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Land Use and Local Government Law and Litigation

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11th Cir Ct of Appeal on 1st Amendment/Signs - Know your Standing Doctrine

In KH Outdoor, Inc. v. City of Trussville, here's the link, the 11th Circuit Court of Appeals clarified how standing to challenge under the overbreadth doctrine works (at least in the 11th).

Ok, it's yet another billboard case. The ordinance has some serious defects in allowing commercial speech preference over non-commercial speech (off-site billboard ordinances often have this issue). It actually is screwed up enough to read such that any political sign can only be temporary.

When the City denies sign permits, the Plaintiff sues to invalidate the whole ordinance based on overbreadth, and wins in the 11th based on the defects above. The real story is how the 11th tries to "fix" the apparent inconsistencies in some of its earlier opinions.

Here's the upshot: once you're adversely affected by any part of a regulation that implicates the 1st amendment, you have standing to attack any part of the ordinance that also covers your activities (even if that wasn't the basis of the adverse decision) on the basis that it is overbroad as it would apply to other persons and their speech. After noting that the overbreadth doctrine does not eliminate standing requirements for getting into federal court, the opinion lays out this critical set of distinctions:
First Amendment standing analysis may be complicated further by the overbreadth doctrine, which serves as an exception to the prudential principle noted above. Under overbreadth, “a party may bring a First Amendment case asserting the rights of third parties if a statute is constitutionally applied to the litigant but might be unconstitutionally applied to third parties not before the court.” CAMP Legal Def. Fund, Inc. v. City of Atlanta, 451 F.3d 1257, 1270-71 (11th Cir. 2006) (internal quotation marks omitted). Significantly, the overbreadth doctrine does not relieve a plaintiff from having to establish constitutional standing; it is simply an exception to one of the prudential requirements. See id. at 1270 (noting that“[t]he overbreadth doctrine does not relieve a plaintiff of the burden to prove constitutional standing”). Indeed, a plaintiff may bring an overbreadth challenge to only those provisions of a law or ordinance that “affect activitiesties. " Id. at 1273. In other words, the overbreadth doctrine does not change the statutes or provisions of an ordinance a plaintiff may challenge; she can only contest those which actually caused her injury. Rather, the overbreadth doctrine simply allows a plaintiff to bring a facial challenge to a provision of law that caused her injury, regardless of whether the provision’s regulation of her conduct in particular was constitutional.

Based on this analysis, the Court held that the Plaintiff could challenge not only the sectthe ordinancerdiance that provided the location and setback provisions under which the sign permits were denied, but also could "look through" to the intent and definition sections, which contained the prohibition against signs not permitted and the definitions and provisions that created the violations of the 1st amendment as applied to other speakers or actors.

Again, a critical opinion for anyone who writes, defends or attacks sign ordinances and permits.

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