Opinion

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF TENNESSEE

COOKEVILLE DIVISION

ROLAND DIGITAL MEDIA, INC., )

)

Plaintiff, )

)

v. ) No. 2:25-cv-00102

)

CITY OF LIVINGSTON, TENNESSEE, )

)

Defendant. )

MEMORANDUM OPINION

The First Amendment prohibits a municipal government from restricting expression

because of its message, ideas, subject matter, or content. Consistent with that prohibition,

municipalities, like the City of Livingston, Tennessee (“Livingston”), may permissibly impose

content-neutral restrictions that have nothing to do with the sign’s message, such as size, materials,

lighting, and moving parts. This case concerns Livingston’s enforcement of one of those

ostensibly content-neutral restrictions—the “flashing-sign prohibition”—against Roland Digital

Media, Inc. (“Roland”), an outdoor sign advertising company. In 2025, Livingston denied

Roland’s ten applications to erect digital advertising signs for the sole reason that they violated its

prohibition on “flashing signs.” But Roland alleges here and represented to Livingston that its

digital advertising signs are not “flashing signs,” so Roland brought this lawsuit.

Livingston moves to dismiss the Amended Complaint,1 and the motion is ripe for review.

(Doc. Nos. 25, 26, 34, 36, 37). The motion will be granted in part and denied in part. Roland’s

1 Before Roland amended its Complaint, Livingston moved for dismissal on similar grounds (Doc.

Nos. 12, 19). That motion will be denied as moot. Parry v. Mohawk Motors of Michigan, Inc.,

236 F.3d 299, 306-07 (6th Cir. 2000) (holding that an amended complaint supersedes all previous

complaints); Crawford v. Tilley, 15 F.4th 752, 759 (6th Cir. 2021) (“The general rule is that filing

an amended complaint moots pending motions to dismiss.”).

allegations concern only Livingston’s application of the flashing-sign prohibition. Roland has

standing to assert two claims that it has plausibly alleged: Roland’s as-applied claim that the

flashing-sign prohibition is an unconstitutional time, place, and manner restriction, and its claim

that Livingston violated the Equal Protection Clause by treating similarly situated sign displayers

differently. The remaining claims will be dismissed.

I. FACTUAL ALLEGATIONS2

Roland operates outdoor advertising signs throughout Tennessee. (Doc. No. 23 ¶¶ 5–10).

In 2025, Roland obtained permission from several property owners to erect digital signs on their

property. Then it submitted ten permit sign applications to Livingston. (Id. ¶¶ 15–19, 36).

In response to Roland’s first application, the City’s Building Inspector and Codes Officer,

Walter Rutherford, asked Roland whether its proposed sign would display on-premises

advertising, off-premises advertising, or both. (Id. ¶ 21). Roland responded that it intended to

display “every kind of message,” including “on-premise and local messages,” “religious and non-

profit messages,” messages for “local charities and promotion of the community,” messages for

“events, downtown,” and “etc.” (Id. ¶ 22). Rutherford denied the first application, and

subsequently the remaining nine applications,3 “on the sole basis” that the proposed digital sign

would be defined a flashing sign under Section 11-202.22 of the Zoning Ordinance, prohibited by

Section 11-203.9.2(e). (Id. ¶ 23).

2 The Court draws the facts from the Amended Complaint (Doc. No. 23) and assumes their truth

to decide the motion. Erickson v. Pardus, 551 U.S. 89, 94 (2007).

3 While Roland’s initial appeal remained pending, it submitted nine more applications for digital

signs at other locations. (Id. ¶ 36). Rutherford denied each application “on the basis that they

would constitute ‘flashing signs’ that are prohibited by the 2025 Zoning Ordinance.” (Id. ¶ 37).

Roland appealed those denials, and the Board of Zoning Appeals affirmed all ten. (Id. ¶¶ 38, 47–

49).

The ordinance defines a flashing sign and prohibits flashing signs as follows4:

11-202.22 Flashing Sign. A directly or indirectly illuminated sign on which

artificial light is not maintained stationary and constant in intensity and color at all

times in use.

11-203.9.2 Signs Prohibited in All Districts

. . . .

(e) Flashing signs.

(Doc. No. 25-1 at 2, 4).

Roland appealed the denial of its applications to the Livingston Board of Zoning Appeals.

