KH Outdoor, LLC v. Trussville, City of

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FILED

FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS

________________________ ELEVENTH CIRCUIT

AUG 4, 2006

No. 05-12598 THOMAS K. KAHN

________________________ CLERK

D. C. Docket No. 03-03278-CV-HS-S

KH OUTDOOR, LLC,

Plaintiff-Appellee,

versus

TRUSSVILLE, CITY OF,

Defendant-Appellant.

________________________

Appeal from the United States District Court

for the Northern District of Alabama

_________________________

(August 4, 2006)

Before DUBINA, MARCUS and PRYOR, Circuit Judges.

MARCUS, Circuit Judge:

The City of Trussville, Alabama, (“the city”) appeals the district court’s

entry of a permanent injunction barring the city from enforcing section 1.0 of the

City of Trussville Sign Ordinance (“the ordinance”) on First Amendment grounds.

After thorough review, we affirm.

I.

The undisputed facts of this case are these. Plaintiff KH Outdoor, LLC,

(“KH Outdoor”) is in the business of erecting and operating signs used for the

dissemination of both commercial and noncommercial speech. KH Outdoor has a

history of posting ideological, religious, charitable, and political messages on the

signs that it operates and allegedly provides a higher percentage of its advertising

space to noncommercial clients at reduced rates than does any other advertising

company. Trussville is a fast-growing city in Jefferson County, Alabama.

KH Outdoor submitted eleven applications to the city for permits to

construct outdoor advertising signs at various locations in Trussville. The

applications did not indicate whether the signs would display commercial or

noncommercial messages. The city denied each of the applications pursuant to

Section 20.0 of the ordinance, which regulates “billboard signs.”1 Section 20.0

1

The sign ordinance creates a comprehensive scheme for regulating the content,

permitting, placement, number, design, operation, and maintenance of signs within the city.

Section 1.0 describes the purpose and intent of the ordinance; section 2.0 provides definitions;

section 3.0 lists general regulations and prohibited signs; section 4.0 lists signs exempt from the

ordinance; sections 5.0 to 19.0 describe the signs permitted in various agricultural, commercial,

industrial, institutional, park, and residential districts; section 20.0 provides regulations for

billboard signs; section 21.0 governs off-premise signs; section 22.0 provides regulations for

portable or temporary signs; section 23.0 sets forth the permitting, fee, and inspection

regulations; section 24.0 governs abandoned signs; section 25.0 regulates dangerous or defective

2

states that billboard signs are permitted only on interstate highways and provides

numerous size, lighting, and setback requirements.2 Section 2.0 of the same

signs; section 26.0 governs non-conforming signs; section 27.0 provides for notification for sign

repair or removal; and section 28.0 provides penalties for violating the ordinance.

2

Section 20.0 states in full:

Billboard signs are permitted on interstate highways only and shall be subject to the

following requirements:

A. No billboard sign shall be erected closer than five hundred (500) feet from a

residential zone district as measured from the nearest edge of the sign.

B. Any illumination of a billboard sign shall be of an indirect type and shall not face

toward any residential area nor direct lighting in any direction other than toward

the sign face itself.

C. No portion of any billboard sign shall project over or encroach upon any public

property or public right-of-way.

D. No billboard sign structure shall be erected or maintained closer to another sign

structure other than as follows:

(1) Within one thousand five hundred (1,500) feet in any direction between

other billboard structures.

E. No billboard sign structure shall exceed the following specified size and height

requirements for specific types of thoroughfares and observe specified setbacks.

(1) Sign area/Height. The maximum sign area shall not be more than eight

hundred (800) square feet, including embellishments, and not exceed forty

(40) feet in height or forty (40) feet above the road grade.

(2) Sign Faces. A billboard sign may contain two signs oriented in the same

direction; be placed back-to-back, or V-type with an angle not to exceed

thirty-five (35) degrees, provided that the total area of the sign faces

oriented in any one direction shall not exceed maximum size provisions.

