`
`
`
`RECOMMENDED FOR PUBLICATION
`Pursuant to Sixth Circuit I.O.P. 32.1(b)
`
`File Name: 24a0093p.06
`
`UNITED STATES COURT OF APPEALS
`
`FOR THE SIXTH CIRCUIT
`
`
`
`
`NORTON OUTDOOR ADVERTISING, INC.,
`
`Plaintiff-Appellant,
`
`
`
`
`
`
`
`v.
`
`VILLAGE OF ST. BERNARD, OHIO; GERALD L. STOKER,
`Building Commissioner, BOARD OF ZONING APPEALS,
`Village of St. Bernard, Ohio,
`
`Defendants-Appellees.
`
`
`
`
`
`No. 23-3623
`
`┐
`│
`│
`│
`>
`│
`│
`│
`│
`│
`│
`┘
`
`Appeal from the United States District Court for the Southern District of Ohio at Cincinnati.
`
`No. 20-cv-00350–Michael R. Barrett, District Judge; Stephanie K. Bowman, Magistrate Judge.
`
`Argued: March 19, 2024
`
`Decided and Filed: April 19, 2024
`
`Before: BOGGS, MOORE, and GIBBONS, Circuit Judges.
`
`_________________
`
`COUNSEL
`
`ARGUED: Michael A. Galasso, ROBBINS, KELLY, PATTERSON & TUCKER, Cincinnati,
`Ohio, for Appellant. Ray C. Freudiger, MARSHALL, DENNEHEY, P.C., Cincinnati, Ohio, for
`Appellee. ON BRIEF: Michael A. Galasso, Zachary C. Schaengold, ROBBINS, KELLY,
`PATTERSON & TUCKER, Cincinnati, Ohio, for Appellant. Ray C. Freudiger, MARSHALL,
`DENNEHEY, P.C., Cincinnati, Ohio, for Appellee.
`
`
`
`
`
`
`
`

`

`No. 23-3623
`
`
`
`Norton Outdoor Advert., Inc. v.
`Village of St. Bernard, Ohio et al.
`
`Page 2
`
`_________________
`
`OPINION
`
`_________________
`
`KAREN NELSON MOORE, Circuit Judge. Like many municipalities, the Village of
`
`St. Bernard (“Village”) regulates billboards and other signs displayed within the Village limits.
`
`Norton Outdoor Advertising (“Norton”) has operated billboards within the Village for decades.
`
`The Village recently revoked one of Norton’s permits, however, after Norton constructed two
`
`variable-message signs. The relevant Village ordinance regulates signs based principally on
`
`whether what is being advertised is located on or off the premises of the sign. Under controlling
`
`Supreme Court precedent, this is a permissible, content-neutral means of regulation. But the
`
`Village’s ordinance also has an exemption that functions beyond this on- and off-premises
`
`dichotomy. And that exemption is content based. Accordingly, the Village ordinance must
`
`satisfy strict scrutiny. Because the Village ordinance is not narrowly tailored to fulfill a
`
`compelling interest, it cannot stand as written. The parties and the district court, however, have
`
`yet to consider whether the unconstitutional provision is severable. Accordingly, we REVERSE
`
`the district court’s judgment and REMAND for proceedings consistent with this opinion.
`
`A. The Village Ordinances
`
`I. BACKGROUND
`
`The Village regulates signs and billboards via two chapters of its code: Chapter 711 and
`
`Chapter 1185. Chapter 1185 pertains to “signs.” As a threshold matter, a sign is “any writing,
`
`pictorial representation, emblem, flag or any other figure or similar character which is a structure
`
`or part thereof or is attached to or painted on or in any means represented on a building or
`
`structure; and is used to announce, direct attention to, or advertise; and is visible from outside a
`
`building.” R. 1-1 (Ordinances, Ch. 1185.001(a)) (Page ID #43). This definition includes
`
`billboards but excludes “the flag, pennant, or insignia of any nation, state, city or other political
`
`unit, or any political, educational, charitable, philanthropic, civic, professional, religious or like
`
`campaign, drive, movement or event.” Id. (Page ID #43–44).
`
`
`
`

