Lexington H-L Servs., Inc. v. Lexington-Fayette Urban Cnty. Gov't

• Citation: 879 F.3d 224
• Decision Date: 09 January 2018
• Docket Number: No. 17-5562,17-5562
• Parties: LEXINGTON H–L SERVICES, INC., Plaintiff–Appellee, v. LEXINGTON–FAYETTE URBAN COUNTY GOVERNMENT, Defendant–Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)

879 F.3d 224

LEXINGTON H–L SERVICES, INC., Plaintiff–Appellee,

v.LEXINGTON–FAYETTE URBAN COUNTY GOVERNMENT, Defendant–Appellant.

No. 17-5562

United States Court of Appeals, Sixth Circuit.

Argued: December 7, 2017

Decided and Filed: January 9, 2018

Rehearing Denied January 30, 2018

ARGUED: Keith Moorman, FROST BROWN TODD LLC, Lexington, Kentucky, for Appellant. John A. Bussian, THE BUSSIAN LAW FIRM, PLLC, Raleigh, North Carolina, for Appellee. ON BRIEF: Keith Moorman, FROST BROWN TODD LLC, Lexington, Kentucky, for Appellant. John A. Bussian, THE BUSSIAN LAW FIRM, PLLC, Raleigh, North Carolina, Mark J. Prak, Charles E. Coble, Brian C. Fork, BROOKS, PIERCE, MCLENDON, HUMPHREY & LEONARD, L.L.P., Raleigh, North Carolina, for Appellee. Stephen Kiehl, COVINGTON & BURLING LLP, Washington, D.C., for Amicus Curiae.

Before: CLAY, GIBBONS, and COOK, Circuit Judges.

CLAY, Circuit Judge.

Defendant Lexington–Fayette Urban County Government ("the City") appeals an order granting a preliminary injunction issued by the district court. The order enjoins the City's enforcement of Ordinance 25-2017 (the "Ordinance") based on the First and Fourteenth Amendment claims of Plaintiff Lexington H–L Services, Inc., d/b/a Lexington Herald–Leader ("Plaintiff"), brought pursuant to 28 U.S.C. § 1343(a)(3) and 42 U.S.C. § 1983. For the reasons set forth below, we REVERSE the district court's order and VACATE the injunction.

BACKGROUND

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

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

The Herald–Leader distributes The Community News by various means, including driveway delivery. However, the Herald–Leader's driveway method of delivering The Community News would be prohibited by an ordinance that Lexington has adopted.

That ordinance, which [was scheduled to] go into effect on May 1, 2017, permits the delivery of "unsolicited written materials" only to six specific locations: (1) on a porch, if one exists, nearest the front door; (2) securely attached to the front door; (3) through a mail slot, if one exists; (4) between an exterior front door, if one exists and is unlocked, and an interior front door; (5) in a distribution box located on or adjacent to the premises, if permitted; or (6) personally with the owner, occupant, or lessee of the premises. Lexington, Ky., Ordinance No. 25-2017 (March 2, 2017). The ordinance provides for civil penalties for violations. Id.

Lexington H–L Servs., Inc. v. Lexington–Fayette Urban Cty. Gov't , 259 F.Supp.3d 659, 662 (E.D. Ky. 2017) (record citations omitted).

Shortly after the City adopted the Ordinance, but before it went into effect, Plaintiff filed suit in the district court claiming that the Ordinance would violate its free speech and free press rights under the First Amendment, as applied to the City through the Fourteenth Amendment. Plaintiff moved for a preliminary injunction to prevent enforcement of the Ordinance until the district court ruled on the merits of its claims. The district court granted Plaintiff's motion and enjoined enforcement of the Ordinance, finding that Plaintiff had demonstrated a likelihood of success on the merits. The City filed this timely appeal.

DISCUSSION

A. Standard of Review

When reviewing an order granting a preliminary injunction in a First Amendment case, this Court "review[s] the District Court's legal rulings de novo (including its First Amendment conclusion), and its ultimate conclusion as to whether to grant the preliminary injunction for abuse of discretion." O'Toole v. O'Connor , 802 F.3d 783, 788 (6th Cir. 2015) (citations omitted). We have explained this hybrid review process as follows:

Whether the movant is likely to succeed on the merits is a question of law we review de novo . We review for abuse of discretion, however, the district court's ultimate determination as to whether the four preliminary injunction factors weigh in favor of granting or denying preliminary injunctive relief. This standard is deferential, but the court may reverse the district court if it improperly applied the governing law, used an erroneous legal standard, or relied upon clearly erroneous findings of fact.

City of Pontiac Retired Employees Ass'n v. Schimmel , 751 F.3d 427, 430 (6th Cir. 2014) (en banc) (internal citations, quotation marks omitted).

