XXL of Ohio, Inc. v. City of Broadview Heights (341 F. Supp. 2d 765, 2004)

United States District Court for the Northern District of Ohio 2004-01-13

Citations

Full opinion text

MEMORANDUM OF OPINION AND ORDER .

MATIA, Chief Judge.

This action is before the Court upon Magistrate Judge Patricia A: Hemann’s Report and Recommendation (Doc. 85).

It is not necessary to duplicate Magistrate Judge Hemann’s thorough and exhaustive review of the law here. The Court, after lengthy de novo consideration of the objections filed by the defendants (Doc. 87) and the plaintiff (Doc. 89), overrules said objections and approves and adopts the report and recommendation— with two exceptions.

The Court does not agree with the magistrate judge’s recommendation that the defense of qualified immunity should not be available to the mayor and members of the city council of Broadview Heights. “[T]o find a clearly established constitutional right, a district court must find binding precedent by the Supreme Court, its court of appeals or itself.” Ohio Civil Serv. Employees Ass’n v. Seiter, 858 F.2d 1171, 1177 (6th Cir.1988). “For a right to be clearly established, ‘[t]he contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right.’ ” Centanni v. Eight Unknown Officers, 15 F.3d 587, 588 (6th Cir.) (quoting Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987)), cert. denied, 512 U.S. 1236, 114 S.Ct. 2740, 129 L.Ed.2d 860 (1994).

The Court finds that the law was not— indeed, is not — clearly established in this area.' Although a prior case in this district struck down a similar ordinance, North Olmsted Chamber of Commerce v. City of North Olmsted, 86 F.Supp.2d 755 (N.D.Ohio 2000), there has been no decision by the Court of Appeals for the Sixth Circuit. In fact, certain aspects of the Broadview Heights sign code were previously upheld by this Court. Sims v. City of Broadview Heights, No. 1:91cv1070 (N.D. Ohio filed March 11,1993), rev’d and remanded, 41 F.3d 1507, 1994 WL 637806 (6th Cir. Nov.14, 1994), No. 1:91cv1070 (N.D. Ohio filed Aug. 7, 1995), appeal dism’d per stipulation, No. 95-3957 (6th Cir. filed June 10, 1997). Additionally, other district courts have disagreed with the North Olmsted analysis. E.g., Granite State Outdoor Advertising, Inc. v. City of Clearwater, Florida, 213 F.Supp.2d 1312, 1328 (M.D.Fla.2002), affd in part, rev’d in part, and remanded, 351 F.3d 1112 (11th Cir.2003). Thus it cannot be said that the law was clearly established when the city officials took the action that led to this complaint.

The Court also declines to overturn Chapter 1479 of the Certified Ordinances of Broadview Heights (“the sign ordinance” or “the ordinance”) en toto or order the alteration of the ordinance. The undersigned doesn’t think a judge should order a legislative body to alter an ordinance. The magistrate judge has indicated how the sign ordinance could be changed to pass constitutional muster, but the decision whether to do so is properly left to the council.

Moreover, this Court wishes to make it perfectly clear that it does not agree with the current state of the law with respect to First Amendment protection for commercial speech. However, the Court is bound to follow Supreme Court interpretations, no matter how mistaken they may be. Accordingly,

1.Plaintiffs motion for summary judgment (Doc. 57) is GRANTED and defendants’ motion for summary judgment (Doc. 67) is DENIED as to the following claims:

a.the ordinance unconstitutionally restricts non-commercial speech and im-permissibly discriminates as to non-commercial speech according to its content;

b. the ordinance impermissibly discriminates as to commercial speech according to content;

c. the ordinance is an impermissible prior restraint of speech;

d. the selective prohibition on pole signs in the sign ordinance makes impermissible content-based distinctions; and

e. The City of Broadview Heights violated the plaintiffs right to procedural due process in removing the pole sign.

2. Defendants’ motion for summary judgment (Doc. 67) is GRANTED as to the plaintiffs claim that Broadview Heights’ application of the sign ordinance violates the equal protection clause.

3. Plaintiffs motion for summary judgment (Doc. 57) is GRANTED IN PART and defendants’ motion for summary judgment (Doc. 67) is GRANTED IN PART as to:

a. the plaintiffs claim that certain terms in the ordinance are void for vagueness (as described on pp. 806-08 of the Report and Recommendation); and

b. the plaintiffs claim that the sign ordinance facially violates the equal protection clause (as described on pp. 810-12 of the Report and Recommendation).

4. The Court declines to rule on the arguments regarding whether Broadview Heights’ sign ordinance violates Ohio’s ban on retroactive zoning changes because they involve issues of state law made moot by the Court’s resolution of the plaintiffs federal claims.

5. The named individual defendants are entitled to qualified immunity.

6. Plaintiffs motion for summary judgment (Doc. 57) and defendants’ motion for summary judgment (Doc. 67) are DENIED as to all other claims.

IT IS SO ORDERED.

REPORT AND RECOMMENDATION

Docket ## 57, 67

HEMANN, United States Magistrate Judge.

I. Outline

Magistrate judge jurisdiction.

Background.

General questions of law.

First Amendment claims .

Standing and overbreadth.

Standards of review.

Non-commercial speech .

Content-based restrictions on non-commercial speech.

Content-neutral restrictions on non-commercial speech.

Commercial speech.

The ordinance and content discrimination.

Content discrimination in the ordinance and non-commercial speech

Content-based restrictions on speech in the ordinance.

The extent of content-based restrictions on non-commercial speech Content-based restrictions on non-commercial speech and strict

review. *q OO ZD

Content discrimination in the ordinance and commercial speech. -q CD to

Standard of review. -q CD to

Restrictions on commercial speech and the time, place, and manner test. -q zo to

Content-based restrictions on commercial speech . -q zo to

Content-based restrictions on commercial speech not narrowly tailored.

The ban on pole signs.

The ordinance and prior restraint.'.

Permits and prior restraint.

The permit scheme in Broadview Heights’ sign ordinance.

Broadview Heights’ sign ordinance as a system of prior restraint ..

Severability.

The standard for severability.

Severability and violations of the First Amendment in the ordinance

Conclusions .

Vagueness claim.

The standard for determining impermissible vagueness.

Vagueness in the sign ordinance .

Severability of impermissibly vague terms.

Conclusions .

Equal protection claims .

Alleged facial violation of the equal protection clause.

Alleged violation of the equal protection clause as applied ....

Severance .

Conclusions .

Due process claim.

Standing and ripeness.

Process in the sign ordinance.

Removal of XXL’s pole sign and procedural due process.

Retroactive zoning.

Individual liability for city officials.

Pleading individual liability for municipal officials.:.

