Peterson et al v. Downers Grove, The Village of
Filing
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MEMORANDUM Opinion and Order signed by the Honorable Edmond E. Chang. For the reasons stated in the Opinion, Defendant's motion for summary judgment 35 is granted and Plaintiff's motion for summary judgment 39 is denied. A separate AO- 450 shall be entered. As explained in the conclusion of the Opinion, a temporary stay of the judgment is entered until 12/28/2015, in order to allow the parties to confer on a possible agreement about fines pending appeal, or absent that, for Plaintiffs to file a motion for stay pending appeal. The status hearing of 12/17/2015 is reset to 01/07/2016 at 10:00 a.m.Emailed notice(slb, )
UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
ROBERT PETERSON and
LEIBUNDGUTH STORAGE &
VAN SERVICE, INC.,
Plaintiffs,
v.
VILLAGE OF DOWNERS GROVE,
Defendant.
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No. 14 C 9851
Judge Edmond E. Chang
MEMORANDUM OPINION AND ORDER
Plaintiffs Robert Peterson and Leibundguth Storage & Van Service, Inc. sued
the Village of Downers Grove to challenge the constitutionality of the Village’s Sign
Ordinance. R. 1, Compl.1 Plaintiffs contend that several sections of the Village’s
revised Ordinance, which was originally adopted in 2005 but later amended, violate
the First and Fourteenth Amendments, as well as Article I, Section 4 of the Illinois
Constitution.2 Plaintiffs focus their challenge on the following restrictions in the
Sign Ordinance: its restriction on painted wall signs, on signs that do not face a
roadway or drivable right-of-way, and on the total sign area and number of wall
signs permitted on a single lot. Id. Earlier in the case, the Court dismissed Peterson
as named plaintiff (because really his corporation is the sole proper plaintiff), R. 29
at 10-12 (April 2015 Opinion), leaving Leibundguth Storage & Van Service, Inc. as
1Citations
to the record are “R.” followed by the docket number then the page or
paragraph number.
2This Court has subject-matter jurisdiction over the federal issue under 28 U.S.C.
§ 1331, and supplemental jurisdiction over the state-law claim under 28 U.S.C. § 1367(a).
the only remaining plaintiff. Both parties have now moved for summary judgment.
R. 35, Def.’s Mot. for Summ. Judgment; R. 39, Pl.’s Mot. for Summ. Judgment. For
the reasons set forth below, the Court grants the Village’s motion, and denies
Leibundguth’s.
I. Background
The nature of Leibundguth’s claims are set forth in detail in the April 2015
opinion [R. 29] that denied the Village’s motion to dismiss. Peterson et al v. Village
of Downers Grove, 2015 WL 1929737, at *1-3 (N.D. Ill. April 27, 2015). The relevant
facts are largely undisputed.
A. Leibundguth’s Signs
Robert Peterson is a resident of Downers Grove, Illinois. R. 38-4, Exh. 5,
Peterson Depo. at 15. He has owned Leibundguth Storage & Van Service, Inc.,
which provides moving and storage services, since the mid-1980s. Id. at 24.
Leibundguth operates out of a building located between Warren Avenue and the
Metra commuter-railway tracks in the Village of Downers Grove. R. 40, PSOF ¶ 5.3
On the building’s north and south facing walls, signs can be found
advertising Leibundguth’s business. On the south wall, a sign has been painted
3Citations
to the parties’ Local Rule 56.1 Statements of Fact are “DSOF” (for the
Village’s Statement of Facts) [R. 37; R. 38]; “PSOF” (for Leibundguth’s Statement of Facts)
[R. 40]; “Pl.’s Resp. DSOF” (for Leibundguth’s Response to the Village’s Statement of Facts)
[R. 40]; and “Def.’s Resp. PSOF” (for the Village’s Response to Leibundguth’s Statement of
Facts) [R. 46]. In several instances, the parties submitted their Statement of Facts and
their responses/replies to the opposing party’s Statement of Facts in a single document. As
a point of clarification, the paragraph numbers referenced in the Court’s citations to these
Statements refer to that portion of the document being referenced. For example, PSOF ¶ 1
refers to paragraph 1 of Leibundguth’s Statement of Facts, which begins on page 16 of
R. 40. Finally, where a fact is admitted, only the asserting party’s statement of facts is
cited; where an assertion is otherwise challenged, it is so noted.
2
directly onto the brick, which reads “Leibundguth Storage and Van Service /
Wheaton World Wide Movers.” PSOF ¶ 7; R. 10, Am. Compl. ¶ 16; Peterson Depo.,
Exh. B at 10. The company’s phone number is also listed. Am. Compl. ¶ 16. The sign
looks like this:
Id. ¶ 1. The sign is 40 feet long, 10 feet high, and is directly visible to commuters
riding by on Metra trains into and out of Chicago. Id. ¶ 16; PSOF ¶ 7. The sign does
not face a roadway and is not visible to drivers. Am. Compl. ¶ 17; PSOF ¶ 5.
According to Leibundguth, this sign brings in around 12 to 15 potential new
customers each month, and generates between $40,000 and $60,000 in revenue per
year, or about 15 to 20 percent of the company’s annual revenue. Am. Compl. ¶ 18;
PSOF ¶ 16.
On the front of the building, which faces north, Leibundguth has several
signs. Leibundguth has another painted wall sign, which lists the company’s name
and phone number. Am. Compl ¶ 19; PSOF, ¶ 9. This sign is 40 feet long and 2 feet
high, and is visible to drivers. Am. Compl. ¶ 19. It looks like this:
3
Id.
Leibundguth also has a separate sign (also on the front of the building) which
spells out the company’s name, “Leibundguth Storage & Van Service,” in red and
white (primarily white) hand-painted block letters. PSOF ¶ 11; Am. Compl. ¶ 21.
Directly beneath those words is a rectangular sign, which advertises Leibundguth’s
relationship with “Wheaton World Wide Moving,” a long-distance mover. PSOF
¶ 12. Neither of these signs is painted directly onto the building’s exterior, but both
face a roadway and can be seen by drivers. Am. Compl. ¶ 22. The portion of the sign
spelling out the company’s name is 19 feet long by two feet high, and the portion
referencing Wheaton World Wide Moving is seven feet long by four feet high. Am.
Compl. ¶¶ 20-21. These signs look like this:
4
Id. ¶ 21. The parties dispute whether the pictured sign(s) are one sign or two.
Leibundguth argues two; the Village, one. PSOF ¶ 6; R. 46, Def.’s Resp. to PSOF
¶¶ 6, 11-12. In total, Leibundguth’s signs cover more than 500 square feet of the
building. Am. Compl. ¶ 42 (Leibundguth suggests they cover about 550 sq. ft.); R.
12, Ans. to Am. Compl ¶¶ 16, 19-20 (the Village asserts they cover about 665 sq. ft.).
B. The Village’s Sign Ordinance
In May 2005, the Village of Downers Grove amended its sign ordinance,
reducing the amount of signage permitted and prohibiting certain types of signs
altogether. DSOF ¶ 15. (The Village’s sign ordinance is contained in Article 9 of the
Village’s municipal code; for convenience’s sake, this Opinion will refer to Article 9
as the “Sign Ordinance.”) The Sign Ordinance’s stated purpose is “to create a
comprehensive but balanced system of sign regulations to promote effective
communication and to prevent placement of signs that are potentially harmful to
motorized and non-motorized traffic safety, property values, business opportunities
and community appearance.” R. 38-1, Exh. 2, Sign Ord. § 9.010(A).
Three of the Sign Ordinance’s restrictions directly apply to Leibundguth’s
signs by banning painted wall signs; setting a cap on total square footage of signage;
and setting a cap on the total number of wall signs. More specifically, the Ordinance
prohibits “any sign painted directly on a wall, roof, or fence.” Id. § 9.020(P). It limits
the “maximum allowable sign area” for each property to 1.5 square feet per linear
foot of frontage (two square feet per linear foot if the building is set back more than
300 feet from the street), in no case to “exceed 300 square feet in total sign surface
5
area.” Id. § 9.050(A). And finally, it limits the number of wall signs a lot may
display to “one wall sign per tenant frontage along a public roadway or drivable
right-of-way.” Id. § 9.050(C)(1). As originally enacted, this last provision prevented
a property owner from displaying a sign facing the BNSF railroad, because such a
sign would not be facing a roadway or drivable right-of-way. After Leibundguth filed
this lawsuit, however, the Village amended this portion of the ordinance to allow
“lots with frontage along the BNSF railroad” to display “one additional wall sign”
facing the railroad, but limited the sign area to 1.5 square feet per linear foot of
frontage along the BNSF railroad right-of-way. Def.’s Br., Exh. B, Am. Sign Ord.