On appeal, Roland represented that its “proposed digital display did not qualify as a ‘flashing sign’

since the messages that will be displayed on the sign will be maintained in a stationary position

and will remain constant in intensity and color at all times when in use.” (Id. ¶¶ 24–27). Roland

also alleges that Rutherford’s interpretation represented “a marked departure from the City’s prior

interpretation of its Zoning Ordinance.” (Id. ¶ 28). Roland supported those allegations with

“several examples of occasions where Livingston allowed sign applicants like Roland to install

signs using digital technology.” (Id. ¶ 29). The Amended Complaint includes photographs of a

digital sign stating “WELCOME TO FIRST BAPTIST”; a digital sign incorporated into a brick

sign for the Livingston/Overton County Chamber of Commerce; and a digital sign beneath a sign

identifying the Overton County Health Department Community Health Center.5 (Id. ¶ 30). Roland

4 Roland does not attach to the Amended Complaint the ordinance it challenges, including the

flashing-sign prohibition or any other challenged provision. The Court may properly consider the

ordinance because it is referred to in the Amended Complaint and is central to Roland’s claims.

Berry v. U.S. Dep’t of Lab., 832 F.3d 627, 637–38 (6th Cir. 2016).

5 The Court reviews the photographs in the Amended Complaint as part of Roland’s factual

allegations in the light most favorable to Roland. See, e.g., Wysong Corp. v. APN, Inc., 889 F.3d

267, 269–270 (6th Cir. 2018) (assessing photograph included with complaint).

also includes a photograph of a Shell gas station sign displaying digital fuel prices that Livingston

allowed to be installed “during the pendency of this case.” (Id. ¶ 31). Roland’s examples appear

stationary but not constant in intensity or color.

Roland also alleges “that the City’s refusal to allow Roland to utilize digital technology

was problematic” because the ordinance “exempts government signs from regulation” such that

“no limitation, restrictions, or requirements” in the ordinance “are applicable to government

signs.” (Id. ¶ 32). Livingston has used that exemption “to post electronic signs” with messaging

at the Health Department and Chamber of Commerce and to “install a digital sign outside the

Livingston Public Safety Building.” (Id. ¶¶ 32–33). The photograph of the Public Safety Building

sign depicts a digital display showing the temperature beside a public roadway. (Id. ¶ 33). That

sign “is particularly offensive because it is truly a ‘flashing sign’ that utilizes full movement with

zero hold time between messages.” (Id. ¶ 34). The exemption allows Livingston and its

“governmental partners to post a sign identical in all respects to the signs requested by Roland”

while remaining “exempt from the rules that apply to Roland and everyone else.” (Id. ¶ 35).

Roland challenges the sign ordinance under the First Amendment. First, without reference

to a specific provision, it alleges that the ordinance operates as an unconstitutional prior restraint

because it “fail[s] to set forth narrow, objective, and definite standards to guide the City when

making a determination on a permit application” and contains “no time period within which the

City must grant or deny a sign permit” “thereby creating the risk of the suppression of permissible

speech.” (Id. ¶¶ 57–62). Second, it alleges that the ordinance as a whole is content based because

it “differentiate[s] permissible signs based on their content.” (Id. ¶¶ 63–66). Roland specifically

points to Rutherford’s request that Roland identify “what will be advertised on the proposed sign”

as evidence of content-based discrimination against it. (Id. ¶¶ 65–66). Third, it alleges that even

if the ordinance is content-neutral, the ordinance’s time, place, and manner restrictions—

“including but not limited to the City’s size and height restrictions”—are not narrowly tailored to

serve a significant governmental interest. (Id. ¶¶ 67–69). Fourth, it alleges that the government

exemption allows Livingston to display “signs identical in all respects to the signs that Livingston

has refused to allow Roland to display.” (Id. ¶ 70). Livingston has used the exemption to display

government signs that “not only utilize changing sign technology but actually flash.” (Id. ¶ 73).

Roland also alleges that Livingston violated the Fourteenth Amendment’s Equal Protection

Clause. This occurred when Livingston denied Roland’s applications while allowing sign owners

“similarly situated to Roland in all respects—to include the Health Department, Chamber of

Commerce, and various businesses in the City—to operate their signs without being subject to the

restrictions enforced against Roland.” (Id. ¶ 81).

II. LEGAL STANDARD

A. Fed. R. Civ. P. 12(b)(1)

“Rule 12(b)(1) motions to dismiss . . . generally come in two varieties: a facial attack or a

factual attack.” Gentek Bldg. Prods., Inc. v. Sherwin–Williams Co., 491 F.3d 320, 330 (6th Cir.

