KH Outdoor, LLC v. Trussville, City of, (11th Cir. 2006)

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[P U B L IS H ]

IN THE UNITED STATES COURT OF APPEALS

FILED

F O R THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

AUG 4, 2006

THOMAS K. KAHN

N o . 05-12598

CLERK

D . C. Docket No. 03-03278-CV-HS-S

K H OUTDOOR, LLC,

Plaintiff-Appellee,

versus

TRUSSVILLE, CITY OF,

Defendant-Appellant.

A p p e al from the United States District Court

fo r the Northern District of Alabama

(A u g u st 4, 2006)

B efo re DUBINA, MARCUS and PRYOR, Circuit Judges.

M A R C U S , Circuit Judge:

T h e City of Trussville, Alabama, ("the city") appeals the district court's

en try of a permanent injunction barring the city from enforcing section 1.0 of the

C ity of Trussville Sign Ordinance ("the ordinance") on First Amendment grounds.

After thorough review, we affirm.

I.

T h e undisputed facts of this case are these. Plaintiff KH Outdoor, LLC, ("K H Outdoor") is in the business of erecting and operating signs used for the d issem in atio n of both commercial and noncommercial speech. KH Outdoor has a h isto ry of posting ideological, religious, charitable, and political messages on the sig n s that it operates and allegedly provides a higher percentage of its advertising sp ace to noncommercial clients at reduced rates than does any other advertising c o m p a n y . Trussville is a fast-growing city in Jefferson County, Alabama.

K H Outdoor submitted eleven applications to the city for permits to co n stru ct outdoor advertising signs at various locations in Trussville. The ap p licatio n s did not indicate whether the signs would display commercial or n o n co m m ercial messages. The city denied each of the applications pursuant to S ectio n 20.0 of the ordinance, which regulates "billboard signs."1 Section 20.0 s ta te s that billboard signs are permitted only on interstate highways and provides n u m ero u s size, lighting, and setback requirements.2 Section 2.0 of the same signs; section 26.0 governs non-conforming signs; section 27.0 provides for notification for sign repair or removal; and section 28.0 provides penalties for violating the ordinance.

2 Section 20.0 states in full: Billboard signs are permitted on interstate highways only and shall be subject to the following requirements: A. No billboard sign shall be erected closer than five hundred (500) feet from a residential zone district as measured from the nearest edge of the sign.

B. Any illumination of a billboard sign shall be of an indirect type and shall not face toward any residential area nor direct lighting in any direction other than toward the sign face itself.

C. No portion of any billboard sign shall project over or encroach upon any public property or public right-of-way.

D. No billboard sign structure shall be erected or maintained closer to another sign structure other than as follows: (1) Within one thousand five hundred (1,500) feet in any direction between other billboard structures.

E. No billboard sign structure shall exceed the following specified size and height requirements for specific types of thoroughfares and observe specified setbacks.

(1) Sign area/Height. The maximum sign area shall not be more than eight hundred (800) square feet, including embellishments, and not exceed forty (40) feet in height or forty (40) feet above the road grade.

(2) Sign Faces. A billboard sign may contain two signs oriented in the same direction; be placed back-to-back, or V-type with an angle not to exceed thirty-five (35) degrees, provided that the total area of the sign faces oriented in any one direction shall not exceed maximum size provisions.

