# Petition for Writ of Certiorari — Granite State Outdoor Advertising, Inc. v. City of Clearwater > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386020_1687%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 2004 - **Citation:** 543 U.S. 813 ## Text supreme Court, U.¢ fh) FILES 03156 4 MAY 18 2004 No. IN THE Supreme Court of the United States GRANITE STATE OUTDOOR ADVERTISING, INC., PETITIONER Vv. CITY OF CLEARWATER, FLORIDA, BRIAN AUNGST, SR., AS AN INDIVIDUAL AND IN HIS CAPACITY AS MAYOR OF THE CITY, WILLIAM HORNE, AS AN INDIVIDUAL AND IN HIS CAPACITY AS CITY MANAGER PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT PETITION FOR A WRIT OF CERTIORARI EK. ADAM WEBB Counsel of Record WEBB & PORTER, L.L.C. 2625 Cumberland Parkway, S.E. Suite 220 Atlanta, Georgia 30339 (770) 444-0773 Attorney for Petitioner LI IT IT I TELE LT ETE DLLME PRA, AO SE! CURRY & TAYLOR @ WASH D.C. @ (202) 223-3160 @ USSCINFO.COM i ' i QUESTIONS PRESENTED The City of Clearwater, Florida’s sign regulations prevent the posting of nearly all signs without first obtaining a permit from City officials. Pursuant to the sign regulations’ licensing scheme, Clearwater officials are free to delay responding to such applications for an indefinite time. Based upon Petitioner’s overbreadth challenge to the sign regulations, the district court invalidated severa] unconstitutional restrictions on signs. On appeal, the Eleventh Circuit Court of Appeals held that a party challenging a regulatory scheme can only challenge those individual sections of an ordinance that directly caused actual injury. Thus, the Eleventh Circuit’s . decision deniea overbreadth Standing to challenge any provision other than those cited by the government in denying the permit. Asa result of this decision, several indisputably unconstitutional speech restrictions were re-imposed on the citizens and organizations of Clearwater. rn 1. Whether the Eleventh Circuit Court of Appeals eviscerated the overbreadth standing doctrine in First Amendment challenges by restricting overbreadth standing to only the discrete, individual provisions of a regulatory scheme under which the challenger suffered “actual injury.” z. Whether a party must demonstrate actual injury in order to raise a facia] challenge to speech regulations under the overbreadth doctrine. 3. Whether district courts Should be prohibited from invalidating unconstitutional regulations of First | Ue See stn Sa a Ne Nee at hE 1] Amendment activity simply because the party challenging the offensive restrictions did not suffer “actual injury” based upon the enforcement of such restrictions. A, Nek Hale: Aol a as PRE AA NS BPA ' | Nate oii alls ND a RD aaa Relea ey ARNE BG ahh A TAA Rai Sea il PARTIES TO THE PROCEEDING AND CORPORATE DISCLOSURE STATEMENT The parties to the proceeding are properly set forth in the case caption. Petitioner Granite State Outdoor Advertising, Inc. has no parent corporation and no publicly held company owns ten percent or more of the corporation’s common stock. iv TABLE OF CONTENTS Page QUESTIONS PRESENTED .........cssscsssssssssceeeecsssrseserseesesesseenees i LIST OF PARTIES AND RULE 29.6 LIST ...........csscsssssseeeees ill TABLE OF CONTENTS sveenussuaennsseovonvoquesseysnesonconsvdoosenssnssnsese dW TABLE OF AUTHORIT1Biiscccsevcesscsvivrisecesereeniqanssesnesevsanwenens V GREMIOIE TEL cinieciersiccrssnvcienarteenimmnnintgunvennannwin 1 FUT TI oviictctvtistantirncncintmnnninmnniviinnanenion 1 STATUTORY PROVISIONS INVOLVED.........cscssssssssscssssseees 1 UR TIINS svccecssihiteecsscteritiinnisicniinianninnianiinmnmvnmuiains 2 REASONS FOR GRANTING THE PETITION ........s0ssseeesseesees 6 CROCE IIIA ccccinnersievstininssninnsiniinsnmninitinninviniaunmaiiaiinnis 23 APPENDIX CIRCUIT COURT ORDER, wccccvcsccsciscnrsesesenesssessnetiniesonts la PSTRICT COURT ORDER, oacicescesvniciveseosssvsnercessrsecnionts 16a ORDER DENYING REHEARING ........cccccsssceccessscceees 140a V TABLE OF AUTHORITIES Page CASES 11126 BALTIMORE BLVD., INC. v. PRINCE GEORGE'S COUNTY, 58 F.3D 988, 994 (4TH CIR. SO CII snincstsahetcncinciceatiete Dee a ».. 20-21 ACKERLEY COMMUNICATIONS OF MASS., INC. Vv. CITY OF CAMBRIDGE, 88 F.3D 33 (1ST CIR. 1996)........ 16 ARIZONA RIGHT TO LIFE POLITICAL ACTION COMM. V. BAYLESS, 320 F.3D 1002, 1006-07 (9TH Rt I tcisscdieahentsneliniaia tdi tuataue tae ae ae 16 ASHCROFT V. FREE SPEECH COALITION, 535 U.S. SI IUD ctsininicsuclaiscnns cael 7,18 BOARD OF TRUSTEES V. Fox, 492 U.S. 469; 484 SE RI eI E AS EE ih ean 11-12, 19 BROADRICK V. OKLAHOMA, 413 U.S. 601, 612 fa | Se OO TORN NCEE aay, passim BURSON V. FREEMAN, 504 US. 191, 210, N. 13 RU ivecnhicciniliiclclaiaiiaiaecai let id ee A een 19 CITY OF LAKEWOOD V. PLAIN DEALER PUBL'G Co., 486 U.S. 750, 755-56 (1988)....cccccccecec0-«. 11, 20, 21, 22 DAMBROT V. CENTRAL MICH. UNIV., 55 F.3D 1177, Le | en ee Tn 16 vil DEJA VU OF NASHVILLE, INC. V. METROPOLITAN GOv'T OF NASHVILLE AND DAVIDSON COUNTY, 274 F.3D 377, 385 (6TH CIR. 2001), CERT. DENIED, 535 U.S. 1073 (2002) ..........ssssssssserseereerseesenseees 16 DESERT OUTDOOR ADVER., INC. V. CITY OF MORENO VALLEY, 103 F.3D 814, 818 (9TH CIR. FORSYTH COUNTY V. NATIONALIST MOVEMENT, 505 U.S. 128, 188, N. 10 (1992)......c.cccccrccrrcesseccssroeces 21-22 GIOVANI CARANDOLA, LTD. V. BASON, 303 F.3D 507, 512-51 (4TH CIR. 2002).........cccccsccereesreeserseresserseees 16 GRANITE STATE OUTDOOR ADVER., INC. V. CITY OF ST. PETERSBURG, 348 F.3D 1278 (11TH CIR. 2003), PETITION FOR CERT. FILED, 72 U.S.L.W. 3644 (U.S. MAR 29, 2004) .....sccrssccsssccsscssccsrscocccesseessensees 22 GRANITE STATE OUTDOOR ADVERTISING, INC. V. CITY OF CLEARWATER, 213 F.SUPP.2D 1312 CBD... PUA. BOOB) necvescrveccsesesesscsssvvovsovevensoonvetenseessatovsseossere 1 GRANITE STATE OUTDOOR ADVERTISING, INC. V. CITY OF CLEARWATER, 351 F.3D 1112 (11TH CFR, BB vecexeitnsccscisansssinseininveenntensatimnemamniamniie 1 GRIFFIN V. SECRETARY OF VETERANS AFFAIRS, 288 F.3D 1309, 1818-19 (D.C. CIR. 2002) .......ceseeeeeeeeee 22 INTERNATIONAL SOCIETY FOR KRISHNA CONSCIOUSNESS V. EAVES, 601 F.2D 809, 823 CBG CUR, BIT D) vceecisineieeeeniensiconieverionsminsnanimesiteateaiinininsicitie 22 vii LAMAR ADVER. OF PENN, LLC v. TOWN OF ORCHARD PARK, 356 F.3D 365, 374-75 (2D CIR. Ree Ra ae RN Sa NI oS EN he 16 TUTE F vininhecsticaitumnesstciiesinitinniniibinihiteeuabanietelelaiasuisnniniinsses 22 MEMBERS OF CITY COUNCIL V. TAXPAYERS FOR VINCENT, 466 U.S. 789, 801 (1984)......ccccccccccccsesesseseseee. 18 METROMEDIA V. CITY OF SAN DIEGO, 453 U.S. Ae Lt __; ar eTEn passim MIAMI HERALD, INC. v. CITY OF HALLANDALE, 734 F.2D 666, 674, N. 4 (ITH CIR. 1984) ...cececcccsccsccssece. 22 NATIONAL ADVER. Co. V. TOWN OF BABYLON, 900 F.2D 551, 553, 555 (2D CrR. 1990), CERT. DENIED, 492 U.S. 852 (1990)........cccccccsccscscscesccsceeseessesees 16 NORTH CAROLINA RIGHT TO LIFE, INC. V. BARTLETT, 168 F.3D 705, 710 (4TH CIR. 1999), CERT. DENIED, 528 U.S. 1153 (2000) oon... cecccececcccccsesseeee 20 PEACHLUM V. CITY OF YORK, 333 F.3D 429, 430 tT IT LT HO ee 16 RAPPA V. NEW CASTLE COUNTY, 18 F.3D 1043 Pa iissiiticiiiicencinne cane iia ha 16 RENO V. ACLU, 521 U.S. 844, 861-62, NN. 27-28 SIT Manse diaciiccisisteinsticiain econo stenesraiiovenntensebvienteiens 7, 19-20 RILEY V. NATIONAL FED'N OF THE BLIND, 487 EE Pes nisin ee 21 a a ee viii SCHAD V. BOROUGH OF MOUNT EPHRAIM, 452 | RIC aaa eNO te ae an 9,18 SHUTTLESWORTH V. CITY OF BIRMINGHAM, 394 er Oe RTT EY 22 ~ SMITH Vv. CALIFORNIA, 361 U.S. 147, 151 (1959)........ 10, 19 SOUTHWORTH V. BOARD OF REGENTS, 307 F.3D 566, 577-78 (TTH CIR, 2002) ......cccccrscccscescesescoscsseressereeees 22 THOMAS V. CHICAGO PARK DIST., 534 U.S. 316, | ee TE teiivvisacinavisiseraeinitinninidibabiepateaitigiiaasinabdcianiiati 21, 22 THORNHILL V. STATE OF ALABAMA, 310 U.S. 88, EN EN tN ae 10, 11, 19 UNITED STATES V. RAINES, 362 U.S. 17, 22-3 bE NTE NTT MONTE ED 10,19 VIRGINIA SOCIETY FOR HUMAN LIFE, INC. V. FEDERAL ELECTION COMM'N, 263 F.3D 379, 388 (4TH CIR. 2001) VIRGINIA V. AMERICAN BOOKSELLERS ASS'N, INC., 484 U.S. 383, 392 (1988) .......cccscesscseeee 9,10, 18, 19 WARTH V. SELDIN, 422 U.S. 490, 500-01 (1975) ........... 9,10 ) So Oe ee a ee Z.J. GIFTS D-4, L.L.C. Vv. CITY OF LITTLETON, 311 F.3D 1220, 1226-27 (10TH CIR. 2002), CERT. GRANTED IN PART, 124 S.CT. 388.........ccccssscsssscssssssseeees 21 | t ty 4 + ix OTHE». AUTHORITIES SUP a te MT pike ibeaincielile ee 1 LE Te 5 ENR aT aaeiiliaii aati 1 SANE RANI UR EP mE AIRSET ahs PR ] OPINIONS BELOW The opinion of the three-judge panel of the Eleventh Circuit Court of Appeals is reported as Granite State Outdoor Advertising, Inc. v. City of Clearwater, 351 F.3d 1112 (11 Cir. 2003).! The opinion of the district court is reported at Granite State Outdoor Advertising, Inc. v. City of Clearwater, 213 F.Supp.2d 1312 (M.D. Fla. 2002). JURISDICTION The Court of Appeals entered judgment on November 28, 2003. A petition for rehearing and hearing en bane was denied on February 18, 2004. (140a-141a). The Court of Appeals had jurisdiction pursuant to 28 U.S.C. § 1291. Jurisdiction in the Court is invoked pursuant to 28 U.S.C. § 1254(1). STATUTORY PROVISIONS INVOLVED The First Amendment to the Constitution of the United States provides that “Congress shall make no law ... abridging the freedom of speech or of the press ” Section 1983 of Title 42 of the United States Code states that any person that “subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the ' The Appendix attached hereto includes the circuit court decision (la-15a), and the district court decision (16a-139a). aa eee 2 Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.” STATEMENT I. OVERVIEW OF THE CASE The Eleventh Circuit Court of Appeals reversed the district court’s grant of overbreadth standing to Petitioner Granite State Outdoor Advertising, Inc. (“Granite State”) to challenge the City of Clearwater, Florida’s (“City”) sign regulations. In doing so, the Court of Appeals held that a party asserting standing under the overbreadth doctrine in First Amendment challenges to comprehensive regulatory schemes, such as the City’s sign regulations (“Sign Ordinance”), is limited to challenging only those individual provisions of the scheme under which the challenger suffered actual injury. This decision is contrary to the Supreme Court’s repeated holdings regarding overbreadth standing to challenge ordinances on First Amendment grounds. The Eleventh Circuit’s decision eviscerates the Court’s overbreadth doctrine in free speech cases by restricting such challenges to only the specific provisions under which a challenger demonstrates actual injury. The Eleventh Circuit’s restriction on overbreadth standing (1) eliminates review of regulatory schemes as being overbroad in practical application, (2) prevents trial courts of the Eleventh Circuit from invalidating plainly unconstitutional restrictions on protected speech unless a challenger can establish actual harm under an offensive provision, (3) requires a multiplicity of lawsuits to invalidate ‘ | 3 constitutionally repugnant regulatory schemes, and (4) denies standing to parties willing to make constitutional challenges that other parties injured by unconstitutional regulations may be unable or unwilling to raise. II. FACTUAL BACKGROUND OF THE CASE Granite State is in the business of developing sign locations to be used for the dissemination of both commercial and noncommercial speech. (2a). Granite State entered into eight leases with owners of real property in the City. (8a). Each of these leases allowed Granite State to post a sign on the property. Id. Granite State applied to the City for permission to post a sign on each of the parcels. Jd. The City enforced its Sign Ordinance to deny Granite State’s applications. Id. The Sign Ordinance creates a comprehensive scheme for regulating the permitting, content, placement, number, construction, size, height, design, operation, and maintenance of signs within the City. Id. Anyone wishing to post a sign in the City must first obtain prior approval of City officials. (22a-23a). No sign may be posted until such approval is received. (22a-28a, 76a, 136a). The Sign Ordinance imposes no brief, specified time limits on the City to act on a sign application. (22a-23a, 92a-97a, 137a-138a). If the City denies an application, an appeal is allowed to the City’s Community Development Board, but that Board does not have to act on the appeal; no time limits are imposed to constrain the Board’s deliberations should it eee 4 choose to decide an appeal. (22a-23a, 129a-132a). If such an appeal is granted and later denied, an unsuccessful applicant may then appeal to a City hearing officer. (23a, 129a, 182a-133a). Again, no action is required within any specified period by this hearing officer. (132a-133a). The Sign Ordinance fails to afford unsuccessful applicants access to prompt judicial review. (79a-99a, 129a-133a, 135a-138a) The Sign Ordinance itself is filled with various restrictions, exceptions, and preferences for certain types of signs and messages displayed on signs. Certain hand-carried banners visible from the right-of- way are prohibited; certain window signs are prohibited; signs not deemed acceptable under the statute are prohibited. Descriptions of the favored and disfavored categories of signs extend for several pages | of the ordinance. (82a-84a, 86a-9la). In addition, : certain specific messages are allowed, including . messages for grand openings, construction, “art work,” : and real estate sales, but the City has complete discretion to decide whether a specific sign falls within one of these favored categories. (87a-88a, 90a). The City renders its decisions regarding such signs on a “case by case” basis without further guidance. (59a). ee ee Signs carrying messages regarding politics are subject to additional restrictions. (54a-57a, 90a). They may not be posted more than 60 days before an election and are limited in size depending on where they are posted. Jd. Signs regarding stances on political issues are not allowed unless specifically permitted by the City. (84a, 90a). 