Prime Media, Inc. v. City of Brentwood

• Decision Date: 24 February 2005
• Docket Number: No. 04-5012.,04-5012.
• Citation: 398 F.3d 814
• Parties: PRIME MEDIA, INC., Plaintiff-Appellee, v. CITY OF BRENTWOOD, Tennessee, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

398 F.3d 814

PRIME MEDIA, INC., Plaintiff-Appellee, v. CITY OF BRENTWOOD, Tennessee, Defendant-Appellant.

No. 04-5012.

United States Court of Appeals, Sixth Circuit.

Argued: December 2, 2004.

Decided and Filed: February 24, 2005.

COPYRIGHT MATERIAL OMITTED

ARGUED:

Mary Byrd Ferrara, Farrar & Bates, Nashville, Tennessee, for Appellant. E. Adam Webb, Webb & Porter, LLC, Atlanta, Georgia, for Appellee.

ON BRIEF:

Mary Byrd Ferrara, Kristin Ellis Berexa, Farrar & Bates, Nashville, Tennessee, for Appellant. E. Adam Webb, Webb & Porter, LLC, Atlanta, Georgia, for Appellee.

Before: GILMAN and SUTTON, Circuit Judges; McKEAGUE, District Judge.^*

OPINION

SUTTON, Circuit Judge.

At stake in this case is the constitutionality of an ordinance promulgated by the City of Brentwood, Tennessee, that restricts the size and height of billboards located within the city. Faced with a claim by an outdoor advertising company that the ordinance violated the company's First Amendment rights, the district court invalidated the law. Because we conclude that the ordinance is a content-neutral restriction on the time, place and manner of speech, and because Brentwood has satisfied the intermediate scrutiny applicable to such regulations, we reverse.

I.

In 1999, the City of Brentwood promulgated an ordinance limiting the use of billboards within the city. The purpose of the ordinance was "to maintain and enhance the environment; to promote the effective use of signs as a means of communication and economic growth; and to advance the safety and welfare of the community as it relates to the use of exterior signs in the City." JA 483. Among other restrictions, the ordinance limited the size of billboards to a face area of 120 square feet and a height of six feet, the latter of which includes the length of any pole supporting the sign. As originally enacted, the ordinance also prohibited off-premises signs — namely, signs "that direct [ ] attention to a business, commodity, or service offered at a location other than the premises on which the sign is erected." JA 486.

In October 2002, Prime Media, Inc., an outdoor advertising company, applied for a permit from Brentwood to build and place billboards near Interstate 65. Relying on the ordinance, Brentwood denied the permit request on three grounds: it violated the face-size restriction because the proposed billboards would be 672 square feet in size; it violated the height restriction because the proposed billboards would rest on 50- to 73-foot poles; and it violated the off-premises restriction because the billboards would not be located on the premises that they were promoting.

After receiving this response, Prime Media filed a lawsuit challenging the constitutionality of the sign ordinance on two grounds — that it violated the free-speech guarantees of the First (and Fourteenth) Amendment and the equal-protection guarantees of the Fourteenth Amendment. While the case was pending in the district court, Brentwood amended the ordinance to remove the off-premises restriction. The amended ordinance also added a purpose and findings section. The "[p]urpose" of the new ordinance is to "[i]mprove the visual appearance of the city while providing for effective means of communication, consistent with constitutional guarantees." JA 510. The "[f]indings" of the new ordinance say that:

The city's zoning regulations have always included the regulation of signs in an effort to provide adequate means of expression and to promote the economic viability of the business community, while protecting the city and its citizens from a proliferation of signs of a type, size, location and character that would adversely impact upon the aesthetics of the community and threaten the health, safety and welfare of the community. The regulation of the physical characteristics of signs within the city has had a positive impact on traffic safety and the appearance of the community.

Id. The amendment did not alter the size and height restrictions. In response to this development, Prime Media amended its complaint to challenge the constitutionality of the modified ordinance and sought damages arising from injuries caused by the original ordinance.