`

`No. 23-3623
`
`Norton Outdoor Advert., Inc. v.
`Village of St. Bernard, Ohio et al.
`
`Page 3
`
`
`
`
`
`Chapter 1185 then identifies two further categories: advertising signs and business signs.
`
`An advertising sign “directs attention to a business, commodity, service or entertainment
`
`conducted, sold or offered elsewhere than on the premises where displayed or only incidentally
`
`on the premises.” Id., Ch. 1185.001(c) (Page ID #44). A business sign accomplishes the same
`
`but does so on the premises where the activity is located. Id., Ch. 1185.001(d) (Page ID #44).
`
`The parties agree that these two categories essentially refer to those advertising a subject matter
`
`that is “on-premises,” and those advertising the same “off-premises.” Appellant Br. at 8;
`
`Appellee Br. at 7. One must receive a permit before installing or erecting any sign, id., Ch.
`
`1185.002 (Page ID #44), but different rules otherwise pertain to advertising and business signs
`
`and to signs that do not fall into one of these two categories, see, e.g., id., Chs. 1185.01, 1185.02
`
`(Page ID #44). As far as “[e]xpressway [a]dvertising” is concerned, Chapter 1185.01(c) directs
`
`readers to Chapter 711 for “definition, rules, regulations and penalties.”
`
`Chapter 711 is titled “[e]xpressway [a]dvertising.” Chapter 711.01 contains the Village’s
`
`statement of intent for promulgating rules “regulating outdoor advertising signs,” including
`
`reducing motorists’ distractions, improving highway safety, protecting emergency responders,
`
`maintaining and improving property values, and reducing “visual blight.” Id., Ch. 711.01(a–e)
`
`(Page ID #41). The chapter then defines “[o]utdoor [a]dvertising [s]ign,” as “any outdoor sign,
`
`display, device, figure, painting, drawing, message, placard, poster, billboard, or any other
`
`contrivance designed, intended, or used to advertise or to give information in the nature of
`
`advertising, or any part thereof, the advertising or informative contents of which are visible from
`
`the main traveled way of any highway on the Interstate system or primary system in this
`
`Village.” Id., Ch. 711.02(a) (Page ID #41). Exempted from this definition are “[s]igns primarily
`
`intended to promote the sale of goods, products, services, or events on the same premises as the
`
`sign”; public traffic signs; signs located on property for sale; and “[p]ublic service signs which
`
`disclose information such as time or weather.” Id., Ch. 711.02(a)(1–4) (Page ID #41). Outdoor
`
`advertising signs are subject to a variety of rules and regulations, but relevant here, they may not
`
`use “[m]ultiple message or variable message” displays, id., Ch. 711.07(e) (Page ID #43), which
`
`
`
`

`

`No. 23-3623
`
`
`
`Norton Outdoor Advert., Inc. v.
`Village of St. Bernard, Ohio et al.
`
`Page 4
`
`are essentially digital signs that can rotate through displayed messages, id., Ch. 711.02(l), (m)
`
`(Page ID #41).1
`
`B. Norton’s Permit and the Revocation
`
`Norton sells and leases billboard space to third parties who “engage in political speech,
`
`social speech, public service speech, other forms of non-commercial speech, or commercial
`
`speech.” R.1 (Compl. ¶¶ 14, 18) (Page ID #5–6). Norton operates nine outdoor advertising
`
`signs in the Village, some of which are digital billboards. Id. ¶¶ 17, 51 (Page ID #6, 14–15).
`
`Since the 1970s, Norton has operated a sign in the Village at 130 West Ross Avenue. Id. ¶ 76
`
`(Page ID #21). Norton applied for and received a permit from the Village to convert two static
`
`sign faces at 130 West Ross Avenue to “digital display faces.” Id. ¶¶ 76–79 (Page ID #21–22).
`
`After Norton completed construction of the updated faces, however, the Village revoked the
`
`permit, citing Chapter 711.07(e)’s ban on “[m]ultiple message or variable message outdoor
`
`advertising signs.” Id. ¶ 80 (Page ID #22); see also R. 38-3 (Not. of Non-Compliance at 1–2)
`
`(Page ID #1501–02) (letter from Gerald Stoker to Steve Knapp stating that Norton received a
`
`permit to construct only an LED billboard, not a variable-message sign, and that its sign violated
`
`Chapter 711.07(e)).
`
`C. Procedural Background
`
`Norton sued the Village on April 30, 2020, alleging that the Village’s ordinances are
`
`unconstitutional for a variety of reasons. See generally, R.1 (Compl. ¶¶ 1–179) (Page ID #1–40).
`
`Between September 10, 2021, and September 13, 2021, both parties cross-moved for summary
`
`judgment. See R. 37 (Norton Mot. Summ. J.) (Page ID #1433–34); R. 38 (Village Mot. Summ.
`
`J.) (Page ID #1456–57). On February 16, 2022, the magistrate judge stayed the case pending the
`
`Supreme Court’s resolution of City of Austin v. Reagan National Advertising of Austin, LLC, 596
`
`U.S. 61 (2022), because “a decision [was] expected to be issued in the near future that [was]
`
`highly likely to have a dispositive effect on the issues presented.” R. 46 (February 16, 2022
`
`Order at 1) (Page ID #1662).
`
`
`1Because the parties do not suggest that the distinction matters for purposes of this appeal, we refer to these
`signs collectively as “variable-message signs.”
`
`
`
`