5 The City also uses “zoning districts” to decide where and of which type signs may be posted in the City. (92a-97a). The City has broad discretion in making these decisions, and again the appeal process for adverse decisions does not require that the City act within certain time constraints, or even at all. (22a-23a, 129a-133a). The City even has subjective discretion to decide whether it will allow signs on public property, if it determines that the sign “serv[es] a significant public purpose.” (60a, n. 43, 77a, 96a). The City may allow signs that do not comply with the terms of the Sign Ordinance if City officials determine that the sign will meet their own subjective criteria, such as it “shali not have an adverse impact on the community character of the City of Clearwater.” (99a). No narrow, objective standards guide the City’s discretion. Ill. PROCEEDINGS BELOW Granite State challenged the coustitutionality of the Sign Ordinance after the City denied its applications for permits to erect signs. (3a). Granite State raised challenges to the entirety of the ordinance and the licensing scheme contained in the ordinance. (3la-33a). In addition to granting Granite State as- applied standing, the district court determined that Granite State could facially challenge the entirety of the Sign Ordinance by application of the overbreadth doctrine. Jd. The trial court specifically found that the Sign Ordinance “when applied to speech, in the form of signs, may effectively chill First Amendment rights.” (33a). After making this determination, the district court struck several patently unconstitutional sections of the Sign Ordinance challenged by Granite State. (5la-52a, 56a-59a), The Eleventh Circuit reversed the district court and found that Granite State did not have standing to challenge the entirety of the Sign Ordinance. (12a-13a). Under the Circuit Court’s reading of the overbreadth doctrine, overbreadth standing is limited to only those discrete provisions of a regulation under which a challenging party can demonstrate actual injury. (4a). By reversing the finding of overbreadth standing, the Eleventh Circuit reinstated the unconstitutional provisions of the Sign Ordinance that had been invalidated by the trial court. Granite State petitioned for rehearing and rehearing en banc and was denied. (140a-141a). _ REASONS FOR GRANTING THE PETITION Supreme Court Rule 10 identifies considerations used by the Court in deciding whether to exercise its discretion to grant a petition for writ of certiorari. One consideration is that a “United States court of appeals has decided an important question of federal law .. . that conflicts with relevant decisions of this Court.” Another consideration is that a “United States court of appeals has entered a decision in conflict with the decision of another United States court of appeals on the same important matter... .” Finally, the Court considers whether the court of appeals decision “has so far departed from the accepted and usual course of judicial proceedings . . . as to call for an exercise of this Court’s supervisory power... .” ni ee. ), ee ee ee eee j j 7 In this case, the petition should be granted under all of Rule 10’s criteria set forth above. Most significantly, the Clearwater decision flatly contradicts this Court’s overbreadth standing doctrine in First Amendment cases. The Eleventh Circuit’s new definition of overbreadth standing extends only to a discrete provision of a regulatory scheme under which a challenger can establish as-applied standing. This new definition conflicts with the Court’s well established precedent that litigants may facially “challenge a statute not because their own rights of free expression are violated, but because of a judicial prediction or assumption that the statute’s very existence may cause others not before the court to refrain from constitutionally protected speech or expression.” Broadrick v. Oklahoma, 413 U.S. 601, 612 (1973) (emphasis added); see also Ashcroft v. Free Speech Coalition, 5385 U.S. 284, 245 (2002); Reno v. ACLU, 521 U.S. 844, 861-62, nn. 27-28 (1997); Metromedia v. City of San Diego, 453 U.S. 490, 504 n. 11 (1981) (allowing billboard company to challenge entire sign ordinance including content-based exemvtions which had no application to the plaintiff). As shown below, there are numerous other decisions of the Court and circuit courts around the country with which the Clearwater decision fundamentally conflicts. The Eleventh Circuit’s decision will have at least two profound, negative impacts on other federal circuits should the decision remain intact. The first of these is the high probability that federal courts in other circuits will be repeatedly confronted with the Clearwater decision as government defendants assert that the overbreadth doctrine is restricted to only the specific provisions under which a party can show actual 8 harm. The other negative impact is the prohibition imposed on the trial courts of the Eleventh Circuit to invalidate obviously unconstitutional restrictions on free speech unless a party can establish as-applied standing to challenge every element of such restrictions. The risk that other federal and state courts may adopt the Eleventh Circuit’s misinterpretation of the overbreadth doctrine is too great to allow the decision to remain uncorrected. The decision requires that constitutional challenges to comprehensive regulatory schemes that restrict speech must be made on a case- by-case, provision-by-provision basis predicated on a party’s ability to show actual injury. The Eleventh Circuit’s decision effectively deprives private citizens, businesses, and organizations of their ability to facially challenge invalid regulatory schemes. The practical effect of the Eleventh Circuit’s decision will be to require a multiplicity of lawsuits: to invalidate unconstitutional regulations on_ speech. This requirement is, both cost prohibitive and overly burdensome to potential plaintiffs and an enormous waste of judicial resources. Knowing that their regulations are insulated from facial challenges, government entities will have little incentive to correct unconstitutional regulatory schemes should the Eleventh Circuit’s decision remain as an authoritative interpretation of the overbreadth doctrine. The petition for certiorari should therefore be granted. n 7 ee ey ee ee ee - ” 9 I. REVIEW IS WARRANTED BECAUSE THE DECISION CONFLICTS WITH THE COURT’S HOLDINGS REGARDING THE OVERBREADTH STANDING DOCTRINE. A. The Clearwater Decision Eviscerated Overbreadth Standing. The very purpose of the overbreadth standing doctrine is to permit challenges to regulatory schemes that infringe on First Amendment speech rights even when the party before the court has not suffered injury from every one of the challenged portions of the regulatory scheme. See Metromedia, 453 U.S. at 493 (plurality of Justices White, Stewart, Marshall, and Powell), 525 (concurrence of Justice Brennan joined by Justice Blackmun); see also Schad v. Borough of Mount Ephraim, 452 U.S. 61, 66 (1981) (allowing overbreadth challenge to municipal zoning ordinance); Virginia v. American Booksellers Ass’n, Inc., 484 U.S. 383, 392 (1988) (holding that “threatened or actual injury resulting from the putatively illegal action” confers standing); Warth v. Seldin, 422 U.S. 490, 500-01 (1975) (same). Simply put, a party that has suffered injury from some portion of a First Amendment regulatory scheme has standing to challenge both that section and other invalid sections under which it has not suffered direct injury because of the overbreadth standing doctrine. The Circuit Court correctly recognized that Granite State had suffered actual injury under subsection 3-1806.B.1 of the City’s regulatory scheme. (6a-7a). Accordingly, Granite State had direct standing to challenge that portion of the ordinance. Id. [a 10 However, the Court of Appeals ignored numerous precedents from this Court in concluding that Granite State did not have standing to challenge the other unconstitutional portions of the ordinance at issue. /d. Once actual injury is established under one portion of the ordinance, it is both common sense and established law that a party has standing to challenge additional portions of a comprehensive regulatory scheme that restricts protected speech. Otherwise, the overbreadth doctrine would be made a nullity, because a party could never challenge any additional sections of the ordinance without going through the same actual injury analysis. The overbreadth doctrine would thus be rendered an illusory standing doctrine offering no greater scope than as-applied standing. B. The Court Has Not Created An Illusory Standing Doctrine. 7 Contrary to the Eleventh Circuit’s holding, this Court has repeatedly recognized that “countervailing considerations may outweigh” the actual injury requirement for standing in a First Amendment case. Warth, 422 U.S. at 500-01 (citing United States v. Raines, 362 U.S. 17, 22-3 (1960) (emphasizing “that where the application of [strict standing] rules would itself have an inhibitory effect on freedom of speech, they may not be applied,” citing Smith v. California, 361 U.S. 147, 151 (1959), and Thornhill v. State of Alabama, 310 U.S. 88, 97-8 (1940)); also American Booksellers, 484 U.S. at 392-93. Oe LL a Indeed, the Eleventh Circuit ignored the basic underpinning of the overbreadth doctrine: i 11 In the area of freedom of expression it is well established that one has standing to _ challenge a statute on the ground that it delegates overly broad licensing discretion to an administrative office, whether or not his conduct could be proscribed by a properly drawn statute, and whether or not he applied for a license. City of Lakewood v. Plain Dealer Publ’g Co., 486 U.S. 750, 755-56 (1988). This Court has established that the injury to be redressed by application of the overbreadth doctrine is the removal of the pervasive threat to First Amendment freedoms inherent in an offensive regulations’ very existence, not the remediation of any personal injury suffered by a challenging party. Thornhill, 310 U.S. at 97. Granite State made a facial First Amendment challenge to the Sign Ordinance because the entire ordinance, and portions of its constituent parts, prevented Granite State and others from exercising fundamental speech rights protected by the First Amendment. Such a challenge is permitted under the Court’s standing rules both because protection of First Amendment rights is of paramount importance to a free society and because such challenges vindicate the rights of third parties not before the court. The practical effect of the overbreadth doctrine is “to enable persons who are themselves unharmed by the defect in a statute nevertheless to challenge that statute on the ground that it may conceivably be applied unconstitutionally to others, in other situations not before the Court.” Board of Trustees v. Fox, 492 i ii 12 U.S. 469, 484 (1989) (quoting Broadrick, 413 U.S. at 610). This Court created the overbreadth doctrine to eliminate the need for multiple lawsuits and to allow plaintiffs to vindicate their constitutional rights without subjecting themselves to penalties imposed under unconstitutional laws. E.g., Ex Parte Young, 209 U.S. 123, 159-60 (1908). The Clearwater decision reverses the Court’s rationai and would require multiple lawsuits to evaluate unconstitutional ordinances on a case-by-case, provision-by-provision basis. The importance of the First Amendment in ) maintaining a free and open society gave rise to the | Court’s overbreadth standing doctrine in the First | Amendment arena because of the Court’s recognition of the necessity and efficiency of permitting overbreadth | challenges to comprehensive regulations that unduly | restrict First Amendment rights. The Eleventh Circuit’s Clearwater decision undermines the Court’s | rationale and invites degradation of the Court’s constitutional mandates. C. Overbreadth Standing Allows A Party With A Commercial Interest In Speech Activity To Challenge All Unconstitutional Provisions Of A Regulatory Scheme, Even Those Having No Practical Application To The Challenging Party. The Eleventh Circuit’s decision conflicts with established Supreme Court precedent. E.g., Metromedia, 453 U.S. at 504 (recognizing billboard company’s standing to assert facial challenge to all provisions of San Diego’s comprehensive sign NT 13 ordinance). Indeed, the Court of Appeals completely ignored the Court’s Metromedia decision and failed even to cite to Metromedia even though Metromedia controls the law of signs, and especially billboards. Metromedia, 453 U.S. at 501 (reiterating that “[ea}ch method of communicating ideas is a law unto itself”) (cit. omitted). The Eleventh Circuit’s disregard for the law established by the Court is exacerbated by the fact that the district court specifically referred to the Court’s Metromedia decision in conferring overbreadth standing on Granite State to facially challenge the sign regulations. (29a-3la). In reversing the district court, the Court of Appeals simply ignored any reference to the Metromedia decision. In Metromedia, the Court _ specifically established sign companies’ standing to facially challenge the entirety of unconstitutional sign ordinances reaffirming that we have never held that one with a “commercial interest” in speech also cannot challenge the facial validity of a statute on the grounds of its substantial infringement of the First Amendment interests of others. Were it otherwise, newspapers, radio stations, movie theaters and producers — often those with the highest interest and the largest stake in a First Amendment controversy - would not be able to challenge government limitations on speech as substantially overbroad. 14 Id. at 504, n. 11. Six Justices unconditionally joined the Court’s holding establishing a sign company’s ability to facially challenge the entirety of a sign ordinance under the overbreadth doctrine. Jd. at 493 (holding of plurality composed of Justices White, Stewart, Marshall, and Powell); id. at 525 (concurrence of Justice Brennan joined by Justice Blackmun) (specifying that “(wlhere the plurality and I disagree is . . . the appropriate analytical framework to apply”). As is clear, there can be no doubt that a clear majority of the Court allowed and indeed encouraged commercial entities such as Granite State to raise facial challenges to entire regulatory schemes that restrict protected speech on signs. The Eleventh Circuit’s decision to discard overbreadth standing was predicated on its failure to defer to this Court’s clear precedent. The Metromedia Court invalidated San Diego’s sign ordinance based in large part on 12 exemptions to the city’s ban on off-premise signs where the exemptions had no possible application to the outdoor advertising company. Jd. at 514-15 (holding that “the city may not choose the appropriate subjects for public discourse”). Those signs exempted from prohibition by the San Diego regulations included government signs; signs located at public bus stops; . . . commemorative historical plaques; religious symbols; signs within shopping malls; for sale and for lease signs; signs on public and commercial vehicles; signs depicting time, temperature, and news; approved temporary, off-premises, subdivision ete Ue ON et eee ene 15 directional signs; and “[(tjemporary political campaign signs.” Id. at 494-95. The Metromedia Court expressly rejected the dissenting Chief Justice’s finding that these exceptions were de minimis. Id. at 518-19.’ Therefore, the Court undeniably established that plaintiffs such as Granite State have facial standing to challenge all provisions of sign regulations under the overbreadth doctrine, even those provisions that have no actual impact on the plaintiff. /d. at 504, n. 11. The Clearwater decision not only eliminates years of careful development of the overbreadth doctrine, it also eliminates the most important single mechanism through which parties may obtain judicial review of state actions that limit or eliminate common avenues of speech and important subject areas of speech. The Eleventh Circuit’s decision reversed the district court’s findings and took the unprecedented step of reinstating several unconstitutional provisions to the detriment of the citizens of the City. Such provisions are unlikely to be challenged again because individuals and nonprofits typically do not have the resources to litigate. Through the granting of this petition, the Court can review, refine, and correct misreadings and misapplications of this fundamental technique of preservation of basic constitutional rights. * As cursory review of the Sign Ordinance discloses exemptions similar to those resulting in the invalidation of San Diego’s ordinance. (87a-91a) (referring to Sign Ordinance, § 3-1805). 16 II. THE CLEARWATER DECISION CREATES CONFUSION AMONG THE CIRCUITS ON THIS IMPORTANT QUESTION OF FEDERAL LAW. The Eleventh Circuit’s decision conflicts with other circuits that have considered this precise issue in the context of restrictions on First Amendment activity. This important question of 2deral law requires uniformity, for to permit otherwise would countenance a situation where speakers in some parts of the country would be denied standing to protect the exact same speech rights they are guaranteed in other parts of the country. The panel decision conflicts with numerous decisions from other circuit courts of appeal. The other circuits have repeatedly acknowledged the standing of an aggrieved speech applicant to challenge all unconstitutional aspects of a speech regulation. E 7., Ackerley Communications of Mass., Inc. v. City of Cambridge, 88 F.3d 33 (1* Cir. 1996); Lamar Adver. of Penn, LLC v. Town of Orchard Park, 356 F.3d 365, 374- 75 (24 Cir. 2004); National Adver. Co..v. Town of Babylon, 900 F.2d 551, 553, 555 (2° Cir. 1990), cert. denied, 492 U.S. 852 (1990); Peachlum v. City of York, 333 F.3d 429, 430 (8 Cir. 2003); Rappa v. New Castle County, 18 F.3d 1043 (3% Cir. 1994); Giovani Carandola, Ltd. v. Bason, 303 F.3d 507, 512-51 (4 Cir. 2002); Deja Vu of Nashville, Inc. v. Metropolitan Gov't of Nashville and Davidson County, 274 F.3d 377, 385 (6 Cir. 2001), cert. denied, 535 U.S. 1073 (2002); Dambrot v. Central Mich. Univ., 55 F.3d 1177, 1182 (6" Cir. 1995); Arizona Right to Life Political Action Comm. v. Bayless, 320 F.3d 1002, 1006-07 (9 Cir. 2003) eddy Dab Ding Dee cat tie hte Pb ey ee ae , Salen ial gills Ib ela AS Bsc nd ioe 17 (granting standing and _ stating “{cJonstitutional challenges based on the First Amendment” may be initiated without “requiring litigants to speak first and take their chances with the consequences”); Desert | Outdoor Adver., Inc. v. City of Moreno Valley, 103 F.3d 814, 818 (9 Cir. 1996). Many of these cases have involved commercial sign companies such as Granite State, and refer specifically to the Court’s holding in Metromedia. The result of the conflict between the Eleventh Circuit and the other circuits’ rulings is clear: parties asserting First Amendment challenges in the Eleventh Circuit are now denied the ability to challenge entire regulatory schemes on overbreadth grounds, while such challenges are permitted under the overbreadth doctrine in other circuits. A party’s ability to challenge the entirety of a regulatory scheme as being overbroad should not turn on the location in which the challenge is raised. The Court should grant Granite State’s petition to resolve this glaring conflict between the Eleventh Circuit decision and other circuit courts. Ill. THE RISK THAT PROTECTED SPEECH MAY BE CHILLED SUFFICES TO CONFER OVERBREADTH STANDING ON A PARTY TO CHALLENGE AN ENTIRE REGULATORY SCHEME. As the Court has repeatedly held, the overbreadth doctrine allows litigants to facially challenge a statute not because their own rights of free expression are violated, but because of a judicial prediction or assumption that the statute’s very A A SAP 18 existence may cause others not before the court to refrain from constitutionally protected speech or expression. Broadrick, 413 U.S. at 612 (emphasis added); Free Speech Coalition, 535 U.S. at 245 (reemphasizing that an entire act is facially invalid if it prohibits a substantial amount of protected speech and reiterating that even “minor punishments may chill protected speech”); American Booksellers, 484 U.S. at 392-93 (emphasizing that plaintiffs had standing to challenge entire regulatory scheme); Members of City Council v. Taxpayers for Vincent, 466 U.S. 789, 801 (1984) (a statute is unconstitutional on its face on overbreadth grounds if there is “a realistic danger that the statute itself will significantly compromise recognized First Amendment protections of pariies not before the court”) (emphasis added); Metromedia, 453 U.S. at 504, n. 11; Schad, 452 U.S. at 66 (allowing overbreadth challenge to municipal zoning ordinance). In light of the Court’s well-established precedent, the Eleventh Circuit should have declined the City’s invitation to impermissibly limit Granite State’s overbreadth challenge to the specific provision under which it suffered an actual injury. The appellate Clearwater decision ignored the district court’s “judicial prediction” that other provisions of the Sign Ordinance impermissibly prohibit protected expression of third parties. 19 IV. OVERBREADTH STANDING TO FACIALLY CHALLENGE UNCONSTITUTIONAL RESTRICTIONS ON PROTECTED SPEECH DOES NOT DEPEND ON A SHOWING OF ACTUAL INJURY. The Eleventh Circuit erroneously required Granite State to establish actual injury under each challenged provision in order to obtain overbreadth standing to challenge the entirety of the Sign Ordinance. (5a-7a). The Clearwater decision conflicts with this Court’s holdings and those of the other circuit courts. Pretermitting whether Granite State suffered actual injury under the City’s Sign Ordinance, the Court has established that there is no requirement that a plaintiff demonstrate an actual injury to facially challenge restrictions on First Amendment grounds. Burson v. Freeman, 504 U.S. 191, 210, n. 13 (1992); Fox, 492 U.S. at 484 (reemphasizing that the purpose of the overbreadth doctrine is “to enable persons who are themselves unharmed . . . to challenge that statute” on behalf of others) (quoting Broadrick, 413 U.S. at 610). As noted above, the Court dispenses with “the application of [strict standing] rules [that] would itself have an inhibitory effect on freedom of speech... .” Raines, 362 U.S. at 22-3 (citing Smith, 361 U.S. at 151; Thornhill, 310 U.S. at 97-8); also American Booksellers, 484 U.S. at 392-93 (granting facial standing after “conclud[ing] that plaintiffs have alleged an actual and well-founded fear that the law will be enforced against them”); Reno v. ACLU, 521 U.S. at 861-62, nn. 27-28 (granting plaintiffs overbreadth standing to challenge Communications Decency Act before any 20 enforcement had occurred). The Court’s holdings are clear: parties challenging regulatory schemes that may potentially chill protected speech have facial standing to do so without the traditional requirement of demonstrating “actual harm.” Indeed, it is the potential to chill the exercise of First Amendment rights that confers overbreadth standing on Granite State even if it had not applied for permits prior to bringing its First Amendment challenge. Lakewood, 486 U.S. at 755-56 (emphasizing “the mere existence of the licensor’s unfettered discretion, coupled with the power of prior restraint, intimidates parties into censoring their own speech, even if the discretion and power are never actually abused”); Virginia Society for Human Life, Inc. v. Federal Election Comm’n, 263 F.3d 379, 388 (4* Cir. 2001) (holding “that when a statute on its face restricts a party from engaging in expressive activity, there is a presumption of a credible threat of prosecution. ‘This presumption is particularly appropriate when the presence of a statute tends to chill the exercise of First Amendment rights”) (quoting North Carolina Right to Life, Inc. v. Bartlett, 168 F.3d 705, 710 (4 Cir. 1999), cert. denied, 528 U.S. 1153 (2000)). This Court and other circuit courts recognize that where, as here, a party challenges a prior restraint on protected speech as vesting impermissible discretion in government officials by failing to provide adequate procedural safeguards or failing to provide narrow, objective criteria to guide officials’ determinations, “courts must permit those subject to the laws to bring an immediate facial challenge.” 11126 Baltimore Blud., Inc. v. Prince George's County, 58 F.3d 988, 994 (4 Cir. gw 21 1995) (en bane) (citing Lakewood, 486 U.S. at 759). A party may facially challenge licensing schemes as vesting impermissible discretion in government officials “whether or not his conduct could be proscribed by a properly drawn statute, and whether or not he applied for a license.” Lakewood, 486 U.S. at 756; Z.J. Gifts D- 4, L.L.C. v. City of Littleton, 311 F.3d 1220, 1226-27 (10 Cir. 2002), cert. granted in part, 124 S.Ct. 383 (citing Freedman v. Maryland, 380 U.S. 51, 56 (1965); FW/PBS, Inc. v. City of Dallas, 493 U.S. 215, 223 (1990)). Indeed, if one’s conduct could not be proscribed by an offensive licensing scheme, the plaintiff could not suffer an actual injury under the challenged regulations. Lakewood, 486 U.S. at 755-56. Contrary to the Clearwater analysis, where facial challenges to licensing schemes are raised, this Court has established that the appropriate inquiry is not whether censorship actually results from a regulation’s enforcement. Rather, it is the risk of the “arbitrary suppression” or indefinite delay of protected speech that provides plaintiffs with overbreadth standing to facially challenge such regulatory schemes. FW/PBS, 493 U.S. at 225-27; Thomas v. Chicago Park Dist., 5384 U.S. 316, 323 (2002); Riley v. National Fed’ of the Blind, 487 U.S. 781, 802 (1988) (holding “delay compels the speaker’s silence”). This Court and other circuit courts hold that “the success of a facial challenge on the grounds that an ordinance delegates overly broad discretion to the decisionmaker rests not on whether the administrator has exercised his discretion in a content-based manner, but whether there is anything in the ordinance preventing him from doing so.” Forsyth County v. 22 Nationalist Movement, 505 U.S. 123, 133, n. 10 (1992); Southworth v. Board of Regents, 307 F.3d 566, 577-78 (7 Cir. 2002); Lewis v. Wilson, 253 F.3d 1077, 1080 (8t Cir. 2001).* “(Courts] cannot depend on the individuals responsible for enforcing the Ordinance to do so in a manner that cures it of constitutional infirmities.” Lakewood, 486 U.S. at 770. The Eleventh Circuit should not have denied Granite State overbreadth standing because the Sign Ordinance affords officials Just such power and contains no provisions constraining the exercise thereof. Furthermore, this Court and other circuits, including the Eleventh Circuit, hold that in facial challenges, “the facts of the challenging party’s case are irrelevant.” Miami Herald, Inc. v. City of Hallandale, 734 F.2d 666, 674, n. 4 (11 Cir. 1984) (citing Beckerman v. City of Tupelo, 664 F.2d 502, 506-07 (5 Cir. 1981)); Forsyth County, 505 U.S. at 133, n. 10 (reaffirming that “[flacial attacks on the discretion granted a decisionmaker are not dependent on the facts” as applied to a particular plaintiff); Lakewood, 486 U.S. at 770; Shuttlesworth v. City of Birmingham, 394 U.S. 147 ; 151 (1969); Griffin v. Secretary of Veterans Affairs, 288 F.3d 1809, 1318-19 (D.C. Cir. 2002); International Society for Krishna Consciousness v. Eaves, 601 F.2d 809, 823 (5 Cir. 1979). The Clearwater decision * The Eleventh Circuit reaffirmed in the Clearwater decision that it has determined that this Court’s decision in Thomas v. Chicago Park District, 584 U.S. 316, 323 (2002), has done away with the need for procedural safeguards in arguably “content-neutral” speech permitting schemes. (9a-10a). Also Granite State Outdoor Adver., Inc. v. City of St. Petersburg, 348 F.3d 1278 (11 Cir. 2003), petition for cert. filed, 72 U.S.L.W. 3644 (U.S. Mar 29, 2004) (No. 03-1386). 23 effectively denies standing to facially challenge unconstitutional statutes and ordinances. CONCLUSION This petition for writ of certiorari should be granted. The Eleventh Circuit’s Clearwater decision makes a mockery of overbreadth standing. The decision clearly conflicts with the holdings of this Court, those of other circuits around the country, and with common sense. Moreover, the decision mandates that the district court re-impose several indisputably unconstitutional sign restrictions, an unprecedented occurrence in federal jurisprudence. Because the right of free speech above all others requires uniformity and diligent protection, this matter should be taken up by the Court. DATED this 18th day of May, 2004. Respectfully submitted, E. Adam Webb Counsel of Record Georgia State Bar No. 743910 Webb & Porter, L.L.C. 2625 Cumberland Parkway, S.E. Suite 220 Atlanta, Georgia 30339 (770) 444-0773 Attorney for Petitioner Granite State Outdoor Advertising, Inc. as a nates eh PRCT PPR? TTI IP a PC ce) La ae ae la (Any footnotes trail end of each document) No. 02-14434 UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT GRANITE STATE OUTDOOR ADVERTISING, INC., Plaintiff-Appellant, versus CITY OF CLEARWATER, FLORIDA, BRIAN AUNGST, SR., as an individual and in his capacity as Mayor of the city, WILLIAM HORNE, as an individual and in his capacity as city manager, Defendants-Appellees. November 28, 2003, Decided November 28, 2003, Filed COUNSEL: For Granite State Outdoor Advertising, Inc., Appellant: Webb, Edward Adam, Dow, Lohnes & Albertson, ATLANTA, GA. For City of Clearwater, Florida, Appellee: Brinton, William David, Allen, Brinton & Simmons, P.A., Jacksonville, FL. For Aungst, Brian Sr., Horne, William, Appellees: Russell, Cristine M., Rogers, Towers, Bailey, Jones & Gay, Jacksonville, FL. 2a JUDGES: Before ANDERSON and BIRCH, Circuit Judges, and PROPST *, District Judge. ANDERSON. Circuit Judge, concurring. OPINION BY: BIRCH OPINION: BIRCH, Circuit Judge: In this appeal, we must determine whether the district court properly denied plaintiff-appellant’s, Granite State Outdoor Advertising, Inc. (“Granite State”), request for injunctive relief against defendant-appellee, the City of Clearwater, Florida (“the City” or “Clearwater”), after several permit applications to construct billboards in the City were denied under Article 3, Division 18 of the City’s Community