(3) Setbacks. Sign face in Minimum Setback

One Direction From Right-of-way

350 sq. ft. or greater 75 ft.

3

ordinance, which provides definitions for terms used in the other sections, defines

a “billboard sign” as “[a]n off-premise sign which directs attention to a business,

commodity, service or entertainment, sold or offered for sale at a location other

than the premises on which said sign is located.” The ordinance prohibits any sign

that it does not explicitly allow; section 1.0 provides that “[i]f not otherwise stated,

any sign not specifically permitted in a zoning district as provided under the

applicable section, shall be prohibited in that district.” 3 The city denied the

applications because KH Outdoor sought to place some billboard signs on roads

other than interstate highways and because some of the signs failed to meet the size

requirements of section 20.0.

200-349 sq. ft. 50 ft.

75-199 sq. ft. 30 ft.

Less than 75 sq. ft. 15 ft.

F. For every billboard sign installed within the Trussville city limits, one billboard

sign shall be removed within the Trussville city limits.

3

Section 1.0 states in full:

The purpose of these sign regulations is to provide minimum control of signs in

Trussville to promote the health, safety, and general welfare by lessening hazards to pedestrians

and vehicular traffic, by preserving property values, by preventing unsightly and detrimental

development which has a blighting influence upon residential, business and industrial uses, and

by preventing signs from reaching such excessive size or numbers that they obscure one another

to the detriment of all concerned.

If not otherwise stated, any sign not specifically permitted in a zoning district as

provided under the applicable section, shall be prohibited in that district.

4

After the city denied the permit applications, KH Outdoor brought suit in the

United States District Court for the Northern District of Alabama seeking a

preliminary injunction and a permanent injunction to prevent the city from

enforcing the ordinance. The complaint leveled various constitutional challenges

against nearly every provision of the ordinance. The parties filed cross-motions for

summary judgment, both of which the district court granted in part and denied in

part. The district court found that the ordinance unconstitutionally favors

commercial speech over noncommercial speech for two reasons. First, the district

court determined that billboards are the largest signs permitted by the ordinance

and that by definition billboards cannot contain noncommercial messages. Thus,

noncommercial messages cannot be as large as commercial messages in those areas

where billboards are permitted. Second, the district court found that the only

provision of the ordinance that allows for political messages at all mandates that

those signs be temporary in nature. Because permanent signs are permitted for

commercial speech, the trial judge found that the ordinance unconstitutionally

favors commercial speech over at least one type of noncommercial speech --

political messages.

After determining that the ordinance unconstitutionally discriminates based

on the content of speech, the district court permanently enjoined the city from

5

enforcing section 1.0 of the ordinance, which prohibits any sign “not specifically

permitted in a zoning district as provided under the applicable section.”

Essentially, with the district court having prevented the city from enforcing section

1.0 against KH Outdoor, the ordinance no longer contains restrictions that would

prohibit erection of a noncommercial billboard.4 The city appeals the district

court’s entry of a permanent injunction against the use of section 1.0, arguing that

KH Outdoor does not have standing, and, that even if it does, the ordinance is a

constitutional, content-neutral regulation. We review both arguments in turn.

II.

We have jurisdiction to review an interlocutory order granting an injunction

pursuant to 28 U.S.C. § 1292(a)(1). See also Alamo Rent-A-Car, Inc. v. Sarasota-

Manatee Airport Auth., 825 F.2d 367, 369 n.2 (11th Cir. 1987). We review the

district court’s order granting an injunction for abuse of discretion. Mut. Serv. Ins.