`

`No. 23-3623
`
`
`
`Norton Outdoor Advert., Inc. v.
`Village of St. Bernard, Ohio et al.
`
`Page 5
`
`After the Supreme Court decided Austin, the parties filed supplemental briefing
`
`addressing its import. See R. 49 (Village Suppl. Br.) (Page ID #1669–90); R. 50 (Norton Suppl.
`
`Br.) (Page ID #1691–1708). On June 16, 2022, the magistrate judge issued a report and
`
`recommendation, recommending that the district court grant the Village’s motion for summary
`
`judgment. R. 51 (R. & R. at 1) (Page ID #1709). The magistrate judge found that Norton lacked
`
`standing to challenge any provisions of the ordinances other than Chapter 711.07(e) and
`
`accompanying provisions, id. at 9–20 (Page ID #1717–28); that the provisions for which Norton
`
`had standing to challenge are content-neutral regulations under Austin, id. at 10–12 (Page ID
`
`#1718–20); and that the regulations satisfied intermediate scrutiny, id. at 20–27 (Page ID #1728–
`
`35). Norton filed objections to the magistrate judge’s report but did not object to the standing
`
`findings. R. 54 (Norton Objs.) (Page ID #1910–54); see also R. 63 (July 20, 2023 Order at 4
`
`n.1) (Page ID #2149).
`
`The district court adopted the report and recommendation in full. See generally, R. 63
`
`(July 20, 2023 Order) (Page ID #2146–52). The district court agreed that Chapter 711 is content
`
`neutral under Austin, id. at 5–6 (Page ID #2150–51), and that the regulations pass intermediate
`
`scrutiny, id. at 6–7 (Page ID #2151–52). Norton timely filed its appeal on July 26, 2023. R. 66
`
`(Not. of Appeal at 1–2) (Page ID #2156–57).
`
`II. DISCUSSION
`
`
`
`Norton launches a barrage of attacks on the Village’s sign regulations. So many, in fact,
`
`that one is left to wonder whether a more constitutionally offensive scheme could exist. See,
`
`e.g., Appellant Reply at 7 (referring to the Village’s sign regulations as a “caste system of
`
`speakers”). The reality is much more modest than Norton’s dystopian account. Still, a single
`
`content-based exemption in the relevant ordinance calls for application of strict, rather than
`
`intermediate, scrutiny. And because the Village’s regulations are not narrowly tailored to serve
`
`its stated interests, the sign ordinance cannot stand as written.
`
`A. Standard of Review
`
`We review de novo a district court’s grant of summary judgment. Hughes v. Gulf
`
`Interstate Field Servs., Inc., 878 F.3d 183, 187 (6th Cir. 2017). Summary judgment is proper “if
`
`
`
`