Development Code (“the Code”). The district court ruled that Granite State had standing to challenge the entirety of Article 3, Division 18, but not any part of Article 4, the part of the Code that governs the permit denial appeals process. The district court denied injunctive relief based on its ruling that, after unconstitutional provisions of Division 18 were severed from the remainder of the ordinance, the remaining provisions were constitutional. Upon consideration, we AFFIRM in part, REVERSE in part, and REMAND. I. BACKGROUND nl Granite State is a Georgia corporation in the business of buying or leasing land upon which to construct signs and billboards to be used for both commercial and non- commercial purposes. Granite State has never erected or operated a billboard, nor has it held a permit in its own name to erect a billboard. Granite State receives 3a its profits from the sale of billboard permits it obtains from various cities and municipalities, some of which have been obtained through litigation similar to the case before us. Clearwater is a political subdivision of the state of Florida and describes itself as a “resort community on the west coast of the state with more than five miles of beaches on the Gulf of Mexico” and with a tourism- based economy. Clearwater Cmty. Dev. Code § 3-1801 (1999). Clearwater, like many other cities, has codified various sign regulations to create a comprehensive scheme for regulating, inter alia, the permitting, placement, number, size, height, design, operation, and maintenance of signs within the City’s boundaries. Id. §§ 3-1801 - 1807 (2003). The many purposes of these sign regulations include traffic safety and aesthetics of the community. Id. § 3-1802 (1999). Granite State entered into lease agreements for a total of eight parcels of real property located in commercial or industrial areas of Clearwater. Granite State’s goal was to construct and operate one freestanding billboard sign on each parcel of property. The City denied each of Granite State’s permit applications because Granite State applied to construct billboards more than four times the allowable height and ten times the allowable area under Clearwater regulations. Rather than appeal the denial of its permits, Granite State initiated the current. litigation in the Middle District of Florida challenging the constitutionality of Article 3, Division 18 and Article 4 of Clearwater’s Community Development Code on First Amendment grounds and requesting injunctive relief. n2 4a Article 3, Division 18 regulates both commercial and non-commercial signs and dictates when permits are required before certain signs may be erected. In particular, § 3-1806 regulates “permitted signs requiring development review.” Part B.1. of this section deals with non-residential, freestanding signs, and it was under this part of § 3-1805 that Granite State’s permits were denied. Specifically, subparts (c) and (e) of § 3-1806.B.1. dictate the allowable area and height, respectively, of a freestanding sign. Article 4 sets forth the process for obtaining various levels of permit approval and also details the appeals process to contest denial of a permit. The district court granted Granite State standing to challenge the entirety of Article 3, Division 18 on First Amendment grounds, both as applied and under the overbreadth doctrine, and denied it standing to challenge any part of Article 4 on either grovad. Because we find the district court misapplied whe overbreadth doctrine, we reverse the district court’s grant of standing to Granite State to challenge provisions of the City’s sign ordinance that did not give rise to an injury in fact (i.e., provisions other than § 3- 1806.B.1.), and we remand this case for further proceedings consistent with this opinion. We affirm the district court’s denials of (1) standing to challenge any part of Article 4, (2) injunctive relief, and (3) attorney’s fees. II. DISCUSSION A. Standing Article III, § 2 of the United States Constitution CRITE act HS AES oe OES Stine iranian Kida SaaS 5a requires that there be a “case” or “controversy” before a federal court may decide a case. U.S. CONST. art. III, § 2. See, e.g., Lujan v. Defenders of Wildlife, 504 U.S. 555, 559-60, 112 S. Ct. 2130, 2136, 119 L. Ed. 2d 351 (1992). The constitutional requirements for a federal court to adjudicate a case are accompanied by prudential requirements. See, e.g., Bennett v. Spear, 520 U.S. 154, 162, 117 S. Ct. 1154, 1161, 187 L. Ed. 2d 281 (1997); Lujan, 504 U.S. at 560, 112 S. Ct. at 2136. Together, these constitutional and_ prudential requirements form the doctrine of standing. See, e.g., Bennett, 520 U.S. at 162, 117 S. Ct. at 1161; Lujan, 504 USS. at 560, 112 S. Ct. at 2136. The Supreme Court has identified three constitutional requirements for standing, all of which must be satisfied: (1) an injury in fact, meaning an injury that is concrete and particularized, and actual or imminent, (2) a causal connection between the injury and the causal conduct, and (3) a likelihood that the injury will be redressed by a favorable decision. n3 See, e.g., Bennett, 520 US. at 167, 117 S. Ct. at 1163. The Court also has identified three prudential standing principles. See, e.g., Allen v. Wright, 468 U.S. 737, 751, 104 S. Ct. 3315, 3324, 82 L. Ed. 2d 556 (1984). Relevant here is the principle that a party generally may assert only his or her own rights and cannot raise the claims of third parties not before the court. See, e.g., id. Certain exceptions to the prudential standing requirements have developed in Supreme Court jurisprudence. Significant to this case is the “overbreadth doctrine,” an exception that applies in First Amerdment. cases involving non-commercial speech and that vermits third-party standing when a Nee REE ee 6a statute is constitutionally applied to the litigant but might be unconstitutionally applied to third parties not before the court. See, e.g., Village of Schaumburg v. Citizens for a Better Env’t, 444 U.S. 620, 634, 100 S. Ct. 826, 834-35, 63 L. Ed. 2d 73 (1980). The overbreadth doctrine, however, is not an exception to the constitutionai standing requirements. Bischoff v. Osceola County, Fla., 222 F.3d &74, 884 (11th Cir. 2000). A plaintiff seeking to make an overbreadth challenge must first show that he has suffered an injury in fact, as required under Article III. See, e.g., Virginia v. Am. Booksellers Ass’n Inc., 484 U.S. 383, 392-93, 108 S. Ct. 636, 642-43, 98 L. Ed. 2d 782 (1988); Village of Schaumburg, 444 U.S. at 634, 100 S. Ct. at 834; Bischoff, 222 F.3d at 884. An “injury in fact” requires the plaintiff to “show that he personally has suffered some actual or threatened injury.” Valley Forge Christian College v. Americans United for Separation of Church and State, 454 US. 464, 472, 102 S. Ct. 752, 758, 70 L. Ed. 2d 700 (1982) (emphasis added) (internal quotations omitted). While this requirement is hard to define precisely, we know that the plaintiff must at least claim to personally suffer some harm. See, e.g., Lujan, 504 U.S. at 562-63, 112 S. Ct. at 2187-38; United States v. Students Challenging Regulatory Agency Procedures (SCRAP), 412 U.S. 669, 686-87, 93 S. Ct. 2405, 2415, 37 L. Ed. 2d 254 (1973).1. Division 18, § 3-1806.B.1. of the Clearwater Community Development Code In this case, the only harm that Granite State has personally suffered is under § 3-1806.B.1. of the Clearwater Community Development Code. It was under this provision that Granite State’s billboard Ta permits were denied. Granite State has suffered no injury regarding any other provision in Article 3, Division 18. Thus, Granite State has standing to challenge the censti‘utionality of only § 3-1806.B.1. as applied to it and, under the overbreadth doctrine, as applied to non-commercial speech. This provision was constitutionally applied to Granite State: it sought to construct a billboard sign much larger than any sign allowed under the Clearwater regulations. Moreover, because § 3-1806.B.1. is content- neutral and gives no discretion to the permitting authority, this provision is not overbroad. n4 See, e.g., Staub v. Baxley, 355 U.S. 313, 322, 78 S. Ct. 277, 282, 2 L. Ed. 2d 302 (1958); Horton v. City of St. Augustine, 272 F.3d 1318, 1331-32 (41th Cir. 2001). Thus, Granite State’s constitutional challenge to § 3-1806.B.1. must fail. This issue is remanded to the district court for further proceedings consistent with this opinion. 2. Article 4 of the Clearwater Community Development Code Granite State does not have standing to challenge Article 4 of the Code because it has suffered no injury with regard to the City’s permitting and appeals process. n5 Granite State argues that it did not avail itself of the allegedly unconstitutional appeals process because the ordinance does not contain sufficient procedural safeguards. The specific constitutional defect, according to Granite State, is the fact that City officials have an unlimited amount of time to decide whether to grant or deny a permit application. Such an argument, by itself, does not create Article III standing. Granite State has neither alleged nor shown 8a how the City’s permitting and appeals procedure has injured Granite State. To the contrary, the record shows that Granite State’s permits were denied within a reasonable time: the same day they were submitted. See, e.g., United States v. Hays, 515 U.S. 737, 745, 115 S. Ct. 2431, 2436, 182 L. Ed. 2d 635 (1995) (holding that only those voters residing in an_ allegedly unconstitutionally drawn voting district have standing to challenge the unconstitutionality of the voting district); Sierra Club v. Morton, 405 U.S. 727, 739, 92 S. Ct. 1361, 1368, 31 L. Ed. 2d 636 (1972) (affirming “the requirement that a party seeking review must allege facts showing that he is himself adversely affected”). We note that this case is distinguishable from a line of Supreme Court cases involving (but not beginning with) City of Lakewood v. Plain Dealer Publ’g Co., 486 U.S. 756, 755-56, 108 S. Ct. 2138, 2140, 100 L. Ed. 2d 771 (1988), and precedent from our circuit relying on the same, allowing litigants to facially challenge a licensing scheme vesting the decision-maxer with unbridled discretion. n6 See, e.g., FW/PBS, Inc. v. City of Dallas, 493 U.S. 215, 223-24, 110 S. Ct. 596, 603-04, 107 L. Ed. 2d 603 (1990); United States v. Frandsen, 212 F.3d 1231, 1235-36 (11th Cir. 2000); Gold Coast Publ’ns, Inc. v. Corrigan, 42 F.3d 1336, 1343 (11th Cir. 1994); Dimmitt v. City of Clearwater, 985 F.2d 1565, 1570 (11th Cir. 1993); Abramson v. Gonzalez, 949 F.2d 1567, 1573 (11th Cir. 1992); Sentinel Communications Co. v. Watts, 936 F.2d 1189, 1197-98 (11th Cir. 1991). In Lakewood, the city mayor was given unguided discretion to decide which publishers could place newsracks on public property and where they could be placed. 486 U.S. at 753-54, 108 S. Ct. at 2142. The Court 9a held that such unbridled discretion in the permitting official “constituted a prior restraint and may result in censorship.” Id. at 757, 108 S. Ct. at 2144. The Court then granted the plaintiff standing to facially challenge this defect in the ordinance. Id. at 755-56, 108 S. Ct. at 2143. Similar to the challenged permitting scheme in this case, the ordinance in Lakewood also did not contain time limits within which the Mayor had to decide whether to grant or to deny a permit. Id. at 771, 108 S. Ct. at 2151-52. The majority noted, however, that “even if judicial review were relatively speedy, such review cannot substitute for concrete standards to guide the decision-maker’s discretion.” Id., 108 S. Ct. at 2151. Thus, time limits are required when their lack could result in censorship of certain viewpoints or ideas, see, e.g., Freedman v. Maryland, 380 U.S. 51, 58-59, 85 S. Ct. 734, 739, 18 L. Ed. 2d 649 (1965), but are not categorically required when the permitting scheme is content-neutral. Thomas v. Chicago Park Dist., 534 U.S. 316, 322-24, 122 S. Ct. 775, 780-81, 151 L. Ed. 2d 783 (2002). See also Granite State Outdoor Adver., Inc. v. City of St. Petersburg, 348 F.3d 1278 (2003) (noting that, “In particular, . . . the Court never stated time limits were per se required for a [content-neutra!] permitting scheme to be valid. Rather, the Court simply held all that was required were ‘adequate standards to guide the official’s discretion and render it subject to judicial review.”’) (citations omitted)). The Clearwater Community Development Code gives no similar discretion to the permitting authorities as existed in cases such as Lakewood. City officials can only process a permit application and decide to grant or deny the permit based on specific, objective criteria 10a (e.g., the height, size, or surface area of a proposed sign). Moreover, we note that the litigants in Lakewood, who were allowed to facially challenge an ordinance on the ground that it gave permitting authorities unbridled discretion, were injured under the very provisions they challenged. Lakewood, 486 U.S. at 754, 108 S. Ct. at 2142. As we have explained, this is not the circumstance for Granite State, which suffered no injury in fact under Article 4. n7 The judgment of the district court denying Granite State standing to challenge Article 4 both as applied and facially under the overbreadth doctrine is, therefore, affirmed. B. Mootness Like the requirement of standing, mootness is a justiciability doctrine that must be satisfied before we may decide a case. See, e.g., United States Parole Comm’n v. Geraghty, 445 U.S. 388, 396-97, 100 S. Ct. 1202, 1208-09, 63 L. Ed. 2d 479 (1980). We lack jurisdiction because of mootness “when the issues presented are no longer ‘live’ or the parties lack a iegally cognizable interest in the outcome.” Powell v. McCormack, 395 U.S. 486, 496, 89 S. Ct. 1944, 1951, 23 L. Ed. 2d 491 (1969). In this case, the City argues that Granite State’s claims are now moot _ because Clearwater has revised the Code in accordance with the district court’s decision. Because Granite State has requested damages, however, the changes made to the ordinance do not make this case moot. See, e.g., Firefighters Local Union No. 1784 v. Stotts, 467 U.S. 561, 571, 104 S. Ct. 2576, 2584, 81 L. Ed. 2d 483 (1984); Havens Realty Corp. v. Coleman, 455 U.S. 363, 371, 102 lla S. Ct. 1114, 1120, 71 L. Ed. 2d 214 (1982); see also Mesquite v. Aladdin’s Castle, Inc., 455 U.S. 283, 289, 102 S. Ct. 1070, 1074, 71 L. Ed. 2d 152 (1982) (“repeal of the objectionable language would not _ preclude [Clearwater] from reenacting precisely the same provision if the District Court’s judgment were vacated”). Thus, we must rule on the constitutionality of the provision under which Granite State may be entitled to damages, § 3-1806.B.1. As we have explained, this section was not unconstitutionally applied to Granite State. Accordingly, Granite State is not entitled to damages resulting from the denial of its permits under this section. The district court’s denial of damages is affirmed. C. Attorney’s Fees Granite State argues that it should be entitled to an award of attorney’s fees pursuant to 42 U.S.C. § 1988(b), which permits the court to award attorney’s fees to the “prevailing party” for actions brought under various civil rights provisions, including 42 U.S.C. § 1983. 