United States District Court, E.D. Kentucky, Central Division, Lexington
LEXINGTON H-L SERVICES, INC., d/b/a Lexington Herald-Leader, Plaintiff,
LEXINGTON-FAYETTE URBAN COUNTY GOVERNMENT, Defendant.
OPINION & ORDER
K. CALDWELL, CHIEF JUDGE UNITED STATES DISTRICT COURT
matter is before the Court on the motion of the plaintiff,
Lexington H-L Services, Inc., d/b/a Lexington Herald-Leader,
for a preliminary injunction. (DE 13).
its motion, the Herald-Leader seeks to enjoin the enforcement
of a Lexington-Fayette Urban County Government ordinance
regarding the delivery of “unsolicited written
materials.” The Court held a hearing on the
Herald-Leader's motion for injunctive relief and took the
matter under advisement. (DE 24). Having considered the
parties' written filings and oral arguments, the Court
will grant the Herald-Leader's motion for a preliminary
injunction. (DE 13).
before the Court is the Herald-Leader's motion for leave
to file a supplemental memorandum. (DE 26). That motion will
also be granted.
facts of this case are not extensive, and a simple recitation
will suffice for purposes of this opinion.
Herald-Leader sells and distributes numerous publications,
including The Community News, which is a weekly
four- to six-page non-subscription publication. (DE 13, Mtn.
at 2). The Community News contains local news and
advertising for the city of Lexington, Kentucky, and the
surrounding area. (DE 13, Mtn. at 2). The Herald-Leader
delivers The Community News to businesses and
residents in Fayette and neighboring counties (DE 1, Compl.
¶ 13). The Community News is delivered free of
charge to more than 100, 000 households each week. (DE 14,
Friday Aff. ¶ 6).
Herald-Leader distributes The Community News by
various means, including driveway delivery. (DE 14, Friday
Aff. ¶ 8). However, the Herald-Leader's driveway
method of delivering The Community News would be
prohibited by an ordinance that Lexington has adopted.
ordinance, which will go into effect on May 1, 2017, permits
the delivery of “unsolicited written materials”
only to six specific locations: (1) on a porch, if one
exists, nearest the front door; (2) securely attached to the
front door; (3) through a mail slot, if one exists; (4)
between an exterior front door, if one exists and is
unlocked, and an interior front door; (5) in a distribution
box located on or adjacent to the premises, if permitted; or
(6) personally with the owner, occupant, or lessee of the
premises. Lexington, Ky., Ordinance No. 25-2017 (March 2,
2017). The ordinance provides for civil penalties for
after the ordinance was adopted, the Herald-Leader filed suit
in this Court, claiming that the ordinance would violate its
free speech and free press rights under the First Amendment.
(DE 1). However, the full merits of the Herald-Leader's
case are not currently before the Court. Instead, the Court
must address whether the Herald-Leader has demonstrated that
it is entitled to injunctive relief while this action is
pending. (DE 13).
district court gauges a request for a preliminary injunction
based on four factors: (1) the plaintiffs likelihood of
success on the merits; (2) irreparable harm to the plaintiff
absent injunctive relief; (3) substantial harm to others
resulting from an injunction; and (4) the broader public
interest. Michigan State AFL-CIO v. Schuette, 847
F.3d 800, 803 (6th Cir. 2017).
contours of the First Amendment will guide the Court's
discussion on each of these elements,  and although each
factor is important, “[w]hen a party seeks a
preliminary injunction on the basis of the potential
violation of the First Amendment, the likelihood of success
on the merits often will be the determinative factor.”
Connection Distrib. Co. v. Reno, 154 F.3d 281, 288
(6th Cir. 1998).
motion for a preliminary injunction, the Herald-Leader
challenges the city's ordinance as violating the
paper's free speech and free press rights. The Herald-Leader
attacks Lexington's ordinance as both an impermissible
content-based restriction on speech and as an unreasonable,
content-neutral restriction on the time, place, and manner of
hearing, the Herald-Leader presented a different angle to its
claims, citing Minneapolis Star & Tribune Co. v.
Minnesota Commissioner of Revenue, 460 U.S. 575 (1983),
for the proposition that Lexington's ordinance
unconstitutionally targets the press.
different kinds of restrictions on speech are subjected to
different levels of scrutiny under the law, the Court will
separately analyze each of the Herald-Leader's theories.
Whether the Herald-Leader has a likelihood of proving that
Lexington's ordinance is content-based
Herald-Leader first argues that Lexington's ordinance is
a content-based restriction on speech, which would require
the Court to closely scrutinize the ordinance.
laws are “those that target speech based on its
communicative content.” Reed v. Town of
Gilbert, 135 S.Ct. 2218, 2226 (2015). “Because
strict scrutiny applies either when a law is content based on
its face or when the purpose and justification for the law
are content based, a court must evaluate each question before
it concludes that the law is content neutral and thus subject
to a lower level of scrutiny.” Id. at 2228.
Under strict scrutiny review, the city would be required to
show that the ordinance is narrowly tailored to further
compelling state interests. Id.
case, the parties do not dispute that Lexington's
ordinance is facially content-neutral, so the Court must ask
the second question-whether the city's purpose and
justification for the ordinance were content-based.
reviewing court must strictly scrutinize facially
content-neutral laws if the laws “cannot be justified
without reference to the content of the regulated speech, or
[if they] were adopted by the government because of
disagreement with the message [the speech] conveys.”
Id. at 2227 (internal quotation marks omitted)
(quoting Ward v. Rock Against Racism, 491 U.S. 781,
Herald-Leader's view, Lexington, in enacting the
ordinance, targeted The Community News. The
Herald-Leader also argues that the record demonstrates the
ordinance is content-based because Lexington councilmembers
considered materials that discussed the distribution of
“unsolicited advertising supplements.”
(See DE 13-2; DE 13-3). However, the Court is not
convinced that Lexington's purpose and justification for
adopting the ordinance were motivated by any disagreement
with the messages or content being conveyed.
it appears likely that the ordinance can be
justified without reference to the content of the regulated
speech and that the ordinance was not adopted by the
city because of any disagreement with the message conveyed by
The Community News or by any other distributor of
unsolicited written materials. See Reed, 135 S.Ct.
the Herald-Leader has not shown a likelihood of success on
either avenue to strict scrutiny-that is, it has not shown
the ordinance to be facially content-based or that the
purpose and justification for the ordinance were
content-based. This leads the Court to examine whether the
ordinance is a reasonable, content-neutral restriction on the
time, place, and manner of speech.
Whether the Herald-Leader has a likelihood of proving that
Lexington's ordinance is an unreasonable, content-neutral
restriction on the time, place, and manner of speech
Herald-Leader has never wavered in its assertion that
Lexington's ordinance is content-based. However, it did
advance the alternative theory that Lexington's ordinance
would fail constitutional review even if examined as a
content-neutral regulation of speech.
that are content-neutral and do not have an improper purpose
are “subject to lesser scrutiny.” Id. at
2232. To qualify as a reasonable time-place-and-manner
regulation of speech, the law must: (1) be content-neutral;
(2) serve a significant government interest; (3) be narrowly
tailored to serve that government interest; and (4) leave
open ample alternative channels of communication. Jobe v.
City of Catlettsburg, 409 F.3d 261, 267 (6th Cir. 2005).
Herald-Leader contends that Lexington's ordinance cannot
withstand this intermediate standard of review. Here, the
paper disputes the interests asserted by the city and argues
that the ordinance is not sufficiently tailored to the
interests it purports to address. The Herald-Leader also