                                 RECOMMENDED FOR FULL-TEXT PUBLICATION
                                      Pursuant to Sixth Circuit Rule 206
                                              File Name: 08a0015p.06

                        UNITED STATES COURT OF APPEALS
                                         FOR THE SIXTH CIRCUIT
                                           _________________


                                                     X
                                                      -
 MIDWEST MEDIA PROPERTY, L.L.C., CTI

                              Plaintiffs-Appellants, -
 PROPERTIES, L.L.C., and SPECKERT, L.L.C.,
                                                      -
                                                      -
                                                                           No. 06-3828

                                                      ,
          v.                                           >
                                                      -
                                                      -
                               Defendant-Appellee. -
 SYMMES TOWNSHIP, OHIO,

                                                      -
                                                     N

                                            Filed: January 10, 2008
               Before: CLAY and SUTTON, Circuit Judges; GREER, District Judge.*
                                              _________________
                                                   ORDER
                                              _________________
        The court having received a petition for rehearing en banc, and the petition having been
circulated not only to the original panel members but also to all other active judges of this court, and
less than a majority of the judges having favored the suggestion, the petition for rehearing has been
referred to the original panel.
       The panel has further reviewed the petition for rehearing and concludes that the issues raised
in the petition were fully considered upon the original submission and decision of the case.
Accordingly, the petition is denied.




         *
          The Honorable J. Ronnie Greer, United States District Judge for the Eastern District of Tennessee, sitting by
designation.


                                                          1
No. 06-3828           Midwest Media Property, et al. v. Symmes Twp., Ohio                       Page 2


       CLAY, Circuit Judge, dissenting from the denial of rehearing en banc, in which MARTIN,
MOORE and COLE, Circuit Judges, join. Because I believe that a panel of this Court is bound by
Sixth Circuit and Supreme Court precedent, I dissented from the original panel decision in this case.
Because I also believe that the en banc Court has a duty to resolve conflicts between new decisions
and earlier, incompatible precedents, I dissent as well from the denial of rehearing en banc.
        En Banc review of a panel decision is appropriate to prevent conflicting authority on a legal
question or to review a question of exceptional public importance. Fed. R. App. P. 35(a). In this
case, the panel majority denied standing to Plaintiffs challenging local sign construction ordinances
on First Amendment grounds. In so holding, the majority committed two precedent-setting errors
which conflict with prior decisions of this Court or the Supreme Court, thus justifying en banc
review. Because the challenged ordinances constitute a prior restraint and are therefore
unconstitutional in their entirety, the majority erred when it held that portions of the challenged sign
ordinances were both constitutional and severable from the whole. Moreover, the majority
improperly applied a heightened pleading standard when it held that this Court may ignore the
portions of Plaintiffs’ complaint which are not contained in the “substantive counts of the
complaint.”
        Furthermore, the majority misrepresents the record by claiming that Plaintiffs “chose not to
challenge” certain parts of the sign construction ordinances. Because this case concerns the First
Amendment, an unfavorable decision by this Court will forever bar Plaintiffs from engaging in their
preferred method of speech. The unconstitutional censorship which will likely result constitutes a
matter of exceptional public importance which also justifies en banc review.
I.     The Majority Opinion
        Plaintiffs were denied permits to erect commercial billboards in Symmes Township, Ohio
(“Township”), and challenged the Township’s sign regulations on First Amendment grounds. The
contested sign regulations provide numerous restrictions on the size and type of signs which may
appear in various locations throughout the Township. In pertinent part, the sign regulations prohibit
commercial advertising off the premises of the business being advertised. They require all signs to
be set back ten feet from pavement and rights-of-way, and five feet from adjoining property, and
they provide disparate standards for different categories of signs, such as signs identifying non-profit
organizations, construction signs, real estate signs, traffic control signs and political signs.
         In total, Plaintiffs submitted nine applications for a permit to construct a sign in the
Township, each of which were rejected by the Township either for failing to comply with the
prohibition on “off premises signage,” for proposing a billboard “not next to interstate highway,”
for failing to comply with limits on the number of signs which could be constructed on a particular
parcel, or for exceeding height and area restrictions. Additionally, the Township now argues that,
in denying each application, it initially gave only a few of several valid justifications for denial
under the sign regulations. Specifically, the Township argues that each proposed sign violates the
restrictions on height and area and that they violate the rule against off-premises advertising.
Plaintiffs responded to the denial of its applications with this lawsuit seeking to enjoin the
challenged sign regulations, and arguing, among other claims, that the sign regulations constitute
unconstitutional content discrimination, and that the overall regulatory scheme constitutes a prior
restraint.
       In their complaint, Plaintiffs refer repeatedly to the regulations being challenged as the “Sign
Regulations,” a term which they define as referring to “Article XXXI of the Symmes Township
Zoning Resolution and, collectively to those sections of the Resolution that define [or] otherwise
regulate signs.” Nevertheless, the majority determined that “plaintiffs chose not to challenge the
size and height requirements in their complaint,” Midwest Media Property, L.L.C. v. Symmes
No. 06-3828           Midwest Media Property, et al. v. Symmes Twp., Ohio                       Page 3