42 U.S.C. § 1988(b). Granite State argues that, while it did not succeed on all of its claims in the district court, it nevertheless should be entitled to attorney’s fees because it has achieved “excellent results” for third parties who may have sought to post a sign under the provisions of the ordinance stricken by the district court. Appellant’s Br. at 40. Under § 1988, however, the plaintiff is considered a “prevailing party” if he obtains “at least some relief on the merits of his claim”... “{that] materially alters the legal relationship between the parties.” Farrar v. Hobby, 506 U.S. 103, 111-12, 118 S. Ct. 566, 573, 121 L. Ed. 2d 494 (1992) (citations omitted); Hewitt v. Helms, 482 U.S. 755, 760, 107 S. Ct. 12a 2672, 2675, 96 L. Ed. 2d 654 (1987). See also Falanga v. State Bar, 150 F.3d 1333, 1347 n.34 (11th Cir. 1998). Furthermore, “(a] favorable judicial statement of law in the course of litigation that results in judgment against the plaintiff does not suffice to render him a ‘prevailing - party” under § 1988. Hewitt, 482 U.S. at 763, 107 S. Ct. at 2677. In this case, Granite State is not the “prevailing party” and the relationship between the parties is unaltered. n8 We have determined that § 1306.B.1. was constitutionally applied to Granite State and is facially constitutional. We also determined that the district court erred in allowing Granite State standing to challenge any other provisions in Article 3, Division 18. Moreover, we determined that the district court correctly ruled that Granite State did not have standing to challenge Article 4. Thus, Granite State has not prevailed on any of its claims regarding the Clearwater Community Development Code. The district court’s denial of an award of attorney’s fees is affirmed. IlI. CONCLUSION The district court erred in its conclusion that Granite State had standing to challenge the entirety of Article 3, Division 18 of the Clearwater Community Development Code. Accordingly, this part of the district court’s holding is reversed and remanded for proceedings consistent with this opinion. The district court correctly denied Granite State both standing to challenge Article 4 and injunctive relief because the provision under which Granite State’s permit requests were denied is not unconstitutional. Moreover, the district court correctly denied Granite State’s request 13a for attorney’s fees. Accordingly, the judgment of the district court is AFFIRMED in part, REVERSED in part, and REMANDED for further proceedings consistent with this opinion. CONCUR BY: ANDERSON CONCUR: ANDERSON, Circuit Judge, concurring. I concur in the result. Footnotes * Honorable Robert B. Propst, United States District Judge for the Northern District of Alabama, sitting by designation. nl The facts in this case that we relate are undisputed. n2 Initially, Granite State also requested injunctive relief from Clearwater Mayor, Brian Aungst, Sr., and its City Manager, William Horne. The district court dismissed Granite State’s claims against these defendants both in their individual and _ official capacities. This dismissal was not challenged on appeal; therefore, the only remaining defendant before us is the City of Clearwater. Additionally, Granite State has not appealed the district court’s rulings regarding its claims that the Clearwater ordinance violates the Fourteenth Amendment guarantee of equal protection and the Fifth Amendment’s Takings Clause. Accordingly, these issues are not before us: “Issues not clearly raised in the briefs are considered abandoned.” Hardwick v. Crosby, 320 F.3d 1127, 1158 n.140 (11th Cir. 2003) (citations omitted). 14a n3 Because these requirements are jurisdictional, we must consider them as a threshold matter, regardless of whether the parties or the court below has done so. Focus on the Family v. Pinellas Suncoast Transit Auth., 344 F.3d 1263 (11th Cir. 2003). Once we determine that the standing requirements have been met, we review the district court’s denial of injunctive relief under the abuse of discretion standard, but “we review de novo determinations of law made by the district court en route.” Kidder, Peabody & Co., Inc. v. Brandt, 131 F.3d 1001, 1003 (11th Cir. 1997). n4 Granite State has alleged that this provision is a prior restraint on speech because a permit is required before a billboard may be erected. This section is not a prior restraint, however, for the same reasons why an overbreadth challenge will fail: it is content-neutral and gives no discretion to the permitting authority. See, e.g., Staub v. Baxley, 355 U.S. 313, 322, 78 S. Ct. 277, 282, 2 L. Ed. 2d 302 (1958); Horton v. City of St. Augustine, 272 F.3d 1318, 1332 (11th Cir. 2001). n5 We note that while 42 U.S.C. § 1983 forms the statutory jurisdictional basis for Granite State’s claim, § 1983 is not a substitute for the constitutional standing requirements. Section 1983 allows a plaintiff to bring a claim into court without exhausting _ state administrative appeals. See, e.g., Patsy v. Bd. of Regents of State of Fla., 457 U.S. 496, 518, 102 S. Ct. 2557, 2559-60, 73 L. Ed. 2d 172 (1982). It does not, however, permit a plaintiff to challenge an appeals process that the plaintiff chose to forego without showing any actual or potential harm caused by the challenged appeals process. 15a n6 To the extent any of our prior decisions allowed facial standing (1) without first determining whether the litigant was entitled to as-applied standing or (2) without mentioning or discussing standing at all, such cases are inapposite to the present case. n7 Moreover, as noted in Granite State Outdoor Adver., Inc. v. City of St. Petersburg, it is possible that the “City officials could potentially delay the processing of certain permit applications and thereby arbitrarily suppress disfavored speech.” F.3d ,_ , 2003 U.S. App. LEXIS 22039 (11t.: Cir. 2003). Because we find Granite State lacks standing to challenge Article 4, we find that such “abuse must be dealt with if and when a pattern of unlawful favoritism appears.” Id. at, 2003 U.S. App. LEXIS 22039 (quoting Thomas, 534 U.S. at 325, 122 S. Ct. at 781). n8 As in Granite State Outdoor Adver., Inc. v. City of St. Petersburg, it is true that several provisions in the Clearwater ordinance were voluntarily altered by the City as a result of this litigation. These changes, however, “have no bearing on Granite [State], and thus their alteration does not serve to confer prevailing party status upon Granite [State].”. F.3d at, ns, 2003 U.S. App. LEXIS 22039. 16a Case No. 8:01-ev-1663-T-30MSS UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF FLORIDA TAMPA DIVISION GRANITE STATE OUTDOOR DVERTISING, INC., Plaintiff, V. CITY OF CLEARWATER, FLORIDA, et al., Defendants. July 23, 2002, Decided COUNSEL: For GRANITE STATE OUTDOOR ADVERTISING, INC., plaintiff: Kent G. Whittemore, Whittemore, Denson P.A., St. Petersburg, FL. For GRANITE STATE OUTDOOR ADVERTISING, INC., plaintiff: Sean R. Smith, E. Adam Webb, Dow, Lohnes & Albertson, PLLC, Atlanta, GA. For CITY OF CLEARWATER, FLORIDA, BRIAN AUNGST, WILLIAM HORNE, defendants: Leslie Kathleen Dougall-Sides, City of Clearwater, Clearwater, FL. For CITY OF CLEARWATER, FLORIDA, BRIAN AUNGST, WILLIAM HORNE, defendants: William David Brinton, Cristine M. Russell, Rogers, Towers, Bailey, Jones & Gay, Jacksonville, FL USA. 17a For SMD L.L.P., JERRY DRIGGERS, movants: Sean R. Smith, Dow, Lohnes & Albertson, PLLC, Atlanta, GA. JUDGES: JAMES S. MOODY, JR., UNITED STATES DISTRICT JUDGE. OPINION BY: JAMES S. MOODY, JR. OPINION: ORDER This cause came before the Court for consideration upon the following Motions: 1. Individual Defendants’ Motion to Dismiss the Complaint with Prejudice (Dkt. # 10) and Motion to Dismiss the Amended Complaint (Dkt. 62), nl Plaintiff's response in opposition thereto (Dkt. # 13) and the individual Defendants’ reply thereto (Dkt. 22); 2. Plaintiff's Motion for Preliminary Injunction (Dkt. # 16), supporting memorandum (Dkt. # 17) and Defendants’ memorandum in opposition thereto (Dkt. # 30); 3. Plaintiff's Motion for Partial Summary Judgment (Dkt. # 18), supporting memorandum (Dkt. # 19), and Defendants’ memorandum in opposition thereto (Dkt. # 42), and 4. Defendants’ Motion for Final Summary Judgment (Dkt. # 41), supporting memorandum (Dkt. # 42) and Plaintiff's response in opposition thereto (Dkt. #51). 18a Both parties have also filed supporting affidavits and exhibits to their Motions, including certified copies of the ordinance at issue. The Court heard the arguments of counsel on March 15, 2002. Additionally, the Court requested (Dkt. 71), and considered, the parties additional briefs on standing. (Dkts. 74, 75). I. FACTUAL AND PROCEDURAL BACKGROUND Plaintiff has filed a separate Statement of Facts in support of its Motions for Partial Summary Judgment and Preliminary Injunction. (See Dkt. # 20). Defendants have incorporated their recitation of the facts as part of their memorandum in support of their Motion for Summary Judgment. (See Dkt. # 42). The undisputed facts are as follows. Plaintiff, Granite State Outdoor Advertising, Inc., (“Granite State”) is a Georgia corporation in the business of buying or leasing land upon which to construct signs and billboards to be used for the dissemination of both commercial and non-commercial speech. (Amded. Compl., P 6). Defendants point out that Granite State employs only two persons, the president and vice-president, and operates out of the Georgia residence of its president, who previously worked for two outdoor advertising companies. Since its incorporation in 1997, Granite State has “never erected a billboard, never operated a billboard, has never been licensed as an outdoor advertising company, and has not yet held a permit in its own name to erect a billboard.” (Charles Dep. at 39-41, 47, 68). To date, Granite State has received profits from the sale of at least twenty-two billboard permits to Eller Media which were obtained from similar litigation brought 19a against various cities and municipalities in the state of Georgia. (Id. at 12, 69). In the case at bar, Granite State entered into iease agreements for five different parcels of real property located in commercial or industrial areas in the city of Clearwater, Florida (“Clearwater”), upon which to construct and operate one freestanding billboard sign on each parcel of property. Id., P 8. Plaintiff subsequently obtained three other lease agreements and filed an amended complaint to add its claims regarding these three parcels. Id., P 8A. Defendant Clearwater is a political subdivision of the state of Florida and describes itself as a “resort community on the west coast of the state with more than five miles of beaches on the Gulf of Mexico” which has an economic base that relies “heavily on tourism.” (See § 3-1801). Clearwater has codified various sign regulations to create a comprehensive scheme for regulating, inter alia, the permitting, placement, number, construction, size, height, design, operation, and maintenance of the signs within the city’s boundaries. (Amded. Compl., P 9). Clearwater has regulated the height and size of signs for more than twenty-five years and enacted various codes over the years. (See Dkt. # 42, pp. 6-8). The sign regulations at issue are contained within Division 18 of Clearwater’s Community Development Code (the “Code”). The entirety of the sign ordinance, “Division 18” containing § § 3-1801 through 3-1807 (the “Ordinance”), is attached as Appendix 1 to this Order and is referred to herein by section number. Section 3- 1802 contains the specific purposes and intentions for 20a which the sign regulations were promulgated. Clearwater’s sign regulations are intended to: A. Enable the identification of places of residence and business. B. Allow for the communication of information necessary for the conduct of commerce. C. Lessen hazardous situations, confusion and visual clutter caused by proliferation, improper placement, illumination, animation and excessive height, area and bulk of signs which compete for the attention of pedestrian and vehicular traffic. D. Enhance the attractiveness and economic well-being of the city as a place to live, vacation and conduct business. E. Protect the public from the dangers of unsafe signs. F. Permit signs that are compatible with their surroundings and aid orientation, and _ preclude placement of signs in a manner that conceals or obstructs adjacent land uses or signs. G. Encourage signs that are appropriate to the zoning district in which they are located and consistent with the category of use to which they pertain. H. Curtail the size and number of signs and sign messages to the minimum reasonably necessary to identify a residential or business location and the nature of any such business. 