Lexington H-L Services, Inc. v. Lexington-Fayette Urban County Government

Filing 28

OPINION & ORDER: (1) The Herald-Leader's motion for preliminary injunction is GRANTED 13 ; and (2) The Herald-Leader's motion for leave to file a supplemental memorandum 26 is also GRANTED. (3) The Lexington Fayette-Urban County Government and its agents and assigns are ENJOINED from enforcing Ordinance No. 25-2017. Signed by Judge Karen K. Caldwell on 04/28/2017.(LC)cc: COR

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
CENTRAL DIVISION
AT LEXINGTON
LEXINGTON H-L SERVICES, INC.,
d/b/a Lexington Herald-Leader,

CIVIL ACTION
NO. 5:17-154-KKC

Plaintiff,
V.

OPINION & ORDER

LEXINGTON-FAYETTE URBAN
COUNTY GOVERNMENT,
Defendant.

*** *** ***
This matter is before the Court on the motion of the plaintiff, Lexington H-L Services,
Inc., d/b/a Lexington Herald-Leader, for a preliminary injunction. (DE 13).
Through its motion, the Herald-Leader seeks to enjoin the enforcement of a LexingtonFayette Urban County Government1 ordinance regarding the delivery of “unsolicited written
materials.”
The Court held a hearing on the Herald-Leader’s motion for injunctive relief and took the
matter under advisement. (DE 24). Having considered the parties’ written filings and oral
arguments, the Court will grant the Herald-Leader’s motion for a preliminary injunction.
(DE 13).
Also before the Court is the Herald-Leader’s motion for leave to file a supplemental
memorandum. (DE 26). That motion will also be granted.

In order to avoid repetitive use of an acronym, the Court will refer to the defendant, the LexingtonFayette Urban County Government, as simply either “Lexington” or “the city.”
1

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I. Background
The facts of this case are not extensive, and a simple recitation will suffice for purposes
of this opinion.
The Herald-Leader sells and distributes numerous publications, including The
Community News, which is a weekly four- to six-page non-subscription publication. (DE 13,
Mtn. at 2). The Community News contains local news and advertising for the city of
Lexington, Kentucky, and the surrounding area. (DE 13, Mtn. at 2). The Herald-Leader
delivers The Community News to businesses and residents in Fayette and neighboring
counties (DE 1, Compl. ¶ 13). The Community News is delivered free of charge to more than
100,000 households each week. (DE 14, Friday Aff. ¶ 6).
The Herald-Leader distributes The Community News by various means, including
driveway delivery.2 (DE 14, Friday Aff. ¶ 8). However, the Herald-Leader’s driveway method
of delivering The Community News would be prohibited by an ordinance that Lexington has
adopted.
That ordinance, which will go into effect on May 1, 2017, permits the delivery of
“unsolicited written materials” only to six specific locations: (1) on a porch, if one exists,
nearest the front door; (2) securely attached to the front door; (3) through a mail slot, if one
exists; (4) between an exterior front door, if one exists and is unlocked, and an interior front
door; (5) in a distribution box located on or adjacent to the premises, if permitted; or (6)
personally with the owner, occupant, or lessee of the premises. Lexington, Ky., Ordinance
No. 25-2017 (March 2, 2017). The ordinance provides for civil penalties for violations. Id.
Shortly after the ordinance was adopted, the Herald-Leader filed suit in this Court,
claiming that the ordinance would violate its free speech and free press rights under the First

The Court recognizes that items tossed toward a driveway may instead land in a yard or on a
sidewalk.
2