B. Plaintiff's First Amendment Claim

The freedom of the press protects the "historic weapons in the defense of liberty." Lovell v. City of Griffin, Ga. , 303 U.S. 444, 452, 58 S.Ct. 666, 82 L.Ed. 949 (1938). "Liberty of circulating is as essential to that freedom as liberty of publishing; indeed, without the circulation, the publication would be of little value." Ex parte Jackson , 96 U.S. 727, 733, 24 L.Ed. 877 (1877). Door-to-door dissemination of ideas is therefore entitled to significant protection under the First Amendment, with courts treating front porches in many ways like a public forum. See, e.g. , Watchtower Bible & Tract Soc'y of New York, Inc. v. Vill. of Stratton , 536 U.S. 150, 160, 122 S.Ct. 2080, 153 L.Ed.2d 205 (2002). As such, the government may not prohibit door-to-door distribution of pamphlets, periodicals, leaflets, or newspapers, and restrictions on such expression must withstand significant scrutiny. See Lovell , 303 U.S. at 452, 58 S.Ct. 666.

Our review of a restriction on circulation begins with the question of whether the restriction is content-based. Planet Aid v. City of St. Johns , 782 F.3d 318, 326 (6th Cir. 2015). Generally, content-based restrictions are subject to the most exacting form of scrutiny, in which we ask whether the "regulation is necessary to serve a compelling state interest" and whether it is "narrowly drawn to achieve that end." Jobe v. City of Catlettsburg , 409 F.3d 261, 266 (6th Cir. 2005) (quoting Perry Educ. Ass'n v. Perry Local Educators' Ass'n , 460 U.S. 37, 45, 103 S.Ct. 948, 74 L.Ed.2d 794 (1983) ). Meanwhile, content-neutral restrictions on the time, place, or manner of circulation must survive only an intermediate level of scrutiny, in which we ask whether the restriction is "narrowly tailored to serve a significant governmental interest" and, if so, whether it "leave[s] open ample alternative channels for communication of the information." See Ward v. Rock Against Racism , 491 U.S. 781, 791, 109 S.Ct. 2746, 105 L.Ed.2d 661 (1989) (internal quotation marks omitted).

The City argues that the district court incorrectly applied strict scrutiny despite holding, correctly, that the Ordinance is content-neutral. The City further argues that Plaintiff's First Amendment claim is unlikely to succeed when the correct level of scrutiny is applied. For purposes of this appeal, Plaintiff concedes that the Ordinance is content-neutral¹ and that the interests invoked by the City to justify the Ordinance are substantial.² Thus, an intermediate level of scrutiny applies, and we must ask whether Plaintiff can likely succeed in showing either that the Ordinance is not narrowly tailored or that the Ordinance does not leave open ample alternative channels for communication of the information. A likelihood of success on either issue would provide a basis to affirm the district court's First Amendment conclusion. See Saiegv. City of Dearborn , 641 F.3d 727, 740 (6th Cir. 2011) ("The requirements for a time, place, and manner restriction are conjunctive."). We address the two issues in turn.

1. Narrow Tailoring

In order to meet the narrow tailoring requirement, a restriction on circulation must be reasonable in light of the significant interests proffered by the government. See Prime Media, Inc. v. City of Brentwood , 398 F.3d 814, 821 (6th Cir. 2005) ("The fit between the City's means and ends [must be] a reasonable one.") There must be a sufficient basis—more than mere "speculation or conjecture"—to demonstrate that the restriction will further the governmental interests. See Prime Media, Inc. v. City of Brentwood, Tenn. , 398 F.3d 814, 823 (6th Cir. 2005) (citing Ibanez v. Florida Department Business & Professional Regulation , 512 U.S. 136, 114 S.Ct. 2084, 129 L.Ed.2d 118 (1994) (applying intermediate scrutiny to commercial speech)).

A restriction must not burden "substantially more speech than necessary to achieve the [government]'s asserted interests." McCullen v. Coakley , ––– U.S. ––––, 134 S.Ct. 2518, 2535–37, 189 L.Ed.2d 502 (2014). But the regulation "need not be the least restrictive or least intrusive means" of promoting a substantial governmental interest, nor is there any "stringent duty of calibration." Prime Media , 398 F.3d at 823 ; see Ward , 491 U.S. at 798–99, 109 S.Ct. 2746. Indeed, a regulation does not violate the First Amendment " ‘simply because there is some imaginable alternative that might be less burdensome on speech.’ " Ward , 491 U.S. at 797, 109 S.Ct. 2746. In all but the most "exceptional case," McCullen , 134 S.Ct. at 2535–37, "the requirement of narrow tailoring is satisfied ‘so long as the ... substantial government interest [ ] would be achieved less effectively absent the regulation,’ " Ward , 491 U.S. at 799, 109 S.Ct. 2746.

The City advances the following three substantial interests: (1) reducing visual blight; (2) reducing litter; and (3) preventing damage to and interference with private property.³ For purposes of this appeal, we conclude that the Ordinance is narrowly tailored to further two of these interests.

i. Reducing Visual Blight

At this stage, there is a reasonable basis to conclude that the Ordinance...