2la I. Establish a sign size in relationship to the scale of the lot and building on which the sign is to be placed or to which it pertains. J. Preclude signs from conflicting with the principal permitted use of the site or adjoining sites. K. Regulate signs in a manner so as to not interfere with, obstruct vision of or distract motorists, bicyclists or pedestrians. L. Require signs to be constructed, installed and maintained in a safe and satisfactory manner. M. Preserve and enhance the natural and _ scenic characteristics of this waterfront resort community. The sign ordinance also contains a provision under its “General Standards” section that provides, “not withstanding any other provision of this Code, no sign shall be subject to any limitation based on the content of the message contained on such sign.” § 3-1804.H. Similarly, there is no distinction between commercial or non-commercial speech within the sign ordinance. The sign ordinance regulates four categories of signs: 1) § 3- 1803 prohibits twenty-five different types of signs (such as portable signs, vehicle signs and roof signs); 2) § 3- 1805 allows twenty different types of signs without a permit (such as safety or warning signs, holiday decorations, garage or yard sale signs and for sale signs); 3) § 3-1806 proscribes certain height, area and lighting requirements for residential signs (subdivision development and multifamily entry signs and school and park identification monument signs) and non- residential signs (freestanding, monument, transit ananeneeeneameeiememmmteneeeenememiaaes 22a shelter and attached signs) - these signs require a permit under the development review process; and 4) § 3-1807 permits signs that comply with eight enumerated “flexibility criteria” n2 that may be approved under the City’s Comprehensive Sign Program. The sign ordinance also contains a provision, § 3-1804, titled “General Standards,” that prescribes building and electrical code compliance and regulates setback, lighting and illumination, banners and flags, gasoline price signs, and time and temperature signs. The Permitting Process Article 4 of the City’s Code, titled “Development Review and Other Procedures,” sets forth the process for obtaining various levels of permit approval and the appeals process. Division 10 of Article 4 requires that the application for approval of a sign “shall be reviewed and approved by the community development coordinator as a level one approval.” n3 The process for a level one approval is set forth in Division 3 of Article 4, with appropriate references to the appeals process set forth in Division 5 -- § § 4-504 and 206 (community development board appeals and public hearings) and § 4-505 (appeals to hearing officer). The relevant divisions of Article 4, § § 4-206, 301-303, 501-505 and 1001-1007 are attached to this Order as Appendix 2. The initial step in the permitting process is to complete the application process. Once submitted, a determination of completeness shall be made by the community development coordinator within five days. § 4-202C.1. Within five or ten working days after that determination is made, the community development coordinator or members of the development review 23a committee (depending on whether the level one approval sought is for “standard development” or “flexible standard development”) shall determine whether the application is “legally sufficient” (defined as “whether the required application materials have been prepared in a substantively competent manner”). § 4-202C.2 and 3. If insufficient, the application is deemed withdrawn. Once an application is deemed complete and legally sufficient, the development review committee shall review the application in accordance with the applicable division of the Code; in the case of a sign permit, Article 3, Division 18. § 4-202.D. An appeal may be taken to the Community Development Board which holds a “quasi-judicial public hearing.” See § § 4-501, 504, 206. A hearing officer has the authority to hear appeals from the Community Development Board. § 4-501.B. There are no time limits in the Code for an appeal to be heard. n4 See § § 4-504 and 206 (community development board appeals); § 4-505 (hearing officer appeals of community development board decisions, which are required to establish a “timely date” for the hearing, and must issue a decision within 45 days of the hearing). To overturn a decision, the Community Development Board must find by “substantial competent evidence” that the decision (1) “misconstrued or incorrectly interpreted” the Code, (2) is in “harmony with the general intent and purpose” of the Code and (8) will not be “detrimental to the public health, safety and general welfare.” § 4-504.C. 24a Severability Provision Under the Code’s “General Provisions,” there is a severability provision that reads as follows: “should any section or provision of this Development Code be declared to be unconstitutional or invalid by a court of competent jurisdiction, such decision shall not affect the validity of this Development Code as a whole or any part thereof other than the part so declared to be unconstitutional or invalid.” § 1-107. Granite State’s Applications Clearwater’s ordinance limits freestanding billboard signs in excess of fourteen feet in height and in excess of sixty-four square feet in area per side. § 3-1806.B. Plaintiff applied to Clearwater for permission to post a 65 foot high and 672 square foot billboard sign on each of its leased parcels of property. (Charles nd Aff. at PP 6-8). Clearwater’s Planning Department denied the applications on August 10, 2001, the same day they were submitted. (Amded. Compl., P 11; Tarapini né6 Aff. at P9). On each application, Clearwater noted the reason for denial - “Refer to Section 3 - 1806(B1)” and “Height, Size and Numbers of Signs (Total Square Feet on Parcel).” (Charles Dep., Exh. 1-5). The Plaintiff's proposed signs were more than four times the allowable height and ten times the allowable area. Granite State did not appeal the initial denial of the sign permits and instead, on August 31, 2001, initiated this action by filing an eleven count complaint against Clearwater, its Mayor, Defendant Brian Aungst, Sr., and its City Manager, Defendant William Horne. (Charles Dep. at 92; Tarapini Aff. P9). 25a The Individual Defendants Defendants Aungst and Horne appear to have been sued in both their individual and official capacities. Neither of these Defendants was personally involved in the denial of Granite State’s billboard permit applications and did not learn about the permit applications until after their denial. (See Aungst and Horne Affs.). Neither Defendant has had any verbal or written communications with Granite State or its principals, nor have they ever met with representatives of Granite State. (Id.). Il. LEGAL ANALYSIS A. Individual Defendants’ Motion to Dismiss The individual Defendants move to dismiss the claims made against them in both their individual and official capacities. In their individual capacities, these Defendants claim that they are entitled to the defense of qualified immunity for any governmental actions taken while they served in their capacities of mayor and city manager. Defendants further maintain that there is no basis for individual liability because Plaintiff has failed to make any allegations whatsoever against the individual Defendants in the Amended Complaint. Plaintiff opposes the Motion to Dismiss on the basis that these Defendants have enforced “clearly unconstitutional restrictions on the fundamental right of speech,” and as such, they should be held liable in their individual capacities. Plaintiff appears to argue, without legal support, that elected or appointed officials n7 can be _ personally liable for an _ allegedly unconstitutional ordinance solely by virtue of the fact 26a that the official is responsible for the enforcement of the ordinance. The Court agrees with Defendants that there is no basis for individual liability in this case because Plaintiff has not alleged any specific allegations against these Defendants; that is, Plaintiff makes no claim against these Defendants for any action taken by these Defendants, supervisory or otherwise, but instead sues them personally for an allegedly unconstitutional ordinance. Moreover, the individual Defendants should be dismissed because they are entitled to qualified immunity. Qualified immunity acts to cloak public officials from lawsuits unless they have violated “clearly established statutory or constitutional law of which a reasonable person would have known.” See Lassiter v. Alabama A&M Univ., 28 F.3d 1146, 1149 (11th Cir. 1994). The Eleventh Circuit determines whether a law is clearly established through a fact-specific analysis that focuses on the “actual” and “specific details of [a] concrete case.” Id. at 1150; see also Granite State Outdoor Advertising, Inc. v. Cobb County, Case No. 1:01-CV- 1376-WBH at 7-9 (attached as Exh. B to Dkt. 51). The contours of such right must be “sufficiently clear that a reasonable official would understand what he is doing violates that right.” Anderson v. Creighton, 483 U.S. 635, 640, 97 L. Ed. 2d 528, 107 S. Ct. 3034 (1987). Not only are there no specific factual allegations as to the individual Defendants (who were acting within their discretionary authority), the constitutional law at issue in this case is far from clearly established (as this order will undoubtedly demonstrate). See Naturist 27a Society, Ine. v. Fillyaw, 858 F. Supp. 1559, 1571 (8.D. Fla. 1994) (with regard to qualified immunity in First Amendment case, public officials are not expected to be more knowledgeable than the courts with respect to the “complexities of constitutional law”). Accordingly, the individual Defendants are entitled to qualified immunity. n& Defendants also argue that the Amended Complaint should be dismissed against the individual Defendants in their official capacities because suits against local governments in their official capacities are duplicative of actions against the local government entity itself. n9 The Court agrees. Plaintiff has sued the city of Clearwater for the same alleged constitutional violations. Therefore, naming the individual Defendants in their official capacities is redundant. See Will v. Michigan Dept. of State Police, 491 U.S. 58, 105 L. Ed. 2d 45, 109 S. Ct. 2304 (1989); Busby v. City of Orlando, 931 F.2d 764 (11th Cir. 1991). Plaintiff's contention that if the Court invalidates the sign ordinance the inclusion of the individual Defendants, in their official capacities, is necessary to insure issuance of the sign permits previously denied to Granite State is meritless. n10 See Granite State Outdoor Advertising, Inc. v. Cobb County, Case No. 1:01-CV-1376-WBH at 5-6 (attached as Exh. B to Dkt. 51). The Court may direct Defendant Clearwater, if necessary. B. First Amendment Analysis 1. Standing Typically, standing requires that: 1) a plaintiff suffered an “injury in fact;” 2) that there be a “causal 28a connection” between the injury and the conduct complained of, such that the injury is fairly traceable to the challenged action of the defendant and not the result of the independent action of some third party not before the court; and 3) it must be “likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.” See Bischoff v. Osceola County, Fla., 222 F.3d 874, 883 (11th Cir. 2000). However, for First Amendment overbreadth challenges, the requirements for standing are generally more lenient. Id. at 884. The Supreme Court recognized overbreadth challenges as “exceptions” to the general rule of standing for laws that are written “so broadly that they may inhibit the constitutionally protected speech of third parties.” Members of the City Council of Los Angeles v. Taxpayers for St. Vincent, 466 U.S. 789, 798, 80 L. Ed. 2d 772, 104 S. Ct. 2118 (1984) (addressing an ordinance banning handbills on public property). Such a challenge, in essence, permits third party standing for claims on the grounds that ordinance may pose a “realistic danger” that the statute itself will “significantly compromise recognized First Amendment protections of parties not before the court.” Id. at 801. Generally, courts have permitted such challenges when the constitutional rights involve the First Amendment. n11 See, e.g., Sec’y of State of Md. v. Joseph H Munson Co., Inc., 467 U.S. 947, 957-9, 967-8, 81 L. Ed. 2d 786, 104 S. Ct. 2839 (1984). Nonetheless, it still remains that a plaintiff must establish that he or she suffered some “injury in fact” as a result of the defendant’s actions. Bischoff, 222 F.3d at 884 (citing Virginia v. Amer. Booksellers Assoc., Inc., 484 U.S. 383, 392, 98 L. Ed. 2d 782, 108 S. Ct. 636 (1988); Munson, 467 U.S. at 958; 29a National Council for Improved Health v. Shalala, 122 F.3d 878, 883 (10th Cir. 1997); Bordell v. General Electric Co., 922 F.2d 1057, 1061 (2nd Cir. 1991)). Defendants contend that Granite State does not have standing to assert the First Amendment claims it makes in this case; nor should it be permitted to make an overbreadth challenge to the Code. Specifically, Defendants make the argument that Granite State cannot contend that the section under which it was denied its permits, § 3-1806.B, which imposes height, size and location limitations on freestanding signs, is unconstitutional. (Dkt. # 42 at 19). To the contrary, Granite State contends that § 3-1806.B is unconstitutional because: 1) it requires applicants to seek permission for development review, a procedure which affords government officials an improper level of discretion without reference to objective standards; 2) it requires applicants to file for permits prior to posting the sign, procedures which are void as impermissible prior restraints on speech; 3) the section restricts commercial and non-commercial signs without satisfying the Central Hudson nl2 analysis; 4) the section violates equal protection; and 5) it is invalid because it is inextricably intertwined with the unconstitutional whole of the sign ordinance, preventing severance. (Dkt. # 51 at 3). Defendants also contend that Granite State has not suffered an injury in fact because it did not participate in the appeals process. (Dkt. # 74 at 9-15). Defendants further contend that Granite State does not have standing because it does not have a “commercial speech interest.” The Supreme Court has recognized that individuals with a “commercial interest” in speech may raise a 30a facial challenge to an ordinance, raising the non- commercial speech interests of third _ parties. Metromedia Ine. v. City of San Diego, 453 U.S. 490 at 504, n. 11, 69 L. Ed. 2d 800, 101 S. Ct. 2882. (1981). Although Defendants acknowledge this holding, they claim that Granite State has no speech interest because it has been neither an advertiser nor a billboard operator, instead it merely obtained leases for properties upon which billboards would be constructed. In essence, Defendants argue that these activities are not sufficient to establish an interest in speech sufficient to confer standing. But Granite State claims that it has a commercial interest in speech. It holds leases on property upon which it has applied for permission to place billboards. In fact, Granite State contends that if victorious in this litigation, it may well choose to build and operate the signs itself. Clearly, parties with a commercial interest in speech may assert facial challenges to the First Amendment, in essence, filing suit on the grounds that there is an infringement of the rights of third parties as well as of their own free speech rights. See, e.g., Metromedia, 453 U.S. at 504, n.11 (“we have never held that one with a “commercial interest” in speech also cannot challenge the facial validity of a statute on the grounds of its substantial infringement of the First Amendment rights of others”); but see Metromedia, 453 U.S. at 544-48 (Steven, J., dissenting) (no standing, even under the “limited exception” for overbreadth, for “hypothetical cases” of property owners not before the Court). See also National Advertising v. Ft. Lauderdale, 934 F.2d 283, 285 (11th Cir. 1991). 