(3) Setbacks. Sign face in Minimum Setback One Direction From Right-of-way 350 sq. ft. or greater 75 ft. o r d in a n c e , which provides definitions for terms used in the other sections, defines a "billboard sign" as "[a]n off-premise sign which directs attention to a business, c o m m o d ity , service or entertainment, sold or offered for sale at a location other th an the premises on which said sign is located." The ordinance prohibits any sign th at it does not explicitly allow; section 1.0 provides that "[i]f not otherwise stated, an y sign not specifically permitted in a zoning district as provided under the ap p licab le section, shall be prohibited in that district." 3 The city denied the ap p licatio n s because KH Outdoor sought to place some billboard signs on roads o th e r than interstate highways and because some of the signs failed to meet the size req u irem en ts of section 20.0. A fter the city denied the permit applications, KH Outdoor brought suit in the U n ited States District Court for the Northern District of Alabama seeking a p relim in ary injunction and a permanent injunction to prevent the city from e n f o r c in g the ordinance. The complaint leveled various constitutional challenges ag ain st nearly every provision of the ordinance. The parties filed cross-motions for su m m ary judgment, both of which the district court granted in part and denied in p a r t. The district court found that the ordinance unconstitutionally favors c o m m e rc ia l speech over noncommercial speech for two reasons. First, the district c o u r t determined that billboards are the largest signs permitted by the ordinance an d that by definition billboards cannot contain noncommercial messages. Thus, n o n c o m m e rc ia l messages cannot be as large as commercial messages in those areas w h ere billboards are permitted. Second, the district court found that the only p r o v is io n of the ordinance that allows for political messages at all mandates that th o se signs be temporary in nature. Because permanent signs are permitted for co m m ercial speech, the trial judge found that the ordinance unconstitutionally f av o r s commercial speech over at least one type of noncommercial speech -political messages.

A f te r determining that the ordinance unconstitutionally discriminates based o n the content of speech, the district court permanently enjoined the city from en fo rcin g section 1.0 of the ordinance, which prohibits any sign "not specifically p e r m itte d in a zoning district as provided under the applicable section." Essentially, with the district court having prevented the city from enforcing section 1 .0 against KH Outdoor, the ordinance no longer contains restrictions that would p r o h ib it erection of a noncommercial billboard.4 The city appeals the district c o u r t's entry of a permanent injunction against the use of section 1.0, arguing that K H Outdoor does not have standing, and, that even if it does, the ordinance is a co n stitu tio n al, content-neutral regulation. We review both arguments in turn.

II.

W e have jurisdiction to review an interlocutory order granting an injunction p u r su a n t to 28U.S.C. § 1292(a)(1). See also Alamo Rent-A-Car, Inc. v. SarasotaM an atee Airport Auth., 825 F.2d 367, 369 n.2 (11th Cir. 1987). We review the d istrict court's order granting an injunction for abuse of discretion. Mut. Serv. Ins.

C o . v. Frit Indus., Inc., 358 F.3d 1312, 1324 (11th Cir. 2004). However, "[w]e rev iew the district court's findings of fact for clear error, and its application of the la w de novo, premised on the understanding that [a]pplication of an improper legal 4 The district court also denied parts of KH Outdoor's motion for summary judgment, granted parts of the city's motion for summary judgment, and denied parts of the city's motion for summary judgment. Specifically, the district court found that the provisions of the ordinance were severable and granted the city's motion for summary judgment as to each provision unrelated to KH Outdoor's injury. Moreover, the district court found that the ordinance did not constitute an invalid prior restraint on speech and did not impermissibly favor some forms of commercial speech over others. None of those rulings were appealed. stan d ard . . . is never within a district court's discretion." Solantic, LLC v. City of N ep tu n e Beach, 410 F.3d 1250, 1254 (11th Cir. 2005) (internal quotation marks o m itted ) (second and third alterations in original); see also Major League Baseball v . Crist, 331 F.3d 1177, 1183 (11th Cir. 2003) (noting that while our review of an o rd er granting an injunction is for clear abuse of discretion, "[u]nderlying q u e stio n s of law" are reviewed de novo).

It is by now axiomatic that a plaintiff must have standing to invoke the ju risd ictio n of the federal courts. See, e.g., Lujan v. Defenders of Wildlife, 504 U .S . 555, 560, 112 S. Ct. 2130, 2136 (1992). "[T]he irreducible constitutional m in im u m of standing contains three elements," id., all of which must be satisfied: F irst, the plaintiff must have suffered an injury in fact -- an invasion o f a legally protected interest which is (a) concrete and particularized, an d (b) actual or imminent, not conjectural or hypothetical. Second, th e r e must be a causal connection between the injury and the conduct co m p lain ed of -- the injury has to be fairly . . . trace[able] to the ch allen g ed action of the defendant, and not . . . th[e] result [of] the in d ep en d en t action of some third party not before the court. Third, it m u st be likely, as opposed to merely speculative, that the injury will b e redressed by a favorable decision.