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Amendment. (DE 1). However, the full merits of the Herald-Leader’s case are not currently
before the Court. Instead, the Court must address whether the Herald-Leader has
demonstrated that it is entitled to injunctive relief while this action is pending. (DE 13).
II. Discussion
A district court gauges a request for a preliminary injunction based on four factors: (1)
the plaintiff’s likelihood of success on the merits; (2) irreparable harm to the plaintiff absent
injunctive relief; (3) substantial harm to others resulting from an injunction; and (4) the
broader public interest. Michigan State AFL-CIO v. Schuette, 847 F.3d 800, 803 (6th Cir.
2017).
The contours of the First Amendment will guide the Court’s discussion on each of these
elements,3 and although each factor is important, “[w]hen a party seeks a preliminary
injunction on the basis of the potential violation of the First Amendment, the likelihood of
success on the merits often will be the determinative factor.” Connection Distrib. Co. v. Reno,
154 F.3d 281, 288 (6th Cir. 1998).
In its motion for a preliminary injunction, the Herald-Leader challenges the city’s
ordinance as violating the paper’s free speech and free press rights.4 The Herald-Leader
attacks Lexington’s ordinance as both an impermissible content-based restriction on speech
and as an unreasonable, content-neutral restriction on the time, place, and manner of speech.

The First Amendment states in full: “Congress shall make no law respecting an establishment of
religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or
the right of the people peaceably to assemble, and to petition the government for a redress of
grievances.” U.S. Const. amend. I.
4 The rights secured by the First Amendment apply to the states and local governments through the
operation of the Fourteenth Amendment. See Gitlow v. New York, 268 U.S. 652, 666 (1925) (“For
present purposes we may and do assume that freedom of speech and of the press—which are protected
by the First Amendment from abridgment by Congress—are among the fundamental personal rights
and ‘liberties’ protected by the due process clause of the Fourteenth Amendment from impairment by
the States.”).
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At the hearing, the Herald-Leader presented a different angle to its claims, citing
Minneapolis Star & Tribune Co. v. Minnesota Commissioner of Revenue, 460 U.S. 575 (1983),
for the proposition that Lexington’s ordinance unconstitutionally targets the press.
Because different kinds of restrictions on speech are subjected to different levels of
scrutiny under the law, the Court will separately analyze each of the Herald-Leader’s
theories.
a. Whether the Herald-Leader has a likelihood of proving that Lexington’s
ordinance is content-based
The Herald-Leader first argues that Lexington’s ordinance is a content-based restriction
on speech, which would require the Court to closely scrutinize the ordinance.
Content-based laws are “those that target speech based on its communicative content.”
Reed v. Town of Gilbert, 135 S. Ct. 2218, 2226 (2015). “Because strict scrutiny applies either
when a law is content based on its face or when the purpose and justification for the law are
content based, a court must evaluate each question before it concludes that the law is content
neutral and thus subject to a lower level of scrutiny.” Id. at 2228. Under strict scrutiny
review, the city would be required to show that the ordinance is narrowly tailored to further
compelling state interests. Id.
In this case, the parties do not dispute that Lexington’s ordinance is facially contentneutral, so the Court must ask the second question—whether the city’s purpose and
justification for the ordinance were content-based.
A reviewing court must strictly scrutinize facially content-neutral laws if the laws “cannot
be justified without reference to the content of the regulated speech, or [if they] were adopted
by the government because of disagreement with the message [the speech] conveys.” Id. at
2227 (internal quotation marks omitted) (quoting Ward v. Rock Against Racism, 491 U.S.
781, 791 (1989)).
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In the Herald-Leader’s view, Lexington, in enacting the ordinance, targeted The
Community News. The Herald-Leader also argues that the record demonstrates the
ordinance is content-based because Lexington councilmembers considered materials that
discussed the distribution of “unsolicited advertising supplements.” (See DE 13-2; DE 13-3).
However, the Court is not convinced that Lexington’s purpose and justification for adopting
the ordinance were motivated by any disagreement with the messages or content being
conveyed.
Instead, it appears likely that the ordinance can be justified without reference to the
content of the regulated speech and that the ordinance was not adopted by the city because
of any disagreement with the message conveyed by The Community News or by any other
distributor of unsolicited written materials. See Reed, 135 S. Ct. at 2227.
Thus, the Herald-Leader has not shown a likelihood of success on either avenue to strict
scrutiny—that is, it has not shown the ordinance to be facially content-based or that the
purpose and justification for the ordinance were content-based. This leads the Court to
examine whether the ordinance is a reasonable, content-neutral restriction on the time,
place, and manner of speech.
b. Whether the Herald-Leader has a likelihood of proving that Lexington’s
ordinance is an unreasonable, content-neutral restriction on the time, place,
and manner of speech
The Herald-Leader has never wavered in its assertion that Lexington’s ordinance is
content-based. However, it did advance the alternative theory that Lexington’s ordinance
would fail constitutional review even if examined as a content-neutral regulation of speech.
Laws that are content-neutral and do not have an improper purpose are “subject to lesser
scrutiny.” Id. at 2232. To qualify as a reasonable time-place-and-manner regulation of speech,
the law must: (1) be content-neutral; (2) serve a significant government interest; (3) be