`

`No. 23-3623
`
`
`
`Norton Outdoor Advert., Inc. v.
`Village of St. Bernard, Ohio et al.
`
`Page 6
`
`the movant shows that there is no genuine dispute as to any material fact and the movant is
`
`entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). “In reviewing the district court’s
`
`decision to grant summary judgment, we must view all evidence in the light most favorable to
`
`the nonmoving party.” Kleiber v. Honda of Am. Mfg., Inc., 485 F.3d 862, 868 (6th Cir. 2007)
`
`(citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)).
`
`B. Norton’s Standing
`
`The Village’s ordinances are hardly models of clarity. The parties disagree on how
`
`Chapters 1185 and 711 interact with one another, which impacts the scope of this case. As a
`
`threshold matter, the magistrate judge found, based on her reading of the two chapters, that
`
`Norton lacked standing to challenge Chapter 1185 and its definition of signs. Norton failed to
`
`object to this finding, which the district court adopted. And Norton failed to raise this issue on
`
`appeal until its reply brief. Accordingly, Norton has forfeited its challenge to the district court’s
`
`standing findings. In any event, because striking down the definition of “sign” in Chapter 1185
`
`would not redress Norton’s injury, the district court did not err.
`
`
`
`Whether Chapter 1185 bears on this dispute turns on statutory interpretation. From the
`
`outset, the parties disagree on what the definition of “sign” means in Chapter 1185. The Village
`
`suggests that what is exempted from the definition of “sign”—“the flag, pennant, or insignia of
`
`any nation, state, city or other political unit, or any political, educational, charitable,
`
`philanthropic, civic, professional, religious or like campaign, drive, movement or event” in
`
`Chapter 1185.001(a)—refers to “the type of sign, not its content.” R. 38 (Village Mot. Summ. J.
`
`at 12) (Page ID #1471); see also Appellee Br. at 27 (arguing that Norton’s contentions “are an
`
`unsupported attempt to twist regulations irrelevant to this appeal”). In essence, the Village
`
`contends that, even if Chapter 1185 applied to this case, it is irrelevant because Norton has not
`
`indicated that it wishes to post a physical flag. Norton, on the other hand, claims that this
`
`definition of “sign” is a broad content-based regulation that effectively exempts from all
`
`regulation promotion of content related to “current nation[s], religious organizations, or political
`
`action.” Appellant Br. at 37.
`
`
`
`

`

`No. 23-3623
`
`Norton Outdoor Advert., Inc. v.
`Village of St. Bernard, Ohio et al.
`
`Page 7
`
`
`
`
`
`Further, the parties disagree on whether Chapter 1185 even applies to this dispute. The
`
`Village argues that Chapters 1185 and 711 do not operate in tandem but instead apply to entirely
`
`different subject matters. Its view is that Chapter 1185 pertains to all types of signs, whereas
`
`Chapter 711, from which the principal regulation at issue in this case originates, pertains to an
`
`entirely different category of highway-adjacent signs that display commercial speech. R. 38
`
`(Village Mot. Summ. J. at 9–10, 12–13) (Page ID #1468–69, 1471–72). Accordingly, Chapter
`
`711 is the only source of the regulations and definitions relevant to this case, because “outdoor
`
`advertising signs” in Chapter 711 are not a subset of “signs” in Chapter 1185. Because the
`
`Village argued both that (1) the definition of signs in Chapter 1185 is substantially narrower than
`
`the reading urged by Norton; and (2) Chapters 711 and 1185 operate independently, the Village
`
`contended in the district court that Norton lacked standing to challenge the definition of “signs”
`
`in Chapter 1185. See, e.g., id. at 12 n.4 (Page ID #1471).
`
`
`
`Norton views the two chapters quite differently. On Norton’s reading, Chapters 1185 and
`
`711 must be read together, such that Chapter 711 enumerates a subset of signs covered by
`
`Chapter 1185. Thus, we would look to Chapter 1185 first to understand its basic definitions and
`
`categorization of signs and then turn to Chapter 711 for rules pertaining to a particular subset of
`
`signs: those located near an expressway. From this scheme comes what Norton refers to as
`
`“three tiers of speakers.” Appellant Reply at 5. The first tier is excluded from all regulation,
`
`either by operation of the exclusions in the definition of sign in Chapter 1185, or by the
`
`exemptions to the definition of “outdoor advertising sign” in Chapter 711. Id. at 5–6. The
`
`second and third tiers of speakers are on-premises and off-premises signs as defined in Chapter
`
`1185, a subset of which are “outdoor advertising signs,” the most highly regulated category of
`
`signs. Id. at 6–7. Although Norton’s briefing is replete with myriad examples of the signs it
`
`believes are exempt from regulation under this scheme, its clearest example includes “signs
`
`promoting a current nation, religious organizations, or political action.” Appellant Br. at 37.
`
`Because, according to Norton, these messages are exempt from regulation, the regulations are
`
`“irrefutably content based.” Id.
`
`
`
`Norton’s arguments miss the mark. First and foremost, Norton failed to object to the
`
`magistrate judge’s finding that Norton lacks standing to challenge the definition of “sign” in
`
`
`
`

