*

The Honorable J. Ronnie Greer, United States District Judge for the Eastern District of Tennessee, sitting by

designation.

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

File Name: 08a0015p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT _________________

MIDWEST MEDIA PROPERTY, L.L.C., CTI

PROPERTIES, L.L.C., and SPECKERT, L.L.C.,

Plaintiffs-Appellants,

v.

SYMMES TOWNSHIP, OHIO,

Defendant-Appellee.

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No. 06-3828

Filed: January 10, 2008

Before: CLAY and SUTTON, Circuit Judges; GREER, District Judge.*

_________________

ORDER _________________

The court having received a petition for rehearing en banc, and the petition having been

circulated not only to the original panel members but also to all other active judges of this court, and

less than a majority of the judges having favored the suggestion, the petition for rehearing has been

referred to the original panel.

The panel has further reviewed the petition for rehearing and concludes that the issues raised

in the petition were fully considered upon the original submission and decision of the case.

Accordingly, the petition is denied.

1
No. 06-3828 Midwest Media Property, et al. v. Symmes Twp., Ohio Page 2

CLAY, Circuit Judge, dissenting from the denial of rehearing en banc, in which MARTIN,

MOORE and COLE, Circuit Judges, join. Because I believe that a panel of this Court is bound by

Sixth Circuit and Supreme Court precedent, I dissented from the original panel decision in this case.

Because I also believe that the en banc Court has a duty to resolve conflicts between new decisions

and earlier, incompatible precedents, I dissent as well from the denial of rehearing en banc.

En Banc review of a panel decision is appropriate to prevent conflicting authority on a legal

question or to review a question of exceptional public importance. Fed. R. App. P. 35(a). In this

case, the panel majority denied standing to Plaintiffs challenging local sign construction ordinances

on First Amendment grounds. In so holding, the majority committed two precedent-setting errors

which conflict with prior decisions of this Court or the Supreme Court, thus justifying en banc

review. Because the challenged ordinances constitute a prior restraint and are therefore

unconstitutional in their entirety, the majority erred when it held that portions of the challenged sign

ordinances were both constitutional and severable from the whole. Moreover, the majority

improperly applied a heightened pleading standard when it held that this Court may ignore the

portions of Plaintiffs’ complaint which are not contained in the “substantive counts of the

complaint.”

Furthermore, the majority misrepresents the record by claiming that Plaintiffs “chose not to

challenge” certain parts of the sign construction ordinances. Because this case concerns the First

Amendment, an unfavorable decision by this Court will forever bar Plaintiffs from engaging in their

preferred method of speech. The unconstitutional censorship which will likely result constitutes a

matter of exceptional public importance which also justifies en banc review.

I. The Majority Opinion

Plaintiffs were denied permits to erect commercial billboards in Symmes Township, Ohio

(“Township”), and challenged the Township’s sign regulations on First Amendment grounds. The

contested sign regulations provide numerous restrictions on the size and type of signs which may

appear in various locations throughout the Township. In pertinent part, the sign regulations prohibit

commercial advertising off the premises of the business being advertised. They require all signs to

be set back ten feet from pavement and rights-of-way, and five feet from adjoining property, and

they provide disparate standards for different categories of signs, such as signs identifying non-profit

organizations, construction signs, real estate signs, traffic control signs and political signs.

In total, Plaintiffs submitted nine applications for a permit to construct a sign in the

Township, each of which were rejected by the Township either for failing to comply with the

prohibition on “off premises signage,” for proposing a billboard “not next to interstate highway,”

for failing to comply with limits on the number of signs which could be constructed on a particular

parcel, or for exceeding height and area restrictions. Additionally, the Township now argues that,

in denying each application, it initially gave only a few of several valid justifications for denial

under the sign regulations. Specifically, the Township argues that each proposed sign violates the

restrictions on height and area and that they violate the rule against off-premises advertising.

Plaintiffs responded to the denial of its applications with this lawsuit seeking to enjoin the

challenged sign regulations, and arguing, among other claims, that the sign regulations constitute

unconstitutional content discrimination, and that the overall regulatory scheme constitutes a prior

restraint. 