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narrowly tailored to serve that government interest; and (4) leave open ample alternative
channels of communication. Jobe v. City of Catlettsburg, 409 F.3d 261, 267 (6th Cir. 2005).
The Herald-Leader contends that Lexington’s ordinance cannot withstand this
intermediate standard of review. Here, the paper disputes the interests asserted by the city
and argues that the ordinance is not sufficiently tailored to the interests it purports to
address. The Herald-Leader also argues that the ordinance does not leave open ample
alternative channels of communication.
Before proceeding further, perhaps, the Court should address a particular aspect of the
Herald-Leader’s challenge to Lexington’s ordinance—that is, the Herald-Leader’s argument
that Lexington’s ordinance infringes on its rights, as a newspaper, to distribute information
to the public.5
This country has “a profound national commitment to the principle that debate on public
issues should be uninhibited, robust, and wide-open.” New York Times Co. v. Sullivan, 376
U.S. 254, 271 (1964). Moreover, within this commitment, “[a] foremost consideration is the
safeguarding of the constitutional rights of newspapers; a goal which is a significant, if not
vital, First Amendment concern.” S. New Jersey Newspapers, Inc. v. New Jersey Dep’t of
Transp., 542 F. Supp. 173, 182 (D.N.J. 1982) (hereinafter “New Jersey Newspapers”).
These rights are based in large part on the public’s need for information to engage in
social, commercial, and civic life. As the Supreme Court expounded 140 years ago, “[l]iberty
of circulating is as essential to that freedom [of the press] as liberty of publishing; indeed,
without the circulation, the publication would be of little value.” See Ex parte Jackson, 96
U.S. 727, 733 (1877).

Practically, this argument will be most salient within the Court’s consideration of the third and
fourth factors of the time-place-and-manner review.
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The broad protection designed to promote the communication of vital information leads
the Court to question whether the The Community News is really a newspaper or a
publication worthy of or entitled to the protection of the press discussed in the body of existing
First Amendment law. At first blush, The Community News seems to be four to six pages of
advertising with a little bit of editorial content included for good measure. It is only logical
to question whether this kind of publication is entitled to the revered status and wide latitude
of protection afforded to publications of true public significance.
Nonetheless, the Court will review this publication as non-commercial speech “because it
involves more than just a mere proposal for a commercial transaction.” Distrib. Sys. of Am.,
Inc. v. Village of Old Westbury, 862 F. Supp. 950, 957 (E.D.N.Y. 1994) (citing City of
Cincinnati v. Discovery Network, Inc., 507 U.S. 410, 420 (1993)) (district court finding
publication that “contain[ed] some local and general news stories, but predominantly
carrie[d] local advertisements” to be non-commercial speech).6
Accordingly, the Court will review Lexington’s ordinance under a lower standard of
review, one often referred to as intermediate scrutiny, because, at least in form, the ordinance
does not ban the Herald-Leader from delivering The Community News. See New Jersey
Newspapers, 542 F. Supp. at 184 (“The court does agree that this case differs somewhat from
the total prohibition cases cited above and should be analyzed using the approach employed
by the Supreme Court to evaluate zoning ordinances or similar ‘content-neutral’ statutory
prohibitions which infringe, even incidentally, upon the exercise of First Amendment
rights.”).
As discussed above, the Herald-Leader has not shown a likelihood of success on the merits
of its claim that Lexington’s ordinance is a content-based restriction of speech. On its face,