Faced with cross-motions for summary judgment, the district court concluded that the size and height restrictions restricted speech in a content-neutral manner, but that Brentwood had failed to show that those restrictions were "narrowly tailored" to promote Brentwood's interests in aesthetics and traffic safety. D. Ct. Op. at 9. The findings of the amended ordinance, the district court reasoned, did not satisfy the tailoring requirement because they provided no comparison with billboards of other sizes and were not supported by studies or analyses of alternative ways to achieve the city's interests:

Defendant has failed to show that a height maximum of six feet or a size maximum of 120 square feet is narrowly tailored to further or advance its two interests. There is no factual record on these points. The findings ... of the Amended Ordinance are insufficient to carry Defendant's burden to show that the restrictions are narrowly tailored to further the stated interests. For example, Defendant does not explain how or why billboards which are six feet high are more threatening to safe driving or the beauty of Brentwood than billboards which are slightly taller or even much taller. There is no basis for concluding that the limit of six feet is not an arbitrary limitation. Neither has Defendant shown how or why signs with sign face sizes of more than 120 square feet cause more danger to drivers or detract more from the aesthetics of the City than signs with smaller sign face sizes. There is no factual record of careful calculation of the costs and benefits of these restrictions. Defendant has produced no studies, legislative history or factual analysis as evidence that it considered alternatives and specifically determined that these restrictions were narrowly tailored to further its interests.

D. Ct. Op. at9 — 10. Turning to the prohibition on off-premises signs in the original ordinance, the district court concluded that the restriction was content-based, that it was not the least restrictive means to achieve Brentwood's interests, that it was unconstitutional and that Prime Media would be entitled to damages stemming from this provision (if it could prove them) at trial. Id. at 10-11. Because the amended ordinance contained a severability clause, the district court did not invalidate the entire law but instead severed the offending provisions from it. Id.

II.

The appeal from this decision raises three issues: (1) Brentwood argues that the district court erred in invalidating the size and height restrictions; (2) Brentwood argues that, if the size and height restrictions satisfy the First Amendment, then Prime Media's money damages claim stemming from the off-premises ban must be rejected because the permit request was denied on the basis of the size and height restrictions as well; and (3) Prime Media, as alternative grounds for affirmance, urges us to address its independent First Amendment facial challenge to the statute and its independent Equal Protection Clause challenge to the statute, both of which the district court did not reach. We review each issue de novo, see DiCarlo v. Potter, 358 F.3d 408, 414 (6th Cir.2004) (order granting summary judgment); McMullen v. Meijer, Inc., 355 F.3d 485, 489 (6th Cir.2004) (order denying summary judgment on purely legal grounds), and retain authority to review the denial of a summary judgment motion when it is presented with an appeal of a successful summary judgment motion, see id.

A.

Billboards and other visual signs, it is clear, represent a medium of expression that the Free Speech Clause has long protected. But, in contrast to oral speech, they "pose distinctive problems" that also have long been subjected to the "police powers" of States and cities because billboards and signs "take up space and may obstruct views, distract motorists, displace alternative uses for land, and pose other problems that legitimately call for regulation." City of Ladue v. Gilleo, 512 U.S. 43, 48, 114 S.Ct. 2038, 129 L.Ed.2d 36 (1994). It thus is "common ground that governments may regulate the physical characteristics" of signs and billboards in much the same way that "they can, within reasonable bounds and absent censorial purpose, regulate audible expression in its capacity as noise." Id. (citing Ward v. Rock Against Racism, 491 U.S. 781, 109 S.Ct. 2746, 105 L.Ed.2d 661 (1989); Kovacs v. Cooper, 336 U.S. 77, 69 S.Ct. 448, 93 L.Ed. 513 (1949)).

Just as the First Amendment "does not guarantee the right to communicate one's views at all times and places or in any manner," Wheeler v. Comm'r of Highways, Commonwealth of Kentucky, 822 F.2d 586, 589 (6th Cir.1987), however, so it does not permit municipalities to regulate methods of expression however, whenever and wherever they wish. Because the regulation of a medium of expression "inevitably affects communication itself," Gilleo, 512 U.S. at 48, 114 S.Ct. 2038, the Court has subjected time, place and manner restrictions on speech to the following test: They "are valid provided [1] that they are justified without reference to the content of the regulated speech, [2] that they are narrowly tailored [3] to serve a significant governmental interest, and [4] that they leave open ample alternative channels for communication of the information." Clark v. Community for Creative Non-Violence, 468 U.S. 288, 293, 104 S.Ct. 3065, 82 L.Ed.2d 221 (1984); accord Hill v. Colorado, 530 U.S. 703, 120 S.Ct. 2480, 147 L.Ed.2d 597 (2000); Ward, 491 U.S. 781, 109 S.Ct. 2746, 105 L.Ed.2d 661; Members of City Council of Los Angeles v. Taxpayers for Vincent, 466 U.S. 789, 104 S.Ct. 2118, 80 L.Ed.2d 772 (1984); Heffron v. Int'l Soc'y for Krishna Consciousness Inc., 452 U.S. 640, 648, 101 S.Ct. 2559, 69 L.Ed.2d 298 (...