Earlier this month, the Sixth Circuit vacated a preliminary injunction preventing Lexington-Fayette Urban County Government (the “City”) from enforcing Ordinance 25/2017 (the “Ordinance”), which would regulate where unsolicited written materials may be delivered. Here is what you need to know about the procedural posture of the case:  The Ordinance would allow delivery of unsolicited written materials in six specific locations around a person’s residence or business but would prohibit driveway delivery.  Plaintiff, Lexington H-L Services, Inc., d/b/a Lexington Herald-Leader, delivers The Community News free of charge to more than 100,000 households per week via driveway delivery.  In their motion for a preliminary injunction, Plaintiff claimed that the Ordinance would make their publication financially unfeasible and that it would violate the First Amendment if allowed to go into effect.  The lower court, after applying strict scrutiny analysis to the Ordinance, granted Plaintiff’s request for a preliminary injunction, finding Plaintiff was likely to succeed on the merits of its First Amendment claim.  The City timely appealed to the Sixth Circuit.

As an initial matter, the Court determined that the lower court incorrectly applied strict scrutiny to its First Amendment analysis. The Court determined that, since the Ordinance is content-neutral, a fact that Plaintiff does not contest, the time, place, and manner restriction set forth by the Ordinance must survive only intermediate scrutiny.  In other words, the Ordinance must be (a) narrowly tailored to serve a significant governmental interest and (b) leave open ample alternative channels for communication.

First, in order to be narrowly tailored, the restriction must be reasonable in light of the government’s proffered significant interest and the restriction must further that government interest. As such, the Court looked at the City’s proffered reasons for the Ordinance and determined that reducing visual blight and reducing litter were both significant government interests.  Furthermore, regulating where unsolicited materials could be deposited is likely to reduce both blight and litter.  The Court found these objectives particularly compelling in light of Plaintiff’s own admission that it delivers more than seven million packets of unsolicited materials each year.  The Court went on to say that requiring companies and individuals, like Plaintiff, to deliver the materials to the six designated locations required by the Ordinance will allow for continued dissemination of the materials while also addressing blight and litter concerns by increasing the likelihood that residents will find said materials.

Plaintiff attempted to persuade the Court that a less restrictive alternative to the Ordinance must be considered if one is shown to exist. However, the regulation need not be the least restrictive means available in order to survive intermediate scrutiny.  As such, the Court was unmoved.

Second, the Court held the Ordinance would leave open ample alternative channels for communication. Because the Ordinance specifically approved of six different delivery locations, the Court determined that, if anything, the Ordinance in question would increase the likelihood that written materials would successfully reach their audience.  Plaintiff attempted to persuade the Court that these channels are not “ample” because they are not as affordable or efficient as driveway delivery.  However, this argument was unsuccessful, even though Plaintiff claimed that the Ordinance would essentially render The Community News financially unfeasible.  After hearing these arguments, the Court held that cost efficiency does not trump other government interests and that the very cheapness of a mode of communication can sometimes lead to its abuse.  The Court went on to make clear that the mere fact that Plaintiff’s business cannot survive the Ordinance does not, itself, make the Ordinance unconstitutional.

It’s First Amendment analysis thus concluded in favor of the City, the Court held that the lower court abused its discretion in granting Plaintiff’s motion for a preliminary injunction, thus clearing the way for the City to put the Ordinance into effect.

Lexington H-L Services, Inc. v. Lexington-Fayette Urban County Government, __ F.3d __, 2018 WL 327071 (6th Cir. Jan. 9, 2018)