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Lexington H-L Services, Inc. v. Lexington-Fayette Urban County Government

United States District Court, E.D. Kentucky, Central Division, Lexington

April 28, 2017

LEXINGTON H-L SERVICES, INC., d/b/a Lexington Herald-Leader, Plaintiff,
v.
LEXINGTON-FAYETTE URBAN COUNTY GOVERNMENT, Defendant.

          OPINION & ORDER

          KAREN K. CALDWELL, CHIEF JUDGE UNITED STATES DISTRICT COURT

         This 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).

         Through its motion, the Herald-Leader seeks to enjoin the enforcement of a Lexington-Fayette Urban County Government[1] 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).

         Also before the Court is the Herald-Leader's motion for leave to file a supplemental memorandum. (DE 26). That motion will also be granted.

         I. Background

         The facts of this case are not extensive, and a simple recitation will suffice for purposes of this opinion.

         The 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).

         The Herald-Leader distributes The Community News by various means, including driveway delivery.[2] (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.

         That 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 violations. Id.

         Shortly 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).

         II. Discussion

         A 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).

         The contours of the First Amendment will guide the Court's discussion on each of these elements, [3] 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).

         In its motion for a preliminary injunction, the Herald-Leader challenges the city's ordinance as violating the paper's free speech and free press rights.[4] 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 speech.

         At the 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.

         Because 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.

         a. Whether the Herald-Leader has a likelihood of proving that Lexington's ordinance is content-based

         The 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.

         Content-based 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.

         In this 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.

         A 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, 791 (1989)).

         In the 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.

         Instead, 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. at 2227.

         Thus, 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.

         b. 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

         The 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.

         Laws 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).

         The 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 ...


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