Antitrust Law Daily Wrap Up, ADVERTISING—6th Cir.: Billboard rules upheld after severing unconstitutional sign exemption, (Mar 5, 2026)

By Patricia K. Ruiz, J.D.

The court affirmed the village’s authority to enforce its remaining signage ordinance provisions following removal of the invalid public-service exception.

The U.S. Court of Appeals for the Sixth Circuit affirmed the authority of the Village of St. Bernard, a small municipality and enclave of Cincinnati, to enforce its billboard ordinance after severing an unconstitutional content-based exemption. The court held that the ordinance’s “public service” sign exemption—previously found to violate the First Amendment—could be removed without disturbing the broader regulatory scheme, and that the remainder of the law survives intermediate scrutiny. The court’s analysis centered on Ohio’s severability doctrine and the established First Amendment framework governing content-neutral billboard regulation (Norton Outdoor Advertising, Inc. v. Village Of St. Bernard, Ohio, No. 25-3265 (6th Cir. Mar. 4, 2026)).

Background. The dispute stemmed from the Village’s refusal to permit Norton Outdoor Advertising, Inc., to construct a digital billboard. Norton challenged several aspects of the Village’s billboard ordinance, including its restrictions on variable-message signs and its regulatory definitions. In an earlier appeal, the Sixth Circuit had concluded that the public-service exemption constituted an impermissible content-based restriction on speech and remanded for the district court to address severability—an issue not previously briefed. On remand, the district court determined that the unconstitutional exemption could be severed and that the remaining ordinance complied with intermediate scrutiny, prompting Norton’s second appeal.

Severability. In evaluating severability, the panel applied Ohio’s three-part test from Geiger v. Geiger, which asks whether the constitutional and unconstitutional parts can stand independently, whether removing the invalid part frustrates legislative intent, and whether severance requires adding new language. The parties did not dispute the first factor. Focusing on the latter two elements, the court held that the exemption was not so intertwined with the ordinance’s purpose—reducing motorist distractions, improving safety, raising property values, and reducing visual blight—that removing it would defeat the Village’s intent. The magistrate judge’s conclusion that severance would “minimally impact” the legislative purpose was endorsed.

The appellate court also rejected Norton’s argument that severing the exemption would impermissibly broaden the ordinance. Examining Ohio precedent, including cases addressing territorial statutes and exemptions, the panel concluded those authorities did not bar severance here and that modern Ohio law consistently applies Geiger alongside a statutory presumption favoring severability. The court found no evidence that removing the exemption required inserting new statutory language or that the legislature would have declined to enact the ordinance without the invalid provision.

Intermediate scrutiny. Having determined the exemption severable, the panel turned to whether the remaining ordinance satisfied intermediate scrutiny. The court reaffirmed that strict scrutiny applied only to the public-service exemption, consistent with its prior decision. The remainder of the ordinance, which regulates billboard size, placement, and the prohibition of variable-message signs, was treated as a content-neutral time, place, and manner regulation. The court emphasized longstanding precedent recognizing traffic safety, aesthetics, and property values as significant governmental interests and found a reasonable fit between those interests and the ordinance’s restrictions.

Norton’s argument that the Village was required to supply additional record evidence demonstrating direct advancement of its interests was rejected. Relying on Metromedia and subsequent Sixth Circuit cases, the court noted that municipalities need not provide empirical data to justify billboard regulations addressing safety and aesthetics. The court concluded that the Village’s restrictions—including limitations on new billboards and the ban on variable-message signs—were sufficiently tailored and left open ample alternative channels of communication.

Damages. Finally, the court held that Norton was not entitled to damages or attorney fees. Although Norton had previously prevailed on its challenge to the public-service exemption, severance constituted an interpretive exercise rather than a remedy that altered the Village’s conduct toward Norton. Because the Village could still enforce the ordinance against the company and no judgment was entered in Norton’s favor, the court found Norton was not a “prevailing party” under 42 U.S.C. § 1988. The Sixth Circuit therefore affirmed the district court’s judgment in full.

The Case is No. 25-3265.

Judge: Moore, K.

Attorneys: Michael A. Galasso (Robbins, Kelly, Patterson & Tucker) for Norton Outdoor Advertising, Inc. Ray C. Freudiger (Marshall Dennehey, PC) for Village of St. Bernard, Ohio.

Companies: Norton Outdoor Advertising, Inc.

Cases: Advertising KentuckyNews MichiganNews OhioNews TennesseeNews