§ 9.050(C)(5).
Leibundguth also points to § 9.030 of the Village’s Sign Ordinance to show
that the restrictions that apply to it are content-based. Pl.’s Br. at 16-20. Section
9.030 of the Sign Ordinance exempts certain signs—not Leibundguth’s—from
needing to obtain a sign permit and subjects those signs, which it identifies based
on the type of sign being displayed, to different size restrictions. Sign Ord. § 9.030.
For example, it exempts (among other signs) Governmental Signs, Railroad and
Utility Signs, Street Address Signs, Noncommercial Flags, Real Estate Signs,
Decorations displayed in connection with a Village-sponsored event, “No
Trespassing” Notices, “Political and noncommercial signs,” and “Memorial signs and
tablets” from needing to obtain a permit. Id. Some of the listed exemptions remain
subject to size restrictions, such as “Political and noncommercial signs,” which “may
not exceed a maximum area of 12 square feet per lot,” id. § 9.030(I), while others are
6
not subject to any size restrictions at all, such as Governmental Signs and
Noncommercial Flags, id. § 9.030(A), (G). None of the listed exemptions, however,
are subject to the one wall-sign restriction in § 9.050(C) that Leibundguth is. The
Village says that all signs (whether exempted under § 9.030 or not) remain subject
to the prohibitions laid out in § 9.020, including the restriction on painted wall signs
found in § 9.020(P) (but the square-footage and number-of-signs restrictions are not
in § 9.020, so those restrictions do not apply to the exempted signs). DSOF ¶ 6.
Leibundguth’s signs violate the Sign Ordinance in a number of ways. The
Ordinance’s ban on signs painted directly onto walls makes Leibundguth’s Metrafacing advertisement and its similar, smaller sign on the front of the building
unlawful. PSOF ¶¶ 8-9. The Ordinance also only allows the company 159 square
feet for all of its signs (calculated at 1.5 square feet per linear foot of frontage,
because Leibundguth’s building is not set back more than 300 feet from the street),
far less than the more than 500 square feet of advertising the company currently
displays. PSOF ¶¶ 8-9, 13; Am. Compl. ¶ 41. And, according to Leibundguth, the
Ordinance also prohibits its combined block-letter wall sign and Wheaton World
Wide Moving sign, because only one wall sign can be displayed on a given wall and
these signs constitute two signs. PSOF ¶¶ 11-13. The Village, of course, disputes
this last point, whether Leibundguth’s block-letter wall sign and Wheaton World
Wide Moving sign constitute one or two signs. Def.’s Resp. PSOF ¶¶ 11-12.
When enacted, the Sign Ordinance established a grace period, giving
property owners and businesses until May 2014 to bring any non-conforming signs
7
into compliance. DSOF ¶¶ 15-16; R. 37-4, Exh. 1D at 349, 3524. During that time,
Leibundguth applied with the Downers Grove Zoning Board of Appeals for a
variance that would allow the company to have a Metra-facing sign, painted wall
signs, and total signage area that exceeded the maximum allowed under the
ordinance. PSOF ¶ 18; R. 40-5, Exh. D at 2. The Zoning Board denied Leibundguth’s
request, and instead gave Leibundguth a four-month window (until April 2014) in
which to paint over its painted wall signs with a solid color. PSOF ¶¶ 18-19; R. 40-2,
Exh. A at 2-9. With the compliance period long over, and with Leibundguth’s signs
still not in compliance, Leibundguth could face fines of up to $750 per violation per
day. Am. Compl. ¶ 63; R. 10-5, Exh. E, Village Muni. Code § 1.15(a). The Village
has, however, agreed not to enforce the Sign Ordinance against Leibundguth and
not to assess any fines during the pendency of these summary judgment motions.
R. 11, Minute Entry dated Jan. 30, 2015.
C. The Lawsuit
Leibundguth (and at the time, Peterson too) sued the Village in December
2014. R. 1, Compl. In Count One of Leibundguth’s amended complaint, Leibundguth
challenges the “sign ordinance’s content-based restrictions.” Pointing to § 9.030
explicitly and § 9.050 implicitly, Leibundguth alleges that the size and number
restrictions included in the Village’s Sign Ordinance are impermissible contentbased restrictions that violate the First Amendment. R. 10, Am. Compl. ¶¶ 65-74. In
Counts Two, Three and Four, Leibundguth challenges the Sign Ordinance’s ban on
painted wall signs; its ban on signs that do not face a roadway or drivable right-of4The
page numbers associated with Exhibit 1D refer to the pagination in the PDF.
8
way (this provision has since been amended); and its limit on total signage area and
on the number of permitted wall signs. Id. ¶¶ 75-95. According to Leibundguth,
these restrictions violate the First Amendment because the Village lacks “a
compelling, important, or even rational justification” for them, because they are not
narrowly tailored to advance the Village’s purported interests in traffic safety and
aesthetics, and because they are more extensive than necessary to advance the
Village’s interests. Id. ¶¶ 77-80, 84-87, 91-94. Leibundguth seeks a declaratory
judgment that the Sign Ordinance violates the First and Fourteenth Amendments
of the United States Constitution and Article I, Section 4 of the Illinois
Constitution; a permanent injunction against enforcing the Sign Ordinance; one
dollar in nominal damages; and costs and attorneys’ fees. Id. ¶¶ A-G.
II. Legal Standard
Summary judgment is proper “if the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter
of law.” Fed. R. Civ. P. 56(a). A genuine dispute exists if “the evidence is such that a
reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986). In evaluating summary judgment motions,
courts must view the facts and draw reasonable inferences in the light most
favorable to the non-moving party. Scott v. Harris, 550 U.S. 372, 378 (2007). The
Court may not weigh conflicting evidence or make credibility determinations,
Omnicare, Inc. v. UnitedHealth Grp., Inc., 629 F.3d 697, 704 (7th Cir. 2011), and
must consider only evidence that can “be presented in a form that would be
9
admissible in evidence” at trial, Fed. R. Civ. P. 56(c)(2). The party seeking summary
judgment has the initial burden of showing that there is no genuine dispute and
that they are entitled to judgment as a matter of law. Carmichael v. Village of
Palatine, 605 F.3d 451, 460 (7th Cir. 2010); see also Celotex Corp. v. Catrett, 477
U.S. 317, 323 (1986); Wheeler v. Lawson, 539 F.3d 629, 634 (7th Cir. 2008). If this
burden is met, the adverse party must then “set forth specific facts showing that
there is a genuine issue for trial.” Anderson, 477 U.S. at 256. On cross motions for
summary judgment, the Court assesses whether each movant has satisfied the
requirements of Rule 56. See Cont’l Cas. Co. v. Nw. Nat’l Ins. Co., 427 F.3d 1038,
1041 (7th Cir. 2005); see also Laskin v. Siegel, 728 F.3d 731, 734 (7th Cir. 2013).
III. Analysis
Leibundguth challenges the following restrictions in the Village’s Sign
Ordinance, which impact Leibundguth’s signs: its restriction on painted wall signs,
see Sign Ord. § 9.020(P); its requirement that wall signs face a roadway or drivable
right-of-way, id. § 9.050(C); and its restriction on the maximum total sign area
permitted on a given lot and on the number of wall signs that may displayed on a
building, id. § 9.050(A) and (C). Leibundguth argues in the alternative that, in the
event the Court finds that these restrictions do not violate the First Amendment as
applied to Leibundguth, they nonetheless constitute facially impermissible contentbased restrictions on speech. Pl.’s Br. at 16.
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A. Painted Wall Signs
Leibundguth’s first challenge is to the Sign Ordinance’s restriction on painted
wall signs. Sign Ord. § 9.020(P). This section prohibits “any sign painted directly on
a wall, roof, or fence.” Id. According to Leibundguth, this section violates the First
Amendment because it does not advance “a compelling, important, or even rational”
government interest, and it is not narrowly tailored to serve the Village’s purported
interests in traffic safety and aesthetics. Pl.’s Br. at 2.