B o ch ese v. Town of Ponce Inlet, 405 F.3d 964, 980 (11th Cir.) (internal quotation m a rk s omitted) (alterations in original), cert. denied, 126 S. Ct. 377 (2005). In ad d itio n to the constitutional requirements, there are also prudential standing p r in c ip le s, one of which requires that "a party generally may assert only his or her o w n rights and cannot raise the claims of third parties not before the court." Granite State Outdoor Adver., Inc. v. City of Clearwater, 351 F.3d 1112, 1116 (1 1 th Cir. 2003), cert. denied, 125 S. Ct. 48 (2004).

First Amendment standing analysis may be complicated further by the o v erb read th doctrine, which serves as an exception to the prudential principle n o ted above. Under overbreadth, "a party may bring a First Amendment case assertin g the rights of third parties if a statute is constitutionally applied to the litig an t but might be unconstitutionally applied to third parties not before the co u rt." CAMP Legal Def. Fund, Inc. v. City of Atlanta, 451 F.3d 1257, 1270-71 (1 1 th Cir. 2006) (internal quotation marks omitted). Significantly, the overbreadth d o c tr in e does not relieve a plaintiff from having to establish constitutional s ta n d in g ; it is simply an exception to one of the prudential requirements. See id. at 1 2 7 0 (noting that "[t]he overbreadth doctrine does not relieve a plaintiff of the b u r d e n to prove constitutional standing"). Indeed, a plaintiff may bring an o v erb read th challenge to only those provisions of a law or ordinance that "affect its activ ities." Id. at 1273. In other words, the overbreadth doctrine does not change th e statutes or provisions of an ordinance a plaintiff may challenge; she can only co n test those which actually caused her injury. Rather, the overbreadth doctrine s im p ly allows a plaintiff to bring a facial challenge to a provision of law that c au s e d her injury, regardless of whether the provision's regulation of her conduct in particular was constitutional.

T h e city first argues that KH Outdoor does not have standing to seek an in ju n ctio n against enforcement of section 1.0 of the ordinance. The city's arg u m en t is a simple one. The permits were denied because they failed to comply w ith the size and location requirements set forth in section 20.0. Therefore, the city argues, KH Outdoor has standing to challenge only section 20.0, and not sectio n 1.0. The city's argument fails because it attempts to read section 20.0 in iso latio n , divorced from those parts of the ordinance that provide the basic d efin itio n al structure for the terms used in section 20.0 and which more generally d efin e the scope of signs allowed by section 20.0.

The parties do not dispute that KH Outdoor has constitutional standing to c h a lle n g e section 20.0 -- indeed, counsel for the city conceded as much at oral a rg u m e n t. KH Outdoor suffered a concrete and actual injury when its permits were d en ied ; plainly, the injury was caused by the city's application of section 20.0 of th e ordinance; and the injury undeniably can be redressed by the courts. Thus, KH O u td o o r has standing to challenge the provisions found in section 20.0. Moreover, it seems abundantly clear that section 20.0 cannot be read or even understood w ith o u t also considering section 1.0, which explicitly provides the purpose and in ten t of the ordinance as a whole (and which expressly concludes that any sign not sp ecifically permitted is prohibited), and section 2.0, which defines the very terms u s e d in section 20.0. It would be incongruous indeed to suggest that a plaintiff c o u ld challenge a particular provision of a statute, but somehow refuse to consider th e expressed purpose of the statute or the definitions of the very terms used in the p r o v is io n in question. The purpose and definition provisions of the ordinance affect KH Outdoor's activities in the same way that section 20.0 affects its a ctiv itie s; the three combine to form the basis for the city's permit denial. See C A M P Legal Def. Fund, 451 F.3d at 1273 (noting that a plaintiff may challenge o n ly those provisions of an ordinance that "affect its activities").