However, the line between commercial and non-commercial speech is not always clear, and
publications such as The Community News only further blur the line.
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the ordinance is content-neutral. Moreover, the purpose and justification for the ordinance
were likely content-neutral.
The next question to address is whether Lexington has put forth any significant
government interests. The preamble to Lexington’s ordinance cites several objectives the city
hopes to further, including reduction of unwanted litter and visual blight and prevention of
damage to or interference with private property. Lexington, Ky., Ordinance No. 25-2017.
Although the Herald-Leader disputes the quantum of evidence put forth by the city and
the legitimacy of the interests, courts have recognized aesthetic and property interests as
significant. Jobe v. City of Catlettsburg, 409 F.3d 261, 268 (6th Cir. 2005) (noting that an
ordinance furthered two significant government interests: (1) prohibiting litter and visual
blight and (2) “individuals’ interests in having their private property left alone by those who
do not have permission to use it”).
The Herald-Leader attempts to distinguish its case from a factually similar challenge
brought by The (Louisville) Courier-Journal in the Western District of Kentucky. CourierJournal, Inc. v. Louisville/Jefferson Cty. Metro Gov’t, No. 3:09cv-449-S, 2009 WL 2982923
(W.D. Ky. Sept. 11, 2009)). In a parenthetical citation in its motion, the Herald-Leader argues
that the district court in the Courier-Journal case was presented with “extensive evidence”
in support of the ordinance, including testimony from the director of the sewer district
regarding sewage clogging caused by newspaper baggies and testimony from the Louisville
Police Department regarding security concerns. (DE 13, Mtn. at 10–11). The Court notes that
Lexington had comparable evidence to consider before enacting its ordinance. (See DE 22-5,
Agenda, at 25–26) (letter from director of division of water quality and letter from chief of
police).
At this stage of the litigation, it appears unlikely that the Herald-Leader would be able
to demonstrate that the interests asserted by the city are not significant. Further, the debate
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in First Amendment cases often concerns not whether the interests put forth by the
government are true, but whether the method chosen by the government to advance those
interests is properly tailored. So it is with this case.
Under intermediate scrutiny, “as the Supreme Court has ‘emphasized on more than one
occasion, when a content-neutral regulation does not entirely foreclose any means of
communication, it may satisfy the tailoring requirement even though it is not the least
restrictive or least intrusive means of serving the statutory goal.” Jobe, 409 F.3d at 268
(quoting Hill v. Colorado, 530 U.S. 703, 726 (2000)). Further, “the requirement of narrow
tailoring is satisfied so long as the . . . regulation promotes a substantial government interest
that would be achieved less effectively absent the regulation.” Id. (quoting Ward, 491 U.S. at
798 ) (internal quotation marks omitted). To state this requirement another way, Lexington’s
ordinance must curtail no more speech than is necessary to accomplish its purpose. Id. at 269
(citing City of Los Angeles v. Taxpayers for Vincent, 466 U.S. 789, 810 (1984)).
On this prong, the paper essentially presents two arguments. First, the paper contends
that the city has a less restrictive alternative available to banning deliveries to areas other
than those permitted by the ordinance. Second, the paper asserts that the ordinance is not
narrowly tailored because solicited written materials, including the Herald-Leader’s flagship
publication, the Lexington Herald-Leader, can still be distributed to the areas proscribed by
the ordinance. The Court will discuss these arguments in reverse order.
To address whether the ordinance is underinclusive, the Court must discuss the
difference between “solicited” and “unsolicited” written materials. The ordinance defines
“unsolicited written material” as “[a]ny written materials delivered to any premises without
the express invitation or permission, in writing or otherwise, by the owner, occupant, or
lessee of such premises.” Lexington, Ky., Ordinance No. 25-2017.