Neither party disputes whether signs are a form of expression protected by
the First Amendment, and for good reason. See City of Ladue v. Gilleo, 512 U.S. 43,
48 (1994) (noting that “signs are a form of expression protected by the Free Speech
Clause” of the First Amendment). The Supreme Court has explained, however, that
signs “pose distinctive problems that are subject to municipalities’ police powers.
Unlike oral speech, signs take up space and may obstruct views, distract motorists,
displace alternative uses for land, and pose other problems that legitimately call for
regulation.” Id. Thus, municipalities, like the Village, generally may “regulate the
physical characteristics of signs,” within reasonable bounds. Id.
Both parties agree that the Sign Ordinance’s ban on painted wall signs
constitutes a time, place, and manner restriction. Pl.’s Br. at 2; Def.’s Br. at 7. The
Village may enforce a time, place, and manner restriction without violating the
First Amendment if the restriction is: (1) content-neutral, (2) narrowly tailored to
serve a significant government interest, and (3) leaves open ample alternative
channels of communication. Clark v. Cmty. for Creative Non-Violence, 468 U.S. 288,
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293 (1984); Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989); DiMa Corp. v.
Town of Hallie, 185 F.3d 823, 828 (7th Cir. 1999). The Village bears the burden of
proving that its restriction on painted wall signs meets these requirements. United
States v. Playboy Entm’t Grp., Inc., 529 U.S. 803, 816 (2000).
As to the first element, the Village has satisfied its burden: its ban on painted
wall signs, § 9.020(P), is content-neutral. To be content-neutral, a regulation must
not restrict speech “because of its message, its ideas, its subject matter, or its
content.” Reed v. Town of Gilbert, 135 S.Ct. 2218, 2226 (2015). If a regulation
“appl[ies] to particular speech because of the topic discussed or idea or message
expressed,” then that regulation is content-based. Id. at 2227. Likewise, if the
government adopts a regulation of speech “because of disagreement with the
message [the speech] conveys,” then that regulation is similarly content-based.
Ward, 491 U.S. at 791.
In this case, the Village’s restriction on painted wall signs “is wholly
indifferent to any specific message or viewpoint,” Weinberg, 210 F.3d at 1037; it
applies to all signs, regardless of their message or content. The first step to
understanding this is to recognize that the Village’s Municipal Code broadly defines
a “sign” as:
Any object, device, display or structure … that is used to advertise, identify,
display, direct or attract attention to an object, person, institution,
organization, business, product, service, event, or location by any means
including words, letters, figures, designs, symbols, fixtures, colors, or
illumination whether affixed to a building or separate from any building.
R. 40-6, Exh. E, Village Muni. Code § 15.220. This expansive definition does not on
its face refer to the content of speech, either by singling out a viewpoint or a
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particular topic of speech. Next, the Village regulates signs in Article 9 of the
Municipal Code (this Opinion has been calling Article 9 the “Sign Ordinance” for
convenience). After setting forth the Sign Ordinance’s general purpose, see Sign
Ord. § 9.010, the Ordinance then bans certain types of signs, again without
reference to the viewpoint or topic of the sign’s message. Entitled “Prohibited Signs
and Sign Characteristics,” Section 9.020 sets out 21 categories of banned signs,
including “any sign painted directly on a wall, roof, or fence.” § 9.020(P) (as
amended).5 There is no exception in Section 9.020: all painted wall signs are
banned, regardless of a sign’s content.
It is true that the next section of the Sign Ordinance, § 9.030, exempts
certain types of signs from being subject to the Village’s permit application and fee
requirements—and the exemptions do, in some instances, refer to the content of the
signs. To back-up for a moment, the Sign Ordinance does generally require that
persons who want to display a sign apply for a permit to do so. Sign Ord. § 9.080(A).
Unless the Sign Ordinance “expressly” says otherwise, “all signs require a permit.”
§ 9.080. The permit-application process includes a “plat of survey” and a permit fee.
§ 9.080(A), (B). A copy of the application, which apparently is used for a wide
variety of Village-required permits and thus is not specific to signs, is attached to
this Opinion, as is the schedule of user fees. There is nothing more specific in the
Sign Ordinance about the requirements for issuance of a permit, but in the same
section, the Sign Ordinance does require that signs (a) conform with the National
5In
July 2015, the Village amended this section to remove a previous exception for
certain business districts in the Village. R. 36-2, Exh. B, Am. Sign Ord.
13
Electrical Code (if the sign has electrical wiring and connections); (b) be designed
and constructed to withstand wind pressure of at least 40 pounds per square foot
and to receive “dead loads” as required in the Village’s building code; and (c) for
signs that extend over, or could fall on, a public right-of-way, the applicant must
agree to indemnify the Village and to obtain certain insurance coverage. § 9.080(C),
(D), (E). So the Sign Ordinance does require a permit-application process for signs,
absent an express exemption.
Returning to Section 9.030, that particular section does exempt certain types
of signs from the permit-application process. And, as noted earlier, some of the
exemptions do refer to the content of the signs. E.g., § 9.030(B) (public-safety signs),
§ 9.030(E) (temporary signs at a residence commemorating a “personal” event, such
as a birthday), § 9.030(G) (“Noncommercial flags” of a government), § 9.030(I)
(“Political signs and noncommercial signs,” within certain size limits). But that does
not mean that the ban on painted wall signs—contained in § 9.020 of the Sign
Ordinance—is content-based. The ban applies to all signs, even those that are not
subject to the permit-application requirement. Nothing in the text of § 9.020
suggests that the prohibited signs in that section are anything but completely
banned, even if the sign is one of the types exempted in § 9.030. In other words, the
only thing that § 9.030 does in categorizing certain types of signs is to exempt those
signs from the permit-application process. For example, if someone wanted to
display a political or noncommercial sign, the sign would be exempt from the
permit-application process (assuming it met the other requirements detailed in
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§ 9.030), but § 9.020 would still ban the sign from being painted directly on a wall.
Nor is there anything in the text of either § 9.030 or § 9.080 that purports to
override the complete ban of § 9.020. So the painted-wall ban does not single out a
certain message for different treatment, nor does it require consideration of the
content of the speech in order to apply it.6 There is also no evidence to suggest that
the Village adopted this restriction because of disagreement with the messages
conveyed in painted wall signs. Accordingly, because the Village’s restriction on
painted wall signs applies to all signs, regardless of their content, the restriction is
content-neutral.
The Court must next consider whether the Ordinance’s restriction on painted
wall signs is narrowly tailored to achieve a significant government interest. It is
this prong that the parties most contentiously dispute. The Village generally asserts
that two governmental interests underlie the restrictions in its Sign Ordinance:
traffic safety and aesthetics. See Def.’s Br. at 8-9. The Village then specifies, in a
6In
resisting the content-neutral text of the Sign Ordinance’s ban against painted
wall signs, Leibundguth points to a Staff Report authored by the Village’s Planning
Manager, Stanley Popovich. According to Leibundguth, the report shows that flags and
murals are allowed to be painted directly on walls. Pl.’s Br. at 3; R. 47, Pl.’s Reply Br. at 6.
The report was submitted as a recommendation on the proposed 2015 amendments to the
Sign Ordinance. See R. 36-2, Exh. B, 2015 Staff Report. In the report, Popovich does say
that purely “decorative” flags and murals are not subject to the ban. 2015 Staff Report at 3
(“There are instances of flags and murals painted on buildings and these are permitted by
the code on the basis that they are decorative, and do not convey constitutionally protected
commercial or non-commercial speech.”). But the report simply states that conclusion
without any discussion of the Sign Ordinance’s text. See id. As discussed above, the actual
text of the pertinent provisions of the Sign Ordinance contains no exception to the ban on
painted wall signs. Indeed, the Village concedes that flags and murals that meet the
definition of a “sign” are subject to the painted wall sign restriction. R. 45, Def.’s Reply and
Resp. Br. at 1. In light of municipal code’s broad definition of a “sign,” see R. 40-6, Exh. E,
Village Muni. Code § 15.220, it is difficult to conceive of a flag or mural that would not be
considered a “sign,” despite the note in the Staff Report.
15
footnote, that “[f]or purposes of Section 9.020.P” the relevant governmental interest
is “solely … aesthetics.” Id. at 8 n.4.7 Based on that concession, the Court will focus
its analysis on aesthetics only. It is well settled that a town’s interest in aesthetics
is a significant governmental interest. Members of the City Council of Los Angeles v.