Once it is established that KH Outdoor has standing to challenge section 2 0 .0 , the overbreadth doctrine allows that challenge to that specific provision based o n its impact on third parties. So, although the permits in this case were actually d en ied because KH Outdoor wanted to put billboards on roads that were not in te rs ta te highways, in violation of section 20.0, and also sought to construct them w ith in 1500 feet of other billboards, in violation of section 20.0(D)(1), KH O u td o o r is not limited to an as-applied challenge to section 20.0 based on only th o se facts. See id. at 1271 (holding that "the overbreadth doctrine allows a p lain tiff, who has suffered injury under one provision, to challenge that provision o n facts other than those that apply to the plaintiff"). Thus, under the overbreadth d o ctrin e, KH Outdoor is free to challenge facially section 20.0. Even though the p erm it applications in this case did not specify whether the signs would be used for co m m ercial or noncommercial purposes, KH Outdoor remains free to allege (as it d id ) that by restricting the largest permissible signs to billboards, which by d efin itio n may contain only commercial speech, the city unconstitutionally d is cr im in a te s against noncommercial speech. See id. ("A plaintiff who has e sta b lis h e d constitutional injury under a provision of a statute as applied to his set o f facts may also bring a facial challenge, under the overbreadth doctrine, to v in d icate the rights of others not before the court under that provision."); Granite S tate Outdoor Adver., Inc., 351 F.3d at 1117 (allowing a challenge to a section of an ordinance under which billboard permits were denied "as applied to [the p la in tif f] and, under the overbreadth doctrine, as applied to non-commercial sp eech "); Dimmitt v. City of Clearwater, 985 F.2d 1565, 1571 (11th Cir. 1993) ("W h ere the statute governs both commercial and noncommercial speech, h o w ev er, a litigant with a commercial speech interest may nonetheless qualify by v irtu e of the overbreadth rule to assert the speech rights of third parties with n o n co m m ercial speech interests."). In short, KH Outdoor has standing to raise the v ery challenge that led to the district court's permanent injunction. III.

N e x t, the city argues that even if KH Outdoor has standing, the ordinance d o e s not unconstitutionally discriminate against noncommercial speech and that th e district court erred in striking down section 1.0.5 The governing standard is by n o w clear enough: A district court may grant injunctive relief only if the moving party sh o w s that: (1) it has a substantial likelihood of success on the merits; (2 ) irreparable injury will be suffered unless the injunction issues; (3) th e threatened injury to the movant outweighs whatever damage the p ro p o sed injunction may cause the opposing party; and (4) if issued, th e injunction would not be adverse to the public interest.

S ieg el v. LePore, 234 F.3d 1163, 1176 (11th Cir. 2000) (en banc) (per curiam).

For a permanent injunction, the standard is essentially the same, except that the m o v an t must establish actual success on the merits, as opposed to a likelihood of su ccess. Amoco Prod. Co. v. Vill. of Gambell, 480 U.S. 531, 546 n.12, 107 S. Ct.

1 3 9 6 , 1404 n.12 (1987).

As for the first consideration, the district court determined that KH Outdoor s u c ce ed e d on the merits because the ordinance impermissibly favors commercial sp eech to the detriment of noncommercial speech. We agree.