`

`No. 23-3623
`
`
`
`Norton Outdoor Advert., Inc. v.
`Village of St. Bernard, Ohio et al.
`
`Page 8
`
`Chapter 1185, because the Village has sought to enforce only Chapter 711.07(e) by revoking
`
`Norton’s permit. R. 51 (R. & R. at 17–18) (Page ID #1725–26); R. 63 (July 20, 2023 Order at 4
`
`n.1) (Page ID #2149) (noting that Norton failed to object to the magistrate judge’s standing
`
`analysis). Norton failed even to raise this issue in its opening brief on appeal, and its response in
`
`reply after the Village called attention to the forfeiture is beside the point. See Appellant Reply
`
`at 14–16 (arguing that Norton did not forfeit any arguments because “Norton raised the issue of
`
`content-discrimination up-front in its objections”). These two failures, one below and one on
`
`appeal, end Norton’s challenge to Chapter 1185 before it can begin. See, e.g., Vaughn v.
`
`Lawrenceburg Power Sys., 269 F.3d 703, 714 (6th Cir. 2001) (“[O]nly those specific objections
`
`to the magistrate’s report made to the district court will be preserved for appellate review;
`
`making some objections but failing to raise others will not preserve all the objections a party may
`
`have.” (quoting Neuman v. Rivers, 125 F.3d 315, 322 (6th Cir. 1997))); Toure v. Holder, 464 F.
`
`App’x 513, 514 (6th Cir. 2012) (per curiam) (explaining that failing to raise an argument in an
`
`opening brief constitutes a forfeiture (citing Cruz-Samayoa v. Holder, 607 F.3d 1145, 1154–55
`
`(6th Cir. 2010))).
`
`
`
`More basically, Norton’s standing to challenge Chapter 1185 poses a redressability
`
`problem. Norton fails to explain how Chapter 1185, rather than Chapter 711, is the source of its
`
`injury. Norton does not deny that its proposed sign falls into the definition of “outdoor
`
`advertising sign” in Chapter 711. And its complained-of injury—denial of the ability to build a
`
`variable-message sign—stems from a regulation in Chapter 711, not Chapter 1185. Accordingly,
`
`even if we were to find that the definition of “sign” in Chapter 1185 is not content neutral, it is
`
`unclear how striking down that part of the ordinances would redress Norton’s injury. See Prime
`
`Media, Inc. v. City of Brentwood, 485 F.3d 343, 350 (6th Cir. 2007) (“Prime Media’s standing
`
`with regard to the size and height requirements does not magically carry over to allow it to
`
`litigate other independent provisions of the ordinance without a separate showing of an actual
`
`injury under those provisions.”); Midwest Media Prop., L.L.C. v. Symmes Township, 503 F.3d
`
`456, 461 (6th Cir. 2007) (holding that plaintiffs lacked standing to bring First Amendment
`
`challenge to off-premises advertising ban because striking down ban would fail to redress injury
`
`
`
`