Taxpayers for Vincent, 466 U.S. 789, 805-06 (1984) (“it is well settled that the state
may legitimately exercise its police powers to advance esthetic values … [and]
municipalities have a weighty, essentially esthetic interest in proscribing intrusive
and unpleasant formats for expression.”); see also Metromedia, Inc. v. City of San
Diego, 453 U.S. 490, 507-08 (1981) (describing both “traffic safety” and “the
appearance of the city” as “substantial government goals”). So the significance of the
government interest is satisfied—the only question is whether the Village’s ban on
painted wall signs is narrowly tailored to further that aesthetic interest.
“A regulation is narrowly tailored if it ‘promotes a substantial government
interest that would be achieved less effectively absent the regulation.’” Weinberg,
310 F.3d at 1040 (quoting Ward, 491 U.S. at 799). “[A]n ordinance need not be the
least restrictive method for achieving the government’s goal” in order to satisfy the
narrowly tailored prong. Id. Although the Village cannot “blindly invoke” its
concerns without more, Weinberg, 310 F.3d at 1038, the burden to put forth
evidence supporting a content-neutral speech restriction of this kind is “not
7The
Village’s concession on this point is oddly worded; it says that the “focus of this
pleading” (its brief) is “solely on aesthetics.” Def.’s Br. at 8 n.4. Regardless of what is meant
by that, even if the Village did want to rely on traffic safety as a purported justification for
the painted wall sign ban, the Village develops no argument and points to no record
evidence that painted wall signs pose some special traffic-safety problem that differs from
non-painted signs.
16
overwhelming,” DiMa Corp., 185 F.3d at 829. For example, “[t]he First Amendment
does not require a city, before enacting such an ordinance, to conduct new studies or
produce evidence independent of that already generated by other cities, so long as
whatever evidence the city relies upon is reasonably believed to be relevant to the
problem that the city addresses.” Id. (internal quotation marks omitted). See also
City of Watseka v. Illinois Public Action Council, 796 F.2d 1547, 1554 (7th Cir.
1986).
Leibundguth’s primary challenge is to the sufficiency of the evidence offered
by the Village to justify its need for its restriction on painted wall signs. The Village
does “ha[v]e the burden of showing there is evidence supporting its proffered
justification,” which in this case is aesthetics. Weinberg, 310 F.3d at 1038. And
although the evidence does not need to be “overwhelming,” the Village does need to
show that it did more than “blindly invoke” aesthetic concerns to support its
restriction on painted wall signs. Id. But in this case, the Village has satisfied its
burden. Before the Village implemented its Sign Ordinance, it took hundreds of
photographs of signs both around the village, as well as in nearby towns. R. 37-4,
Exh. 1D at 160-3488. The Village documented the various sign styles and structures
in use by the community and on several occasions made note of aesthetic
preferences. See, e.g., id. at 326. More to the point, in a Staff Report prepared for
the Village’s Plan Commission, the Village specifically discussed the aesthetic
problems associated with painted wall signs. See R. 36-3, Exh. C, 2015 Staff Report.
The Report explains that painted wall signs “present numerous issues, including
8The
page numbers associated with this exhibit refer to the pagination in the PDF.
17
permanence, on-going maintenance and water damage to the underlying
structure;”9 that the typical removal processes for painted wall signs “are very
caustic and can cause significant damage to the brick,” “[i]n many cases” leaving a
“ghost sign” on the wall; and that “[t]ired, faded, chipped wall signs painted directly
onto wood or masonry are perceived by many … as presenting a negative face to the
commercial vitality of the community.” Id. at 3-5. The Report also sets forth a
photographic example of what the “ghost” sign problem looks like and what the
water damage problem looks like (given the Village’s ban, the exemplar photos are
not actually from signs in the Village). Id. at 4, 5. Although this Report did not come
out until the Sign Ordinance was amended in 2012, it nevertheless supports the
Village’s conclusion that painted wall signs pose specific aesthetic problems that
justify the ban in § 9.020(P). On top of all this, the Village also offers photos of
Leibundguth’s railway-facing, painted wall sign, and those photos do show some of
the fading and chipping aesthetic problems discussed by the Staff Report. R. 36-4,
Exh. D at 7-9 (photos taken on July 22, 2015). All of this evidence together shows
that the Village did not blindly invoke its aesthetic concerns, but rather that it
carefully documented and considered the current appearance of signs around the
community and the impact different types of signs, including painted wall signs,
have on the town’s general appearance. The Village has provided sufficient evidence
to justify its need for a restriction on painted wall signs.
9The
Report explains in detail why water damage is a special problem with paint on
bricks: the paint traps moisture on the brick’s surface, and when the water freezes and
expands, the ice shears the face of the brick. 2015 Staff Report at 4.
18
The Village’s painted wall sign restriction is also narrowly tailored to serve
the Village’s interest in aesthetics. The Village spent more than a year in
deliberation and dialogue with Village residents and businesses regarding the Sign
Ordinance, as reflected in the Village’s meeting minutes. See, e.g., DSOF ¶¶ 13-14;
R. 37-1, Exh. 1A at 49-104.10 Recognizing the problems created by painted wall
signs, the Village determined that the best way to eliminate the harm caused by
painted wall signs was to ban them. This was probably the only effective way to
address the aesthetics problem posed by painted wall signs. See Taxpayers for
Vincent, 466 U.S. at 808 (“By banning these signs, the City did no more than
eliminate the exact source of the evil it sought to remedy. … It is not speculative to
recognize that [posted signs] by their very nature, wherever located and however
constructed, can be perceived as an esthetic harm.” (internal quotation marks and
citation omitted)). In arguing to the contrary, Leibundguth does not, except for one
immaterial exception, actually attempt to explain how the Village could adopt some
other, narrower restriction and still serve its concern over aesthetics. Pl.’s Br. at 45.11 Really, Leibundguth just argues that the Village’s concerns are not genuine
concerns because (1) painted murals are allowed, Pl.’s Br. at 5, and (2) the Village
does not ban painting on brick walls, it just bans painted wall signs, id. at 4. But on
the first point, this Opinion earlier explained why there is no exemption for murals.
10The
page numbers associated with this exhibit refer to the pagination in the PDF.
immaterial exception is in response to the Village’s unpersuasive argument
that striking down the painted wall sign ban would prevent the Village from banning
spray-painted signs. Pl.’s Br. at 3-4. Of course it would be narrower to ban only spraypainted signs, but luckily for the Village, the Village more broadly argues (persuasively)
that the aesthetic problems posed by painted wall signs are not limited to spray paint. See
2015 Staff Report at 3-5.
11The
19
Supra at 14-15, 15 n.6. And on the second point—which, again, is not really an
argument on narrow tailoring, so much as it is an argument against the
genuineness of the aesthetic concern—the Village reasonably could conclude that a
sign, which is by definition a display that attracts attention (and indeed is designed
to attract attention), poses a more serious aesthetic problem that just a painted
wall. The Village’s restriction on painted wall signs is narrowly tailored to advance
its interest in aesthetics.
Moving on to the final element of the time-place-and-manner test, the parties
do not dispute whether the Village’s ban on painted wall signs leaves open ample
alternative channels of communication, and for good reason. The Village’s
restriction on painted wall signs prohibits just painted wall signs; it does not
prohibit other types of wall signs. In fact, the Sign Ordinance expressly permits
residents and businesses to put up wall signs if they wish to do so, they just cannot
directly paint the sign on the wall. Sign Ord. § 9.050(C). The Ordinance also allows
businesses to use a variety of other types of signs, such as window signs, awning
signs, and under-canopy signs. Id. § 9.050(F)-(H). The Village has left open ample
alternative channels through which commercial entities, like Leibundguth, can
advertise their businesses. This element is satisfied.
Because the Village has satisfied its burden—at least as to its interest in
aesthetics—under the First Amendment, the Village’s ban on painted wall signs is
constitutional. The Village’s motion for summary judgment is granted as to
20
Leibundguth’s claim that the ban on painted wall signs violates the First
Amendment.12
B. Restriction on Wall Signs Facing a Roadway or Drivable Right-of-Way
Leibundguth’s next challenge is to the Ordinance’s requirement that wall
signs face a roadway or drivable right-of-way. See Sign Ord. § 9.050(C)(1). When
originally adopted, this requirement precluded those lots adjacent to the Metra
railroad (like Leibundguth’s) from displaying wall signs that faced the railroad but
did not face a roadway or drivable right-of-way. After Leibundguth filed suit,
however, the Village amended § 9.050(C). In July 2015, the Village added a
provision allowing “lots with frontage along the BNSF railroad right-of-way”—like
Leibundguth’s—to display “one additional wall sign” facing the railroad, provided
that the sign does “not exceed 1.5 square feet per linear foot of tenant frontage
along the BNSF railroad right-of-way.” Am. Sign Ord. § 9.050(C)(5). Due to this
amendment, the Village argues, Leibundguth’s claim here—that the Sign
Ordinance’s ban on signs facing the Metra violates the First Amendment—is moot.