Whether XXL has sufficiently pleaded individual responsibility.

Liability for individual defendants.818

The standard for qualified immunity .819

Qualified immunity and the individual defendants.820

Conclusion.824

II. Magistrate judge jurisdiction

This case is before the magistrate judge on referral. Pending is the motion of plaintiff, XXL of Ohio, Inc. (“XXL”), for summary judgment (“PI. mot.”; Docket # 57). Defendants, the City of Broadview Heights (“Broadview Heights” or “the city”) and past and present city officials, oppose this motion. Also pending before the court is the motion of defendants for summary judgment (“Def. mot.”; Docket # 67). For the reasons given below the magistrate judge recommends that the court grant plaintiffs motion in part and overrule it in part and grant defendants’ motion in part and overrule it in part.

III. Background

Plaintiff, XXL, is an Ohio corporation which owns and operates a Tallyho Motel (“the motel”) in Broadview Heights. The motel is located on State Route 82 and is about a tenth of a mile from Interstate 77 (“1-77”). This case is before the court because, pursuant to the city’s sign ordinance, Broadview Heights has refused to allow XXL to retain its current signage. Defendants are Broadview Heights, the mayor of Broadview Heights, and all members of the city’s council at the time the city refused to allow XXL to retain its signage.

Broadview Heights adopted a comprehensive sign ordinance (“the sign ordinance” or “the ordinance”) on November 5, 1990. Certified Ordinances of Broadview Heights (“C.O.B.H.”) Ch. 1479. The sign ordinance expresses certain objectives to be achieved by the ordinance as enacted:

This chapter is established to control the type, design, size, location and maintenance of signs in order to achieve the following objectives:

(1) To promote and maintain high quality residential districts and attractive public facilities;

(2) To provide for appropriate signs for identifying business by relating the size, type and design of signs to the type, size and nature of the establishment;

(3) To control the design and size of all signs so that they will be harmonious with their surrounding areas;

(4) To provide a safe environment by eliminating any conflict between advertising or identification signs and traffic control signs which would be hazardous to the safety of the public;

(5) To control temporary signs and prohibit undesirable impacts on property values and neighborhood character; and

(6) In business districts, to provide for appropriate signs for advertising goods or services rendered in keeping with the type of establishment involved.

C.O.B.H. § 1479.01(a). The sign ordinance also incorporates certain conclusions as justification for the ordinance:

[T]he City has determined that, without adequate regulation and design standards, signs are a nuisance. The number of signs in Broadview Heights is excessive and is unduly distracting to motorists and pedestrians, creates a traffic hazard, and in some places reduces the effectiveness of signs needed to direct the public. As the appearance of the City is marred by the excessive number, oversized and poorly designed signs, both residential and business property values are adversely affected. Therefore, the number of such distracting signs ought to be reduced and signs permitted should comply with the standards of this chapter in order to reduce the aforementioned effects.

(1) The signs of least value to the people of Broadview Heights are those which carry commercial messages other than the advertisement of any product, service, event, person, institution or business located on the premises where the sign is located.

(2) In view of the foregoing, all signs not conforming with the provisions of this chapter are hereby declared a nuisance. It is further declared that the regulations contained in this chapter are the minimum regulation necessary to abate the nuisance and to achieve the purposes of this chapter.

C.O.B.H. § 1479.01(b).

The sign ordinance governs commercial and non-commercial signs. It classifies signs by use type and structural type, and the classification “use type” is further divided into permanent and temporary signs:

(1) Permanent signs.

A. Billboard. One which directs attention to a specific business, product, service, entertainment or other activity sold, offered or conducted elsewhere than upon the same lot on which the sign is located.

B. Bulletin board. An announcement sign which directs attention to and is located on the lot which is the subject of said sign.

C. Directional sign. One indicating the direction pedestrian or vehicular traffic is requested to move on that location.

D. Identification sign. One indicating the name and address of a building, development, public or semipublic facility, business, office or industrial establishment. Such signs may also include the names of tenants, general type of goods sold, or services rendered; however, the listing of specific goods or services, brand names, prices, “sale” or telephone numbers shall not be permitted.

E. Information signs. One which presents miscellaneous information intended to serve the public. Typical signs present travel information, vehicle service, weather, time, historic and scenic sites, recreation facilities, etc. An informational sign may be permitted in any district upon approval of the Planning Commission.

F. Nameplate. One which indicates the name, address or profession of a person or persons occupying a building or unit of a building.

G. Handicapped parking. A sign indicating a parking area reserved for a vehicle exhibiting a State issued disabled persons parking permit or license plate. The sign shall be at eye level, blue with the standard white profile of a wheelchair and occupant in the center. The sign may also include the warning statement “Unauthorized vehicles will be towed away at the owners [sic] expense.”

(2) Temporary signs.

A. Project sign. One indicating the promotion, development and construction on the property on which it is located, and which sign may include the owner, architects, engineers, contractors and other individuals or firms involved with the construction.

B. Real estate sign. A ground sign calling attention to rental, sale or lease of property where it is posted.

C. Sale sign. A window sign, such as “sale,” “special,” “clearance,” symbolic or graphic signs, such as a red heart for Valentine’s Day, or identifying prices and/or items for sale.

D. Special event sign. One which may be in the street right of way announcing a public function.

E. Specific product sign. One which only indicates a specific class of products or product from a company.

F. Temporary directional sign. A ground sign directing vehicular or pedestrian traffic to a temporary activity taking place at another, but nearby, location, such as an open house sign for the sale of real estate.

G. Political sign. A sign referring to a political contest, involving candidates and/or issues.

H. Temporary identification sign. A sign indicating the name and address of a building, development, public or semipublic facility, business, office or industrial establishment.

C.O.B.H. § 1479.03(a).

The sign ordinance sets forth where, when, and how signs may be erected and maintained according to use and structural type and requires a permit “to erect, place, paint, relocate or alter” any permanent or temporary sign except certain temporary signs. C.O.B.H. § 1479.13. One provision of the sign ordinance bans pole signs. C.O.B.H. § 1479.07(e).

The sign ordinance as originally enacted required the removal of all nonconforming signs by November 5, 1995. This deadline was later extended to November 5, 1996. The current version of the ordinance requires the removal of nonconforming signs, including those signs which existed and were permitted prior to passage of the sign ordinance, “at any time that the ownership of the underlying business or activity to which the sign refers is changed and/or at such time that a change of fascia of the sign is requested.” C.O.B.H. § 1479.15(c). The city may remove a nonconforming sign as a nuisance if the sign’s owner fails to remove the sign when ordered to do so by the Building Commissioner. C.O.B.H. §§ 1479.14 & 1479.19.