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The distinction between these types of materials does not go to content, but rather to the
manner in which the materials are delivered. Individuals or businesses know solicited
materials will be delivered to their premises, and they have agreed to that delivery. In fact,
they expect it. Practically, solicited materials are more likely to be picked up and disposed of
properly.
Unsolicited materials, on the other hand, are those that individuals or businesses have
not expressly agreed to receive. The concern with these materials is that they will remain
where they were distributed because the recipient has less interest in retrieving them.
In Taxpayers for Vincent, the Supreme Court upheld, in an as-applied challenge, an
ordinance that prohibited posting of signs on public property, noting that it was the medium
of the expression that constituted the source of the evil that Los Angeles sought to curtail.
466 U.S. at 810. (“With respect to signs posted by appellees, however, it is the tangible
medium of expressing the message that has the adverse impact on the appearance of the
landscape. . . . Here, the substantive evil—visual blight—is not merely a possible by-product
of the activity, but is created by the medium of expression itself.”).
The Court finds that analysis controlling here. Lexington can likely show that it targeted
unsolicited written materials because of the nature of those materials, namely that they are
paper materials distributed in a manner that makes them less likely to be gathered from a
driveway, yard, or sidewalk.
Next, the Herald-Leader argues that the city must pursue a less restrictive option for
dealing with the problems caused by the paper’s chosen method of delivery. In support of this
claimed alternative, the Herald-Leader presents the “opt-out” option.
This option refers to the ability of individuals to request to have their addresses removed
from The Community News’ delivery list. To assist individuals in opting out of receiving The
Community News, the Herald-Leader prints a banner above-the-fold on the front page of each
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edition of The Community News with an email address or a phone number to contact to
request removal from the delivery list. (DE 14-1, Ex. A, Copy of The Community News).
The Herald-Leader contends that the city must pursue the “resident education option”
because “[s]imple promotion of the ability to opt out of delivery of The Community News has
been proven to reduce unwanted delivery in Fayette County . . . .” (DE 13, Mtn. at 14). This
option, in the view of the paper, would help reduce the amount of materials on driveways and
yards in Lexington without infringing on its ability to cost-effectively deliver the paper.
On this point, the Court does see the opt-out option as a potential less restrictive means
by which the city could seek to advance its interests in aesthetics and protecting private
property. Further, at least one councilmember stated that educating constituents in her
district about the opt-out option had been successful. (DE 14-2, Tr. Jan. 17, 2017 Comm. Mtg.
at 25:22–26:8). As such, the Herald-Leader has shown a likelihood of success on the merits
of its claim that the opt-out option is a less restrictive alternative.
Now, the Court will address the final factor of the time-place-and-manner analysis—
whether the ordinance leaves open ample alternative channels of communication.
On its face, the ordinance permits deliveries of unsolicited written materials in sixspecified locations. Yet, the Herald-Leader’s method of driveway delivery is not one of the
approved methods under the ordinance. The Herald-Leader’s challenge, then, is a functional
one.
Here, the Herald-Leader asserts that the ordinance’s ban on deliveries to areas other than
those permitted by the ordinance acts as a total ban on its ability to deliver The Community
News because any other method of delivery would be cost prohibitive. (DE 13, Mtn. at 6) (“If
enforced, the Ordinance will have the effect of ending all delivery service of The Community
News.”).