Def.’s Br. at 15.
12The
Village suggests that in the event this Court determines that the Ordinance’s
restriction on painted wall signs is valid, the remainder of Leibundguth’s complaint
becomes moot because Leibundguth—after removing its painted wall signs—will only have
one remaining sign, which meets the Ordinance’s restrictions. Def.’s Br. at 14. This,
however, does not moot the remainder of the complaint, because Leibundguth still currently
has all three signs on its building. Until Leibundguth removes the painted wall signs, the
company remains in violation of the restrictions in § 9.020(P) as well as the restrictions in
§ 9.050. What’s more, Leibundguth is entitled to appeal this Court’s holding that the ban on
painted wall signs is valid, so even if Leibundguth removes the painted wall signs, the
company can present a live, non-moot dispute because the company would want to paint the
signs back onto the walls (and, in any event, perhaps Leibundguth will win a stay of the
decision pending appeal). The remainder of the complaint is not moot.
21
The Village is correct. “[A] case is moot when the issues presented are no
longer ‘live’ or the parties lack a legally cognizable interest in the outcome.” Powell
v. McCormack, 395 U.S. 486, 496 (1969). For claims seeking only prospective relief,
the repeal of a challenged ordinance ordinarily renders that case moot “unless there
is evidence creating a reasonable expectation that the City will reenact the
ordinance or one substantially similar.” Fed’n of Adver. Indus. Representatives, Inc.
v. City of Chicago, 326 F.3d 924, 930 (7th Cir. 2003) (citing Rembert v. Sheahan, 62
F.3d 937, 940 (7th Cir. 1995), Thomas v. Fiedler, 884 F.2d 990, 995 (7th Cir. 1989)).
See also Zessar v. Keith, 536 F.3d 788, 793 (7th Cir. 2008) (“[A]ny dispute over the
constitutionality of a statute becomes moot if a new statute is enacted in its place
during the pendency of the litigation, and the plaintiff seeks only prospective
relief.”). The same holds true for when a municipality amends a statute, at least so
long as the amended statute “clearly rectifies the statute’s alleged defects.” Rembert
v. Sheahan, 62 F.3d 937, 940-41 (7th Cir. 1995).
In this case, the Village’s amended provision, § 9.050(C)(5), rectified the Sign
Ordinance’s alleged defect on the railroad-facing ban. The Ordinance no longer bans
wall signs facing only the Metra railway. Now, lots with railroad frontage are
allowed to display a wall sign facing the railroad even if that sign does not also face
a drivable right-of-way. Am. Sign Ord. § 9.050(C)(5). Thus, Leibundguth is no longer
precluded from displaying a wall sign that faces only the Metra tracks, as he
complains. There is also no evidence in the record to show that the Village is likely
to repeal its amended provision; in fact, Leibundguth does not even argue that the
22
Village is likely to reenact its ban. And while the Village did amend the ordinance
to moot this claim after Leibundguth filed suit, courts have held that the altering of
an ordinance in response to litigation “does not alone show the city’s intent to later
reenact the challenged ordinance.” Outdoor Media Group, Inc. v. City of Beaumont,
506 F.3d 895, 901 (9th Cir. 2007). See also Fed’n of Adver. Indus. Representatives,
Inc., 326 F.3d at 929 (ruling that where a municipality appears to be voluntarily
amending a statutory provision in order to fashion an ordinance that passes
constitutional scrutiny, it is proper to presume that the municipality does not
intend to reenact the same or a substantially similar unconstitutional provision).
Thus, without more, there is no reasonable basis to believe that the Village will
reenact its ban on wall signs facing the Metra railway. Leibundguth’s claim is moot
as to the declaratory and injunctive relief Leibundguth requests in its amended
complaint. Id. (“If the plaintiff’s only claims seek to require government officials to
cease allegedly wrongful conduct, and those officials offer to cease that conduct,
then the claims should be dismissed as moot, absent some evidence that the offer is
disingenuous.”). To the extent Leibundguth wishes to challenge the amended
section of the Ordinance and to again request declaratory and injunctive relief on
the revised Ordinance, Leibundguth must amend its complaint to do so (though
there does not seem to be a practical reason to do so, at least not as to the revised
Ordinance’s authorization of a railroad-facing sign, as that is what Leibundguth
wanted).
23
It is true that Leibundguth did not seek just declaratory and injunctive relief
in its amended complaint. Leibundguth also sought one dollar in nominal damages
in connection with “the violation of [its] constitutional rights,” which presumably
includes a violation resulting from the Village’s ban on wall signs facing the Metra.
See Am. Compl. ¶ D. A plaintiff who has been deprived of a constitutional right is
entitled to nominal damages, as Leibundguth claims, even absent actual damages.
Hessel v. O’Hearn, 977 F.2d 299, 302 (7th Cir. 1992). The problem for Leibundguth,
however, is that the Village never did commit a constitutional violation of
Leibundguth’s rights because the Village never enforced its short-lived ban on signs
facing only the Metra. The ban, when in effect, could have impacted only
Leibundguth’s painted wall sign on the back of its building; the sign facing the
Metra. But that sign was in place before the ordinance was enacted, remained in
place after the enactment, and still remains in place today. Leibundguth was not
required to change it; Leibundguth was never precluded from speaking through that
sign; and importantly, Leibundguth was never fined for having a non-conforming
sign when the ban was in effect. Rather, the Village agreed not to fine Leibundguth
during this case’s pendency. R. 10. So long as the Village will not fine Leibundguth
for having a Metra-facing sign during the time the ban was in effect, Leibundguth’s
request for nominal damages is likewise moot. See Freedom from Religion Found.,
Inc. v. City of Green Bay, 581 F. Supp. 2d 1019, 1029-33 (E.D. Wis. 2008). See also
Carey v. Piphus, 435 U.S. 247, 266 (1978) (explaining that nominal damages are
24
available to “vindicate[] deprivations of certain ‘absolute’ rights that are not shown
to have caused injury”). Accordingly, the Court dismisses this claim as moot.
C. Restriction on Total Sign Area and the Number of Permitted Wall Signs
Leibundguth’s next challenge is to the ordinance’s restriction on the total
signage area allowed under § 9.050(A), and on the number of wall signs permitted
under § 9.050(C). Section 9.050(A) limits the maximum allowable signage area per
lot to “1.5 square feet per linear foot of tenant frontage” for buildings which are set
back 300 feet or less “from the abutting street right-of-way,” and “2 square feet per
linear foot of tenant frontage” for buildings set back more than 300 feet. See Sign.
Ord. § 9.050(A). Section 9.050(C), which applies just to wall signs, limits the
number of wall signs a “business or property owner” may display to “one wall sign
per tenant frontage along a public roadway or drivable right-of-way.” Id.
§ 9.050(C)(1). According to Leibundguth, these size and number restrictions violate
the First Amendment because they do not serve even a rational government
interest, are not narrowly tailored, and are not the least extensive means necessary
to achieve the Village’s interests. Am. Compl. ¶¶ 91-94. Leibundguth challenges
these restrictions both on their face and as applied. The Court will address
Leibundguth’s as applied challenge first, and its facial overbreadth challenge
second.
As a threshold matter, the Court must determine the proper framework to
use in analyzing these restrictions. As the Court explained in its April 2015 order
addressing the Village’s motion to dismiss, the appropriate level of scrutiny here is
25
intermediate scrutiny. R. 29, April 2015 Order, at 17-19; see also Central Hudson
Gas & Elec. Corp. v. Public Svc. Comm’n, 447 U.S. 557, 562 (1980). Both parties
agree that as far as the restrictions in § 9.050 are concerned, they restrict only
commercial speech. The Village adopted this position in its motion to dismiss
briefing, see R. 25 at 4 (explaining that “only three specific commercial sign
regulations prohibit [Leibundguth’s] commercial signs”); and neither party disputes
it now, see Def’s Br. at 15; Pl’s Br. at 5. Commercial speech, although of course
worthy of First Amendment protection, is entitled only to intermediate scrutiny, see
Central Hudson, 447 U.S. at 562; therefore, the restrictions in § 9.050 need only
satisfy the requirements of the Supreme Court’s Central Hudson test in order to be
valid under the First Amendment, see id.