2007). When a Rule 12(b)(1) motion challenges subject matter jurisdiction based on the face of

the complaint, as this one does, the court “takes the allegations in the complaint as true” and

evaluates jurisdiction accordingly. Id. The complaint must contain allegations sufficient to

establish subject matter jurisdiction.

B. Fed. R. Civ. P. 12(b)(6)

To survive a motion to dismiss for failure to state a claim, “a complaint must contain

sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.”

Venema v. West, 133 F.4th 625, 632 (6th Cir. 2025) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678

(2009)). “A claim has facial plausibility when the plaintiff pleads factual content that allows the

court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id.

(quoting Iqbal, 556 U.S. at 678). When determining whether the complaint meets this standard,

the Court must accept the complaint’s factual allegations as true, draw all reasonable inferences in

the plaintiff’s favor, and “take all of those facts and inferences and determine whether they

plausibly give rise to an entitlement to relief.” Doe v. Baum, 903 F.3d 575, 581 (6th Cir. 2018).

III. ANALYSIS

Livingston seeks dismissal because Roland lacks standing to challenge several provisions

of the ordinance, that prior litigation between the parties precludes its claims, and that the

Amended Complaint otherwise fails to state a First Amendment or equal protection claim. (Doc.

No. 26 at 1–25). The Court begins with Livingston’s preclusion argument. It then addresses

standing under Article III to determine which of Roland’s constitutional challenges the Court has

subject matter jurisdiction. Finally, the Court considers what allegations state a claim.

A. Claim and Issue Preclusion

Livingston contends that Roland’s claims are barred by res judicata or collateral estoppel

based on prior litigation between the parties.

Res judicata includes claim preclusion and issue preclusion. Cont’l Cas. Co. v. Indian

Head Indus., Inc., 941 F.3d 828, 835 (6th Cir. 2019). Claim preclusion bars legal claims that were

or could have been raised in prior litigation, but requires a “final decision on the merits.” Id.

Collateral estoppel, or issue preclusion, bars relitigation of an issue actually adjudicated in prior

litigation, but only when the issue “is actually litigated and determined by a valid and final

judgment, and the determination is essential to the judgment” in that case. Id.

In 2016, Roland sued Livingston after it denied Roland’s applications to erect billboards

and challenged Livingston’s 2016 sign ordinance. Roland Digital Media, Inc. v. City of Livingston

(“Roland I”), No. 2:17-CV-00069, 2018 WL 6788594, at *1–2 (M.D. Tenn. Dec. 26, 2018).

Roland I concerned the version of Livingston’s sign ordinance in effect in 2016 and Roland’s

applications to erect billboards, not the digital signs as here. Roland’s first application sought an

11-by-24-foot off-premises billboard, and three later applications sought 10½-by-24-foot double-

faced off-premises billboards. Id. at *1. The 2016 ordinance limited off-premises signs to nine

square feet. Livingston denied Roland’s first application because the proposed billboard exceeded

that size limitation. Id. at *1–2. Roland, however, did not challenge the size restriction. Id. at *2.

Instead, it challenged the 2016 ordinance because it favored commercial over noncommercial

speech, contained unconstitutional content-based restrictions, and effectively banned its

billboards. Id. at *2, *5–10.

On cross-motions for summary judgment, id. at *1, 13, the Court concluded that Roland’s

lack of standing was dispositive. It held that Roland “lack[ed] standing to pursue its challenges

under prevailing Sixth Circuit law” because Roland only had standing to challenge the size

restrictions, which was not at issue, not other independent provisions of the ordinance. Id. at *4–

5, *8. Though the standing issue was dispositive, for the sake of completeness, the Court assumed

that Roland had standing and addressed the merits anyway. Id. The Court then rejected Roland’s

legal arguments that the ordinance favored commercial over noncommercial speech, imposed

impermissible content-based restrictions, and amounted to a total ban on signage. Id. at *5–10.

But that merits analysis was dicta because a decision in Roland’s favor would not have changed

the outcome of the case—i.e., dismissal for lack of standing/subject matter jurisdiction.

Because the prior litigation produced neither a “final decision on the merits” on Roland’s

claims, nor a determination of issues presented here that was “essential to the judgment,” claim

and issue preclusion are inapplicable. Cont’l Cas. Co., 941 F.3d at 835.