"In evaluating the constitutionality of an ordinance restraining or regulating sp eech , we first inquire whether the Ordinance is content-neutral." Solantic, 410 F .3 d at 1258 (internal quotation marks omitted). "If the ordinance is a contentn e u tr al time, place, and manner restriction, it is subject to intermediate scrutiny -th a t is, it must not restrict speech substantially more than necessary to further a leg itim ate government interest, and it must leave open adequate alternative ch an n els of communication." Id. "However, if the ordinance is content based, it is su b ject to strict scrutiny, meaning that it is constitutional only if it constitutes the least restrictive means of advancing a compelling government interest." Id. "As a g e n e r a l rule, laws that by their terms distinguish favored speech from disfavored s p e ec h on the basis of the ideas or views expressed are content based." Turner B ro ad . Sys., Inc. v. FCC, 512 U.S. 622, 643, 114 S. Ct. 2445, 2459 (1994). "On th e other hand, a content-neutral ordinance is one that places no restrictions on . . . e ith e r a particular viewpoint or any subject matter that may be discussed." Solantic, 410 F.3d at 1259 (internal quotation marks omitted) (alteration in o r ig in a l) .

T h e Supreme Court has afforded commercial and noncommercial speech d ifferen t treatment under the First Amendment. See Metromedia, Inc. v. City of S an Diego, 453 U.S. 490, 506, 101 S. Ct. 2882, 2892 (1981) (plurality opinion) (n o tin g that in a prior case the Supreme Court had continued "to observe the d istin ctio n between commercial and noncommercial speech, indicating that the fo rm er could be forbidden and regulated in situations where the latter could not b e"). In Metromedia, a plurality of the Supreme Court found a City of San Diego sig n ordinance unconstitutional because it allowed on-site commercial advertising w h ile banning on-site noncommercial advertising, which thereby impermissibly fav o red commercial over noncommercial speech. Id. at 512-13, 101 S. Ct. at 2895.

Although Metromedia did not result in a majority opinion, we have followed the p lu rality's reasoning in our own decisions. See, e.g., Coral Springs St. Sys., Inc. v. C ity of Sunrise, 371 F.3d 1320, 1343-44 (11th Cir. 2004) (noting that Metromedia d o e s not permit a city to impermissibly favor commercial over noncommercial sp eech and upholding an ordinance that made no such distinction); Café Erotica of F la., Inc. v. St. Johns County, 360 F.3d 1274, 1290 (11th Cir. 2004) (applying the f ra m e w o r k set forth by the Metromedia plurality); Messer v. City of Douglasville, 9 7 5 F.2d 1505, 1508-09 (11th Cir. 1992) (same).

T h e Metromedia plurality explained its reasoning in these terms: [ O ]u r recent commercial speech cases have consistently accorded n o n c o m m e rc ia l speech a greater degree of protection than commercial sp eech . San Diego effectively inverts this judgment, by affording a g r e ate r degree of protection to commercial than to noncommercial s p e ec h . . . . The use of onsite billboards to carry commercial m essag es related to the commercial use of the premises is freely p e r m itte d , but the use of otherwise identical billboards to carry n o n co m m ercial messages is generally prohibited. . . . Insofar as the city tolerates billboards at all, it cannot choose to limit their content to co m m ercial messages; the city may not conclude that the co m m u n icatio n of commercial information concerning goods and serv ices connected with a particular site is of greater value than the co m m u n icatio n of noncommercial messages.

M etro m ed ia, 453 U.S. at 513, 101 S. Ct. at 2895 (emphasis added); see also City of C in cin n ati v. Discovery Network, Inc., 507 U.S. 410, 426, 113 S. Ct. 1505, 1515 ( 1 9 9 3 ) (striking down an ordinance that treated newsracks with commercial p u b lic atio n s differently from those with noncommercial publications); Café E r o tic a, 360 F.3d at 1290-91. Thus, to the extent a city permits billboards, it may n o t restrict those billboards only to those with commercial messages.

T h e ordinance in this case represents a content-based restriction on n o n c o m m e rc ia l speech similar to the one we found unconstitutional in Café E ro tica. In Café Erotica, the ordinance in question limited the size of n o n c o m m e rc ia l signs to 32 square feet. 360 F.3d at 1287. However, it allowed b illb o ard s, which were defined in a provision that made no mention of n o n c o m m e rc ia l signs, to be as large as 560 square feet. Id. at 1287 n.20. A panel o f this Court determined that because the ordinance allowed commercial messages to be displayed more prominently than noncommercial ideas, it had to be evaluated as a content-based restriction. See id. at 1289.