Co. v. Frit Indus., Inc., 358 F.3d 1312, 1324 (11th Cir. 2004). However, “[w]e

review the district court’s findings of fact for clear error, and its application of the

law de novo, premised on the understanding that [a]pplication of an improper legal

4

The district court also denied parts of KH Outdoor’s motion for summary judgment,

granted parts of the city’s motion for summary judgment, and denied parts of the city’s motion

for summary judgment. Specifically, the district court found that the provisions of the ordinance

were severable and granted the city’s motion for summary judgment as to each provision

unrelated to KH Outdoor’s injury. Moreover, the district court found that the ordinance did not

constitute an invalid prior restraint on speech and did not impermissibly favor some forms of

commercial speech over others. None of those rulings were appealed.

6

standard . . . is never within a district court’s discretion.” Solantic, LLC v. City of

Neptune Beach, 410 F.3d 1250, 1254 (11th Cir. 2005) (internal quotation marks

omitted) (second and third alterations in original); see also Major League Baseball

v. Crist, 331 F.3d 1177, 1183 (11th Cir. 2003) (noting that while our review of an

order granting an injunction is for clear abuse of discretion, “[u]nderlying

questions of law” are reviewed de novo).

It is by now axiomatic that a plaintiff must have standing to invoke the

jurisdiction of the federal courts. See, e.g., Lujan v. Defenders of Wildlife, 504

U.S. 555, 560, 112 S. Ct. 2130, 2136 (1992). “[T]he irreducible constitutional

minimum of standing contains three elements,” id., all of which must be satisfied:

First, the plaintiff must have suffered an injury in fact -- an invasion

of a legally protected interest which is (a) concrete and particularized,

and (b) actual or imminent, not conjectural or hypothetical. Second,

there must be a causal connection between the injury and the conduct

complained of -- the injury has to be fairly . . . trace[able] to the

challenged action of the defendant, and not . . . th[e] result [of] the

independent action of some third party not before the court. Third, it

must be likely, as opposed to merely speculative, that the injury will

be redressed by a favorable decision.

Bochese v. Town of Ponce Inlet, 405 F.3d 964, 980 (11th Cir.) (internal quotation

marks omitted) (alterations in original), cert. denied, 126 S. Ct. 377 (2005). In

addition to the constitutional requirements, there are also prudential standing

principles, one of which requires that “a party generally may assert only his or her

7

own rights and cannot raise the claims of third parties not before the court.”

Granite State Outdoor Adver., Inc. v. City of Clearwater, 351 F.3d 1112, 1116

(11th Cir. 2003), cert. denied, 125 S. Ct. 48 (2004).

First Amendment standing analysis may be complicated further by the

overbreadth doctrine, which serves as an exception to the prudential principle

noted above. Under overbreadth, “a party may bring a First Amendment case

asserting the rights of third parties if a statute is constitutionally applied to the

litigant but might be unconstitutionally applied to third parties not before the

court.” CAMP Legal Def. Fund, Inc. v. City of Atlanta, 451 F.3d 1257, 1270-71

(11th Cir. 2006) (internal quotation marks omitted). Significantly, the overbreadth

doctrine does not relieve a plaintiff from having to establish constitutional

standing; it is simply an exception to one of the prudential requirements. See id. at

1270 (noting that “[t]he overbreadth doctrine does not relieve a plaintiff of the

burden to prove constitutional standing”). Indeed, a plaintiff may bring an

overbreadth challenge to only those provisions of a law or ordinance that “affect its

activities.” Id. at 1273. In other words, the overbreadth doctrine does not change

the statutes or provisions of an ordinance a plaintiff may challenge; she can only

contest those which actually caused her injury. Rather, the overbreadth doctrine

simply allows a plaintiff to bring a facial challenge to a provision of law that

8

caused her injury, regardless of whether the provision’s regulation of her conduct

in particular was constitutional.

The city first argues that KH Outdoor does not have standing to seek an

injunction against enforcement of section 1.0 of the ordinance. The city’s

argument is a simple one. The permits were denied because they failed to comply

with the size and location requirements set forth in section 20.0. Therefore, the

city argues, KH Outdoor has standing to challenge only section 20.0, and not

section 1.0. The city’s argument fails because it attempts to read section 20.0 in

isolation, divorced from those parts of the ordinance that provide the basic

definitional structure for the terms used in section 20.0 and which more generally

define the scope of signs allowed by section 20.0.

