Prime Media, Inc. v. City of Brentwood

• Citation: 485 F.3d 343
• Decision Date: 08 May 2007
• Docket Number: No. 05-6343.,05-6343.
• Parties: PRIME MEDIA, INC., Plaintiff-Appellant, v. CITY OF BRENTWOOD, Defendant-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)

485 F.3d 343

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

No. 05-6343.

United States Court of Appeals, Sixth Circuit.

Argued: June 9, 2006.

Decided and Filed: May 8, 2007.

ARGUED: E. Adam Webb, Webb & Porter, Atlanta, Georgia, for Appellant. Mary B. Ferrara, Farrar & Bates, Nashville, Tennessee, for Appellee. ON BRIEF: E. Adam Webb, Webb & Porter, Atlanta, Georgia, for Appellant. Mary B. Ferrara, Kristin Ellis Berexa, Farrar & Bates, Nashville, Tennessee, for Appellee. William D. Brinton, Ruth A. Holmes, Cristine M. Russell, Rogers Towers, Jacksonville, Florida, Randal R. Morrison, Sabine & Morrison, San Diego, California, Robin M. Wolpert, John M. Baker, Greene Espel, Minneapolis, Minnesota, for Amici Curiae.

Before MARTIN, NORRIS, and McKEAGUE, Circuit Judges.

AMENDED OPINION

BOYCE F. MARTIN, JR., Circuit Judge.

This matter is before the Court on Prime Media, Inc.'s petition for rehearing en banc. Upon consideration of the relevant briefs and the record, we vacate our prior opinion, Prime Media, Inc. v. City of Brentwood, 474 F.3d 332 (6th Cir.2007), and replace it with this amended opinion.

Prime Media filed this lawsuit to challenge a sign ordinance of the City of Brentwood, Tennessee. In a prior appeal, this Court reversed the district court's entry of summary judgment on behalf of Prime Media, ordering the dismissal of Prime Media's constitutional challenge as applied. On remand, the district court dismissed Prime Media's remaining challenges to the sign ordinance on the basis of standing. Prime Media appeals that decision by the district court. For the following reasons, we affirm the district court's decision.

I.

The relevant facts of this case were set forth in the prior appeal as follows:

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." 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."

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." 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.

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.

Prime Media, Inc. v. City of Brentwood, 398 F.3d 814 (6th Cir.2005) (citations omitted). In addition to the changes to the ordinance discussed in the prior panel opinion, it is particularly worth noting that the permitting requirement was removed altogether. The Amended Ordinance now allows officials to inspect signs and issue municipal court citations for violations of the ordinance only after they are erected. See Amended Ordinance § 78-421(a). Additionally, any violations of the ordinance are to be addressed by the issuance of "a citation to the municipal court," which would seem to indicate that the aggrieved party is entitled to some degree of judicial review before the ordinance will be enforced against it. Id. Further, a party interested in erecting a sign but seeking to avoid the citation can, if it desires, seek a letter of compliance before doing so in order to clear up any uncertainty. § 78-421(b).

II.

In its initial decision, the district court granted Prime Media's motion for summary judgment, finding that the size and height restrictions were content-neutral, but were not "narrowly tailored" to promote Brentwood's interests. The district court based its decision on Brentwood's failure to provide a factual record demonstrating how the six foot height and 120 square foot size limits, in particular, advanced the city's interest in aesthetics and traffic safety. Additionally, Brentwood failed to provide studies or analyses of alternative methods to achieve the city's interests.

Brentwood appealed the district court's decision to this Court, and a three judge panel reversed the decision. Id. The prior panel held that the size and height requirements imposed by Brentwood were sufficiently tailored for a content-neutral regulation. Id. at 821. Relying on Members of City Council of Los Angeles v. Taxpayers for Vincent, 466 U.S. 789, 808, 104 S.Ct. 2118, 80 L.Ed.2d 772 (1984), we stated that "[a]s it was in Taxpayers for Vincent, so it is here: `By banning these signs, the City did no more than eliminate the exact source of the evil it sought to remedy.'" Prime Media, 398 F.3d at 821.

After upholding Brentwood's height and size requirements for billboards, we addressed the two alternative grounds for affirmance raised by Prime Media: its "First Amendment facial challenge to the entire ordinance, including its challenge to numerous provisions of the ordinance that do not affect Prime Media," and its equal protection challenge to the ordinance. Id.

Because the district court did not address either of these claims, we leave it to the district court in the first instance to consider them — as well as Prime Media's standing to raise them — keeping in mind that "a law's application to protected speech [must] be substantial, not only in an absolute sense, but also relative to the scope of the law's plainly legitimate applications, before applying the strong medicine of overbreadth invalidation."

Id. at 825 (quoting Virginia v. Hicks, 539 U.S. 113, 119-20, 123 S.Ct. 2191, 156 L.Ed.2d 148 (2003)). We accordingly remanded the case for consideration of the facial challenges and equal protection challenge.

Upon remand of the case, the district court dismissed Prime Media's suit for lack of standing. The district court held that Prime Media no longer met the traditional standing requirement of injury in fact after this Court held that Brentwood's size and height requirements are constitutional. Therefore, the district court reasoned that Prime Media had to rely on the "overbreadth doctrine" and third-party standing to have standing in a suit against Brentwood and its billboard ordinance. Citing a case from the Eleventh Circuit, Tanner Advertising Group, LLC v. Fayette County, Georgia, 411 F.3d 1272 (11th Cir.2005), rev'd en banc, 451 F.3d 777 (11th Cir.2006), the district court held that the overbreadth doctrine required that the plaintiff suffer a traditional injury in fact in order to have standing. Because the district court determined that Prime Media had suffered no injury in fact in relation to its remaining claims,¹ Prime Media was deemed to lack standing, even under the overbreadth doctrine, and the case was thereby dismissed.

Prime Media now appeals the issue of standing to this Court.

III.

We review a dismissal of a claim for lack of standing de novo. Am. Canoe Ass'n, Inc. v. City of Louisa Water & Sewer Comm'n, 389 F.3d 536, 540 (6th Cir.2004).

Prime Media argues that the district court erred by ruling that it had suffered no injury in fact and contends that it actually does have Article III standing. Prime Media's actual injury in this case was the rejection of its six proposed billboards for failure to meet, among other requirements, the size and height requirements of Brentwood's sign ordinance. Based on the prior panel's decision, however, these requirements have been found to be sufficiently tailored to pass constitutional scrutiny. 398 F.3d at 821. Therefore, despite establishing standing on this specific challenge to the height and size provisions, Prime Media simply lost on the merits, due to the constitutionality of the requirements as they applied to Prime Media. The remaining question is whether Prime Media still has standing to litigate its remaining claims —...