B. Standing

Roland has standing to challenge the flashing-sign prohibition, but not other provisions of

the ordinance. Livingston argues that Roland lacks standing because Roland “deliberately applied

for permits to construct signs that [it] knew were illegal,” did not challenge the flashing-sign

prohibition that caused the denials, and suffered no redressable injury because the proposed signs

“violated the law.” (Doc. No. 26 at 1–3). Roland contends that it “clearly challenged the City’s

reliance on the purported prohibition on flashing signs in its Amended Complaint.” (Doc. No. 36

at 7). Roland also responds that it has standing to challenge “the ordinances at issue” and “any

fatal defects that render the regulations invalid” because it “suffered a concrete and actual injury

when its permits were denied” that “was caused by the City’s application of the relevant

ordinances.” (Id. at 6).

The dispositive standing issue is Roland’s allegation that: . Livingston denied Roland’s

sign permit applications “on the sole basis” that the signs would violate the flashing-sign. (Doc.

No. 23 ¶¶ 23, 37 (emphasis added)). Yet Roland alleges constitutional violations in the ordinance

based on more than that discrete provision. It alleges that the ordinance operates as an

unconstitutional prior restraint; that unspecified provisions impose content-based restrictions; that

unspecified time, place, and manner restrictions are not narrowly tailored; and that the exemption

for government signs is unconstitutional. (Id. ¶¶ 55–82). The distinct injury that Roland alleges

from enforcement of the flashing-sign provision does not give it standing to bring unrelated

broader constitutional challenges.

“Federal courts,” the Supreme Court has explained, “are courts of limited jurisdiction.”

See, e.g., Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994). Consistent with

that limited jurisdiction, federal courts “do not possess a roving commission to publicly opine on

every legal question.” TransUnion LLC v. Ramirez, 594 U.S. 413, 423 (2021). The text of the

Constitution instead limits a federal court’s jurisdiction to only “Cases” and “Controversies” listed

in Article III. U.S. Const. art. III, § 2, cl. 1.

For Roland’s “lawsuit to constitute a case within the meaning of Article III,” it “must have

standing to sue.” Diamond Alt. Energy, LLC v. EPA, 606 U.S. 100, 110 (2025). Roland must

allege facts that satisfy three elements: “injury in fact, causation, and redressability.” Id. at 111

(citing Lujan v. Defs. of Wildlife, 504 U.S. 555, 560-61 (1992)). Each standing element must be

established for each claim Roland brings. Universal Life Church Monastery Storehouse v. Nabors,

35 F.4th 1021, 1031 (6th Cir. 2022).

To establish an injury in fact, Roland must allege an injury that is “concrete,”

“particularized,” and “actual or imminent, not speculative.” FDA v. All. for Hippocratic Med.,

602 U.S. 367, 381 (2024). Causation requires Roland to allege that its injury “likely was caused”

by Livingston’s conduct. Id. at 382. Causation and redressability often operate as “flip sides of

the same coin,” so if Roland sufficiently alleges that Livingston caused its injury, “enjoining the

action or awarding damages for the action will typically redress that injury.” Id. at 381.

Sixth Circuit precedent requires Roland to establish standing for each provision of the sign

ordinance that it challenges. In Prime Media, Inc. v. City of Brentwood, Prime Media, an outdoor

advertising company, sought to erect billboards in the City of Brentwood. 485 F.3d 343, 345–46

(6th Cir. 2007). Brentwood denied the applications because the proposed billboards violated the

ordinance’s size, height, and off-premises restrictions. Id. at 346. Brentwood later amended the

ordinance to remove the off-premises restriction, and the Sixth Circuit upheld the size and height

restrictions. Id. at 346–47. On remand, Prime Media continued to challenge several other

provisions of the ordinance under the First Amendment, Equal Protection Clause, and Due Process

Clause. Id. at 347–48. The question presented was whether Prime Media’s injury from

enforcement of the size and height restrictions—the only basis for denying its permits that

remained in the case—gave it standing to pursue those other challenges. Id. at 348.