`

`No. 23-3623
`
`
`
`Norton Outdoor Advert., Inc. v.
`Village of St. Bernard, Ohio et al.
`
`Page 9
`
`as signs also “plainly violated the township’s size and height regulations”). We thus focus our
`
`constitutional inquiry in this case on only Chapter 711.
`
`C. Level of Scrutiny Applicable to Chapter 7112
`
`At bottom, the level of scrutiny applicable to Chapter 711 and its regulations pertaining
`
`to outdoor advertising signs hinges on whether this case is more akin to Reed v. Town of Gilbert,
`
`576 U.S. 155 (2015), or City of Austin v. Reagan National Advertising of Austin, LLC, 596 U.S.
`
`61 (2022). Norton contends that this case is akin to Reed, mandating application of strict
`
`scrutiny, whereas the Village argues that Austin controls. Because Chapter 711 contains a
`
`content-based exemption, we must apply strict scrutiny.
`
`In Reed, the Court held that a town sign ordinance included content-based regulations,
`
`and thus applied strict scrutiny and struck down the ordinance. 576 U.S. at 159. The ordinance
`
`banned all display of outdoor signs, but exempted twenty-three categories of signs from the
`
`blanket ban. Id. Each of the twenty-three categories came with its own unique regulations. Id.
`
`For example, the ordinance distinguished between “[i]deological [s]ign[s],” defined as those
`
`“communicating a message or ideas for noncommercial purposes” and falling outside of other
`
`categories of sign; “[p]olitical [s]ign[s],” defined as “temporary sign[s] designed to influence the
`
`outcome of an election”; and “[t]emporary [d]irectional [s]igns [r]elating to a [q]ualifying
`
`[e]vent,” which were signs “intended to direct” people to certain events held by religious,
`
`charitable, or like institutions. Id. at 159–61. Under the ordinance, ideological signs were the
`
`least regulated, whereas onerous regulations applied to temporary directional signs, such as
`
`
`2Norton repeatedly states that it is bringing both facial and as-applied challenges in this case. All of
`Norton’s arguments appear to be facial in nature, however, when we home in on the at-issue regulation. Norton
`suggests that a broad range of speech is impermissibly regulated, that Chapter 711 is always unconstitutional
`because its administration always requires examining the content of speech, and that the constitutional issue in this
`case stems from an exemption to regulation. Norton does not suggest that it, particularly, should be exempted from
`regulation because it meets one of the exemptions. Instead, Norton’s arguments are that the Village always violates
`the Constitution by administering its code and that the Village should not be allowed to administer the provisions
`against anyone. Accordingly, although it is generally preferable to take up an as-applied challenge first, we consider
`the facial challenge that Chapter 711 has no constitutional application. See, e.g., United States v. Stevens, 559 U.S.
`460, 473–74 (2010) (discussing facial challenges in the unique First Amendment context); Speet v. Schuette, 726
`F.3d 867, 872 (6th Cir. 2013) (similar); see also, e.g., Green Party of Tenn. v. Hargett, 791 F.3d 684, 691–92 (6th
`Cir. 2015) (appreciating the hazy border between certain facial and as-applied challenges, and ultimately construing
`challenge as facial).
`
`
`
`

`

`No. 23-3623
`
`
`
`Norton Outdoor Advert., Inc. v.
`Village of St. Bernard, Ohio et al.
`
`Page 10
`
`limits on the number of signs that could be posted, when they could be posted, how long they
`
`could be left up, and how big they could be. Id.
`
`The Court began by reciting basic principles of First Amendment jurisprudence. Under
`
`the Amendment, regulations or laws that are content based—“those that target speech based on
`
`its communicative content”—are subject to strict scrutiny. Id. at 163. A content-based law
`
`“applies to particular speech because of the topic discussed or the idea or message expressed.”
`
`Id. A law regulating speech may be content based “on its face,” id., or may be facially neutral
`
`but nonetheless promulgated “because of disagreement with the message [the speech] conveys,”
`
`Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989). In these scenarios, the law must pass
`
`strict scrutiny. Reed, 576 U.S. at 164.
`
`The town ordinance in Reed was “content based on its face.” Id. The restrictions
`
`“depend[ed] entirely on the communicative content of the sign.” Id. In so holding, the Court
`
`rejected the government’s argument that a “content-neutral justification” for different treatment
`
`could otherwise save a law that is content based on its face. Id. at 165; see also id. at 166–67
`
`(explaining that the government’s motive is relevant only if the law is content neutral on its
`
`face). The Court also explained that a law need not discriminate among viewpoints—a “more
`
`blatant” form of content regulation—in order to be content based, id. at 168–69 (quoting
`
`Rosenberger v. Rector & Visitors of Univ. of Va., 515 U.S. 819, 829 (1995)); rather, regulations
`
`that differentiate among subject matters, or prohibit discussion of a topic altogether, are also
`
`content based, id. at 169. Ultimately, the Court in Reed applied strict scrutiny and struck down
`
`the ordinance, holding that it was not narrowly tailored because it was underinclusive. Id. at 172.
`
`Austin, however, clarified that Reed’s import is somewhat circumscribed. The City of
`
`Austin prohibited construction of “off-premises signs”—those advertising goods or services not
`
`sold or provided on the same location as the sign. 596 U.S. at 66. The Fifth Circuit, applying
`
`Thomas v. Bright, 937 F.3d 721 (6th Cir. 2019), held that the ordinance was a content-based
`
`restriction, because administering the regulation necessitated reading the content of a given sign
`
`to determine what it advertised. Austin, 596 U.S. at 68–69. The Court found this reading of
`
`Reed to be “too extreme,” because administering the regulation “require[d] an examination of
`
`
`
`