Plaintiffs signage included a pole sign visible from 1-77 and a second pole sign not visible from the highway. The second pole sign was shared with a restaurant owned by Arnold Davis (“Davis”) and located in front of the motel. These signs predated passage of the sign ordinance and are nonconforming signs under the ordinance. Plaintiff bought the motel after passage of the sign ordinance and changed the fascia of the motel’s signs to reflect the new name of the hotel.

On August 20, 2000, after the transfer of ownership of the hotel and a change of fascia of the signs at the motel, the city began issuing citations to XXL for violations of the sign ordinance and demanded that XXL remove the hotel’s nonconforming signs. XXL filed the instant action challenging the sign ordinance on November 1, 2001. XXL alleges that the sign ordinance is unconstitutional under the First, Fifth, and Fourteenth Amendments and violates Ohio law. Defendants deny these allegations. XXL seeks an order permanently enjoining enforcement of the sign ordinance. XXL also seeks $2,500,000 and costs and expenses, including reasonable attorney fees, pursuant to 42 U.S.C. § 1983 (§ 1983).

On November 14, 2001 the court entered an order which, inter alia, prohibited XXL from erecting any new signs for the motel and requiring that defendant Broadview Heights “shall not remove or dismantle nor cause or attempt to cause the removal or dismantling of the sign(s) referred to in the Complaint due to any noncompliance with the Codified Ordinances.... ” Order (Docket # 19), pp. 1-2. On November 13, 2002, Davis removed the pole sign that his restaurant shared with the motel. Davis effected this removal upon order of the Broadview Heights Building Commissioner.

XXL moves for summary judgment on five grounds: (1) the ordinance impermis-sibly restricts speech protected by the First Amendment and the Ohio Constitution, (2) provisions in the ordinance are void for vagueness, (3) the ordinance violates the equal protection clause of the Fourteenth Amendment, (4) section 1479.14 of the ordinance violates procedural due process, and (5) the ordinance violates Ohio’s protections against retroactive zoning. XXL further claims that the unconstitutional provisions of the ordinance are not severable from the constitutional provisions and moves the court to overturn the entire ordinance. Defendants oppose XXL’s motion and move for summary judgment on XXL’s claims.

IV. General questions of law

Summary judgment “shall be rendered if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show there is no genuine issue of material fact and the moving party is entitled to a judgment as a matter of law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The moving party must demonstrate to the court through reference to pleadings and discovery responses the absence of a genuine issue of material fact. Celotex, 477 U.S. at 323, 106 S.Ct. 2548. The nonmov-ing party must then show the existence of a material fact which must be tried. Id. at 324, 106 S.Ct. 2548.

When evaluating a motion for summary judgment, “the inferences to be drawn from the underlying facts ... must be viewed in the- light most favorable to :.. the party opposing the motion.... ” United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 8 L.Ed.2d 176 (1962); see also Poller v. Columbia Broad. Sys., Inc., 368 U.S. 464, 473, 82 S.Ct. 486, 7 L.Ed.2d 458 (1962); Aetna Ins. Co. v. Loveland Gas & Elec. Co., 12 Ohio Misc. 230, 369 F.2d 648 (6th Cir.1966). This includes taking the nonmoving party’s un-contradieted allegations as true and giving the benefit of the doubt to the nonmoving party’s assertions when they conflict with those of the movant. Bishop v. Wood, 426 U.S. 341, 96 S.Ct. 2074, 48 L.Ed.2d 684 (1976); Bosely v. City of Euclid, 496 F.2d 193, 197 (6th Cir.1974).

• The court’s treatment of facts and inferences in a light favorable to the nonmoving party does not relieve that party of its obligation “to go beyond the pleadings” to oppose an otherwise properly supported motion for summary judgment under Rule 56(e). See Celotex, 477 U.S. at 324, 106 S.Ct. 2548. The nonmoving party must oppose a proper summary judgment motion “by any of the kinds of evidentiary material listed in Rule 56(c), except the mere pleadings themselves.... ” Id. A scintilla of evidence in favor of the non-moving party is not sufficient. There must be enough evidence that a reasonable jury could find for the nonmoving party. Street v. J.C. Bradford & Co., 886 F.2d 1472, 1477 (6th Cir.1989).

V. First Amendment claims

XXL alleges that Broadview Heights’ sign ordinance as enacted violates the First Amendment in three ways: (1) in discriminating according to content; (2) in banning pole signs, and (3) in acting as a prior restraint on speech. XXL claims that these violations improperly burden both commercial and non-commercial speech. Broadview Heights denies that its ordinance impermissibly discriminates according to content or acts as a prior restraint on speech and denies that its ban on all pole signs offends the First Amendment. Broadview Heights further argues that XXL lacks standing to assert alleged violations of the First Amendment with regard to non-commercial speech. XXL replies that it has standing to assert claims regarding non-commercial speech because it has posted and wishes to post in the future non-commercial messages and because it has standing by virtue of the doctrine of overbreadth. The magistrate judge will first examine the question of XXL’s standing to allege First Amendment violations as regards non-commercial speech, then will examine the merits of XXL’s claims, beginning with consideration of the relevant standards of review.

A Standing and overbreadth

In addition to XXL’s claims that Broad-view Heights’ sign ordinance is unconstitutional as applied to XXL, XXL claims that the ordinance is facially overbroad. That is, XXL claims that on its face Broadview Heights’ sign ordinance burdens speech which is constitutionally protected.

As a rule “a person to whom a statute may constitutionally be applied may not challenge that statute on the ground that it may conceivably be applied unconstitutionally to others in situations not before the Court.” New York v. Ferber, 458 U.S. 747, 767, 102 S.Ct. 3348, 73 L.Ed.2d 1113 (1982). An exception to this rule is a challenge to laws and regulations on the ground that they are facially over-broad under the First Amendment. Such a challenges contends that “an otherwise valid law might be applied unconstitutionally in a specific context.” Amelkin v. McClure, 205 F.3d 293, 296 (6th Cir.2000). “Where an overbreadth attack is successful, the statute is obviously invalid in all of its applications, since every person to whom it is applied can defend on the basis of the same overbreadth.” Board of Trustees of the State Univ. of New York v. Fox, 492 U.S. 469, 483, 109 S.Ct. 3028, 106 L.Ed.2d 388 (1989).