The Sixth Circuit held that it did not and affirmed the district court’s dismissal for lack of

standing. Prime Media’s standing to challenge the size and height restrictions that caused its injury

did not “magically carry over to allow it to litigate other independent provisions of the ordinance

without a separate showing of an actual injury under those provisions.” Id. at 350. Instead, the

“critical inquiry” was whether Prime Media could “allege an injury arising from the specific rule

being challenged, rather than an entirely separate rule that happens to appear in the same section

of the municipal code.” Id. at 351. According to the Sixth Circuit, Prime Media could not. The

“remaining portions of the ordinance” had “not caused” and did “not imminently threaten any

injury to Prime Media” because it had “not been subject to or affected by the other ordinance

provisions challenged in its remaining claims.” Id. at 352. Its challenges to those provisions,

therefore, presented only “speculative and abstract” injuries that a federal court could resolve only

by “speculating about the impact of the ordinance, rather than adjudicating an actual case or

controversy.” Id. at 353.

This Court applied Prime Media to Roland’s 2016 challenge to Livingston’s sign

ordinance, and its reasoning remains persuasive. Recall in that case, Livingston denied Roland’s

applications solely because its proposed billboards exceeded the ordinance’s size restrictions.

Roland I, 2018 WL 6788594, at *2. Instead of mounting any challenge to those size restrictions,

Roland challenged other provisions of the ordinance. Id. at *2, *5–10. Like Prime Media, the size

restrictions caused Roland’s injury, but that injury did not carry over to allow it to challenge other

independent provisions of the ordinance. Id. at *4, *8. The Court held that Roland “lack[ed]

standing to pursue its challenges under prevailing Sixth Circuit law.” Id. at *5.

Applying well accepted standing law here, Roland has standing to challenge the denial of

its sign applications based on Livingston’s enforcement of the flashing-sign prohibition.

Livingston denied Roland’s applications “on the sole basis” that Roland’s proposed signs violated

the flashing-sign prohibition. (Doc. No. 23 ¶¶ 23, 37 (emphasis added)). Those denials harmed

Roland’s business and its right to engage in commercial speech. Livingston caused that injury by

enforcing the flashing-sign prohibition against Roland’s proposed signs. A favorable decision

invalidating that prohibition or its enforcement against Roland would redress the injury by

removing the sole alleged basis for the denials. Likewise, awarding Roland compensatory

damages would redress the monetary harm it suffered as a result of the denials. Roland has

standing to challenge the constitutionality of the flashing-sign prohibition on its face and as applied

to Roland. Roland does allege violations of the flashing-sign prohibition, so it has standing to that

extent. However, Roland does not have standing for other challenges that extend beyond the

flashing-sign prohibition.

Roland’s First Amendment claims present those standing issues in two ways. First, Roland

directly alleges violations of the sign ordinance other than the flashing-sign prohibition. Roland’s

prior restraint claim alleges that the sign ordinance fails to provide a time limit for deciding permit

applications, and its differential treatment claim alleges a violation under the exemption for

government signs. (Doc. No. 23 ¶¶ 57–62, 70–76). Neither the lack of a time limit for Livingston

to decide sign permit applications nor the exemption for government signs caused the denial of

Roland’s permit applications. (Doc. No. 23 ¶¶ 23, 37).

To underscore the point, consider what would happen if the Court granted Roland relief on

both of those claims. Even if the Court required Livingston to impose a time limit for deciding

permit applications, and even if the Court invalidated the exemption for government signs, the

flashing-sign prohibition would remain in place, and the denial of Roland’s applications would

still stand. Roland, therefore, suffered no cognizable injury from Livingston’s failure to impose a

time limit or its exemption of government signs from the flashing-sign prohibition. Its standing to

challenge the flashing-sign prohibition does not “magically carry over” to those claims. Prime

Media, 485 F.3d at 350–53; see also Roland I, 2018 WL 6788594, at *4, *8.

Second, Roland alleges violations of an unspecified number of provisions beyond the

flashing-sign prohibition. Roland’s content-based claim alleges violations under the ordinance’s

“many content-based provisions” and cites various provisions of the ordinance other than the

flashing-sign prohibition. (Id. ¶¶ 63–66). And its time, place, and manner claim alleges violations

of the “time, place, and manner restrictions—including but not limited to the City’s size and height

restrictions.” (Id. ¶¶ 67–69). The broad and generic language in those allegations encompasses

the flashing-sign prohibition but also extends to other provisions. Roland has standing to pursue

both claims as challenges to the flashing-sign prohibition. But again, its standing does not

“magically carry over” to the other provisions swept into those claims. Prime Media, 485 F.3d at

350; Norton I, 99 F.4th at 846; see also Roland I, 2018 WL 6788594, at *8.