The parties do not dispute that KH Outdoor has constitutional standing to

challenge section 20.0 -- indeed, counsel for the city conceded as much at oral

argument. KH Outdoor suffered a concrete and actual injury when its permits were

denied; plainly, the injury was caused by the city’s application of section 20.0 of

the ordinance; and the injury undeniably can be redressed by the courts. Thus, KH

Outdoor has standing to challenge the provisions found in section 20.0. Moreover,

it seems abundantly clear that section 20.0 cannot be read or even understood

without also considering section 1.0, which explicitly provides the purpose and

9

intent of the ordinance as a whole (and which expressly concludes that any sign not

specifically permitted is prohibited), and section 2.0, which defines the very terms

used in section 20.0. It would be incongruous indeed to suggest that a plaintiff

could challenge a particular provision of a statute, but somehow refuse to consider

the expressed purpose of the statute or the definitions of the very terms used in the

provision in question. The purpose and definition provisions of the ordinance

affect KH Outdoor’s activities in the same way that section 20.0 affects its

activities; the three combine to form the basis for the city’s permit denial. See

CAMP Legal Def. Fund, 451 F.3d at 1273 (noting that a plaintiff may challenge

only those provisions of an ordinance that “affect its activities”).

Once it is established that KH Outdoor has standing to challenge section

20.0, the overbreadth doctrine allows that challenge to that specific provision based

on its impact on third parties. So, although the permits in this case were actually

denied because KH Outdoor wanted to put billboards on roads that were not

interstate highways, in violation of section 20.0, and also sought to construct them

within 1500 feet of other billboards, in violation of section 20.0(D)(1), KH

Outdoor is not limited to an as-applied challenge to section 20.0 based on only

those facts. See id. at 1271 (holding that “the overbreadth doctrine allows a

plaintiff, who has suffered injury under one provision, to challenge that provision

10

on facts other than those that apply to the plaintiff”). Thus, under the overbreadth

doctrine, KH Outdoor is free to challenge facially section 20.0. Even though the

permit applications in this case did not specify whether the signs would be used for

commercial or noncommercial purposes, KH Outdoor remains free to allege (as it

did) that by restricting the largest permissible signs to billboards, which by

definition may contain only commercial speech, the city unconstitutionally

discriminates against noncommercial speech. See id. (“A plaintiff who has

established constitutional injury under a provision of a statute as applied to his set

of facts may also bring a facial challenge, under the overbreadth doctrine, to

vindicate the rights of others not before the court under that provision.”); Granite

State Outdoor Adver., Inc., 351 F.3d at 1117 (allowing a challenge to a section of

an ordinance under which billboard permits were denied “as applied to [the

plaintiff] and, under the overbreadth doctrine, as applied to non-commercial

speech”); Dimmitt v. City of Clearwater, 985 F.2d 1565, 1571 (11th Cir. 1993)

(“Where the statute governs both commercial and noncommercial speech,

however, a litigant with a commercial speech interest may nonetheless qualify by

virtue of the overbreadth rule to assert the speech rights of third parties with

noncommercial speech interests.”). In short, KH Outdoor has standing to raise the

very challenge that led to the district court’s permanent injunction.

11

III.

Next, the city argues that even if KH Outdoor has standing, the ordinance

does not unconstitutionally discriminate against noncommercial speech and that

the district court erred in striking down section 1.0.5 The governing standard is by

now clear enough:

A district court may grant injunctive relief only if the moving party

shows that: (1) it has a substantial likelihood of success on the merits;

(2) irreparable injury will be suffered unless the injunction issues; (3)

the threatened injury to the movant outweighs whatever damage the

proposed injunction may cause the opposing party; and (4) if issued,

the injunction would not be adverse to the public interest.