`

`No. 23-3623
`
`
`
`Norton Outdoor Advert., Inc. v.
`Village of St. Bernard, Ohio et al.
`
`Page 11
`
`speech only in service of drawing neutral, location-based lines.” Id. at 69. In other words, the
`
`regulation was “agnostic as to content,” even if one needed to examine the sign to determine
`
`whether it was an on- or off-premises advertisement. Id.; see also id. at 71 (“Unlike the sign
`
`code at issue in Reed, however, the City’s provisions at issue here do not single out any topic or
`
`subject matter for differential treatment.”). This was a location-based, rather than content-based,
`
`determination. Id. Because strict scrutiny did not apply, the Court remanded the case for a
`
`determination of whether the ordinance passed intermediate scrutiny. Id. at 76–77.
`
`Chapter 711 resists classification under either of these cases. Unlike the ordinance at
`
`issue in Austin, Chapter 711 does not simply differentiate between on- and off-premises signs.
`
`Rather, the chapter contains exemptions for “[s]igns primarily intended to promote” goods,
`
`services, or events on the premises where the sign is located; public traffic signs; signs located
`
`on property for sale; and “[p]ublic service signs which disclose information such as time or
`
`weather.” R. 1-1 (Ordinances, Ch. 711.02(a)(1–4)) (Page ID #41). Like Austin and unlike Reed,
`
`however, the most salient distinction within Chapter 711 appears to boil down to on- versus off-
`
`premises signs, other than the exemptions for signs posted by a public authority and “[p]ublic
`
`service signs.” That is, two of the exempted categories effectively pertain to different kinds of
`
`on-premises signs: signs intended to promote the sale of goods or services at the site where the
`
`sign is located, and real-estate signs located at property for sale or rent. Although Norton argues
`
`that this latter category of on-premises sign does not fit Austin, it offers no meaningful reason for
`
`this conclusion. The subject matter of the advertisement still undeniably relates to something on
`
`the same premises of the sign—namely, real property for sale or rent.
`
`On appeal, Norton makes no serious argument that Chapter 711’s different treatment for
`
`on- versus off-premises signs calls for application of strict scrutiny. Nor could it. Austin plainly
`
`holds that a regulation that does nothing more than differentiate between on- and off-premises
`
`signs is content neutral, even if one must read the content of the sign to determine whether it is
`
`an on- or off-premises sign. 596 U.S. at 69–72. Instead, the thrust of Norton’s argument is that
`
`Austin simply does not speak to an ordinance like the Village’s, which Norton contends is a
`
`series of “content-based regulations layered upon the on/off-premises dichotomy.” Appellant Br.
`
`at 26.
`
`
`
`