T h e Café Erotica ordinance was determined to be unconstitutional because it allo w ed commercial speech to be displayed on signs larger than those that could be u s e d for noncommercial messages. We explained how Metromedia compelled that r e s u lt: In Metromedia, the provision struck down allowed all onsite c o m m e rc ia l billboards, but almost completely banned similar n o n c o m m e rc ia l signs. The instant case involves a similar u n co n stitu tio n al preference, but in the form of greater size restrictions fo r noncommercial messages vis-á-vis commercial ones. While [the C a fé Erotica ordinance] does not involve a complete ban on political s p e ec h , neither did the Metromedia ordinance, as it provided several ex em p tio n s from the permitting requirements for certain n o n co m m ercial speech. Just as in Metromedia, "the [County] may not co n clu d e that the communication of commercial information co n cern in g goods and services connected with a particular site is of g reater value than the communication of noncommercial messages.

[ M e tr o m e d ia , 453 U.S.] at 513, 101 S. Ct. 2882. By limiting the size o f political messages to roughly 1/17 that of commercial ones, that is p r e cis ely what the County has done.

C af§ 2.0 (defining a b illb o ard as an "off-premise sign which directs attention to a business, commodity, serv ice or entertainment, sold or offered for sale at a location other than the p rem ises on which said sign is located"). Thus, the largest signs allowed by the city's ordinance may contain only commercial messages.6 Moreover, section 1.0 6 This conclusion was confirmed by counsel for the city, who engaged in the following colloquy with the district judge: The Court: So where is an off-premise sign expressed that is not commercial expressly permitted [in] the ordinance? What section? Mr. Owens: Well, I don't think it is.

...

The Court: But you agree with me that there's no place in the ordinance that permits off-premise billboards that have non-commercial content? Mr. Owens: Right. o f the ordinance makes clear that any sign not "specifically permitted" by the law is prohibited. Therefore, because section 20.0 is the sole provision allowing billboards, and because section 20.0 makes no mention of noncommercial speech a n d , indeed, statutorily limits billboards to those signs containing commercial s p e ec h , noncommercial billboards are not allowed in the City of Trussville.

B e ca u s e section 20.0 undeniably favors commercial speech over n o n c o m m e rc ia l speech, it is a content-based restriction that will pass constitutional m u ster only if it is the least restrictive means of advancing a compelling g o v e r n m e n t interest. See Solantic, 410 F.3d at 1258. The city nevertheless argues th at section 20.0 is a valid time, place, and manner restriction that advances the s u b s ta n tia l interests of health, safety, and aesthetics. However, as we noted in Café E ro tica, that argument will not carry the day when billboards are permitted in p recisely the same locations, but only for commercial messages. 360 F.3d at 1291.

