Antitrust Law Daily Wrap Up, ADVERTISING NEWS: Ohio resident seeks Supreme Court review of content-neutral sign regulations, (Jan 9, 2015)

By Greg Hammond, J.D.

Frank Wagner, a resident of Garfield Heights, Ohio, has asked the U.S. Supreme Court to review a Cincinnati U.S. Court of Appeals decision finding that the municipality’s sign regulation—limiting the size of any single political sign to six-square-feet—was content-neutral and satisfied the requirements of intermediate scrutiny (Wagner v. City of Garfield Heights, Ohio, Dkt. No. 14-783).

In September 2011, according to the petition for certiorari, Wagner posted a 16 square-foot sign at his residence, stating, “You do the math Traffic Camera’s + Rubbish Tax = Mahoney Baloney.” After the City received a complaint from councilmember Tracy Mahoney, it threatened Wagner with prosecution for violating the City’s six-square-foot limitation on the size of any single political sign. Wagner filed a civil rights action pursuant to 42 U.S.C. § 1983, challenging the constitutionality of the City’s regulation of political signs. The district court concluded that the sign regulation was a content-based restriction on core political speech and that the City had not satisfied the requirements of strict scrutiny. The U.S. Court of Appeals in Cincinnati reversed the district court’s decision, finding that the regulation, on its face, was content-neutral, and that it satisfied the requirements of intermediate scrutiny.

Wagner asks two questions in his petition: (1) whether the mere assertion by a government that its sign regulations lack a discriminatory motive renders such regulations to be content-neutral sign regulations notwithstanding the facially content-based aspects of such sign regulations? (2) In order to constitutionally justify a content-neutral sign regulation under intermediate scrutiny, must a government establish with evidence that the specific sign regulation at issue actually advances a significant governmental interest and leaves open alternative channels of communication or may a government rely simply upon ipse dixit and general pronouncements in case law concerning different forms or media of communication in order to satisfy the requirements of intermediate scrutiny?

With regard to the first question, Wagner notes that a three-way circuit split exists by which courts determine whether a sign regulation is content-neutral. The First, Second, Eighth, and Eleventh Circuits follow a “text-based test,” in which content-neutrality is determined objectively based on the regulation’s plain terms. The Fourth, Sixth, and Ninth Circuits follow a subjective “motive-based test” that permits content-based distinctions on the face of a code, as long as the government can assert a neutral justification or lack of censorial motive for the sign regulation. Finally, the Third Circuit uses a “context-sensitive test” that allows content-based distinctions on the face of a code, pursuant to a multi-part balancing test. Wagner notes that the circuit split is already before the Supreme Court in Reed v. Town of Gilbert, Arizona (Dkt. No. 13-502). Further, he argues that the Supreme Court should grant his petition and that the Sixth Circuit’s decision should be vacated and remanded for further review upon the issuance of a decision in Reed.

Wagner also argues that the Sixth Circuit’s decision conflicts with relevant decisions of the Supreme Court. Specifically, he asserts that the Supreme Court has treated and analyzed governmental interests supposedly being advanced by sign regulations based on the distinct medium and venue of the expression involved, not with a one-size-fits-all approach that lacks supporting evidence.

Attorneys: Curt C. Hartman and Christopher P. Finney (Finney Law Firm, LLC) for Frank Wagner.

News: Advertising