`

`No. 23-3623
`
`
`
`Norton Outdoor Advert., Inc. v.
`Village of St. Bernard, Ohio et al.
`
`Page 12
`
`Norton is right, but for narrower reasons than it advances. The exemption for signs
`
`posted by a public authority plainly does not call for application of strict scrutiny. Because such
`
`signs pertain to government speech, they cannot constitute content-based regulation of private
`
`speech. See, e.g., Pleasant Grove City v. Summum, 555 U.S. 460, 481 (2009) (holding that city
`
`government’s display of privately donated monuments is “best viewed as a form of government
`
`speech” and therefore “not subject to the Free Speech Clause”); Adams Outdoor Advert. Ltd.
`
`P’ship ex rel. Adams Outdoor GP, LLC v. Pa. Dep’t of Transp., 930 F.3d 199, 206 (3d Cir.
`
`2019) (holding that exempting from regulation “[d]irectional or other official signs . . . erected
`
`and maintained by public officers . . . does not trigger strict scrutiny” because such signs are
`
`“forms of government speech”).
`
`But Norton uncovers a problem in the very last exemption to Chapter 711: the different
`
`treatment for “[p]ublic service signs.” Chapter 711 does not define a public-service sign but
`
`states that displays of “information such as time or weather” fall within the definition, so long as
`
`such signs are not used to advertise goods, products, services, or events. R. 1-1 (Ordinances, Ch.
`
`711.02(a)(4)) (Page ID #41). Gerald Stoker, the contractor that the Village hired to review
`
`permit applications, testified that public-service signs potentially sweep in a range of signs,
`
`including signs encouraging people to receive COVID-19 shots or those telling drivers to buckle
`
`their seatbelts. R. 32 (Stoker Dep. at 147:16–148:8) (Page ID #801–02). The Village contends
`
`that this provision cannot be content based because the public-service exemption does not pertain
`
`to advertising. Appellee Br. at 31. The magistrate judge concluded that the public-service
`
`exemption does not lead to heightened scrutiny because the regulations of outdoor advertising
`
`signs are aimed at commercial speech. R. 51 (R. & R. at 12) (Page ID #1720). Before
`
`addressing the problem posed by the exemption, we reject both the Village’s and the magistrate
`
`judge’s understandings of the ordinance.
`
`The magistrate judge’s view of Chapter 711 is belied by the provision’s plain terms. And
`
`the Village does not argue on appeal that the definition of “outdoor advertising sign” in Chapter
`
`711 regulates only commercial speech. Although “outdoor advertising sign” suggests that
`
`commercial messages are primarily at issue, nothing in its definition explicitly excludes non-
`
`commercial messages. Nor does the Village dispute that Norton advertises and promotes both
`
`
`
`

`

`No. 23-3623
`
`
`
`Norton Outdoor Advert., Inc. v.
`Village of St. Bernard, Ohio et al.
`
`Page 13
`
`commercial and non-commercial content. Still, Norton is nonetheless subject to Chapter 711’s
`
`ban on variable-message signs. In these respects, Chapter 711 is similar to the ordinance at issue
`
`in Austin. 596 U.S. at 68–69 n.3 (explaining that the at-issue provisions “admit of no exception
`
`for noncommercial speech”); see also Solantic, LLC v. City of Neptune Beach, 410 F.3d 1250,
`
`1268–69 n.15 (11th Cir. 2005) (declining to analyze sign code under standards applicable to
`
`commercial speech because code “applie[d] without distinction to signs bearing commercial and
`
`noncommercial messages”).
`
`Likewise, the Village’s attempt to write the public-service exemption out of the
`
`ordinance contradicts the exemption’s terms. The definition of “outdoor advertising sign” and
`
`the exemption do not perfectly line up, contrary to the Village’s view. Outdoor advertising signs
`
`encompass any possible off-premises signs (read together with the on-premises exemptions)
`
`because they are defined as signs “used to advertise or to give information in the nature of
`
`advertising.” By its plain meaning, “advertising” covers a wide set of messages beyond simply
`
`displaying commercial messages. See Advertising, MERRIAM-WEBSTER.COM, https://perma.cc
`
`/9LGE-Q8MT (last accessed March 22, 2024) (defining advertising as “the action of calling
`
`something to the attention of the public especially by paid announcements”); Lone Star Sec. &
`
`Video, Inc. v. City of Los Angeles, 827 F.3d 1192, 1199 (9th Cir. 2016) (construing “advertising”
`
`as “the activity of displaying a message to the public, not to any particular content that may be
`
`displayed”). This understanding is consistent with that of Gerald Stoker. R. 32 (Stoker Dep. at
`
`139:17–25) (Page ID #793). The public-service-sign exemption, on the other hand, is more
`
`limited with