The city has offered no reason (and we can discern none) why it is any less safe or To the extent the city now argues that section 3.0(O) allows noncommercial billboards, we are unpersuaded. Section 3.0(O) provides that "No off-premise signs shall be allowed except as provided in Section 20.0 . . . . However a sign which expresses a person's opinion, such as freedom of speech expressions, have no premise and can be erected if in conformity with the sign regulations for that respective zone." First, the argument that section 3.0(O) permits noncommercial billboards is directly contrary to what counsel told the district court. Second, section 3.0(O) is hardly a model of clarity, and we are not convinced that it would allow a noncommercial billboard. Nevertheless, to the extent that counsel believes section 3.0(O) allows noncommercial billboards, he should have raised that argument before the trial court instead of affirmatively agreeing to the contrary. See Miller v. King, 449 F.3d 1149, 1150 n.1 (11th Cir. 2006) (refusing to consider a claim raised for the first time on appeal). aesth etic for a noncommercial billboard to abut an interstate highway than it is for a commercial billboard to occupy the very same location. See City of Cincinnati, 5 0 7 U.S. at 425-26, 113 S. Ct. at 1514-15 (rejecting "esthetics" as a justification f o r differing treatment because the banned commercial newsracks were just as v isu ally unappealing as were the permissible noncommercial newsracks). Thus, th e ordinance fails strict scrutiny and is unconstitutional.7 T h e district court did not engage in a discussion of the remaining injunction co n sid eratio n s, but they are easily satisfied in this case. Regarding irreparable in ju r y , it is well established that "[t]he loss of First Amendment freedoms, for even m in im al periods of time, unquestionably constitutes irreparable injury." Elrod v. B u rn s, 427 U.S. 347, 373, 96 S. Ct. 2673, 2690 (1976) (plurality opinion); see also F la . Businessmen for Free Enter. v. City of Hollywood, 648 F.2d 956, 958 (5th Cir. U n it B June 1981) (quoting Elrod).8 As we held in Northeastern Fla. Chapter of 7 For similar reasons, we agree with the district court's conclusion that the ordinance unconstitutionally discriminates against noncommercial speech over commercial speech by requiring political signs to be only temporary in nature, while allowing commercial signs to be displayed without time restrictions. Just as the city may not discriminate against noncommercial speech by limiting the size of noncommercial messages (as compared to the size of signs that may display commercial speech), it may not discriminate against noncommercial speech by limiting the time during which noncommercial messages may be displayed (as compared to the length of time permitted for commercial messages). See Solantic, 410 F.3d at 1264-65 (striking down a sign ordinance that prohibited the display of political signs for more than fourteen days before an election and two days after the election without imposing similar time restrictions on commercial signs or non-political noncommercial messages).

8 In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), we adopted as binding precedent all of the decisions of the former Fifth Circuit handed down prior th e Ass'n of Gen. Contractors of America v. City of Jacksonville, [t]he only area of constitutional jurisprudence where we have said that an on-going violation constitutes irreparable injury is the area of first am en d m en t and right of privacy jurisprudence. The rationale behind th ese decisions was that chilled free speech and invasions of privacy, b ecau se of their intangible nature, could not be compensated for by m o n e y damages; in other words, plaintiffs could not be made whole.

8 9 6 F.2d 1283, 1285 (11th Cir. 1990) (citations omitted).

Although a violation of the First Amendment "does not automatically r eq u ir e a finding of irreparable injury, thus entitling a plaintiff to a preliminary in ju n ctio n if he shows a likelihood of success on the merits," the injury in this case co n stitu ted "direct penalization, as opposed to incidental inhibition" of First A m en d m en t rights and thus could not be remedied absent an injunction. Hohe v. C asey, 868 F.2d 69, 72-73 (3d Cir. 1989) (internal quotation marks omitted).

Thus, although the district court did not make explicit findings as to irreparable in ju r y , it did not abuse its discretion on those grounds, because the injury ( ca te g o r ic ally barring speech by prohibiting noncommercial billboards) was of a n atu re that could not be cured by the award of monetary damages. See Cate v. O ld h am , 707 F.2d 1176, 1188-89 (11th Cir. 1983) (noting that "direct penalization, a s opposed to incidental inhibition, of First Amendment rights constitutes irrep arab le injury" and that "[o]ne reason for such stringent protection of First to the close of business on September 30, 1981.

A m en d m en t rights certainly is the intangible nature of the benefits flowing from th e exercise of those rights; and the fear that, if these rights are not jealously safeg u ard ed , persons will be deterred, even if imperceptibly, from exercising those rig h ts in the future").