Township, 503 F.3d 456, 461 (6th Cir. 2007), even though those size and height requirements appear
in Article XXXI of the Zoning Resolution, and they regulate signs.
         Having made this improper determination, the majority further determined that these size and
height requirements are severable from the overall sign regulatory scheme, and held that Plaintiffs
lack standing to bring their claim. According to the majority, even if the remainder of the sign
regulations were invalidated, “that would not redress plaintiffs’ injury because the size and height
restrictions still would preclude the township from approving their sign applications and thus still
would preclude plaintiffs from erecting each of these signs.” Id. at 461–62.
II.    Severability of a Prior Restraint
        Plaintiffs claim in count one of their complaint that “[t]he Sign Regulations require citizens,
organizations, and businesses to seek the prior approval of the Township officials prior to posting
signs. They fail, however, to circumscribe the time in which government officials must approve or
deny requests for permission to do so.” Assuming these allegations are true, the challenged
regulations therefore constitute an unconstitutional prior restraint. See Freedman v. Maryland, 380
U.S. 51, 58–59 (1965) (holding that, when private speech requires a prior license from a government
agency, this license must either be issued or denied “within a specified brief period”); see also Lusk
v. Village of Cold Spring, 475 F.3d 480, 487 (2d Cir. 2007) (invalidating an ordinance regulating
signs on prior restraint grounds); Cafe Erotica of Florida, Inc. v. St. Johns County, 360 F.3d 1274,
1282–83 (11th Cir. 2004) (same). Furthermore, when a prior restraint scheme lacks required judicial
safeguards, such a deficiency renders any part of the scheme which lacks these safeguards
unconstitutional. Deja Vu of Nashville, Inc. v. Metro. Gov't of Nashville and Davidson County, 274
F.3d 377, 402-03 (6th Cir. 2001). When the entire statutory scheme lacks these safeguards, then the
entire scheme is unconstitutional on its face. Id.
        In the instant case, Plaintiffs challenged the Township’s entire sign regulation scheme,
arguing that it amounts to an unconstitutional prior restraint. Yet the majority did not follow this
Court’s decision in Deja Vu of Nashville, instead holding that the regulations governing the size and
height of signs may be constitutional and severable from the overall scheme. Midwest Media, 503
F.3d at 463. The en banc Court should review this case to resolve this newly-created conflict
between Midwest Media and Deja Vu of Nashville.
         Furthermore, the majority’s error in ignoring Deja Vu of Nashville was compounded by its
subsequent decision to reach the merits of some of Plaintiffs’ claims in order to deny standing on
others. More than simply denying Plaintiffs standing in the entirety of their prior restraint claims,
the majority instead determined—incorrectly—that portions of the overall sign ordinance scheme
are constitutionally valid, then used this determination to hold that Plaintiffs lack a redressable
injury. Id. at 464. Not only does its holding on some of the merits of Plaintiff’s prior restraint claim
conflict with Sixth Circuit precedent, see Deja Vu of Nasvhille, 274 F.3d at 402–403, but its decision
to reach the merits of some portions of a claim and then use this merits determination to deny
standing on the remainder conflicts with both our well-established precedent and that of the Supreme
Court. See, e.g., Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 94–95 (1998) (“The
requirement that jurisdiction be established as a threshold matter spring[s] from the nature and limits
of the judicial power of the United States and is inflexible and without exception.”); 1064 Old River
Road, Inc. v. City of Cleveland, 137 Fed.Appx. 760, 764 (6th Cir. 2005) (“Before turning to the
merits, [a court] must address the plaintiffs’ standing to raise several constitutional claims and [ ]
must do so even though some of those constitutional claims are easier to resolve than the standing
question attached to them.”) We should review the panel decision en banc to resolve this conflicting
authority.
No. 06-3828                Midwest Media Property, et al. v. Symmes Twp., Ohio                                      Page 4