The overbreadth exception to the general rule that a litigant may not defend the rights of other parties is warranted because “the transcendent value to all society of constitutionally protected expression is deemed to justify allowing ‘attacks on overly broad statutes with no requirement that the person making the attack demonstrate that his own conduct could not be regulated by a statute drawn with the requisite narrow specificity.’ ” Gooding v. Wilson, 405 U.S. 518, 520-521, 92 S.Ct. 1103, 31 L.Ed.2d 408 (1972) (quoting Dombrowski v. Pfister, 380 U.S. 479, 486, 85 S.Ct. 1116, 14 L.Ed.2d 22 (1965)). The exception ensures that persons who decline to engage in constitutionally-protected speech for fear of punishment may nonetheless have their First Amendment rights vindicated. Gooding, 405 U.S. at 520-521, 92 S.Ct. 1103; see also Los Angeles Police Dep’t v. United Reporting Publ’g Corp., 528 U.S. 32, 39, 120 S.Ct. 483, 145 L.Ed.2d 451 (1999).

Courts use the overbreadth doctrine reluctantly. “Because of the wide-reaching effects of striking down a statute on its face at the request of one whose own conduct may be punished despite the First Amendment, we have recognized that the overbreadth doctrine is ‘strong medicine’ and have employed it with hesitation, and then ‘only as a last resort.’ ” Ferber, 458 U.S. at 769, 102 S.Ct. 3348 (citing Broadrick v. Oklahoma, 413 U.S. 601, 613, 93 S.Ct. 2908, 37 L.Ed.2d 830 (1973)). A statute should be construed to avoid constitutional problems if the statute is subject to such a limiting construction. If the statute is not subject to a narrowing construction, only the unconstitutional portion of the statute should be invalidated if it is severable from the rest of the statute. Ferber, 458 U.S. at 769 n. 24, 102 S.Ct. 3348. If the statute cannot be construed to avoid constitutional problems and if the impermissible portion of the statute is not severable, then the overbreadth must be substantial before a statute will be invalidated on its face. Id. at 770-73, 102 S.Ct. 3348.

A statute which affects both speech and conduct will be invalidated under this doctrine only if the statute’s overbreadth is real and substantial in relation to its “plainly legitimate sweep.” Id., 458 U.S. at 769-70, 102 S.Ct. 3348. Overbreadth is real and substantial when there is “a realistic danger that the ordinance itself will significantly compromise recognized First Amendment protections of parties not before the Court.” Members of City Council v. Taxpayers for Vincent, 466 U.S. 789, 801, 104 S.Ct. 2118, 80 L.Ed.2d 772 (1984).

The overbreadth doctrine is inapplicable when the entire scope of an ordinance restricts only commercial speech. Village of Hoffman Estates v. The Flipside, Hoffman Estates, Inc., 455 U.S. 489, 496-97, 102 S.Ct. 1186, 71 L.Ed.2d 362 (1982). When an ordinance restricts both commercial and non-commercial speech, however, a party whose purely commercial speech has been sanctioned may assert the non-commercial speech rights of others by using the overbreadth doctrine. Fox, 492 U.S. at 481-82, 109 S.Ct. 3028; Metromedia, Inc. v. City of San Diego, 453 U.S. at 504 n. 11, 101 S.Ct. 2882, 69 L.Ed.2d 800 (1981).

Broadview Heights’ sign ordinance affects both commercial and non-commercial speech. See, e.g., C.O.B.H. § 1479.07(a) (prohibiting certain types of signs for purposes of advertising) and C.O.B.H. § 1479.19 (governing the removal of political signs). Thus, even though only XXL’s commercial speech is at issue in the instant case, XXL may assert the noncommercial speech rights of others by using the overbreadth doctrine.

The ordinance affects both speech and conduct. The ordinance affects the erection of a sign as well as the display of a flag, acts which are intended to communicate. See United States v. Grace, 778 F.2d 818, 821 (D.C.Cir.1985); Wooley v. Maynard, 430 U.S. 705, 713 n. 10, 97 S.Ct. 1428, 51 L.Ed.2d 752 (1977); see also American Legion Post 7 v. City of Durham, 239 F.3d 601 (4th Cir.2001) (finding the flying of the flag to be expressive conduct); Dimmitt v. City of Clearwater, 985 F.2d 1565, 1569 (11th Cir.1993) (finding a sign ordinance which “applies to virtually any form of graphic communication that is publicly displayed” to reach expressive conduct). The ordinance affects both purely expressive aspects of signs and the purely physical aspects of signs. Because the ordinance affects both speech and conduct, the court may invalidate the ordinance on its face only if the ordinance’s overbreadth, if any, is real and substantial.

Finally, because XXL applies the over-breadth doctrine to challenge portions of the statute not otherwise at issue in the instant case, the court must construe the ordinance so as to avoid constitutional problems, must sever any unconstitutional portion of the ordinance if severance is possible, and, if severance is not possible, may invalidate the ordinance on its face only if the overbreadth is substantial.

B. Standards of review

The standard of review for weighing alleged violations of the First Amendment’s Free Speech clause depends upon whether the restricted speech is non-commercial or commercial speech and whether the claimed unconstitutional restrictions are content-based or content-neutral.

1. Non-commercial speech

Generally, an ordinance may not impose greater restrictions on non-commercial speech than on commercial speech. Metromedia, 453 U.S. at 514-17, 101 S.Ct. 2882. In determining whether other restrictions on non-commercial speech are permissible, a court must consider whether the restrictions are content-based or content-neutral.