Roland’s equal protection claim stands on different footing. Roland alleges that Livingston

enforced the flashing-sign prohibition against it while allowing other allegedly similarly situated

sign displayers to operate digital signs. (Doc. No. 23 ¶¶ 77–82). Roland thus has standing to

pursue that claim.

In sum, Roland has standing to challenge only the flashing-sign prohibition on two

grounds: that it is an unconstitutional content-based restriction, both on its face and as applied to

Roland, and that it is an unconstitutional time, place, and manner restriction, both on its face and

as applied to Roland. Based on its allegations, Roland also has standing to assert an Equal

Protection claim. The Court turns to the merits of those claims.

C. First Amendment Claims

Roland’s allegations are not a model of clarity. Giving the Amended Complaint a robust

reading in Roland’s favor, however, the Court understands Roland to challenge the flashing-sign

prohibition both on its face and as applied to its proposed signs. Roland alleges that the regulations

in the sign ordinance are content based, which encompasses the flashing-sign prohibition that

Roland has standing to challenge. (Doc. No. 23 ¶¶ 63–66).

Government regulation of speech is content based if it “applies to particular speech because

of the topic discussed or the idea or message expressed.” Reed v. Town of Gilbert, Ariz., 576 U.S.

155, 163 (2015). Such content-based regulations “can stand only if they survive strict scrutiny,

which requires the Government to prove that the restriction furthers a compelling interest and is

narrowly tailored to achieve that interest.” Id. at 171 (internal quotation marks omitted).

The flashing-sign prohibition is content neutral on its face. The flashing-sign prohibition

prohibits a sign based on whether it uses “artificial light” that “is not maintained stationary and

constant in intensity and color,” (Doc. No. 25-1 at 2, 4), without regard to the communicative

content of the message. Reed, 576 U.S. at 163. Indeed, Justice Alito in his concurring opinion in

Reed specifically identified “[r]ules distinguishing between lighted and unlighted signs” and

“[r]ules distinguishing between signs with fixed messages and electronic signs with messages that

change” as examples of content-neutral sign regulations. Id. at 174 (Alito, J., concurring).

Roland’s allegations do not support an inference that Livingston applied the flashing-sign

prohibition to Roland to discriminate against it based on the content of its proposed signs. Roland

alleges that Rutherford had some “initial questions concerning what will be advertised on the

proposed sign” and asked whether the signs would be used for “[o]ff-[p]remise,” “[o]n-[p]remise,”

or both types of advertising. (Id. ¶ 21). Roland further alleges that Rutherford “explicitly

requested” that “Roland provide him with what type of content will be on the requested sign” and

that such “reliance on the content of signs is impermissible.” (Doc. No. 23 ¶ 66). Though it’s

curious that Rutherford asked Roland what would be displayed on the signs, Roland’s own

response defeats any inference of content-based application. Roland responded that “[t]he sign

will be used for every kind of message,” including “on-premise and local messages,” “religious

and non-profit messages,” messages for “local charities and the promotion of the community,”

messages for “downtown, events,” and “etc.” (Id. ¶ 22 (emphasis added)). Because Roland

proposed to display “every kind of message” (id.), Rutherford could not have considered the

communicative content of any particular message in denying the application. Instead, as Roland

alleges, Rutherford denied the application “on the sole basis” that the proposed digital sign

qualified as a flashing sign under the ordinance. (Id. ¶ 23 (emphasis added)). Roland’s own

allegations thus undermine any inference that Livingston used the flashing-sign prohibition to

discriminate against it based on the content of its signs. Roland has not sufficiently alleged that

the flashing-sign prohibition is content based on its face or that Livingston applied it to Roland

based on the content of its proposed signs.

The ordinance defines a flashing sign as “a directly or indirectly illuminated sign on which

artificial light is not maintained stationary and constant in intensity and color at all times in use.”