Before addressing the merits of the Village’s restrictions under Central
Hudson, however, it is worth discussing a recent Supreme Court decision that was
issued after this Court’s opinion on the dismissal motion. In Reed v. Town of Gilbert,
135 S. Ct. 2218 (2015), the Supreme Court held that a town’s sign code was
unconstitutionally content-based because it applied different restrictions to signs
depending on the sign’s content. 135 S. Ct. at 2231-32. In Reed, a majority of the
Supreme Court explained that a speech regulation would be considered contentbased in one of two ways: first, if the regulation, on its face, “applies to particular
speech because of the topic discussed or the idea or message expressed,” then that
regulation is content-based. Id. at 2227. This is so “even if the regulation does not
discriminate among viewpoints within that subject matter.” Id. at 2230. Second, if a
26
regulation is facially neutral, but cannot be “justified without reference to the
content of the regulated speech” or was “adopted by the government because of
disagreement with the message the speech conveys,” then that regulation is
likewise content-based. Id. at 2227 (internal quotations omitted). Applying these
principles to the town’s sign code in Reed, the Supreme Court concluded that the
distinctions the code drew between different types of signs—for example, Ideological
Signs, Political Signs, and Temporary Directional Signs—were content-based
because they “depend[ed] entirely on the communicative content of the sign,” id. at
2227, and that because the code favored certain kinds of speech (e.g., ideological
signs) over other kinds of speech (e.g., temporary directional signs), its restrictions
had to be subject to strict scrutiny, id. at 2227-31.
Given how recently Reed was decided, its reach is not yet clear. Although
Reed broadly states that content-based restrictions must be subject to strict
scrutiny, see id. at 2231, even if there is no viewpoint discrimination and even if the
speech regulation differentiates just as to particular topics, it remains to be seen
whether strict scrutiny applies to all content-based distinctions. As pertinent here,
the question would be whether strict scrutiny applies to commercial-based
distinctions like those at issue in § 9.050(A) and (C). There are certain broad
statements in Reed that could be read that way, see id. at 2226 (“Content-based
laws [are] unconstitutional and may be justified only if the government proves that
they are narrowly tailored to serve compelling state interests.”), but other
statements tug the other way, id. at 2232 (“Not all distinctions are subject to strict
27
scrutiny, only content-based ones are.”). Yet the concurring opinions warn that the
majority’s test for how to tell what is content-based and what is not could result in
commercial-speech regulation being deemed content-based. See id. at 2235 (Breyer,
J., concurring in judgment) (“Nor can the majority avoid the application of strict
scrutiny to all sorts of justifiable … regulations by relying on this Court’s many
subcategories of exceptions to the rule,” such as, “for example, … commercial
speech.”); id. at 2236 (Kagan, J., concurring in judgment) (“Says the majority: When
laws single out specific subject matter, they are facially content based; and when
they are facially content based, they are automatically subject to strict scrutiny.”).
But the majority never specifically addressed commercial speech in Reed, which is
not surprising, because the Supreme Court did not need to address that issue: all of
the restrictions at issue in Reed applied only to non-commercial speech. What is
important for this case is that, absent an express overruling of Central Hudson,
which most certainly did not happen in Reed, lower courts must consider Central
Hudson and its progeny—which are directly applicable to the commercial-based
distinctions at issue in this case—binding. See Rodriguez de Quijas v.
Shearson/Am. Express, Inc., 490 U.S. 477, 484 (1989) (“If a precedent of th[e]
[Supreme] Court has direct application in a case, yet appears to rest on reasons
rejected in some other line of decisions, the Court … should follow the case which
directly controls, leaving to th[e] [Supreme] Court the prerogative of overruling its
own decisions.”). Accordingly, notwithstanding any broad statements in Reed, the
28
restrictions in § 9.050(A) and (C) still only need to survive Central Hudson’s
intermediate scrutiny test.
With the proper test identified, it is time to apply it. Central Hudson lays out
a four-step analysis for determining whether restrictions on commercial speech are
valid under the First Amendment. Central Hudson, 447 U.S. at 566. First, for
commercial speech to even be entitled to First Amendment protection, Central
Hudson instructs that the speech must not itself comprise unlawful activity (such as
being fraudulent) and must not be misleading. Id. If the speech satisfies this
requirement, then the burden falls on the government to show (1) that its asserted
interest in regulating the speech is “substantial,” (2) that its regulation “directly
advances” the government’s asserted interest, and (3) that its regulation is “not
more extensive than is necessary to serve that interest.” Id.
As to the threshold element, Leibundguth’s commercial speech—its signs
advertising
its
business—are
entitled
to
First
Amendment
protection.
Leibundguth’s signs concern a lawful activity: moving and storage; and they are not
false or misleading. Before conducting discovery, the parties did not dispute
whether Leibundguth’s signs were truthful. Now, however, the Village asserts that
one of Leibundguth’s signs is false and misleading—the sign on the back of
Leibundguth’s building facing the Metra—because it misidentifies the name of
Leibundguth’s partner company, Wheaton World Wide Moving. See Def.’s Br. at 16.
The Village points out that the sign announces the partner-company name as
Wheaton World Wide Movers, when in fact the company’s name is Wheaton World
29
Wide Moving. Id.; DSOF ¶ 25. Maybe a very discerning grammarian would wonder
whether the noun “Movers” is equivalent to the gerund “Moving” (or is “Moving” a
present participle in the sign?) But to every other observer, this slight difference is
not false or misleading, at least not in the commercial-speech sense. The
requirement that commercial speech not be false or misleading is designed to
protect consumers from deceit or misinformation. See Central Hudson, 447 U.S. at
563. The Village does not dispute that there is no registered company under the
name Wheaton World Wide Movers, see Pl.’s Br. at 6, so Leibundguth is not trying
to feed on the reputation of another company. Nor has the Village otherwise
submitted any evidence showing that anyone is likely to be misled by this error, or
tricked into thinking Leibundguth has a relationship with one moving company
when in reality it has a relationship with another. Because none of Leibundguth’s
signs are false or likely to deceive the public, they are all entitled to First
Amendment protection. Central Hudson, 447 U.S. at 563 (explaining that there is
no constitutional problem with banning “communication [that is] more likely to
deceive the public than inform it”); see also In re R.M.J., 455 U.S. 191, 203 (1982)
(explaining that for Central Hudson purposes, “inherently misleading” advertising
“may be prohibited entirely”).
Moving on to the next element, the question is whether the interests the
Village advances—traffic safety and aesthetics—are substantial. It is well settled
that they are. See Metromedia, Inc., 453 U.S. at 508 (“Nor can there be substantial
doubt that the twin goals that the ordinance seeks to further—traffic safety and the
30
appearance of the city—are substantial government goals.”); see also Taxpayers for
Vincent, 466 U.S. at 806 (recognizing that towns may ban certain signs in
furtherance of a “weighty” interest “in proscribing intrusive and unpleasant formats
for expression”). To be sure, Leibundguth disputes whether the record shows that
those problems are actually posed by the size and number of signs targeted by the
ordinance, and that dispute is discussed next, but this part of Central Hudson is
satisfied because aesthetics and traffic safety qualify as substantial government
interests.