a. Content-based restrictions on noncommercial speech

With few exceptions, “[rjegula-tions which permit the Government to discriminate on the basis of the content of the message cannot be tolerated under the First Amendment.” Regan v. Time, Inc., 468 U.S. 641, 648-649, 104 S.Ct. 3262, 82 L.Ed.2d 487 (1984). The Supreme Court uses several measures to determine whether a restriction on speech is content-based or content-neutral. A law imposes content-based restrictions on speech when “the very basis for the regulation is the difference in content....” City of Cincinnati v. Discovery Network, Inc., 507 U.S. 410, 429, 113 S.Ct. 1505, 123 L.Ed.2d 99 (1993); see also United States v. Playboy Entm’t Grp., Inc., 529 U.S. 803, 811, 120 S.Ct. 1878, 146 L.Ed.2d 865 (2000). A regulation is not content-neutral merely because it does not discriminate between viewpoints on a particular subject. See Boos v. Barry, 485 U.S. 312, 319, 108 S.Ct. 1157, 99 L.Ed.2d 333 (1988). A regulation which imposes restrictions based upon the particular viewpoint or information in the speech or imposes restrictions based upon the general subject matter of the speech imposes content-based restrictions. See Rosenberger v. Rector & Visitors of the Univ. of Virginia, 515 U.S. 819, 828-29, 115 S.Ct. 2510, 132 L.Ed.2d 700 (1995); Playboy Entm’t, 529 U.S. at 811-12, 120 S.Ct. 1878; Boos, 485 U.S. at 318, 108 S.Ct. 1157; Consolidated Edison Co. of New York, Inc. v. Public Serv. Comm’n, 447 U.S. 530, 537-38, 100 S.Ct. 2326, 65 L.Ed.2d 319 (1980) (“To allow a government the choice of permissible subjects for public debate would be to allow that gov-eminent control over the search for political truth.”). Also, a regulation which imposes restrictions based upon the identity of the speaker imposes content-based restrictions. Rosenberger, 515 U.S. at 828-29, 115 S.Ct. 2510, 132 L.Ed.2d 700 (1995) (“In the realm of private speech or expression, government regulation may not favor one speaker over another.”). Further, an otherwise content-neutral regulation which has incidental effects which burden some or all speech must be “justified without reference to the content of the regulated speech.... ” Ward v. Rock Against Racism, 491 U.S. 781, 791, 109 S.Ct. 2746, 105 L.Ed.2d 661 (1989); Clark v. Community for Creative Non-Violence, 468 U.S. 288, 293, 104 S.Ct. 3065, 82 L.Ed.2d 221 (1984); Virginia State Bd. of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748, 771, 96 S.Ct. 1817, 48 L.Ed.2d 346 (1976). Otherwise, the regulation will be deemed a contenUbased regulation of speech. Finally, a regulation aimed at the secondary effects of sexually-explicit speech is content-neutral even if the regulation distinguishes the speech by its sexual content as long as the regulation is not justified by reference to the content of the speech. Connection Distrib. Co. v. Reno, 154 F.3d 281, 290-91 (6th Cir.1998).

When a regulation imposes content-based restrictions on speech, the regulation is constitutional only if it passes the test of strict scrutiny:

Under the strict-scrutiny test, respondents have the burden to prove that the [regulation] is (1) narrowly tailored, to serve (2) a compelling state interest. In order for respondents to show that the [regulation] is narrowly tailored, they must demonstrate that it does not “unnecessarily circumscrib[e] protected expression.”

Republican Party of Minnesota, 536 U.S. 765, 773-77, 122 S.Ct. 2528, 2534-35, 153 L.Ed.2d 694 (2002) (citations omitted) (quoting Brown v. Hartlage, 456 U.S. 45, 54, 102 S.Ct. 1523, 71 L.Ed.2d 732 (1982)). Narrow tailoring of remedies requires that “[i]f a less restrictive alternative would serve the Government’s purpose, the legislature must use that alternative. To do otherwise would be to restrict speech without an adequate justification, a course the First Amendment does not permit.” Playboy Entm’t, 529 U.S. at 813, 120 S.Ct. 1878 (citations omitted).

b. Content-neutral restrictions on noncommercial speech

When a regulation imposes content-neutral restrictions on speech, courts evaluate the constitutionality of the regulation using an intermediate level of scrutiny, rather than the strict level of scrutiny appropriate to content-based restrictions. Two tests are generally used to enact intermediate scrutiny: a time, place, and manner test and the four-part test first described in United States v. O’Brien, 391 U.S. 367, 88 S.Ct. 1673, 20 L.Ed.2d 672 (1968).

Under a time, place or manner test, the restrictions “must not be based on the content of the message, must be narrowly tailored to serve a significant governmental interest, and must leave open ample alternatives for communication.” Thomas v. Chicago Park Dist., 534 U.S. 316, 323 n. 3, 122 S.Ct. 775, 151 L.Ed.2d 783 (2002) (quoting Forsyth County, Georgia v. Nationalist Movement, 505 U.S. 123, 130, 112 S.Ct. 2395, 120 L.Ed.2d 101 (1992)); see also Ward, 491 U.S. at 790, 109 S.Ct. 2746 (quoting Community for Creative' Non-Violence, 468 U.S. at 293, 104 S.Ct. 3065, for the alternative test that time, place, and manner restrictions in a public forum must be “justified without reference to the content of the regulated speech, that they are narrowly tailored to serve a significant governmental interest, and that they leave open ample alternative channels for communication of the information” (emphasis added)). “[T]he essence of time, place, or manner regulation lies in the recognition that various methods of speech, regardless of their content, may frustrate legitimate governmental goals. No matter what its message, a roving sound truck that blares at 2 a.m. disturbs neighborhood tranquility.” Consolidated Edison Co. of New York, 447 U.S. at 536, 100 S.Ct. 2326. The Supreme Court has emphasized that regulations which impose restrictions on speech based upon the subject matter of the speech fail the time, place, and manner test:

time, place, and manner regulations must be “applicable to all speech irrespective of content.” Governmental action that regulates speech on the basis of its subject matter “ ‘slip[s] from the neutrality of time, place, and circumstance into a concern about content.’ ” Therefore, a constitutionally permissible time, place, or manner restriction may not be based upon either the content or subject matter of speech.

Consolidated Edison Co. of New York, 447 U.S. at 537, 100 S.Ct. 2326 (citations and footnote omitted); see also Discovery Network, 507 U.S. at 428-30, 113 S.Ct. 1505 (noting that where the difference in content is the basis for the regulation, the regulation is content-based regardless of whether the justification for the regulation is the difference in content).

Under the O’Brien test, a regulation will be sustained if it is content-neutral and if “it furthers an important or substantial governmental interest; if the governmental interest is unrelated to the suppression of free expression; and if the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest.” O’Brien, 391 U.S. at 377, 88 S.Ct. 1673; see also Turner Broad., 512 U.S. at 662, 114 S.Ct. 2445. When, a content-neutral ordinance aimed at the secondary effects of protected speech incidentally restricts that speech, courts use the constitutional test employed in O’Brien. See, e.g., City of Erie v. Pap’s A.M., 529 U.S. 277, 294-302, 120 S.Ct. 1382, 146 L.Ed.2d 265 (2000).

Under intermediate scrutiny, the restriction on protected speech must be narrowly tailored. The regulation “need not be the least restrictive or least intrusive means” of effecting the government’s purpose. Ward, 491 U.S. at 798, 109 S.Ct. 2746. A regulation may not, however, “burden substantially more speech than- is necessary to further the government’s legitimate interests. Government may not regulate expression in such a manner that a substantial portion of the burden on speech does not serve to advance its goals.” Id. at 799, 109 S.Ct. 2746 (citation and footnote omitted). If the regulation burdens substantially more speech than is necessary to further the government’s legitimate interests, then the regulation fails either the time, place, and manner test or the O’Brien test.