Siegel v. LePore, 234 F.3d 1163, 1176 (11th Cir. 2000) (en banc) (per curiam).

For a permanent injunction, the standard is essentially the same, except that the

movant must establish actual success on the merits, as opposed to a likelihood of

success. Amoco Prod. Co. v. Vill. of Gambell, 480 U.S. 531, 546 n.12, 107 S. Ct.

1396, 1404 n.12 (1987).

As for the first consideration, the district court determined that KH Outdoor

5

The city also argues that the district court erred by granting injunctive relief sua sponte.

Contrary to the city’s contention, KH Outdoor made clear from the beginning of the litigation

that it was seeking injunctive relief when it filed its complaint titled “Complaint and Request For

Injunctive Relief.” The very first sentence of the complaint requests a preliminary and

permanent injunction. Additionally, the prayer for relief in the complaint asks the district court

to preliminarily and permanently “enjoin enforcement of the City’s sign restrictions.” Thus, the

city was fairly placed on notice concerning the injunctive nature of the plaintiff’s request, and

nothing was done sua sponte. We add that the trial court has considerable discretion in

determining whether “to flex the injunctive strong-arm of equity.” Eli Lilly & Co., Inc. v.

Generix Drug Sales, Inc., 460 F.2d 1096, 1099 (5th Cir. 1972).

12

succeeded on the merits because the ordinance impermissibly favors commercial

speech to the detriment of noncommercial speech. We agree.

“In evaluating the constitutionality of an ordinance restraining or regulating

speech, we first inquire whether the Ordinance is content-neutral.” Solantic, 410

F.3d at 1258 (internal quotation marks omitted). “If the ordinance is a content-

neutral time, place, and manner restriction, it is subject to intermediate scrutiny --

that is, it must not restrict speech substantially more than necessary to further a

legitimate government interest, and it must leave open adequate alternative

channels of communication.” Id. “However, if the ordinance is content based, it is

subject to strict scrutiny, meaning that it is constitutional only if it constitutes the

least restrictive means of advancing a compelling government interest.” Id. “As a

general rule, laws that by their terms distinguish favored speech from disfavored

speech on the basis of the ideas or views expressed are content based.” Turner

Broad. Sys., Inc. v. FCC, 512 U.S. 622, 643, 114 S. Ct. 2445, 2459 (1994). “On

the other hand, a content-neutral ordinance is one that places no restrictions on . . .

either a particular viewpoint or any subject matter that may be discussed.”

Solantic, 410 F.3d at 1259 (internal quotation marks omitted) (alteration in

original).

The Supreme Court has afforded commercial and noncommercial speech

13

different treatment under the First Amendment. See Metromedia, Inc. v. City of

San Diego, 453 U.S. 490, 506, 101 S. Ct. 2882, 2892 (1981) (plurality opinion)

(noting that in a prior case the Supreme Court had continued “to observe the

distinction between commercial and noncommercial speech, indicating that the

former could be forbidden and regulated in situations where the latter could not

be”). In Metromedia, a plurality of the Supreme Court found a City of San Diego

sign ordinance unconstitutional because it allowed on-site commercial advertising

while banning on-site noncommercial advertising, which thereby impermissibly

favored commercial over noncommercial speech. Id. at 512-13, 101 S. Ct. at 2895.

Although Metromedia did not result in a majority opinion, we have followed the

plurality’s reasoning in our own decisions. See, e.g., Coral Springs St. Sys., Inc. v.