The third element of Central Hudson asks whether the Village’s restrictions
in § 9.050(A) and (C) directly advance the Village’s proffered interests in traffic
safety and aesthetics. A regulation infringing commercial speech “may not be
sustained if it provides only ineffective or remote support for the government’s
purpose.” Edenfield v. Fane, 507 U.S. 761, 770 (1993) (quoting Central Hudson, 447
U.S. at 564). Put differently, this burden “is not satisfied by mere speculation or
conjecture; rather the governmental body seeking to sustain a restriction on
commercial speech must demonstrate that the harms it recites are real and that its
restriction will in fact alleviate them to a material degree.” Id.; see also Greater New
Orleans Broadcasting Ass’n, Inc. v. United States, 527 U.S. 173, 188 (1999). It is
here that the Village’s restrictions falter, although only in part and not fatally. On
the Village’s purported interest in traffic safety, the Village has failed to provide
sufficient evidence to prove that the signs of the targeted size and number pose a
traffic-safety problem, or to show that the Village’s restrictions advance its interest
31
in traffic safety “in any direct [or] material way.” Edenfield, 507 U.S. at 771. The
Village has not provided any studies, police reports, or even anecdotal stories to
show that the traffic harms it recites are real. See id. (concluding that the
regulations at issue were not narrowly tailored to serve the Board’s purported
interests where the Board presented no studies or anecdotal evidence to show that
its interest was advanced by its restrictions, and where many states failed to
impose a similar restriction). Nor has it produced any evidence demonstrating that
restricting the size and number of commercial signs, but not other signs (e.g., noncommercial flags, governmental signs, or decorations temporarily displayed in
connection with a Village-sponsored event, see Sign Ord. § 9.030), will alleviate this
alleged harm to a material degree. See City of Cincinnati v. Discovery Network, 507
U.S. 410, 424 (1993) (rejecting purported interest where distinction between
commercial and noncommercial speech bore “no relationship whatsoever to the
particular interests that the city has asserted”). Without any evidence showing that
the targeted signs pose a traffic safety problem, the Village cannot show that its
restrictions in § 9.050 directly advance that interest. See Pearson v. Edgar, 153 F.3d
397, 402 (7th Cir. 1998).
It is true that the Village attaches treatises and sign-industry publications to
its brief, which it asserts shows that sign regulations—like those at issue in
§ 9.050—directly impact traffic safety. See R. 38-13, Exh. 14, Treatises. But the real
problem with the Village’s presentation is that it fails to develop any actual
argument based on these treatises or to explain how these treatises support its
32
contention that traffic safety is a real problem for the Village. In one sentence—and
one sentence only—the Village proffers that these treatises show that “limiting the
size and number of signs can enhance traffic safety and aesthetics,” Def.’s Br. at 17
(emphasis added), but the fact that such restrictions can improve traffic safety does
not show that the traffic safety harms the Village recites are real or that the
Village’s restrictions in § 9.050 operate to alleviate those harms to a material
degree. Without a developed argument, actually analyzing the underlying treatises
and publications, the Court cannot accept “speculation or conjecture” as proof that
the Ordinance’s restrictions advance the Village’s interest in traffic safety.
Edenfield, 507 U.S. at 770-71. Accordingly, these treatises do not save the Village’s
traffic safety interest.
The Village also cites to several sign codes from surrounding towns,
suggesting that because those towns imposed size and number restrictions in the
name of traffic safety, the Village’s interest in traffic safety must likewise be real.
Def.’s Reply and Resp. Br. at 9. But the Village’s argument again falls short. In
order for these other sign codes to provide the support the Village needs here, those
codes must do more than simply cite traffic safety as a governmental interest
(which is exactly what the Village has done here), they must provide some sort of
evidence showing that traffic safety is advanced by restrictions like the ones the
Village has imposed here. To be sure, this evidence need not be extensive; it can be
in the form of studies performed by those other locales or even by anecdotes from
those towns. See Lorillard Tobacco v. Reilly, 533 U.S. 525, 555 (2001) (noting that
33
“litigants [can] justify speech restrictions by reference to studies and anecdotes
pertaining to different locales altogether, or even, … [by] relying on history,
consensus, and ‘simple common sense’”). But simply noting that other locales cite to
traffic safety in their sign codes is insufficient. The Village has failed to point the
Court to anywhere in those sign codes showing the existence of a relationship
between traffic safety and regulations limiting the size and number of signs. And
again, absent some sort of evidence showing that the Village’s restrictions in
§ 9.050(A) and (C) alleviate to at least some degree the Village’s interest in traffic
safety, the Village’s restrictions in § 9.050(A) and (C) cannot be said to directly
advance that interest.
The Village’s interest in aesthetics, however, saves the Sign Ordinance.
Unlike with its interest in traffic safety, the Village does have a sufficient basis for
believing that its restrictions in § 9.050(A) and (C) help “enhance the physical
appearance of the Village”—one of the alleged goals of the Village’s Sign Ordinance.
Sign Ord. § 9.010(A)(3). As noted earlier in the Opinion, before enacting the
Ordinance, the Village took hundreds of pictures of commercial signs around the
community, spoke with several village members regarding the different signage
currently in use by town residents and businesses, and even took pictures of signs
in surrounding communities for comparison purposes. R. 37-4, Exh. 1D at 160-348;
DSOF ¶¶ 13-14. Because the Village spent time studying the appearance of signs in
its town (as well as in other towns), the Village knew how the town’s commercial
signs looked and how it wanted to change those signs to improve the town’s overall
34
aesthetic appeal. This shows that the aesthetic harms the Village cites are not just
mere conjecture, but rather that they are real harms that can be alleviated by
placing restrictions on the size and number of signs that may be placed on buildings
in the village. See Metromedia, 453 U.S. at 510 (“It is not speculative to recognize
that billboards by their very nature, wherever located and however constructed, can
be perceived as an ‘esthetic harm.’”); Taxpayers for Vincent, 466 U.S. at 807
(concluding that a complete ban on the posting of signs on public property directly
advanced a town’s interest in preventing visual clutter); see also View Outdoor
Advertising, LLC v. Town of Schererville Bd. of Zoning Appeals, 86 F. Supp. 3d 891,
895 (N.D. Ind. 2015) (finding that a ban on commercial billboards directly advanced
a town’s interest in aesthetics). Accordingly, the Village’s restrictions in § 9.050(A)
and (C) directly advance its stated interest in improving the town’s aesthetics.
The Village’s restrictions in § 9.050(A) and (C) are also narrowly tailored to
serve the Village’s interest in aesthetics. This last part of the Central Hudson
analysis asks whether the Village’s restrictions are no more extensive than
necessary to further the Village’s purported interest. To satisfy this prong, the
Village need not show that its restrictions are “the least restrictive means
conceivable,” or that they are a “perfect” fit. Greater New Orleans Broadcasting
Ass’n, Inc. v. United States, 527 U.S. 173, 188 (1999). Rather, all that the Village
must show is that there is a “fit between the … ends and the means [that it] chose[]
to accomplish those ends.” Am. Blast Fax, Inc., 323 F.3d at 658-59 (citing Fla. Bar v.
Went For It, Inc., 515 U.S. 618, 632 (1995). The Village has done this.
35
Municipalities, like the Village, are generally given “considerable leeway … in
determining the appropriate means to further a legitimate governmental interest,
even when enactments incidentally limit commercial speech.” South-Suburban
Housing Ctr. v. Greater South Suburban Bd. of Realtors, 935 F.2d 868, 897 (7th Cir.
1991) (citing Bd. of Trustees of State Univ. of New York v. Fox, 492 U.S. 469, 47879). In this case, the Village chose to limit the total sign area, § 9.050(A), and the
number of commercial wall signs a building may display, § 9.050(C). The Village did
not go so far as to completely ban wall signs (except painted ones) or commercial
signs altogether; nor is there evidence in the record to suggest that the Village’s
restrictions in § 9.050 are likely to have a detrimental impact on a business’ ability
to effectively advertise to consumers. Id. In fact, the Village’s Sign Ordinance still
permits a business to advertise in a variety of ways, including not only through wall
signs, but also through window signs, awning signs, vehicle signs, and sandwich
board signs.13 See generally Sign Ord. § 9.050. The Village’s decision to limit the
total sign area and number of wall signs a commercial business may display is thus
narrowly tailored to serve the Village’s interest in enhancing the town’s overall
appearance. A reasonable fit exists between the Village’s ends—improving town
13Leibundguth
points to the Ordinance’s allowance of other signs in unlimited
numbers to suggest that the Ordinance’s restrictions in § 9.050 are not narrowly tailored.
See Pl.’s Br. at 12. But this point is not persuasive. As the Court noted above, this last
element of the Central Hudson analysis merely requires a reasonable fit between the
Village’s goal—improving town aesthetics—and its chosen means—reducing total signage
area and the number of wall signs permitted. It does not require that the restrictions
implemented by the Village be a perfect fit or the least restrictive means possible. See
Members of the City Council of Los Angeles, 466 U.S. at 815-16. It is sufficient that the
Village’s aesthetic goals are directly advanced by its restrictions in § 9.050 and that those
restrictions are an “effective approach” to solving the problem before the Village.
Metromedia, 453 U.S. at 508.
36
aesthetics—and the means the Village chose to accomplish those ends—restricting
the size and number of commercial signs.