In their complaint, Plaintiffs refer repeatedly to the regulations being challenged as the “Sign

Regulations,” a term which they define as referring to “Article XXXI of the Symmes Township

Zoning Resolution and, collectively to those sections of the Resolution that define [or] otherwise

regulate signs.” Nevertheless, the majority determined that “plaintiffs chose not to challenge the

size and height requirements in their complaint,” Midwest Media Property, L.L.C. v. Symmes
No. 06-3828 Midwest Media Property, et al. v. Symmes Twp., Ohio Page 3

Township, 503 F.3d 456, 461 (6th Cir. 2007), even though those size and height requirements appear

in Article XXXI of the Zoning Resolution, and they regulate signs. 

Having made this improper determination, the majority further determined that these size and

height requirements are severable from the overall sign regulatory scheme, and held that Plaintiffs

lack standing to bring their claim. According to the majority, even if the remainder of the sign

regulations were invalidated, “that would not redress plaintiffs’ injury because the size and height

restrictions still would preclude the township from approving their sign applications and thus still

would preclude plaintiffs from erecting each of these signs.” Id. at 461–62.

II. Severability of a Prior Restraint

Plaintiffs claim in count one of their complaint that “[t]he Sign Regulations require citizens,

organizations, and businesses to seek the prior approval of the Township officials prior to posting

signs. They fail, however, to circumscribe the time in which government officials must approve or

deny requests for permission to do so.” Assuming these allegations are true, the challenged

regulations therefore constitute an unconstitutional prior restraint. See Freedman v. Maryland, 380

U.S. 51, 58–59 (1965) (holding that, when private speech requires a prior license from a government

agency, this license must either be issued or denied “within a specified brief period”); see also Lusk

v. Village of Cold Spring, 475 F.3d 480, 487 (2d Cir. 2007) (invalidating an ordinance regulating

signs on prior restraint grounds); Cafe Erotica of Florida, Inc. v. St. Johns County, 360 F.3d 1274,

1282–83 (11th Cir. 2004) (same). Furthermore, when a prior restraint scheme lacks required judicial

safeguards, such a deficiency renders any part of the scheme which lacks these safeguards

unconstitutional. Deja Vu of Nashville, Inc. v. Metro. Gov't of Nashville and Davidson County, 274

F.3d 377, 402-03 (6th Cir. 2001). When the entire statutory scheme lacks these safeguards, then the

entire scheme is unconstitutional on its face. Id.

In the instant case, Plaintiffs challenged the Township’s entire sign regulation scheme,

arguing that it amounts to an unconstitutional prior restraint. Yet the majority did not follow this

Court’s decision in Deja Vu of Nashville, instead holding that the regulations governing the size and

height of signs may be constitutional and severable from the overall scheme. Midwest Media, 503

F.3d at 463. The en banc Court should review this case to resolve this newly-created conflict

between Midwest Media and Deja Vu of Nashville.

Furthermore, the majority’s error in ignoring Deja Vu of Nashville was compounded by its

subsequent decision to reach the merits of some of Plaintiffs’ claims in order to deny standing on

others. More than simply denying Plaintiffs standing in the entirety of their prior restraint claims,

the majority instead determined—incorrectly—that portions of the overall sign ordinance scheme

are constitutionally valid, then used this determination to hold that Plaintiffs lack a redressable

injury. Id. at 464. Not only does its holding on some of the merits of Plaintiff’s prior restraint claim

conflict with Sixth Circuit precedent, see Deja Vu of Nasvhille, 274 F.3d at 402–403, but its decision

to reach the merits of some portions of a claim and then use this merits determination to deny

standing on the remainder conflicts with both our well-established precedent and that of the Supreme

Court. See, e.g., Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 94–95 (1998) (“The

requirement that jurisdiction be established as a threshold matter spring[s] from the nature and limits

of the judicial power of the United States and is inflexible and without exception.”); 1064 Old River

