 ofexpression” because the city allowed smaller signs); City ofBreniwood, 398 F.3d at 819 (finding a billboard-size ordinance to leave open ample alternative channels of communication because the city allowed billboards that satisfiedthe size restrictions). The City’s political-sign ordinance survives intermediate scrutiny because it serves significant governmentinterests, is narrowly tailoredto promote those interests, and leaves open alternative channels ofconimunication. The Supreme Court has said “[ut is common ground that governments can regulate the physical characteristics ofsigns.” City ofLadue, 512 U.S. at 48. Thatis exactlywhat 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

19violation. Wervey’s personal decision may not have been motivated by the sign’s content. Rather, his decision to contactWagner was motivated by the mayor’s personal request. Andthe 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 ofCity ofGarfield 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 Wagnerinmunicipal court. Under these circumstances, the district court enjoined the City from enforcing the sign ordinances against Wagneruntil the November2011 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 ofthe ordinance violated Wagner’s constitutionalrights. V Forthese reasons, we holdthe ordinance is constitutional as itrelates to residential signs. Today’s decisionjoins others from our circuitthathave upheldmunicipal ordinances prescribing the size and height ofsigns. See City ofFranklin, 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 feetin area and 6 feetinheight). We REVERSE the judgment of the district court, REMAND the case, and direct the districtcourtto enterjudgmentfor defendants onthis issue.

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