2. Commercial speech

Although a regulation which discriminates according to content is presumed unconstitutional, that ■ presumption does not defeat all content-based regulation of commercial speech. In Central Hudson Gas & Elec. Corp. v. Public Serv. Comm’n of N.Y., 447 U.S. 557, 100 S.Ct. 2343, 65 L.Ed.2d 341 (1980), the Court observed that “[t]he Constitution ... accords a lesser protection to commercial speech than to other constitutionally guaranteed expression. The protection available for particular commercial expression turns on the nature both of the expression and of the governmental interests served by its regulation.” Id. at 562-63, 100 S.Ct. 2343 (citation omitted).

Usually, the test of whether a particular restriction on commercial speech is permissible is the four-part test first described in Central Hudson: (1) whether the regulated commercial speech concerns a lawful activity and is not misleading, (2) whether the restriction seeks to implement a substantial governmental interest, (3) whether the restriction directly advances that interest, and (4) whether the restriction is no more extensive than is necessary to achieve that interest. Id. at 566, 100 S.Ct. 2343. A restriction is no more extensive than is necessary to achieve a substantial governmental interest when the restriction is a reasonable “ ‘fit’ between the legislature’s ends and the means chosen to accomplish those ends.” Fox, 492 U.S. at 480, 109. S.Ct. 3028 (quoting Posadas de Puerto Rico Assocs. v. Tourism Co. of Puerto Rico, 478 U.S. 328, 341, 106 S.Ct. 2968, 92 L.Ed.2d 266 (1986)).

The test for restrictions on commercial speech-in Central Hudson is not applied, however, if an ordinance restricts both commercial and non-commercial signs. Rather the more stringent “time, place, and manner” test described above is used. Cleveland Area Board of Realtors v. City of Euclid, 88 F.3d 382, 385-86 (6th Cir.1996) (finding such an ordinance content neutral but not narrowly tailored under the time, place, and manner test and

finding that alternative tests of constitutionality were inadequate). Regulations which impose content-based restrictions on commercial speech fail the “time, place, and manner test.” See Discovery Network, Inc., 507 U.S. at 428-29, 113 S.Ct. 1505.

C. The ordinance and content discrimination

XXL alleges that the sign ordinance violates the First Amendment by discriminating according to the content of speech and according to the identity of the speaker. Broadview Heights denies many of XXL’s claims that the ordinance discriminates according to content. It also claims that any treatment of content in the sign ordinance is constitutionally justified by its zoning and police powers or is a permissible restriction on commercial speech.

1. Content discrimination in the ordinance and non-commercial speech

a. Content-based restrictions on speech in the ordinance

The classification of signs upon which the regulations in Broadview Heights’ sign ordinance are based is in large part a content-based system of classification. The ordinance uses two variables to classify signs, use types and structural types. A sign’s use type is a description of the sign’s content. See C.O.B.H. §§ 1479.03(a), 1479.03(a)(2)(G). A sign’s structural type is a description of the sign’s architecture or placement. See C.O.B.H. § 1479.03(b). These types are not mutually exclusive. Every sign is classified according to use type and structural type.

The sign ordinance’s classification of permanent and temporary signs according to “use types” is explicitly and almost exclusively a classification according to content. Thus, a sign whose content consists of an indication of “the direction pedestrian or vehicular traffic is requested to move” is one type of sign, a directional sign, C.O.B.H. § 1479.03(a)(1)(C), while a sign whose content consists of “miscellaneous information intended to serve the public” is another type of sign, an information sign, C.O.B.H. § 1479.03(a)(1)(E). Similarly, a sign which announces a public function is a special event sign, and one which refers “to a political contest, involving candidates and/or issues” is a political sign. C.O.B.H. § 1479.03(a)(2)(D) & (G).

Whether, where, when, and how signs may be erected and maintained differ according to the sign’s content-based use type. For example, information signs are allowed in any district with the approval of the Planning Commission, and political signs are allowed in all districts where not otherwise barred by law. C.O.B.H. §§ 1479.03(a)(1)(E), 1479.12(e). Special event signs are the only non-governmental signs that may be erected in the street right of way. C.O.B.H. §§ 1479.03(a)(2)(D), 1479.06(a)(5), 1479.07(h). Information signs may be of any structural type not banned by the sign ordinance, but there may be no more than one information sign per premises, and the sign must not exceed 50% of the largest signage otherwise permitted in the district. C.O.B.H. § 1479.12(d). Directional signs are prohibited in connection with one-family attached dwellings. They are allowed in connection with attached and multifamily dwellings, but only if they are wall or ground signs. C.O.B.H. § 1479.08(a). When allowed in residential districts, there may be no more than one directional sign per dwelling, it must not exceed two square feet of face area, it must be at least five feet from the side lot line, and, if a wall sign, it may be no more than five feet above the ground. C.O.B.H. § 1479.08(b). There are similar restrictions on directional signs in business districts, industrial districts, and community facilities districts. C.O.B.H. §§ 1479.09(c), 1479.10(c), 1479.11(b). Political signs must be removed within 48 hours of the election to which they are related. C.O.B.H. §§ 1479.19. The content of a sign plays an important role, therefore, in whether, where, when, and how that sign may be displayed under Broadview Heights’ sign ordinance.

b. The extent of content-based restrictions on non-commercial speech

Laws must be substantially overbroad before they will be invalidated on their face. Although facially invalid laws,

if too broadly worded, may deter protected speech to some unknown extent, there comes a point where that effect— at best a prediction — cannot, with confidence, justify invalidating a statute on its face and so prohibiting a State from enforcing the statute against conduct that is admittedly within its power to proscribe.

Broadrick, 413 U.S. at 615, 93 S.Ct. 2908. Especially “where conduct and not merely speech is involved, ... the overbreadth of a statute must not only be real, but substantial as well, judged in relation to the statute’s plainly legitimate sweep.” Broadrick, 413 U.S. at 615, 93 S.Ct. 2908. If a statute “ ‘covers a whole range of easily identifiable and constitutionally pro-scribable ... conduct,’ ” courts should not find a statute facially invalid merely because “there are marginal applications in which [the] statute would infringe on First Amendment values.... ” Parker v. Levy, 417 U.S. 733, 760, 94 S.Ct. 2547, 41 L.Ed.2d 439 (1974) (quoting United States Civil Serv. Comm’n v. National Ass’n of Letter Carriers AFL-CIO, 413 U.S. 548, 580-81, 93 S.Ct. 2880, 37 L.Ed.2d 796 (1973)). Thus the Supreme Court has struck down statutes as facially overbroad where a statute “does not aim specifically at evils within the allowable area of state control but, on the contrary, sweeps within its ambit other activities that in ordinary circumstances constitute an exercise of freedom of speech or of the press,” Thornhill v. Alabama, 310 U.S. 88, 97, 60 S.Ct. 736, 84 L.Ed. 1093 (1940), but has refused to find statutes facially overbroad where potentially impermissible applications of the law were not “more than a tiny fraction of the materials within the statute’s reach,” Ferber, 458 U.S. at 773, 102 S.Ct. 3348.