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This is where the Herald-Leader’s protected rights of distribution are implicated, and the
Court is left with two potentially incompatible interests. On the one hand, Lexington has an
interest in reducing litter and visual blight and in preventing interference with and damage
to personal property. On the other hand, the Herald-Leader has rights under the First
Amendment to distribute its speech, and individuals have rights under the First Amendment
to receive information. The true question, though, is whether the Herald-Leader has a right
to distribute information in an economically beneficial manner.
In the case brought by the Louisville Courier-Journal challenging a nearly identical
ordinance in Louisville, Kentucky, the Western District of Kentucky found that “[t]he
purported lack of economically feasible alternatives for the Courier [was] not a basis upon
which to find the ordinance unconstitutional.” Courier-Journal, 2009 WL 2982923, *6. The
Western District cited a Third Circuit case for the proposition that while a newspaper may
have the right to speak, it does not have the right to speak profitably. Id. (citing Pitt News v.
Fisher, 215 F.3d 354, 366 (3d Cir. 2000)).
However, the Court finds that Third Circuit case to be inapposite, even more so because
the law that was originally upheld in that case was later found to be unconstitutional. See
Pitt News v. Pappert, 379 F.3d 96, 111 (3d Cir. 2004). Further, that case did not deal with a
newspaper’s distribution rights.
Moreover, the Herald-Leader does not explicitly challenge its ability to make a certain
level of profits. Instead, the paper argues that the delivery methods left open by the ordinance
would be cost-prohibitive. Phrasing the issue in this way may result in a distinction without
a difference, but the Court recognizes that an individual’s or entity’s distribution rights do
not necessarily implicate economic concerns. See Young v. American Mini Theatres, Inc., 427
U.S. 50, 78 (1976) (Powell, J., concurring) (“The inquiry for First Amendment purposes is not
concerned with economic impact; rather, it looks only to the effect of this ordinance upon
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freedom of expression.”); see also News & Observer Publ’g Co. v. Raleigh-Durham Airport
Auth., 597 F.3d 570, 577–78 (4th Cir. 2010) (“First we measure the Authority’s restriction on
the Publishers’ protected expressive activity, namely, newspaper distribution. This analysis
hinges not upon a projected difference in newspaper sales but rather upon the Publishers’
access to Airport users for speech purposes.”).
Moreover, in upholding a Kentucky city’s ordinance that prohibited leaflets from being
placed on private cars without the owner’s consent, the Sixth Circuit noted that “[b]y any
measure of alternative channels of communication, the City of Catlettsburg has given its
citizens numerous ways to distribute literature and information in an inexpensive, efficient
and productive manner.” 409 F.3d at 262, 270 (emphasis added).
Here, the Herald-Leader maintains that providing deliveries in compliance with the
ordinance is not feasible within its current business model. In support of this claim, the
Herald-Leader’s publisher testified at the hearing that complying with the ordinance would
double the Herald-Leader’s cost for distributing The Community News.
Presented with this evidence, the Court cannot say that the delivery methods permitted
by the ordinance likely leave open “inexpensive” alternative routes for communication, at
least in the case of The Community News.
Though this Court rarely has opportunity to cite the Supreme Court of Wyoming, that
court’s rationale in Miller v. City of Laramie is particularly useful for this Court’s
consideration of the Herald-Leader’s distribution rights. 880 P.2d 594 (Wyo. 1994). In that
case, the Equality State’s highest court held a littering ordinance unconstitutional as applied
to a newspaper because of the burden the ordinance placed on the newspaper’s distribution
rights:
We hold that Laramie may not ban all distribution of noncommercial speech
materials which it views as litter under its wide-sweeping ordinance. It may
place reasonable restrictions on such distributions so long as they do not have
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the effect of squelching legitimate speech which is protected by the constitution
and so long as Laramie can demonstrate that other substantial means of
communicating such speech are meaningfully available, including economic
feasibility.
Id. at 598.
The Supreme Court of Georgia addressed a similar First Amendment challenge in
Statesboro Publishing Co. v. City of Sylvania, 516 S.E.2d 296 (Ga. 1999). In that case, the
Peach State’s highest court found an ordinance that prohibited delivery of free printed
materials to yards, driveways, and porches to be unconstitutional. Id. at 297. Language from
that case is also instructive: “A city cannot limit the speaker or publisher to methods of
delivery that are prohibitively expensive, such as mail or hand delivery . . .” Id. at 299.
The analysis in these state court decisions gives great weight to the Herald-Leader’s
assertions concerning its distribution rights. In light of these opinions, the Court finds the
Herald-Leader has demonstrated a likelihood of success on the merits of its claim that
Lexington’s ordinance does not leave open ample alternative channels of communication.
c. Whether the Herald-Leader has a likelihood of success on the merits under
Minneapolis Star
Lastly, the Herald-Leader argues that the Supreme Court’s decision in Minneapolis Star
controls the outcome of this case. The Herald-Leader posits that, in Minneapolis Star, the
Supreme Court “found that a facially content-neutral tax on ink and paper used in newspaper
publications violated the First Amendment because it was targeted at a small group of
newspapers.” (DE 26-1, Mem. at 3).
The Court recognizes that Lexington’s ordinance does not impose a tax upon the HeraldLeader. Instead, the paper faces potential civil penalties if it continues driveway deliveries
of The Community News within Fayette County. Although Minneapolis Star does not seem
to be directly controlling because no tax is at issue, the Court will briefly indulge the HeraldLeader’s legal theory.
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In Minneapolis Star, the Supreme Court explained that “[a] tax that burdens rights
protected by the First Amendment cannot stand unless the burden is necessary to achieve an
overriding governmental interest.” Minneapolis Star, 460 U.S. at 582.
In discussing the level of scrutiny to be applied, the Supreme Court noted that courts
have “long upheld economic regulation of the press,” but that “[t]he cases approving such
economic regulation, however, emphasized the general applicability of the challenged
regulation to all businesses, suggesting that a regulation that singled out the press might
place a heavier burden of justification on the State . . . .” Id. at 583 (internal citations omitted).
Here, the ordinance is one of general applicability because it does not distinguish among
who may be cited for violating its provisions. However, the Herald-Leader contends that the
ordinance is, in effect, a differential burden on it as a member of the press.
As the Supreme Court discussed in Minneapolis Star, “differential treatment, unless
justified by some special characteristic of the press, suggests that the goal of the regulation
is not unrelated to suppression of expression, and such a goal is presumptively
unconstitutional.” Id. at 585.
However, the Court finds it likely that Lexington could present a strong argument that a
“special characteristic of the press” motivated it in this case, namely the paper medium of
The Community News and other unsolicited written materials. Given the unlikelihood of
success for the Herald-Leader on this argument, any analysis of a heightened level of scrutiny
from Minneapolis Star is unwarranted.
d. Other preliminary injunction factors
Although the bulk of the discussion for whether to issue a preliminary injunction in a
First Amendment case will be on a plaintiff’s likelihood of success, the other three factors are
also important.