Leibundguth argues that the Village’s interest in community aesthetics
cannot be considered narrowly tailored because the Village was willing to exempt
one company, Art Van Furniture, from having to abide by § 9.050’s restrictions. Pl.’s
Br. at 8. According to Leibundguth, the Village’s willingness to make such an
exception demonstrates that the Village’s restrictions in § 9.050(A) and (C) are
impermissibly underinclusive. Id. It is true that a restriction on speech can be
underinclusive, and therefore, invalid, when it has exceptions that undermine and
counteract the interest the town claims its restrictions further. See Vanguard
Outdoor, LLC v. City of Los Angeles, 648 F.3d 737, 742 (9th Cir. 2011); see also View
Outdoor Advertising, LLC, 86 F. Supp. 3d at 896. But exceptions should also not be
“viewed in isolation” or “parsed too finely.” Vanguard Outdoor, LLC, 648 F.3d at
742. In this case, the Village’s decision to grant one company a variance to § 9.050’s
restrictions does not undermine the Village’s overall interest in advancing its
community appearance. The Village’s restrictions in § 9.050(A) and (C) still
effectively advance the Village’s interest in aesthetics.
Because the Ordinance’s restrictions in § 9.050(A) and (C) satisfy the
requirements outlined in Central Hudson, the restrictions do not run afoul of the
First Amendment. Accordingly, Leibundguth’s as applied challenge fails. The
Village’s restrictions in § 9.050(A) and (C) may stand.
37
All that remains then is Leibundguth’s final argument: its facial challenge.
Leibundguth frames its challenge as an overbreadth attack. Pl.’s Br. at 16. It
contends that even if the Village’s restrictions in § 9.050(A) and (C) “might be
constitutionally applied to Leibundguth” (that is, might pass muster as restrictions
on commercial speech), the restrictions may nonetheless “conceivably be applied
unconstitutionally to others,” (that is, to noncommercial speakers) and thus, must
be deemed “invalid” in “all [their] applications.” Id. In making this argument,
Leibundguth relies not only on § 9.050, but also on § 9.030 of the Village’s
Ordinance. Section 9.030 is what Leibundguth identifies as the “noncommercial”
counterpart to § 9.050’s restrictions on commercial signs. R. 47, Pl.’s Reply Br. at
17. As discussed previously, Section 9.030 exempts certain signs, depending on their
content, from needing to obtain a permit and then subjects those exempted signs to
a variety of size and number restrictions, which are different than the size and
number restrictions found in § 9.050 for commercial signs. Sign Ord. § 9.030. For
example, it exempts noncommercial and political signs from needing to obtain a
permit, but then restricts those signs to a “maximum area of 12 square feet per lot”
and requires that they not be in “the public right-of-way.” Id. § 9.030(I). It likewise
exempts governmental signs and noncommercial flags, but then does not impose
any size or number restrictions on those signs. Id. § 9.030(A) and (G). Leibundguth
contends that the content-based distinctions the Ordinance draws between different
noncommercial signs in § 9.030, requires that all of the Ordinance’s size and
38
number restrictions (in both § 9.030 and § 9.050) be subject to strict scrutiny—a
level of scrutiny, Leibundguth argues, the Village cannot meet. Pl.’s Br. at 18-20.
Leibundguth, however, is not entitled to invoke the overbreadth doctrine in
this way, because the parties agree that § 9.050 applies only to commercial speech.
The overbreadth doctrine is designed to give a litigant, who has been injured under
one provision of an ordinance, standing to bring a facial challenge to vindicate the
constitutional rights of another litigant not currently before the court who may also
have been injured under that same provision. Alexander v. United States, 509 U.S.
544, 555 (1993); see also CAMP Legal Defense Fund, Inc. v. City of Atlanta, 451 F.3d
1257, 1273-74 (11th Cir. 2006). In the case of a commercial litigant then, like
Leibundguth, the First Amendment’s overbreadth doctrine can be used by that
commercial litigant to challenge an ordinance that might be constitutionally applied
to it, but unconstitutionally applied to a noncommercial litigant. Bd. of Trustees of
State Univ. of New York v. Fox, 492 U.S. 469, 481 (1989). The problem for
Leibundguth, of course, is that because § 9.050 does not apply to noncommercial
speakers, there is no overbreadth challenge to be had. A non-commercial litigant
will never be subject to § 9.050’s requirements, because those requirements apply
only to commercial speakers; therefore, there are no non-party rights to assert here.
And although Leibundguth can point to § 9.030 to inform whether § 9.050—the
section that applies to Leibundguth—is content-neutral, Leibundguth cannot
challenge under the overbreadth doctrine an entirely different section of the
Ordinance—like § 9.030—which does not apply to it. See CAMP Legal Defense
39
Fund, Inc., 451 F.3d at 1273-74 (“The overbreadth doctrine allows CAMP to mount
a facial challenge to provisions of the Festivals Ordinance that harm its ability to
hold a festival … [But] [n]othing in the overbreadth doctrine allows CAMP to
challenge provisions wholly unrelated to its activities.”); see also Brazos Valley Coal.
for Life v. City of Bryan, 421 F.3d 314 (5th Cir. 2005); Lamar Adver. of Pa., LLC v.
Town of Orchard Park, 356 F.3d 365 (2d Cir. 2004). Accordingly, Leibundguth’s
facial challenge also fails.14
IV. Conclusion
The Court holds that the Village’s restriction on painted wall signs in
§ 9.020(P) is a valid content-neutral time, place, and manner restriction. This
restriction is valid under the First Amendment and may remain in place. The
Village’s restrictions in § 9.050(A) and (C) may likewise remain in place, as those
restrictions, which apply only to commercial speech, satisfy the Central Hudson
test. Accordingly, the Court grants the Village’s motion for summary judgment, and
denies Leibundguth’s.
14If
Leibundguth’s facial challenge survived, and strict scrutiny applied to both
§ 9.030 and § 9.050, then the Village’s restrictions would in all likelihood fail to survive that
level of scrutiny. To survive strict scrutiny, the Village would need to show that its
restrictions in § 9.050, as well as its restrictions in § 9.030, further “a compelling state
interest and [are] narrowly drawn to achieve that end.” Arkansas Writers’ Project, Inc. v
Ragland, 481 U.S. 221, 231 (1987); see also Reed, 135 S. Ct. at 2231; Billings v. Madison
Metro. Sch. Dist., 259 F.3d 807, 815 (7th Cir. 2001). The Village—at least on this record—
very likely has failed to make that showing. For example, it is questionable whether the
Village’s interests in traffic safety and aesthetics are sufficiently compelling to satisfy strict
scrutiny. See Neighborhood Enterprises, Inc. v. City of St. Louis, 644 F.3d 728, 738 (8th Cir.
2011), cert. denied, 132 S. Ct. 1543 (2012) (ruling that “a municipality’s asserted interests
in traffic safety and aesthetics, while significant, have never been held compelling”); but see
Solantic, LLC v. City of Neptune Beach, 410 F.3d 1250, 1267 (11th Cir. 2005) (holding that
while the city’s “asserted interests in aesthetics and traffic safety” are not “compelling” in
this instance, “[w]e do not foreclose the possibility that [they] may in some circumstances
constitute a compelling government interest”).
40
As mentioned earlier, the Village has agreed to not impose any fines against
Leibundguth during the case’s pendency. Because this Opinion brings the case to a
close in the district court, it is conceivable that the Village now will seek to start the
meter running in fines, even if Plaintiffs plan to appeal. But to give both sides time
to consider this Opinion and make deliberative decisions on whether to appeal and
whether to agree to a continued stay of the imposition of fines if an appeal were to
be filed (including a possible agreement by the parties to expedite (or at least move
promptly) appellate briefing in exchange for not imposing fines during the appeal’s
pendency), the Court on its own motion enters a temporary stay of judgment so that
the fines will not accumulate during the deliberative process. The temporary stay
will expire on December 28, 2015, by which time hopefully the parties will have
entered into an agreement concerning the pace of an appeal and the stay of fines
during an appeal. If no agreement is reached, then Plaintiffs must file a motion to
extend the stay during the appeal by December 28, 2015. If a stay motion is filed,
then the stay will automatically be decided until after briefing and a decision on the
stay motion.
ENTERED:
s/Edmond E. Chang
Honorable Edmond E. Chang
United States District Judge
DATE: December 14, 2015
41
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