Road, Inc. v. City of Cleveland, 137 Fed.Appx. 760, 764 (6th Cir. 2005) (“Before turning to the

merits, [a court] must address the plaintiffs’ standing to raise several constitutional claims and [ ]

must do so even though some of those constitutional claims are easier to resolve than the standing

question attached to them.”) We should review the panel decision en banc to resolve this conflicting

authority.
No. 06-3828 Midwest Media Property, et al. v. Symmes Twp., Ohio Page 4

1 Twombly held that in some cases, a plaintiff must plead particular facts in their complaint. 127 S.Ct. at 1965.

In Erickson, a case decided just two weeks after Twombly, the Supreme Court clarified Twombly by holding that a

prisoner bringing a § 1983 claim against his captor is not required to state “[s]pecific facts” in their complaint; Erickson, 127 S.Ct. at 2200, and Twombly itself suggests that its holding may be limited to cases likely to produce “sprawling,

costly, and hugely time-consuming” litigation. 127 S.Ct. at 1973 n. 6. The instant case involves a § 1983 case with very

few factual disputes, not a complex business suit likely to produce sprawling discovery. Accordingly, this case is

governed by the Supreme Court’s decision in Erickson.

III. The Majority’s Heightened Pleading Standard

The majority also erred by applying a heightened pleading standard to Plaintiffs’ complaint.

Under Federal Rule of Civil Procedure 8(a)(2), a complaint must only contain “a short and plain

statement of the claim showing that the pleader is entitled to relief.” Erickson v. Pardus, 127 S.Ct.

2197, 2200 (2007). “Specific facts are not necessary; the statement need only ‘give the defendant

fair notice of what the . . . claim is and the grounds upon which it rests.’” Id. (quoting Bell Atlantic

Corp. v. Twombly, 127 S.Ct. 1955, 1964 (2007)).1 

In the instant case, Plaintiffs alleged that “[t]he Sign Regulations require citizens,

organizations, and businesses to seek the prior approval of the Township officials prior to posting

signs. They fail, however, to circumscribe the time in which government officials must approve or

deny requests for permission to do so.” Furthermore, Plaintiffs expressly stated that the challenged

regulations include all “those sections of the Resolution that define [or] otherwise regulate signs.”

Based on this complaint, the Township had fair notice that the entirety of the sign regulations

contained in a particular resolution were under challenge, and that they were being challenged as

an unconstitutional prior restraint.

The majority, however, applied a heightened pleading standard, holding that even though

Plaintiffs’ complaint expressly challenges all parts of Defendant’s sign ordinances, this language

must be ignored because it was not contained in the “substantive counts of the complaint.” Midwest

Media, 503 F.3d at 465. The majority cites no case law to support its unorthodox proposition that

only the “substantive counts” of a complaint should be read by this Court, and it provides no

definition of the words “substantive counts” to allow future judges to determine which portions of

a complaint should be ignored. Moreover, the majority’s unusual holding conflicts with the

Supreme Court’s decision in Erickson v. Pardus, and thus should be reviewed by the en banc Court.

IV. Exceptional Public Importance

The Supreme Court has held that “prior restraints on speech and publication are the most

serious and the least tolerable infringement on First Amendment rights.” Nebraska Press Assn. v.

Stuart, 427 U.S. 539, 559 (1976). By erroneously denying Plaintiffs standing, however, the majority

has subjected Plaintiffs to this most serious and least tolerable infringement. Furthermore, as the

majority’s decision leaves the Township free to maintain an unconstitutional system of prior

restraint, Plaintiffs may be permanently subjected to unconstitutional censorship. Such a possibility

presents a matter of exceptional public importance which should be reviewed by the en banc Court.

V. Conclusion

The panel majority’s decision not only errs as a matter of law, it creates unreconcilable

conflicts in an exceptionally important area of First Amendment jurisprudence. I pity the poor

litigants and district judges who, faced with such clashing decisions and lack of guidance from this
No. 06-3828 Midwest Media Property, et al. v. Symmes Twp., Ohio Page 5

Court, must now attempt to unravel the confusion which the panel majority has created. Even

worse, I regret that the en banc Court has chosen to remain silent on this question, thereby quashing

the First Amendment rights of Plaintiffs through its silence.

 ENTERED BY ORDER OF THE COURT

/s/ Leonard Green

Clerk