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As to irreparable harm, “it is well-settled that ‘loss of First Amendment freedoms, for
even minimal periods of time, unquestionably constitutes irreparable injury.’” Connection
Distrib., 154 F.3d at 288 (quoting Elrod v. Burns, 427 U.S. 347, 373 (1976) (plurality)). “Thus,
to the extent that [the Herald-Leader] can establish a substantial likelihood of success on the
merits of its First Amendment claim, it also has established the possibility of irreparable
harm as a result of the deprivation of the claimed free speech rights.” Id.
As described above, the Herald-Leader has shown a substantial likelihood of success on
the merits of its constitutional challenge to Lexington’s ordinance as an infringement of its
distribution rights. Thus, the factor of irreparable harm is also present in this case.
Additionally, if the plaintiff shows a substantial likelihood that the challenged law is
unconstitutional, no substantial harm to others can be said to inhere in its enjoinment. Deja
Vu of Nashville, Inc. v. Metro. Gov’t of Nashville & Davidson Cty., 274 F.3d 377, 400 (6th Cir.
2001). Moreover, “it is always in the public interest to prevent violation of a party’s
constitutional rights.” Id. (internal quotation marks omitted).
All factors taken together will lead the Court to grant the Herald-Leader’s request for a
preliminary injunction to prevent enforcement of Lexington’s ordinance while this action is
pending.
III.

Conclusion

The Court recognizes that Lexington enacted this ordinance in response to concerns that
it reasonably sees as needing remedied. However, the First Amendment provides great
protection to a newspaper’s rights to disseminate information to the public, and the rights
afforded by the First Amendment must be vigorously guarded.
Because of this, the Herald-Leader has demonstrated a likelihood of success on the merits
of its claim that Lexington’s ordinance would violate its distribution rights, and its motion
for a preliminary injunction will be GRANTED. (DE 13).
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Accordingly, it is hereby ORDERED that:
(1) The Herald-Leader’s motion for preliminary injunction is GRANTED (DE 13); and
(2) The Herald-Leader’s motion for leave to file a supplemental memorandum is also
GRANTED. (DE 26).
(3) The Lexington Fayette-Urban County Government and its agents and assigns are
ENJOINED from enforcing Ordinance No. 25-2017.

Dated April 28, 2017.

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