3la The more central issue is whether Granite State has standing to make a facial challenge to Clearwaters’s entire sign ordinance on overbreadth grounds. After extensive review, the Court is constrained to find that Granite State has standing to make an overbreadth challenge to those portions of the ordinance that directly implicate, and could accordingly “chill,” the First Amendment rights of persons not before the Court, but not to the appeals portion of the permitting section as Granite State was not affected in any way by this provision because it did not appeal the City’s denial. The overbreadth doctrine is “manifestly, strong medicine” that should be use “sparingly and only as a last resort.” Broadrick v. Oklahoma, 4138 U.S. 601, 613, 37 L. Ed. 2d 830, 93 S. Ct. 2908 (1973). n13 In Taxpayers for St. Vincent, after analyzing the plaintiffs’ claims to determine whether they had standing to bring a facial challenge on overbreadth grounds, the Supreme Court found that their challenge was only “as applied” to their activities and heard only the “concrete case” before them. Taxpayers for St. Vincent, 466 U.S. at 802-3 (plaintiffs did not demonstrate that the ordinance applies to “any conduct more likely to be protected by the First Amendment” than their own). For a valid facial challenge on overbreadth grounds, the Court found that there must be a “realistic danger that the statute itself will significantly compromise recognized First Amendment protections of parties not before the Court.” Id. at 801. Indeed, the overbreadth of the statute must “not only be real, but substantial as well, judged in relation to the statute’s plainly legitimate sweep.” Id. at 800-1 (quoting Broadrick, 413 U.S. at 615). 32a There is no _ exact definition of “substantial overbreadth;” however, the “mere fact that one can conceive of some impermissible applications of a statute is not sufficient to render it susceptible to an overbreadth challenge.” Members, 466 U.S. at 800; see also Sec’y of the State of Md. v. Joseph H. Munson Co., Inc., 467 U.S. 947, 81 L. Ed. 2d 786, 104 S. Ct. 2839 (1984). “The requirement of substantial overbreadth is directly derived from the purpose and nature of the doctrine. While a sweeping statute, or one incapable of limitation, has the potential to repeatedly chill the - exercise of expressive activity by many individuals, the extent of deterrence of protected speech can be expected to decrease with the declining reach of the regulation.” Taxpayers for St. Vincent, 466 U.S. at 800- 1 (quoting New York v. Ferber, 458 U.S. 747, 772, 73 L. Ed. 2d 1113, 102 S. Ct. 3348 (1982)). In Ferber, the Court rejected an overbreadth challenge to a statute prohibiting persons from knowingly promoting sexual performances by children, even acknowledging that the statute may reach certain educational materials, finding that the “arguably impermissible applications of the statute amount to more than a tiny fraction of the materials within the statute’s reach.” Ferber, 458 U.S. at 773. Accordingly, the Court turns to whether Granite State’s claims fit within the limited exception to the standing doctrine for overbreadth challenges. From the Amended Complaint and Granite State’s motions, it appears to mount two distinct facial challenges in its quest to have the ordinance declared unconstitutional: (1) that Article 3, Division 18 is an unconstitutional content-based regulation and vests government officials with “undue discretion,” and (2) that Article 4, the 33a permitting and appeals section, is an impermissible “prior restraint” that does not comply with the requirements of Freedman v. Maryland, 380 U.S. 51, 18 L. Ed. 2d 649, 85 S. Ct. 734 (1965), nl4 because it contains no time limits for the appeals process. In Granite State’s first overbreadth challenge, it claims that the regulations set forth in Article 3, Division 18, when applied to Granite State, as well as to other third parties who would be denied a sign permit, are in ‘violation of the First Amendment because the sign ordinance is impermissibly content-based on its face. In Granite State’s facial challenge to Article 3, it points to several specific provisions which it alleges are constitutionally infirm, but, ironically, not to the provision under which Clearwater denied Granite State’s permit applications. Nonetheless, the Court finds that Article 3 of Clearwater’s ordinance is one that when applied to speech, in the form of signs, may effectively chill First Amendment rights. Hence, the Court is constrained to find that Granite State has standing to challenge Article 3, Division 18 under the limited exception to the standing doctrine for a facial overbreadth challenge. However, in viewing Granite State’s second argument, that the lack of time limits on the appeals process renders it facially invalid, the Court has greater difficulty in finding that Granite State has standing to raise a facial challenge that fits within the limited exception for an overbreadth challenge. Granite State did not appeal the denial of its permit applications; instead, it filed this lawsuit. Granite State contends that it has standing to facially challenge Clearwater’s permitting process as an _ unconstitutional “prior 34a restraint” on speech. Plaintiff points to several cases involving permitting schemes for adult businesses in which the Court allowed a facial challenge to the ordinance based on a lack of time limits on the permitting process. See, e.g., Redner v. Dean, 29 F.3d 1495, 1502 (11th Cir. 1994) (allowing facial challenge for prior restraint that could result in the “suppression of expressive activity for an indefinite period of time”). Defendant acknowledges, as does this Court, that facial overbreadth challenges are permitted in some circumstances when a permitting scheme is deemed a “prior restraint” and fails to comply with the requirements of Freedman. See Redner, 29 F.3d at 1495; Artistic Entertainment, Inc. v. City of Warner Robins, 223 F.3d 1306 (11th Cir. 2000) (adult business ordinance); U.S. v. Frandsen, 212 F.3d 1231 (11th Cir. 2000) (park ordinance regarding assembly); see also Cannabis Action Network, Inc. v. City of Gainesville, 931 F.3d 761 (11th Cir. 2000) (street closing and sound ordinance declared facially unconstitutional as “prior restraint”), judgment vacated, 122 S. Ct. 914 (Jan. 22, 2002) (remanded to consider in light of Thomas v. Chicago Park). n15 For these requirements to apply, the permitting scheme must be a censorship scheme. See Thomas v. Chicago Park, 534 U.S. 316, 122 S. Ct. 775, 780, 151 L. Ed. 2d 783 (2002) (“we have never required that a content-neutral permit scheme regulating speech in a public forum adhere to the procedural requirements set forth in Freedman.”). For —yeasons discussed infra, the Court finds that Clearwater’s ordinance is not such a scheme. Granite State’s initial applications were denied within the time provisions provided. Granite State did not 35a seek an appeal of these denials. n16 Hence, it could not be injured by the lack of time limits in the “ode’s appeals provisions. Without an actual injury under Article 4, the Court cannot extend Granite State’s standing to challenge this Article under the limited exception for overbreadth, especially in light the Supreme Court’s guidance to use it “sparingly. Granite State’s injury lies in the enactment of the sign ordinance in Article 3, to which the Court has permitted a facial challenge. n17 See Messer v. City of Douglasville, Georgia, 975 F.2d 1505, 1514 (11th Cir. 1992) (affirming district court’s holding that Messer does not have standing to challenge the board of appeals, as he did not request or receive a hearing - the appeal in this case had been made by the co-defendant billboard companies who had since been dismissed from the case with prejudice). Moreover, the permitting and appeals process set forth in Article 4 applies to all development review decisions by the City, not just to sign permits. As such, the alleged unbridled discretion of government officials to arbitrarily delay appeal decisions through the lack of time limits in Article 4 is not specific just to speech rights, as Plaintiff alleges with respect to Article 3, but applies equally to other permitting decisions and appeals. nl8 Hence, the Court views the reach of Article 4 as much broader -- implicating many permitting situations not involving First Amendment rights. In conclusion, the Court finds that the permitting portion of this ordinance, Article 4, has much less potential to chill the exercise of First Amendment activity than Article 3. Additionally, there is a very 36a limited set of third parties whose First Amendment rights could be chilled under the appeal portion of the regulation; n19 particularly in light of the City’s ordinance protecting content of any signs from serving as a basis for denial. See § 3-1804.H. Accordingly, the Court declines, for the reasons discussed supra, to permit Granite State to raise this type of hypothetical scenario in a facial overbreadth challenge to Article 4. n20 Rather than speculate on a hypothetical case involving an individual whose sign permit was arbitrarily and impermissibly denied, the Court saves this question for another day, and for a plaintiff who has actually been injured by such a delay. See Messer, 975 F.2d at 1514. Granite State has suffered no such injury. n21 2. Severability Granite State argues that any _ unconstitutional provision(s) of the sign ordinance cannot be salvaged by simply severing them. Generally, Granite State argues that severance would remove incentives to challenge unconstitutional regulations, and specifically, that any alleged sections of Clearwater’s sign ordinance which violate equal protection are “inextricably intertwined” with the “whole of the sign ordinance” and to sever any permit requirements from the ordinance would remove “the very heart of the ordinance and impermissibly leave the ordinance more restrictive of speech.” (Dkt. # 51 at 3, 13), citing Rappa v. Newcastle County, 18 F.3d 1043, 1073 (8rd Cir. 1994). On the contrary, Defendants contend that any unconstitutional portions of the ordinance may be severed and specifically point to the severability clause 37a contained within the Code to evidence Clearwater’s legislative intent to severe any portions of the Code found to be invalid. n22 Severability of a local ordinance is a question of state law. See City of Lakewood v. Plain Dealer Publishing Co., 486 U.S. 750, 759, 100 L. Ika. 2d 771, 108 S. Ct. 2188 (1988); see also Metromedia, 453 U.S. at 521 n.26. Under Florida law, the test for severability is as follows: “when a part of a statute is declared unconstitutional, the remainder of the act will be permitted to stand provided: (1) the unconstitutional provisions can be separated from the remaining valid provisions, (2) the legislative purpose expressed in the valid provisions can be accomplished independently of those which are void, (3) the good and bad features are not so inseparable in substance that it can be said that the legislature would have passed the one without the other, and (4) an act complete in itself remains after the invalid provisions are stricken.” Waldrup v. Dugger, 562 So. 2d 687, 693 (Fla. 1990) (challenging application of revised gain time statute for habeas corpus challenge). The Florida Supreme Court simply stated: “the severability of a statutory provision is determined by its relation to the overall legislative intent of the statute of which it is a part, and whether the statute, less the invalid provisions, can still accomplish this intent.” Ray v. Mortham, 742 So. 2d 1276, 1280 (Fla. 1999) (citations omitted). Courts have noted that the existence of a severability clause carries with it a “presumption” that the legislative authority would have enacted the remaining provisions and that the preference for severance is “particularly strong in cases containing a severability clause.” See Major Media of Southeast, Inc. v. City of Raleigh, 621 F. Supp. 1446, 1454 (E.D. N.C. 1985) es 38: (upholding severability clause). Cf. National Advertising v. Town of Niagara, 942 F.2d 145, 148 (2nd Cir. 1991) (finding severance improper despite existence of severability clause); United States v. Jackson, 390 U.S. 570, 585 n.27, 20 L. Ed. 2d 138, 88 S. Ct. 1209 (1968) (the ultimate determination of severability rarely turns on the presence or absence of | a severability clause). Of course, in construing an ordinance for purposes of a facial challenge, the Court must construe any ambiguities in the ordinance as a whole in a manner which avoids any constitutional problems, if possible. See Southlake Property Ass., Ltd. v. City of Morrow, Ga., 112 F.3d 1114, 1119 (11th Cir. 1997). With these guiding principles in mind, the Court addresses Granite State’s constitutional challenges to Clearwater’s sign ordinance, and specifically addresses Defendants’ suggestions that certain provisions, if found to be invalid, may be severed. (See Dkt. # 42 at n. 9, 14, 15). In large measure, the Court finds, as set forth in detail infra, that most of the provisions Plaintiff alleges are “content-based” or permit “undue discretion” by government officials, do not do so. There are, however, some provisions regarding which the Court agrees with Plaintiff, but finds that those provisions are severable, n23 such that the legislative purpose of Clearwater’s sign ordinance is preserved and speech is not more restricted after severance. 