Wagner’s sign in Garfield Heights. Source: Cleveland Plain Dealer.

Earlier this month, the Sixth Circuit Court of Appeals upheld an Ohio district court’s decision to permanently enjoin the enforcement of the City of Garfield Heights’s sign code.  The court found that the sign code’s restriction of “political signs” to six square feet was content based and unconstitutional.

The case began in September 2011, when local resident Frank Wagner wanted to protest a local councilwoman’s support of traffic cameras and a waste disposal tax.  Wagner placed a sixteen-square foot sign in his front yard that called out the councilwoman.  The city promptly enforced the code against Wagner with a letter threatening him with up to $1,000 in fines for each day of noncompliance with the code.

Wagner filed suit in federal district court with facial and as applied challenges to the code.  The district court initially found that the code was content based, since it distinguished between political signs and other forms of noncommercial speech.  In a 2014 decision, the Sixth Circuit reversed, applying the pre-Reed test for content neutrality.  The Supreme Court subsequently granted the plaintiff’s petition for writ of certiorari, vacated the 2014 decision, and remanded for further consideration in light of Reed, decided in June 2015.

On remand, the court of appeals first reviewed Wagner’s standing to challenge the sign code.  The court found Wagner had standing, because even though his sixteen square foot sign would be prohibited under other provisions of the Garfield Heights sign code, the city’s attempt to enforce the code against him entitled him to injunctive relief.

On the merits of the case, the Sixth Circuit found that the code was clearly content based and subject to strict scrutiny.  The city argued that the code satisfied strict scrutiny, i.e., that its interests in aesthetics and traffic safety were compelling and that the code was narrowly tailored to those interests.  The court disagreed, finding—like the Reed Court—that the code was “hopelessly underinclusive.”  Because Garfield Heights allowed political signs to be only six square feet while allowing other temporary signs to be twice as large, the court found that the code was unconstitutional.

Wagner v. City of Garfield Heights, ___ Fed. App’x ___, 2017 WL 129034 (6th Cir. Jan. 13, 2017).