Broadview Heights’ sign ordinance substantially curtails non-commercial, speech on the basis of subject matter. The ordinance declares that all signs not conforming with the provisions of the ordinance are nuisances and prohibits any sign not specifically permitted by the ordinance’s district-by-district listing of allowed signs. C.O.B.H. §§ 1479.01(b)(2), 1479.07G). In residential districts the ordinance permits two kinds of permanent signs, nameplate and identification signs. The ordinance also permits temporary real estate signs. C.O.B.H. §§ 1479.08, 1479.12(b)(1)(A) & (3)(A). In business districts the ordinance generally permits two kinds of permanent signs, identification and directional signs, except that gasoline and service stations are allowed to display the price of gasoline and diesel fuel and to display limited types of information at fuel pumps and service islands. The ordinance also allows temporary “sale” window signs of limited surface area in business districts and certain temporary real estate and project signs. C.O.B.H. §§ 1479.09, 1479.12(b)(2) & (3). The ordinance allows permanent identification and directional signs and temporary real estate and project signs in industrial districts. C.O.B.H. §§ 1479.10, 1479.12(b)(1)(C) & (2)(B). In community facilities districts the ordinance permits permanent identification and directional signs and bulletin boards and temporary real estate and project signs. C.O.B.H. §§ 1479.11, 1479.12(b)(1)(C) & (2)(B). The ordinance permits political signs in all districts. C.O.B.H. § 1479.12(e). The ordinance defines political signs as signs “referring to a political contest, involving candidates or issues.” C.O.B.H. § 1479.03(a)(2)(G). However, political signs “relating to issues and/or candidates identified with a specific election” must be removed within 48 hours after the election. C.O.B.H. § 1479.19.

With a few exceptions, see, e.g., infra, pp. 787 n. 13, 788-89, the ordinance prohibits all signs other than the signs described above. See C.O.B.H. §§ 1479.07(i). Because the listing of allowed signs is exclusive and content-based, those non-commercial signs which are not allowed because of use type limitations are disallowed because their content precludes their inclusion in the listing of allowed signs. That is to say, the ordinance curtails non-commercial speech because of its content.

The amount of non-commercial speech prohibited by the ordinance’s content-based list of permitted is substantial. For example, the ordinance makes no provision for signs displaying religious, philosophical, informative, congratulatory, expressive, or non-political partisan messages. Such signs as “What would Jesus do?,” “Know yourself,” “It’s a girl!,” “Happy birthday, son!,” “Celebrate life,” or “Go Ohio State!” are not permitted by the ordinance. The ordinance also makes no provision for signs addressing non-governmental social action, including such signs as “Donate blood,” “Give to the March of Dimes,” and “Be a Big Sister.”

Even more troubling is the ordinance’s prohibition of signs addressing political and social issues which do not refer to a particular political contest. Such signs as “No war with Iraq,” “Down with affirmative action,” “Register guns, not aliens,” and similar declarations addressing issues salient or potentially salient to the body politic do not fit within the content-based list of signs permitted by the ordinance if they do not refer, at least impliedly, to a particular political contest. Thus, the only political or social issues which may be addressed are those which are already found sufficiently salient by mainstream thought that they are the subject of an election or other vote. Individuals concerned with any other issue are barred from expressing their political and social concerns by means of signs.

Moreover, even signs related to issues or candidates identified with a specific election must be removed 48 hours after that election. On its face, such a prohibition bars supporters of the losing side of a referendum from posting signs designed to convince passers-by to change their minds on the issue and bars supporters of the winning side from posting signs designed to maintain public support for their position. Similarly, the prohibition would have prevented supporters of Al Gore after the 2002 presidential election from displaying after the election signs supporting his candidacy as a protest against the election’s outcome and manner of decision. These prohibitions strike at the core of our First Amendment freedoms, the freedom to speak about matters of political concern. See Republican Party of Minnesota, 536 U.S. at 773-, 122 S.Ct. at 2534; see also Boos, 485 U.S. at 318, 108 S.Ct. 1157.

Broadview Heights’ ordinance not only bans a substantial amount of non-commercial speech, but it also subjects such speech, including political speech within the meaning of the ordinance, to burdens that it does not impose on some kinds of commercial speech. A business may erect a sale sign of up to five square feet in area without a permit, but an individual seeking to erect a political sign of five square feet in area must pay $100.00 and apply for permission to erect the sign from the Building Commissioner. C.O.B.H. § 1479.13. The application for such a sign must include the following, using “photographs and drawings at a scale which clearly shows the details and design of the sign”:

(1) The design and colored layout of each sign proposed, including the total area of all signs and the area, height, character, materials, colors and type of lettering or other symbols of individual signs. Material samples may be requested.

(2) Photographs or drawings of the building for which the signs are proposed;

(3) The number and types of lamps and lens material to be used in any illuminated signs and data showing that the illumination meets the standards established in Section 1479.05(d), including rays to illuminating areas;

(4) A dimensional site plan and building elevation showing the exact locations of each sign in relation to the building and property lines. Also included shall be the dimensions of the width of the building or building unit face or faces and the lot or lots not occupied by buildings, all used for calculation purposes. The sign and locations of existing signs shall not be included in the calculations thereunder.

(5) Details and specifications for construction, erection and attachment as may be required by the Building Code, including the name of the sign contractor or company.

C.O.B.H. § 1479.13(c). The applicant for such a sign must also post a bond or cash deposit at the time of application to guarantee the cost of removal. C.O.B.H. § 1479.13(f)(2). Depending upon the type of temporary political sign of area greater than three square feet sought, permission to erect the temporary sign may be granted for as short as 30 days or as long as a year. C.O.B.H. § 1479.13(f)(1). Businesses seeking temporary development signs and temporary identification signs are not, however, required to post a deposit and are not subject to the time limitations of C.O.B.H. § 1479.13(f)(1). C.O.B.H. § 1479.13(f)(4). Moreover, a homeowner may display without a permit a temporary “For Sale” or “For Lease” sign but not a temporary sign stating a point of view on political or social issues not connected with a political campaign. C.O.B.H. § 1479.13(b)(1).