City of Sunrise, 371 F.3d 1320, 1343-44 (11th Cir. 2004) (noting that Metromedia

does not permit a city to impermissibly favor commercial over noncommercial

speech and upholding an ordinance that made no such distinction); Café Erotica of

Fla., Inc. v. St. Johns County, 360 F.3d 1274, 1290 (11th Cir. 2004) (applying the

framework set forth by the Metromedia plurality); Messer v. City of Douglasville,

975 F.2d 1505, 1508-09 (11th Cir. 1992) (same).

The Metromedia plurality explained its reasoning in these terms:

[O]ur recent commercial speech cases have consistently accorded

noncommercial speech a greater degree of protection than commercial

14

speech. San Diego effectively inverts this judgment, by affording a

greater degree of protection to commercial than to noncommercial

speech. . . . The use of onsite billboards to carry commercial

messages related to the commercial use of the premises is freely

permitted, but the use of otherwise identical billboards to carry

noncommercial messages is generally prohibited. . . . Insofar as the

city tolerates billboards at all, it cannot choose to limit their content to

commercial messages; the city may not conclude that the

communication of commercial information concerning goods and

services connected with a particular site is of greater value than the

communication of noncommercial messages.

Metromedia, 453 U.S. at 513, 101 S. Ct. at 2895 (emphasis added); see also City of

Cincinnati v. Discovery Network, Inc., 507 U.S. 410, 426, 113 S. Ct. 1505, 1515

(1993) (striking down an ordinance that treated newsracks with commercial

publications differently from those with noncommercial publications); Café

Erotica, 360 F.3d at 1290-91. Thus, to the extent a city permits billboards, it may

not restrict those billboards only to those with commercial messages.

The ordinance in this case represents a content-based restriction on

noncommercial speech similar to the one we found unconstitutional in Café

Erotica. In Café Erotica, the ordinance in question limited the size of

noncommercial signs to 32 square feet. 360 F.3d at 1287. However, it allowed

billboards, which were defined in a provision that made no mention of

noncommercial signs, to be as large as 560 square feet. Id. at 1287 n.20. A panel

of this Court determined that because the ordinance allowed commercial messages

15

to be displayed more prominently than noncommercial ideas, it had to be evaluated

as a content-based restriction. See id. at 1289.

The Café Erotica ordinance was determined to be unconstitutional because it

allowed commercial speech to be displayed on signs larger than those that could be

used for noncommercial messages. We explained how Metromedia compelled that

result:

In Metromedia, the provision struck down allowed all onsite

commercial billboards, but almost completely banned similar

noncommercial signs. The instant case involves a similar

unconstitutional preference, but in the form of greater size restrictions

for noncommercial messages vis-á-vis commercial ones. While [the

Café Erotica ordinance] does not involve a complete ban on political

speech, neither did the Metromedia ordinance, as it provided several

exemptions from the permitting requirements for certain

noncommercial speech. Just as in Metromedia, “the [County] may not

conclude that the communication of commercial information

concerning goods and services connected with a particular site is of

greater value than the communication of noncommercial messages.

[Metromedia, 453 U.S.] at 513, 101 S. Ct. 2882. By limiting the size

of political messages to roughly 1/17 that of commercial ones, that is

precisely what the County has done.

Café Erotica, 360 F.3d at 1291 (second alteration in original). After determining

that the ordinance in Café Erotica constituted an impermissible content-based

restriction on noncommercial speech, we concluded that the city’s stated goals of

safety and aesthetics could not carry the day under a strict scrutiny analysis. Id. at

1291-92 (“In short, ‘safety’ and ‘aesthetics’ are not truly furthered by an ordinance

16

that allows one small, ‘safe,’ and visually pleasant [noncommercial] sign to be

placed adjacent to a large, ‘unsafe,’ and aesthetically displeasing commercial

billboard.”)

The ordinance in this case suffers from the same constitutional vice as the

one we struck down in Café Erotica. Here, the city allows some noncommercial

signs. Thus, for example, it allows temporary political signs and campaign posters

so long as they do not exceed 8 square feet in area. However, billboards, which at

a maximum of 800 square feet are the largest signs the ordinance permits, are by

definition limited only to commercial messages. See Ordinance § 2.0 (defining a

billboard as an “off-premise sign which directs attention to a business, commodity,

service or entertainment, sold or offered for sale at a location other than the

premises on which said sign is located”). Thus, the largest signs allowed by the

city’s ordinance may contain only commercial messages.6 Moreover, section 1.0

6

This conclusion was confirmed by counsel for the city, who engaged in the following

colloquy with the district judge:

The Court: So where is an off-premise sign expressed that is not commercial

expressly permitted [in] the ordinance? What section?