3. Content Based v. Content Neutra! Distinction It is truly a Herculean task to wade through the mire of First Amendment opinions to ascertain the state of the law relating to sign regulations, beginning with the a 39a Supreme Court’s leading decision on_ billboard regulations in Metromedia, Inc. v. City of San Diego, 453 U.S. 490 at 570, 69 L. Ed. 2d 800, 101 S. Ct. 2882 | (1981) (plurality decision) (Rehnquist, J., dissenting, | who referred to the plurality decision as a “virtual | Tower of Babel, from which no definitive principles can be clearly drawn”). As the Court more fully discusses | below, there is much variety and diversity of opinions | in this area (in addition to sign ordinances, courts have reviewed First Amendment challenges to adult | entertainment clubs, tobacco advertising and the noise volume of music concerts), suggesting that constitutional law on this subject is far from clear. One of Granite State’s primary arguments, based in large part on the plurality decision in Metromedia, is that the Clearwater sign ordinance is unconstitutional because it is an impermissible content-based ordinance that cannot survive strict scrutiny review. In Metromedia, Justice White, writing for the plurality, found that San Diego’s sign ordinance was unconstitutional because it impermissibly favored commercial over non-commercial speech. It was also noted that although the ordinance’s general prohibition of signs created the “infringement,” the additional exceptions to the prohibition “are of great significance in assessing the strength of the city’s interest in prohibiting billboards.” Metromedia, 453 U.S. at 520. Relying on this argument and its claim that the ordinance favors commercial speech over non- commercial speech, Granite State cites to many of the exceptions contained in Clearwater’s sign ordinance (for example, construction signs or for sale signs) as | evidence that the sign ordinance is content-based. n24 40a The “Catch-22” of Sign Regulations This almost-conclusory mandate that an ordinance with a category or exception for a sign based on its content automatically makes the ordinance unconstitutional per se is the proverbial “catch-22” confronting many cities and municipalities when they attempt to regulate signs in their communities. See Metromedia, 453 U.S. at 560 (Burger, J. dissenting,) (“having acknowledged the legitimacy of local government authority, the plurality largely ignores it”). n25 Granite State’s argument clearly demonstrates this “catch-22”: (1) it is permissible for the government to regulate, or prohibit, signs to further legitimate governmental interests (Metromedia); (2) any sign prohibition must provide an exception for “For Sale” signs (Linmark); (3) exceptions or regulations of signs requiring a reading of their message are content-based ( Nat’l Advertising Co. v. Town of Niagara, 942 F.2d 145 (2nd Cir. 1991); (4) content-based sign regulations are generally unconstitutional when subject to strict scrutiny review ( Burson v. Freeman, 504 U.S. 191, 119 L. Ed. 2d 5, 112 S. Ct. 1846 (1992)); and (5) since an exemption allowing “For Sale” signs necessarily requires one to read the words “for sale” on the sign, it is impossible to draft a sign ordinance that is constitutional. Some courts have followed this conclusory theory, see, e.g., North Olmsted Chamber of Commerce v. City of North Olmsted, 86 F. Supp. 2d 755 (N.D. Ohio 2000); Nat’l Advertising Co. v. Town of Babylon, 900 F.2d 551 (2nd Cir. 1990); however, others have tried to formulate ways to avoid this “catch-22.” See, e.g., Rappa v. Newcastle County, 18 F.3d 1043 (8rd Cir. 1994). n26 Ala Review of Relevant Cases It is instructive to review the Supreme Court’s seminal decisions in this area. Justice Stevens, who filed a dissenting opinion in Metromedia, authored the Court’s majority opinion in Members of the City Council of Los Angeles v. Taxpayers for St. Vincent, 466 U.S. 789, 80 L. Ed. 2d 772, 104 S. Ct. 2118 (1984), which discussed at great length the general principles, history and other cases involving the First Amendment, beginning with the country’s first printing presses and censorship of movies, n27 stressing the “unacceptable risk of suppression of ideas.” Id. at 797, 804 (concluding that the “general principle that has emerged from this line of cases is that the First Amendment forbids the government to regulate speech in ways that favor some viewpoints or ideas at the expense of others”). In Taxpayers for St. Vincent, the Court upheld an ordinance prohibiting the posting of handbills and signs on public property and public objects (like utility poles), because it found that it was within that city’s constitutional power to attempt to improve its appearance, an interest that was “basically unrelated to the suppression of ideas” and the ordinance was reasonably tailored to do so, with available alternative channels of communication. Id. at 804, 813-15. The Court held “there is not even a hint of bias or censorship in the City’s enactment or enforcement of this ordinance. There is no claim that the ordinance was designed to suppress certain ideas the City finds distasteful or that has been applied to Appellees because of the views that they express.” Id. at 804. This decision suggests that an ordinance need only be subject to strict scrutiny if it serves to regulate a particular viewpoint or amounts to censorship. n28 42a This content-based theory warranted mention by the Court in a non-sign case, Cincinnati v. Discovery Network, 507 U.S. 410, 123 L. Ed. 2d 99, 113 S. Ct. 1505 (1993) (Stevens, J. delivered the majority opinion). Discovery Network involved the city’s attempt to enforce an ordinance banning “commercial handbills” on public property by ordering the removal of newsracks from which the “commercial handbills” were disseminated. These newsracks looked just like those containing newspapers. The Court found the ordinance unconstitutional primarily because it was not a “reasonable fit” of the city’s legitimate interests in aesthetics and safety and their chosen means of furthering those interests, a “sweeping ban” on the “commercial handbill” newsracks which were only a small fraction of the total newsracks on the street. Id. at 428-29. After so holding, the Court discussed the content-based versus content-neutral distinction, finding that the ban on newsracks with “commercial handbills” was impermissibly content-based. Id. at 428-9. Beginning with the premise that the government may impose “reasonable restrictions on time, place, or manner of engaging in protected speech provided that they are adequately justified ‘without reference to the content of the regulated speech,“ the Court was not persuaded that the justification of preserving aesthetics aad safety adequately justified the regulation because “the very basis of the regulation is the difference in content between ordinary newspapers and commercial speech.” Id. at 429. n29 Although this is one of the few commentaries by the Supreme Court on this specific issue, it does not appear to be critical to the Court’s 43a holding, which focused primarily on the lack of “reasonable fit.” n30 Karlier, in Ward v. Rock Against Racism, 491 U.S. 781, 105 L. Ed. 2d 661, 109 S. Ct. 2746 (1989), the Court upheld a municipal regulation that required performers to use sound technicians and a sound system provided by the city, finding that it did not violate the free speech rights of the performers. The Court held that the regulation (of the expressive activity of music) is content-neutral, “so long as it is justified without reference to the content of the regulated speech.” Id. at 791 (citations omitted), The Court found the government’s purpose of controlling noise levels at bandshell events was a “controlling consideration. . . [that had] nothing to do with the content.” Id. at 791-2 (citations omitted). The Court also considered, and rejected, the plaintiffs argument that the statute was unconstitutional on its face because it placed “unbridled discretion in the hands of city officials charged with enforcing it.” Id. at 793 (citations omitted). The Court concluded that the city’s regulation was narrowly tailored to serve a significant government interest by protecting its citizens from unwelcome noise. Id. at 796. It is also instructive to review the Supreme Court’s ruling in Ladue v. Gilleo, 512 U.S. 43, 129 L. Ed. 2d 36, 114 8. Ct. 2038 (1994). This case involved an ordinance that banned all residential signs except those falling within one of ten exemptions. The petitioner resident wanted to place a sign about the war in the Persian Gulf -- first on her front lawn, and when that was denied, then in the window of her home. Id. at 45-46. The Court found that the ordinance violated the resident’s right to free speech, in large part because there were no 44a alternative means of communication for her. Id. at 54. The Court found that as a resident, the plaintiff was “almost completely foreclosed in any venerable means of communication that is both unique and important.” Id. As Justice O’Connor added in her concurrence, the Court circumvented its “normal inquiry,” which first determines whether a regulation is content-based or content-neutral, then applies the appropriate level of review (ie. strict or intermediate serutiny). Id. at 59 (O’Connor, J., concurring). Justice O’Connor even goes so far as to note that regulations are “occasionally struck down because of their content-based nature, even though common sense may suggest that they are entirely reasonable. . . the content distinctions present in this ordinance may, to some, be a good example of this.” Id. at 60. It is equally instructive to review the Supreme Court’s most recent rulings on the facial constitutionality of a municipal park ordinance as reviewed under the First Amendment. See Thomas v. Chicago Park Distr., 534 U.S. 316, 122 S. Ct. 775, 151 L. Ed. 2d 783 (2002). Thomas involved a municipal park ordinance requiring individuals to obtain a permit before conducting events for more than fifty persons and providing an application process with a fourteen day time limit for granting or denying the application. Applications could be denied on any of thirteen specific grounds. An applicant is given seven days to appeal the decision on the application after which it may seek judicial review in state court by common law certiorari. The plaintiffs in Thomas sought to secure a permit to hold a rally advocating the legalization of marijuana. Upon the denial of their application, they filed an action alleging that the ordinance was unconstitutional on its face. The 45a Supreme Court found otherwise, upholding the ordinance as content-neutral. This Court notes that most of Chicago Park’s listed grounds to deny a permit, eleven of which are noted in footnote 1 of the Court’s opinion, are decidedly content- neutral. 534 U.S. at 777 n.1. For example, a permit may be denied n31 if the application is not complete, the application fee is not attached, or the applicant is legally incompetent to contract. Id. Yet, interestingly, others may be construed as being more “content- based.” For example, a permit may be denied if the “use or activity intended by the applicant would present an unreasonable danger to the health or safety of the applicant, or other users of the park . . . or the public” or a permit has previously been granted authorizing uses that “do not reasonably permit multiple occupancy of the particular park or part thereof.” Id. But these grounds are clearly not using any content distinction as a censorship scheme nor are they an attempt to limit activities in the park based on the applicant’s viewpoint. In fact, the Court upheld the park ordinance as a “content-neutral time, plan and manner regulation,” finding that the licensor is not authorized to “pass judgment on the content of the speech” and that “none of the grounds for denying a permit has anything to do with what a speaker might say.” 1228S. Ct. at 779. In comparison, the Supreme Court did not agree with the plaintiffs that the park ordinance was like the censorship scheme in Freedman v. Maryland, n32 which would have required that litigation be initiated by the park district every time it denies a permit and that the ordinance specify a deadline for judicial review. 122 S. ee ane 46a Ct. at 779. Specifically, the Court found that the park’s licensing scheme was not “subject matter censorship” and as a “content-neutral time, place, and manner regulation of the use of a public forum,” it does not have to adhere to the procedural requirements set forth in Freedman. 122 S. Ct. at 779-80. The Court also found that government officials were not given unduly broad discretion in determining whether to grant or deny a permit. 122 S. Ct. at 780-81. Application to Clearwater Ordinance Of course, Defendants argue that the Clearwater’s sign ordinance is similar to the ordinance in Thomas in that the requirements of Freedman do not apply because it is content-neutral. Defendants further maintain that if Clearwater’s Code were subject to a more limited variation of the Freedman requirements, n33 it would meet this higher level of review because the sign permitting decisions must be made within a limited time period and are subject to judicial review. (Dkt. # 42 at 23). Granite State opposes this argument in part because it believes that the Clearwater ordinance is not content-neutral, and also because government officials are allowed undue discretion (as discussed infra). One of the few issues that is clear under the Supreme Court’s decision in Metromedia is that government is permitted to regulate speech through sign ordinances that are not content-based, provided they are narrowly tailored to further the significant government interests. Metromedia, 453 U.S. at 511-12, 516. Once a regulation is found to be viewpoint-neutral, it is subject to intermediate scrutiny, which requires that the state demonstrate that: 1) the act serves a substantial pe ge ee 47a governmental interest (unrelated to the suppression of free expression), and 2) it is narrowly drawn to serve that interest without unnecessarily interfering on First Amendment freedoms (that is, the restriction in First Amendment freedoms is no greater than is essential to the furtherance of the interest). Taxpayers for St. Vincent, 466 U.S. at 805. The Eleventh Circuit summarized that to uphold a_ viewpoint-neutral regulation of speech, a government must show that “1) it has the constitutional power to make the regulation, i 2) an important or substantial government interest unrelated to the suppression of free speech is at stake, and 3) the ordinance is narrowly drawn to achieve its desired ends, leaving other channels for the communication of information.” Messer v. City of Douglasville, Ga., 975 F.2d 1505, 1510 (1992). Indeed, in Messer, the Eleventh Circuit upheld a limit on the use of portable signs as a partial solution for its aesthetic concerns, stating “[since] it could have prohibited all portable signs in furtherance of this interest, by 3 allowing a limited number, it is in fact more narrowly ; tailoring the restrictions to meet its purpose.” Messer, 975 F.2d at 1514. However, it need not be the least restrictive means possible. See Rock Against Racism, 491 U.S. at 781. And, the ordinance should leave open ample alternative channels of communication. DU Ahk AEP a Sey RL Aare Tk 2D) i The Supreme Court specifically addressed two “significant government interests” in Metromedia -- traffic safety and aesthetics of the community. Metromedia 453 U.S. at 509-10 (“there is nothing here to suggest that these . . . accumulated, common-sense judgments of local lawmakers and of the many reviewing courts that billboards are real and substantial hazards . .. are unreasonable ... we reach a 48a similar result with respect to the second asserted justification for the ordinance -- advancement of the city’s esthetic interests. It is not speculative to recognize that billboards by their very nature, wherever located and however constructed, can be perceived as an esthetic harm”) (citations and quotations omitted). It is also clear from the decision in Taxpayers for St. Vincent that a state may legitimately exercise its police powers to advance its aesthetic interests and traffic safety. See Taxpayers for St. Vincent, 466 U.S. at 806-07 (in effect affirming Metromedia’s holding that a city’s aesthetic interests are sufficiently substantial to provide an acceptable justification for a content-neutral prohibition against the use of billboards). See also Messer, 975 [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386020_1687%3A1. Public record. Not legal advice.