Finally, the ordinance accords differing treatment to differing kinds of noncommercial speech depending upon their content. Signs which “perform a public service function such as indicating time or temperature” may “revolve, rotate, whirl, spin, flash, sparkle or otherwise make use of motion to attract attention,” but political signs and other signs may not. C.O.B.H. § 1479.05(e). Signs which display information intended to serve the public may be internally illuminated, but political signs and other signs may not. C.O.B.H. §§ 1479.03(a)(1)(E), 1479.07(j). Identification signs in residential districts may be illuminated with the approval of the Planning Commission, but political signs may not. C.O.B.H. § 1479.08(c)(1). Churches and other non-profit groups may receive approval to use portable or mobile signs; individuals wishing to express a political message or some other message may not. C.O.B.H. § 1479.12(e)(6)(A) & (B). Signs or displays which include the following non-commercial content are exempted from all requirements of the sign ordinance, although political signs are not:

(a) Cornerstones and permanent building plaques, displaying the date of construction, the building name, or similar information;

(b) Display of official public notices, the flag and an emblem or insignia of an official government body;

(c) Holiday decorations for customary periods of time;

(d) Signage which is not advertising and which is an integral part of the original construction of vending machines, fuel pumps or similar devices;

(e) Street name signs; and

(f) Special signage determined by the Architectural Review Board to be reasonable considering the intent and regulations of this chapter.

C.O.B.H. § 1479.18.

In sum, Broadview Heights’ sign ordinance uses content-based distinctions to ban, abridge, or burden a substantial amount of non-commercial speech including “classically political speech.” Boos, 485 U.S. at 318, 108 S.Ct. 1157. Its content-based distinctions severely limit the use of residential signs, “a venerable means of communication that is ... an important and distinct medium of expression,” City of Ladue v. Gilleo, 512 U.S. 43, 114 S.Ct. 2038, 129 L.Ed.2d 36 (1994), and impose burdens on non-commercial speech that they do not impose on commercial speech. The ordinance also makes content-based distinctions between non-commercial signs by allowing certain kinds of displays depending upon content, allowing certain kinds of displays depending upon the speaker, and providing exemptions from restrictions depending upon content. The overbreadth of Broadview Heights’ sign ordinance “does not aim specifically at evils within the allowable area of state control but, on the contrary, sweeps within its ambit other activities that in ordinary circumstances constitute an exercise of freedom of speech.... ” Thornhill, 310 U.S. at 97, 60 S.Ct. 736. The ordinance’s overbreadth reaches considerably more than a tiny fraction of the speech within the reach of the statute. For this reason, the ordinance is substantially overbroad.

c. Content-based restrictions on noncommercial speech and strict review

Because the ordinance makes content-based distinctions in restricting speech, the ordinance must pass the test of strict review to be constitutional. The content-based restrictions on non-commercial speech in Broadview Heights’ sign ordinance do not pass that test. The restrictions in the ordinance do not serve a compelling state interest, and they are not narrowly tailored to serve their ostensible interests. The ordinance makes clear that the interests served by the ordinance are traffic safety, aesthetics, and the protection of property values and “neighborhood character.” C.O.B.H. § 1479.01(a). No court has found any of these concerns to be a compelling government interest sufficient to withstand strict scrutiny. See Playboy Entm’t, 529 U.S. at 815, 120 S.Ct. 1878 (“[T]he lesser scrutiny afforded regulations targeting the secondary effects of crime or declining property values has no application to content-based regulations targeting the primary effects of protected speech.”); City of Ladue, 512 U.S. at 48, 114 S.Ct. 2038 (affirming a lower court decision which found that interests in traffic safety, aesthetics, and neighborhood preservation were not sufficiently compelling to support content-based restrictions on speech); Whitton v. City of Gladstone, 54 F.3d 1400, 1408 (8th Cir.1995). Broad-view Heights cites no government interest implicated by the sign ordinance which might be said to be a compelling interest. For this reason alone, Broadview Heights’ content-based restrictions on non-commercial signs fail the test of strict scrutiny.

But Broadview Heights’ content-based restrictions on non-commercial signs fail strict review for a second reason. The content-based restrictions are not narrowly drawn to achieve the ends of traffic safety, aesthetics, and the protection of property values and “neighborhood character.” For example, identification signs permit “the name and address of a building, development, public or semipublic facility, business, office or industrial establishment. Such signs may also include the names of tenants, general type of goods sold, or services rendered.... ” C.O.B.H. § 1479.03(a)(1)(D). Identification signs may not include “the listing of specific goods or services, brand names, prices, ‘sale’ or telephone numbers.... ” Id. There is no obvious justification arising from traffic safety, aesthetics, or the protection of property values and neighborhood character as to why certain information is prohibited on identification signs and other information is not. On the face of it, a concern for the quantity of information on a sign, rather than its content, would seem more likely to promote traffic safety and aesthetics.

The sign ordinance contains many similar examples of content-based restrictions which are not narrowly drawn to further the espoused ends of the ordinance. The ordinance does not permit most signs to “revolve, rotate, whirl, spin, flash, sparkle or otherwise make use of motion to attract attention....” C.O.B.H. §§ 1479.05(e), 1479.07(c). But a sign which performs a public service function may do all of these things. Signs may not be illuminated, unless they are information signs. C.O.B.H. § 1479.07(j). Temporary signs must be located a minimum of 100 feet from a property fine in a residential neighborhood (thus effectively banning many temporary signs on smaller residential lots), unless the signs are real estate signs. C.O.B.H. § 1479.12(c)(1). One information sign may be erected in any district, but it may not exceed 50% of the largest signage otherwise permitted in the district. C.O.B.H. § 1479.12(d). A permit is not required for temporary signs giving directions or an address, but a temporary sign which is more than three square feet in area and concerns a project or a special event requires a permit. C.O.B.H. § 1479.13. A directional sign in a residential district may rise five feet from the ground, but a nameplate in a residential district may rise only four feet from the ground. C.O.B.H. § 1479.08(b). A sign is permitted near the service entrance of a multi-unit building in business districts in addition to all other permitted signage, but only if the sign displays the business name and address of the unit. C.O.B.H. § 1479.09(d)(3). In a business district the only information which may be displayed on an awning is the name of the business. C.O.B.H. § 1479.09(d)(10). An identification sign in an industrial district may have a face area of 50 square feet, but the face area of a directional sign in the same district is limited to two square feet. C.O.B.H. § 1479.10(c). An additional sign is permitted to industrial parks and multibuilding developments in industrial districts, but only if the sign displays the name and address of the industrial park and multi-building development and nothing more. C.O.B.H. § 1479.10(d)(2). A unit in a community facilities district may erect a bulletin board or an identification sign as a wall sign, but the unit may not erect a directional sign as a wall sign. C.O.B.H. § 1479.11(a). A one-family dwelling in a residential district may erect a permanent nameplate or identification sign but not a permanent political sign. C.O.B.H. §§ 1479.07(a)(1)(C) & (F), 1479.08(a), 1479.19. Displays of official pu