Mr. Owens: Well, I don’t think it is.

...

The Court: But you agree with me that there’s no place in the ordinance that

permits off-premise billboards that have non-commercial content?

Mr. Owens: Right.

17

of the ordinance makes clear that any sign not “specifically permitted” by the law

is prohibited. Therefore, because section 20.0 is the sole provision allowing

billboards, and because section 20.0 makes no mention of noncommercial speech

and, indeed, statutorily limits billboards to those signs containing commercial

speech, noncommercial billboards are not allowed in the City of Trussville.

Because section 20.0 undeniably favors commercial speech over

noncommercial speech, it is a content-based restriction that will pass constitutional

muster only if it is the least restrictive means of advancing a compelling

government interest. See Solantic, 410 F.3d at 1258. The city nevertheless argues

that section 20.0 is a valid time, place, and manner restriction that advances the

substantial interests of health, safety, and aesthetics. However, as we noted in Café

Erotica, that argument will not carry the day when billboards are permitted in

precisely the same locations, but only for commercial messages. 360 F.3d at 1291.

The city has offered no reason (and we can discern none) why it is any less safe or

To the extent the city now argues that section 3.0(O) allows noncommercial billboards, we are

unpersuaded. Section 3.0(O) provides that “No off-premise signs shall be allowed except as

provided in Section 20.0 . . . . However a sign which expresses a person’s opinion, such as

freedom of speech expressions, have no premise and can be erected if in conformity with the

sign regulations for that respective zone.” First, the argument that section 3.0(O) permits

noncommercial billboards is directly contrary to what counsel told the district court. Second,

section 3.0(O) is hardly a model of clarity, and we are not convinced that it would allow a

noncommercial billboard. Nevertheless, to the extent that counsel believes section 3.0(O) allows

noncommercial billboards, he should have raised that argument before the trial court instead of

affirmatively agreeing to the contrary. See Miller v. King, 449 F.3d 1149, 1150 n.1 (11th Cir.

2006) (refusing to consider a claim raised for the first time on appeal).

18

aesthetic for a noncommercial billboard to abut an interstate highway than it is for

a commercial billboard to occupy the very same location. See City of Cincinnati,

507 U.S. at 425-26, 113 S. Ct. at 1514-15 (rejecting “esthetics” as a justification

for differing treatment because the banned commercial newsracks were just as

visually unappealing as were the permissible noncommercial newsracks). Thus,

the ordinance fails strict scrutiny and is unconstitutional.7

The district court did not engage in a discussion of the remaining injunction

considerations, but they are easily satisfied in this case. Regarding irreparable

injury, it is well established that “[t]he loss of First Amendment freedoms, for even

minimal periods of time, unquestionably constitutes irreparable injury.” Elrod v.

Burns, 427 U.S. 347, 373, 96 S. Ct. 2673, 2690 (1976) (plurality opinion); see also

Fla. Businessmen for Free Enter. v. City of Hollywood, 648 F.2d 956, 958 (5th Cir.

Unit B June 1981) (quoting Elrod).8 As we held in Northeastern Fla. Chapter of

7

For similar reasons, we agree with the district court’s conclusion that the ordinance

unconstitutionally discriminates against noncommercial speech over commercial speech by

requiring political signs to be only temporary in nature, while allowing commercial signs to be

displayed without time restrictions. Just as the city may not discriminate against noncommercial

speech by limiting the size of noncommercial messages (as compared to the size of signs that

may display commercial speech), it may not discriminate against noncommercial speech by

limiting the time during which noncommercial messages may be displayed (as compared to the

length of time permitted for commercial messages). See Solantic, 410 F.3d at 1264-65 (striking

down a sign ordinance that prohibited the display of political signs for more than fourteen days

before an election and two days after the election without imposing similar time restrictions on

commercial signs or non-political noncommercial messages).

