Key Points

  • Under Ohio law, an unconstitutional content-based exemption in a sign ordinance is severable if the remaining provisions can stand alone, severance does not undermine the legislative intent, and no insertion of words is required.
  • After severing the exemption, the remaining contents-neutral billboard restrictions are reviewed under intermediate scrutiny, not strict scrutiny.
  • A municipality need not provide record evidence beyond the ordinance's statement of purpose to show that billboard regulations are narrowly tailored to traffic safety and aesthetic interests.
  • A plaintiff that successfully challenges only a severable provision is not a prevailing party entitled to fees if the severance does not alter the defendant's behavior toward the plaintiff.

The Sixth Circuit on March 4 affirmed a district court's ruling that the Village of St. Bernard, Ohio may enforce its billboard regulations after severing a content-based public-service sign exemption. The panel held that the remainder of the ordinance passed intermediate scrutiny and that Ohio law permitted severance, rejecting arguments from plaintiff Norton Outdoor Advertising that the entire scheme was unconstitutional.

This is the second appeal in the case. In Norton I, the circuit reversed summary judgment for the village, holding that the public-service exemption in Chapter 711 of the village's code—which exempted signs disclosing information like time or weather from the definition of outdoor advertising signs—was an invalid content-based restriction subject to strict scrutiny. The panel remanded for the district court to determine severability in the first instance.

On remand, the district court adopted a magistrate judge's recommendation that the exemption was severable and that the remaining ordinance satisfied intermediate scrutiny. Norton appealed again, arguing the district court should not have considered severability because the village forfeited the issue and that the ordinance as a whole required strict scrutiny.

The circuit first addressed forfeiture. Judge Karen Nelson Moore, writing for the unanimous panel, explained that the village had reserved its right to argue severability in its initial summary-judgment motion and fully briefed it after remand. The district court did not abuse its discretion in finding no forfeiture, the panel held, noting that it would have been 'nigh-impossible for the Village to articulate a comprehensive severability argument without advance knowledge of which provisions might ultimately be held unconstitutional.'

Turning to the merits, the court applied Ohio's three-part severability test from Geiger v. Geiger. The parties agreed the first part—whether the constitutional and unconstitutional parts can stand alone—was satisfied. The panel focused on the second part: whether striking the exemption would prevent giving effect to the village's apparent legislative intent. The panel found it would not, because Chapter 711's purpose was to reduce motorist distraction and blight, and 'severing the exemption keeps in place the regulations governing non-public-service billboards, which were the primary target of the ordinance.'

The third Geiger factor asks whether inserting words is necessary to give effect to the constitutional parts. Norton argued that additional language would be needed to account for variable-message public-service signs that were previously exempt. The panel rejected this, stating that the Geiger test does not require insertion of words for the statute to operate exactly the same after severance. 'Because Norton has not demonstrated how, absent the insertion of further words or terms, the remainder of Chapter 711 would be rendered ineffective,' the panel held, the third factor was satisfied.

The court also rejected Norton's argument that a broader rule from a concurrence in State ex rel. English v. Industrial Commission prohibited severance if it would create a broader law than intended. The panel noted that any exemption necessarily narrows a law, so such a rule would 'apply in any case involving an unconstitutional exemption' and would conflict with Geiger and Ohio's statutory presumption of severability under Ohio Revised Code § 1.50.

On the First Amendment challenge, the panel applied time-place-manner intermediate scrutiny, not strict scrutiny, because the remaining ordinance was content-neutral. The court concluded the ordinance advanced significant government interests in traffic safety, aesthetics, and property values, and was narrowly tailored. 'We have consistently upheld time, place, and manner restrictions on billboards so long as some logical relationship exists between the restrictions imposed and the municipality's interest in traffic safety and aesthetics,' the panel wrote, citing precedents including Hucul Advertising and Prime Media.

The panel rejected Norton's demand for record evidence beyond the ordinance's statement of legislative purpose, noting that in the billboard context, courts have not required such evidence. 'Norton may wish it were otherwise,' the panel stated, 'but this is a billboard case and the law of billboards therefore applies.' The court also held that Norton was not a prevailing party entitled to attorney fees or damages because the district court entered no judgment in its favor and severance did not require the village to modify its behavior toward Norton.

The decision provides sign-code drafters with a clear roadmap: an unconstitutional content-based exemption may be severed from an otherwise valid time-place-manner restriction, and the remaining provisions will survive intermediate scrutiny if they are justified by substantial government interests in traffic safety and aesthetics and are reasonably tailored. For First Amendment challengers, the case underscores that strict scrutiny does not automatically infect the entire ordinance when only a discrete exemption is invalid.