As for the third requirement for injunctive relief, the threatened injury to the p lain tiff clearly outweighs whatever damage the injunction may cause the city. As n o ted , even a temporary infringement of First Amendment rights constitutes a serio u s and substantial injury, and the city has no legitimate interest in enforcing an unconstitutional ordinance. For similar reasons, the injunction plainly is not a d v e r se to the public interest. The public has no interest in enforcing an u n c o n s titu tio n a l ordinance. See Fla. Businessmen, 648 F.2d at 959 (noting that "[t]h e public interest does not support the city's expenditure of time, money, and effo rt in attempting to enforce an ordinance that may well be held u n co n stitu tio n al"); see also Joelner v. Vill. of Washington Park, 378 F.3d 613, 620 (7 th Cir. 2004) (noting that "there can be no irreparable harm to a municipality w h en it is prevented from enforcing an unconstitutional statute because it is always in the public interest to protect First Amendment liberties" (internal quotation m ark s omitted)); Planned Parenthood Ass'n of Cincinnati, Inc. v. City of C in cin n ati, 822 F.2d 1390, 1400 (6th Cir. 1987) (finding that the public's interest is in "prevention of enforcement of ordinances which may be unconstitutional").

Q u ite simply, the district court did not abuse its discretion by enjoining the e n f o r c em e n t of section 1.0 of the ordinance. Each of the four factors we consider w h en determining whether injunctive relief is warranted weighs heavily in favor of g ran tin g KH Outdoor's request. And the district court imposed the least restrictive in ju n ctio n possible by simply enjoining enforcement of that portion of the o rd in an ce prohibiting signs not specifically provided for elsewhere in the o rd in an ce. With that provision eliminated, section 20.0 provides regulations for co m m ercial billboards, and nothing in the ordinance prohibits a sign of comparable size containing noncommercial speech. Accordingly, we affirm the injunctive o rd er issued by the district court.

A F F IR M E D .

1 The sign ordinance creates a comprehensive scheme for regulating the content, permitting, placement, number, design, operation, and maintenance of signs within the city. Section 1.0 describes the purpose and intent of the ordinance; section 2.0 provides definitions; section 3.0 lists general regulations and prohibited signs; section 4.0 lists signs exempt from the ordinance; sections 5.0 to 19.0 describe the signs permitted in various agricultural, commercial, industrial, institutional, park, and residential districts; section 20.0 provides regulations for billboard signs; section 21.0 governs off-premise signs; section 22.0 provides regulations for portable or temporary signs; section 23.0 sets forth the permitting, fee, and inspection regulations; section 24.0 governs abandoned signs; section 25.0 regulates dangerous or defective

200-349 sq. ft. 50 ft. 75-199 sq. ft. 30 ft. Less than 75 sq. ft. 15 ft. F. For every billboard sign installed within the Trussville city limits, one billboard sign shall be removed within the Trussville city limits.

3 Section 1.0 states in full: The purpose of these sign regulations is to provide minimum control of signs in Trussville to promote the health, safety, and general welfare by lessening hazards to pedestrians and vehicular traffic, by preserving property values, by preventing unsightly and detrimental development which has a blighting influence upon residential, business and industrial uses, and by preventing signs from reaching such excessive size or numbers that they obscure one another to the detriment of all concerned. If not otherwise stated, any sign not specifically permitted in a zoning district as provided under the applicable section, shall be prohibited in that district.

5 The city also argues that the district court erred by granting injunctive relief sua sponte. Contrary to the city's contention, KH Outdoor made clear from the beginning of the litigation that it was seeking injunctive relief when it filed its complaint titled "Complaint and Request For Injunctive Relief." The very first sentence of the complaint requests a preliminary and permanent injunction. Additionally, the prayer for relief in the complaint asks the district court to preliminarily and permanently "enjoin enforcement of the City's sign restrictions." Thus, the city was fairly placed on notice concerning the injunctive nature of the plaintiff's request, and nothing was done sua sponte. We add that the trial court has considerable discretion in determining whether "to flex the injunctive strong-arm of equity." Eli Lilly & Co., Inc. v. Generix Drug Sales, Inc., 460 F.2d 1096, 1099 (5th Cir. 1972).

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