8

In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), we

adopted as binding precedent all of the decisions of the former Fifth Circuit handed down prior

19

the Ass’n of Gen. Contractors of America v. City of Jacksonville,

[t]he only area of constitutional jurisprudence where we have said that

an on-going violation constitutes irreparable injury is the area of first

amendment and right of privacy jurisprudence. The rationale behind

these decisions was that chilled free speech and invasions of privacy,

because of their intangible nature, could not be compensated for by

money damages; in other words, plaintiffs could not be made whole.

896 F.2d 1283, 1285 (11th Cir. 1990) (citations omitted).

Although a violation of the First Amendment “does not automatically

require a finding of irreparable injury, thus entitling a plaintiff to a preliminary

injunction if he shows a likelihood of success on the merits,” the injury in this case

constituted “direct penalization, as opposed to incidental inhibition” of First

Amendment rights and thus could not be remedied absent an injunction. Hohe v.

Casey, 868 F.2d 69, 72-73 (3d Cir. 1989) (internal quotation marks omitted).

Thus, although the district court did not make explicit findings as to irreparable

injury, it did not abuse its discretion on those grounds, because the injury

(categorically barring speech by prohibiting noncommercial billboards) was of a

nature that could not be cured by the award of monetary damages. See Cate v.

Oldham, 707 F.2d 1176, 1188-89 (11th Cir. 1983) (noting that “direct penalization,

as opposed to incidental inhibition, of First Amendment rights constitutes

irreparable injury” and that “[o]ne reason for such stringent protection of First

to the close of business on September 30, 1981.

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Amendment rights certainly is the intangible nature of the benefits flowing from

the exercise of those rights; and the fear that, if these rights are not jealously

safeguarded, persons will be deterred, even if imperceptibly, from exercising those

rights in the future”).

As for the third requirement for injunctive relief, the threatened injury to the

plaintiff clearly outweighs whatever damage the injunction may cause the city. As

noted, even a temporary infringement of First Amendment rights constitutes a

serious and substantial injury, and the city has no legitimate interest in enforcing

an unconstitutional ordinance. For similar reasons, the injunction plainly is not

adverse to the public interest. The public has no interest in enforcing an

unconstitutional ordinance. See Fla. Businessmen, 648 F.2d at 959 (noting that

“[t]he public interest does not support the city’s expenditure of time, money, and

effort in attempting to enforce an ordinance that may well be held

unconstitutional”); see also Joelner v. Vill. of Washington Park, 378 F.3d 613, 620

(7th Cir. 2004) (noting that “there can be no irreparable harm to a municipality

when it is prevented from enforcing an unconstitutional statute because it is always

in the public interest to protect First Amendment liberties” (internal quotation

marks omitted)); Planned Parenthood Ass’n of Cincinnati, Inc. v. City of

Cincinnati, 822 F.2d 1390, 1400 (6th Cir. 1987) (finding that the public’s interest

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is in “prevention of enforcement of ordinances which may be unconstitutional”).

Quite simply, the district court did not abuse its discretion by enjoining the

enforcement of section 1.0 of the ordinance. Each of the four factors we consider

when determining whether injunctive relief is warranted weighs heavily in favor of

granting KH Outdoor’s request. And the district court imposed the least restrictive

injunction possible by simply enjoining enforcement of that portion of the

ordinance prohibiting signs not specifically provided for elsewhere in the

ordinance. With that provision eliminated, section 20.0 provides regulations for

commercial billboards, and nothing in the ordinance prohibits a sign of comparable

size containing noncommercial speech. Accordingly, we affirm the injunctive

order issued by the district court.

AFFIRMED.

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