Tanner Advertising Group v. Fayette County, Ga., 04-13210.

• Citation: 411 F.3d 1272
• Decision Date: 09 June 2005
• Docket Number: No. 04-13210.,04-13210.
• Parties: TANNER ADVERTISING GROUP, L.L.C., Plaintiff-Appellant, v. FAYETTE COUNTY, GEORGIA, Defendant-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (11th Circuit)

Page 1272

411 F.3d 1272

TANNER ADVERTISING GROUP, L.L.C., Plaintiff-Appellant, v. FAYETTE COUNTY, GEORGIA, Defendant-Appellee.

No. 04-13210.

United States Court of Appeals, Eleventh Circuit.

June 9, 2005.

Edward Adam Webb, Webb & Porter, Atlanta, GA, for Plaintiff-Appellant.

Dennis A. Davenport, McNally, Fox & Grant, Fayetteville, GA, for Defendant-Appellee.

Appeal from the United States District Court for the Northern District of Georgia.

Before BARKETT, KRAVITCH and FARRIS^*, Circuit Judges.

KRAVITCH, Circuit Judge:

Tanner Advertising Group, L.L.C. ("Tanner") appeals from the district court's denial of its request to permanently enjoin Fayette County, Ga ("Fayette County") from enforcing its Sign Ordinance ("Ordinance"). Tanner challenges the Ordinance on First Amendment grounds and state constitutional grounds. The central issue on appeal is whether Tanner has standing to challenge the constitutionality of the statute as a whole under the overbreadth doctrine. For the following reasons, we conclude that Tanner is entitled to overbreadth standing.

I. FACTUAL BACKGROUND

Tanner is a Georgia limited liability company in the business of erecting and operating advertising signs to be used for both noncommercial and commercial purposes. Tanner entered into lease agreements with owners of real property in commercial and industrial zoning districts in Fayette County, in order to gain permission from the land-owners to post a sign on each of the properties.

Fayette County's Ordinance regulates the appearance, location, and number of signs within its boundaries. In part, the Ordinance restricts the placement of "off-premise signs." Fayette County defines an off-premise sign as any sign "that advertises a product, service, place, activity, person, institution, business or solicitation which is not carried out on the premises upon which the sign is located."¹

Section 1-43 of the Ordinance regulates off-premise signs in the following ways. First, only one off-premise sign is permitted per lot. Second, each off-premise sign must comply with the height, area, separation, and setback requirements set forth in the Ordinance.² Third, each off-premise sign must be made with a brown background and white lettering only. The Ordinance allows off-premise signs to communicate either a commercial or noncommercial message.

Additionally, the Ordinance allows every lot in a residential area to post one freestanding sign "for the purpose of displaying or expressing noncommercial speech." These signs may not exceed "six (6) square feet in area and three (3) feet in height." These signs also may not "be used to direct the public to a place or event at a location other than the location upon which the sign is posted." Likewise, in nonresidential districts, noncommercial signs are prohibited from directing the public to any place other than where the sign is posted.

Before erecting an off-premise sign, the Ordinance requires that an applicant obtain a permit. To obtain a permit, an applicant must submit a completed application including plans for placement and location of the sign and specification of what message the sign will communicate.

Tanner submitted eight completed applications to Fayette County for permits to erect the signs. Fayette County defined Tanner's proposed signs as "off-premise signs" and denied all of the applications because the proposals did not "comply with § 1-43 of [the] Sign Ord[inance]."

In response to Fayette County's denials of the applications, Tanner filed a complaint in the district court arguing that the Ordinance is facially unconstitutional and unconstitutional as applied to it. Tanner subsequently moved to permanently enjoin Fayette County's enforcement of the Ordinance. Following a hearing, the district court denied Tanner's request for a permanent injunction, dismissed Tanner's federal constitutional claims, and dismissed without prejudice Tanner's claims based on the Georgia Constitution. The court found that Tanner had standing to sue only under § 1-43 of the Ordinance and that § 1-43 of the Ordinance was content-neutral and a valid time, place, and manner restriction.

II. DISCUSSION

A. Standard of Review

We review the constitutionality of ordinances de novo. Cafe Erotica v. St. Johns County, 360 F.3d 1274, 1282 (2004); Joel v. City of Orlando, 232 F.3d 1353, 1357 (11th Cir.2000).

B. Standing

1. Background

The doctrine of standing involves both a "case or controversy" requirement stemming from Article III, Section 2 of the Constitution, and a subconstitutional "prudential" element. Bennett v. Spear, 520 U.S. 154, 162, 117 S.Ct. 1154, 1161, 137 L.Ed.2d 281 (1997). The Supreme Court in Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61, 112 S.Ct. 2130, 2136-37, 119 L.Ed.2d 351 (1992), articulated the Article III requirements for standing as follows: (1) the plaintiff must demonstrate that it had suffered or is immediately likely to suffer a concrete and particularized injury in fact; (2) the plaintiff must establish a causal connection between the injury and the alleged conduct; and (3) the plaintiff must prove that there is a likelihood that a favorable judicial decision will redress the injury. See also Bennett, 520 U.S. at 167, 117 S.Ct. 1154.

