Norton Outdoor Advertising, Inc. sought to erect a digital billboard in the Village of St. Bernard, Ohio, but was prohibited by the Village's Chapter 711 billboard ordinance. The ordinance generally bans outdoor advertising signs visible from highways but includes four exceptions, one of which exempts 'public service signs' that disclose information like time or weather. In a prior appeal, Norton I, the Sixth Circuit held that this public service exemption was an invalid content-based restriction on speech subject to strict scrutiny, which the Village failed to meet. The court remanded the case to the district court to determine whether that unconstitutional exemption was severable from the rest of the ordinance. On remand, the district court granted summary judgment for the Village, finding the exemption severable and the remainder of the ordinance constitutional. Norton appealed again, arguing the exemption could not be severed and that the Village was liable for damages and attorney fees.
The court addressed three main issues: forfeiture of the severability argument, the severability of the exemption under Ohio law, and the constitutionality of the remaining ordinance under intermediate scrutiny. First, the court rejected Norton's claim that the Village forfeited the severability argument, noting that the Village had reserved the right to argue it in its initial briefing and that the district court acted within its discretion to manage the case. Second, applying Ohio's three-part 'Geiger' test for severability, the court found the exemption severable. The court reasoned that the Village's intent to reduce traffic hazards and visual blight would be fully effectuated even without the exemption, and that no additional words were necessary to excise the unconstitutional provision. The court distinguished cases where severance was barred, clarifying that Ohio law presumes severability and that the 'cap and replace' provision did not prevent the ordinance from functioning without the exemption. Third, the court applied intermediate scrutiny to the remaining ordinance. It held that the ordinance is content-neutral and narrowly tailored to serve significant governmental interests in traffic safety and aesthetics. The court emphasized that in the billboard context, municipalities are not required to provide specific record evidence beyond common-sense judgments to prove that billboards pose safety hazards. The court concluded that the ordinance leaves open ample alternative channels for communication and thus survives constitutional challenge.
The Village of St. Bernard may continue to enforce its billboard ordinance against all signs, including those previously exempt as public service signs, subject to the 'cap and replace' and other regulatory requirements. The decision clarifies that local governments do not need to produce specific empirical evidence to justify billboard restrictions on traffic safety grounds, relying instead on common-sense judgments. The ruling leaves open the question of whether the specific 'cap and replace' mechanism applies to public service signs now that they are no longer exempt, but confirms the ordinance's general validity.
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