(Doc. No. 25-1 at 2). The Sixth Circuit recently considered a similar prohibition in Norton Outdoor

Advert., Inc. v. Vill. of St. Bernard, Ohio (“Norton II”), 168 F.4th 897 (6th Cir. 2026). There, the

sign ordinance prohibited, among other things, “variable message outdoor advertising signs,”

defined as signs “whose message is partially changed by electronic process or remote control.” Id.

at 903. The Sixth Circuit reaffirmed that, in the context of such cases, “governmental interests in

aesthetics, traffic safety, and the preservation of property values constitute ‘significant

governmental interests.’” Id. at 910 (quoting Hucul Advert., LLC v. Charter Twp. of Gaines, 748

F.3d 273, 277–78 (6th Cir. 2014)). The Sixth Circuit then upheld the prohibition on variable-

message signs, finding the prohibition to be narrowly tailored to those interests. Id. at 911. But

here Livingston applies the flashing sign prohibition to totally censure Roland’s commercial

speech. Livingston does so even though Roland maintains its signs do not qualify as flashing

signs. Roland thus states a First Amendment challenge to the flashing-sign prohibition.

Roland’s as-applied challenge also survives. As applied to Roland, Livingston burdened

Roland’s commercial speech rights by denying it permission to display its signs. Roland alleges

that its digital signs are not flashing signs because they will “maintain a stationary position” and

“remain constant in intensity and color.”6 (Doc. No. 23 ¶ 25). Roland’s proposed signs thus fall

outside the ordinance’s definition of a flashing sign. (Doc. No. 25-1 at 2). If Roland’s proposed

signs are not flashing signs, as Roland alleges and Court accepts as true, applying the prohibition

to them necessarily sweeps in more speech than the time, place, and manner restriction is designed

to regulate. Put differently, applying the prohibition to signs that lack the characteristics that the

prohibition targets burdens more speech than necessary to advance Livingston’s legitimate

interests.

6 That allegation appears to concern only Roland’s first sign application. The Amended Complaint

later alleges that Livingston denied nine additional applications under the flashing-sign

prohibition, but Roland does not allege that those proposed signs, like the first, would “maintain a

stationary position” and “remain constant in intensity and color.” (Doc. No. 23 ¶¶ 25, 37). The

Amended Complaint is unclear whether Roland intends its allegation in paragraph 25 to apply to

all ten proposed signs. At this stage, the Court construes that ambiguity in Roland’s favor and

understands Roland to allege that the proposed signs underlying each application did not qualify

as flashing signs.

D. Equal Protection Claim

Roland’s equal protection claim also survives at this stage. To state a class of one equal

protection claim, Roland must allege that Livingston treated it “differently from others similarly

situated” and that “there is no rational basis for such difference in treatment.” Andrews v. City of

Mentor, Ohio, 11 F.4th 462, 473 (6th Cir. 2021) (quoting Warren v. City of Athens, 411 F.3d 697,

710 (6th Cir. 2005)). “When evaluating whether parties are similarly situated, ‘courts should not

demand exact correlation, but should instead seek relevant similarity.’” Id. at 474 (quoting EJS

Props., LLC v. City of Toledo, 698 F.3d 845, 865 (6th Cir. 2012)).

Roland alleges that Livingston “denied its sign applications” while allowing “sign owners

who are similarly situated to Roland in all respects” to “operate their signs without being subject

to the restrictions enforced against Roland.” (Doc. No. 23 ¶ 81). Roland specifically identifies

“the Health Department, Chamber of Commerce, and various businesses in the City” as examples

of those sign owners, and it alleges that “Livingston cannot properly justify treating Roland

differently” from them. (Id.). Those allegations state a class of one claim. Roland alleges that

Livingston treated similarly situated sign owners differently by allowing them to display signs

while denying Roland permission to do the same. Andrews, 11 F.4th at 473.

Despite these deficiencies in Roland’s comparator allegations, the Sixth Circuit instructs

that courts “should not demand exact correlation, but should instead seek relevant similarity.”

Andrews, 11 F.4th at 474. Roland expressly alleges that the comparator sign owners were

“similarly situated to Roland in all respects.” (Doc. No. 23 ¶ 81). The Court construes the

deficiencies and ambiguities in Roland’s comparator allegations in its favor. Livingston may

ultimately defeat Roland’s claim by establishing at summary judgment that its alleged comparators

are not similarly situated. For now, Roland has sufficiently alleged the “relevant similarity”

required for a class of one claim. Andrews, 11 F.4th at 474.

IV. CONCLUSION

For the reasons set forth above, the first motion to dismiss (Doc. Nos. 12, 19) will be denied

as moot. The motion to dismiss the Amended Complaint (Doc. No. 25) will be granted in part and

denied in part.

An appropriate order will enter. Whe

WAVERLY “A RENSHAW, JR.

UNITED STATES DISTRICT JUDGE

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