III.     The Majority’s Heightened Pleading Standard
        The majority also erred by applying a heightened pleading standard to Plaintiffs’ complaint.
Under Federal Rule of Civil Procedure 8(a)(2), a complaint must only contain “a short and plain
statement of the claim showing that the pleader is entitled to relief.” Erickson v. Pardus, 127 S.Ct.
2197, 2200 (2007). “Specific facts are not necessary; the statement need only ‘give the defendant
fair notice of what the . . . claim is and the grounds1 upon which it rests.’” Id. (quoting Bell Atlantic
Corp. v. Twombly, 127 S.Ct. 1955, 1964 (2007)).
        In the instant case, Plaintiffs alleged that “[t]he Sign Regulations require citizens,
organizations, and businesses to seek the prior approval of the Township officials prior to posting
signs. They fail, however, to circumscribe the time in which government officials must approve or
deny requests for permission to do so.” Furthermore, Plaintiffs expressly stated that the challenged
regulations include all “those sections of the Resolution that define [or] otherwise regulate signs.”
Based on this complaint, the Township had fair notice that the entirety of the sign regulations
contained in a particular resolution were under challenge, and that they were being challenged as
an unconstitutional prior restraint.
        The majority, however, applied a heightened pleading standard, holding that even though
Plaintiffs’ complaint expressly challenges all parts of Defendant’s sign ordinances, this language
must be ignored because it was not contained in the “substantive counts of the complaint.” Midwest
Media, 503 F.3d at 465. The majority cites no case law to support its unorthodox proposition that
only the “substantive counts” of a complaint should be read by this Court, and it provides no
definition of the words “substantive counts” to allow future judges to determine which portions of
a complaint should be ignored. Moreover, the majority’s unusual holding conflicts with the
Supreme Court’s decision in Erickson v. Pardus, and thus should be reviewed by the en banc Court.
IV.      Exceptional Public Importance
        The Supreme Court has held that “prior restraints on speech and publication are the most
serious and the least tolerable infringement on First Amendment rights.” Nebraska Press Assn. v.
Stuart, 427 U.S. 539, 559 (1976). By erroneously denying Plaintiffs standing, however, the majority
has subjected Plaintiffs to this most serious and least tolerable infringement. Furthermore, as the
majority’s decision leaves the Township free to maintain an unconstitutional system of prior
restraint, Plaintiffs may be permanently subjected to unconstitutional censorship. Such a possibility
presents a matter of exceptional public importance which should be reviewed by the en banc Court.
V.       Conclusion
        The panel majority’s decision not only errs as a matter of law, it creates unreconcilable
conflicts in an exceptionally important area of First Amendment jurisprudence. I pity the poor
litigants and district judges who, faced with such clashing decisions and lack of guidance from this




         1
           Twombly held that in some cases, a plaintiff must plead particular facts in their complaint. 127 S.Ct. at 1965.
In Erickson, a case decided just two weeks after Twombly, the Supreme Court clarified Twombly by holding that a
prisoner bringing a § 1983 claim against his captor is not required to state “[s]pecific facts” in their complaint; Erickson,
127 S.Ct. at 2200, and Twombly itself suggests that its holding may be limited to cases likely to produce “sprawling,
costly, and hugely time-consuming” litigation. 127 S.Ct. at 1973 n. 6. The instant case involves a § 1983 case with very
few factual disputes, not a complex business suit likely to produce sprawling discovery. Accordingly, this case is
governed by the Supreme Court’s decision in Erickson.
No. 06-3828           Midwest Media Property, et al. v. Symmes Twp., Ohio                     Page 5


Court, must now attempt to unravel the confusion which the panel majority has created. Even
worse, I regret that the en banc Court has chosen to remain silent on this question, thereby quashing
the First Amendment rights of Plaintiffs through its silence.


                                        ENTERED BY ORDER OF THE COURT


                                              /s/ Leonard Green

                                              Clerk