Even if these constitutional minimums have been met, judicially created prudential limitations may defeat a party's standing to maintain a suit. Id. at 162, 117 S.Ct. 1154. One prudential consideration suggests that a plaintiff "generally must assert his own legal rights and interests, and cannot rest his claim to relief on the legal rights or interest of third parties." Warth v. Seldin, 422 U.S. 490, 499, 95 S.Ct. 2197, 2205, 45 L.Ed.2d 343 (1975). This prudential principle provides courts with "the assurance that the most effective advocate of the rights at issue is present to champion them." Duke Power Co. v. Carolina Envt'l Study Group, Inc., 438 U.S. 59, 80, 98 S.Ct. 2620, 2634, 57 L.Ed.2d 595 (1978).

The Supreme Court, however, has recognized some circumstances in which the prohibition on asserting third parties' legal interests may be relaxed. One specific circumstance occurs when "there is some genuine obstacle [that causes] . . . the third party's absence from court . . . and the party who is in court becomes by default the right's best available proponent." Singleton v. Wulff, 428 U.S. 106, 116, 96 S.Ct. 2868, 2875, 49 L.Ed.2d 826 (1976).

This situation is particularly acute in the free speech context, where individual private citizens who are denied the opportunity to express themselves under an unconstitutional ordinance often find the barriers to legal redress to be too high.

Many persons, rather than undertake the considerable burden (and sometimes risk) of vindicating their rights through case-by-case litigation, will choose simply to abstain from protected speech. . . harming not only themselves but society as a whole, which is deprived of an uninhibited marketplace of ideas.

Virginia v. Hicks, 539 U.S. 113, 119, 123 S.Ct. 2191, 2196, 156 L.Ed.2d 148 (2003). See also Forsyth County v. Nationalist Movement, 505 U.S. 123, 129, 112 S.Ct. 2395, 2400-01, 120 L.Ed.2d 101 (1992) ("the very existence of some broadly written laws has the potential to chill the expressive activity of others not before the court").

Thus, the Supreme Court created the overbreadth doctrine to protect the rights of others not before the court by allowing third parties to bring a facial challenge to an unconstitutional ordinance. Metromedia, Inc. v. City of San Diego, 453 U.S. 490, 505 n. 11, 101 S.Ct. 2882, 2891 n. 11, 69 L.Ed.2d 800 (1981); Thornhill v. Alabama, 310 U.S. 88, 97-98, 60 S.Ct. 736, 741-42, 84 L.Ed. 1093 (1940). "Facial challenges to overly broad statutes are allowed not primarily for the benefit of the litigant, but for the benefit of society . . ." Sec'y of State of Md. v. Joseph H. Munson Co., 467 U.S. 947, 958, 104 S.Ct. 2839, 2847, 81 L.Ed.2d 786 (1984).

2. Tanner's Standing Rights

In determining that Tanner did not have standing to challenge the entire ordinance under the overbreadth doctrine, the district court relied heavily on this Circuit's previous decision in Granite State Outdoor Adver., Inc. v. City of Clearwater, 351 F.3d 1112 (11th Cir.2003) ("Clearwater"). The Clearwater court stated that a plaintiff cannot gain standing under the overbreadth doctrine to assert the rights of third parties not before the court until the plaintiff has fully satisfied all three constitutional standing requirements. Id. at 1116. The court conceded that the plaintiff had suffered an actual injury as to one section of the code, and granted overbreadth standing under that section. Id. at 1117. Nonetheless, the court concluded that the injury was not sufficient to allow it to grant overbreadth standing to the plaintiff to challenge the rest of the Ordinance. Id. Thus, the Clearwater panel took the position that a plaintiff challenging the facial constitutionality of a city's sign ordinance under the overbreadth doctrine can only challenge portions of the ordinance under which the plaintiff itself was actually injured. Id. at 1116-17.

Here, the district court found that Tanner had personally suffered an Article III injury-in-fact only as to § 1-43. The court followed the reasoning set forth in Clearwater and determined that Tanner had standing to challenge only that section as applied to it, and under the overbreadth doctrine, as applied to non-commercial speech. Tanner argues that it is entitled to challenge every unconstitutional aspect of the Ordinance under the overbreadth doctrine. Tanner notes that the overbreadth doctrine was designed to protect the freedom of speech, which is a right of paramount importance under the Constitution.

As the Clearwater court stated, before a plaintiff can launch an overbreadth challenge, the plaintiff must suffer an injury in fact. See Clearwater, 351 F.3d at 1116 (citing Virginia v. Am....