March 27, 2017
from the United States District Court for the Northern
District of Illinois, Eastern Division. No. 14 C 9851 -
Edmond E. Chang, Judge.
BAUER and EASTERBROOK, Circuit Judges, and DeGuilio, District
EASTERBROOK, CIRCUIT JUDGE.
ordinance in Downers Grove, Illinois, limits the size and
location of signs. Leibundguth Storage & Van Service
contends that this ordinance violates the First Amendment to
the Constitution (applied to the states by the Fourteenth)
because it is riddled with exceptions and therefore is a form
of content discrimination that the Village has not justified.
See Reed v. Gilbert, 135 S.Ct. 2218 (2015). But
because the principal topic of the ordinance is commercial
speech, the district court concluded that Central Hudson
Gas & Electric Corp. v. Public Service Commission,
447 U.S. 557 (1980), rather than Reed supplies the
rule of decision, and it found the ordinance valid. 150
F.Supp. 3d 910 (N.D. 111. 2015). We conclude that, whether or
not Reed applies, this does not do Leibundguth any
good because it is not affected by the problematic
Grove has a comprehensive ordinance regulating signs. Section
9.020 sets out rules for all signs, including a rule
prohibiting "any sign painted directly on a wall"
(§9.020.P). Section 9.050.A sets a size limit: for
buildings such as Leibundguth's, which are closer than
300 feet to a street, the maximum is 1.5 square feet per
linear foot of frontage- which implies a limit of 159 square
feet for Leibundguth's building. Section 9.050.C.1
provides that each business may have only one sign, though an
amendment in 2015 allows businesses that face both a street
and a railroad an extra sign on the railroad side. Section
9.030 creates exceptions: the ordinance does not require
permits for holiday decorations (§9.030.D), temporary
signs for personal events such as birthdays (§9.030.E),
"[noncommercial flags" (§9.030.G) (flags can
be used to send political messages), political and
noncommercial signs that do not exceed 12 square feet
(§9.030.1), "[m]emorial signs and tablets"
(§9.030.K), and about a dozen more. These exclusions set
up Leibundguth's argument that the ordinance represents
content discrimination prohibited by Reed.
Village insists that the ordinance regulates commercial
speech only. We need not decide which decision-Reed
or Central Hudson-must give way when a
commercial-sign law includes content discrimination. (One
circuit recently held that Reed supersedes
Central Hudson. See Thomas v. Bright, 2019
U.S. App. LEXIS 27364 (6th Cir. Sept. 11, 2019).)
This ordinance is comprehensive. Section 9.010.B
tells us so: "The regulations of this article apply to
all signs in the village, unless otherwise expressly
stated." And if that were not clear enough, the
exceptions are revealing. Why exclude modestly sized
political signs (§9.030.1) from the permit requirement
unless they are included for other purposes?
we were to hold that commercial signs must be treated the
same as flags and political signs. Leibundguth's problems
come from the ordinance's size and surface limits, not
from any content distinctions. One of Leibundguth's signs
is painted on a wall; another is too large; a third wall has
two signs (as the Village counts them); and the size of these
signs, conceded to exceed 500 square feet, vastly exceeds the
limit of 159 square feet for Leibundguth's building (and
the limit of 12 square feet for political signs).
start with the largest of Leibundguth's signs, which
faces the railroad tracks-and which Leibundguth tells us
leads to as much as 20% of its revenue, by appealing to
commuters who see the sign when going to and from work.
sign is 40 feet long and 10 feet high, or 400 square feet. It
is painted on a brick wall. The ordinance's size limit
and no-paint-on-walls rules independently forbid this sign.
It would fare no better if it were a flag or carried a
political message. It exceeds 12 square feet, so it would not
be saved by §9.030.1. And the exemptions for flags
(§9.030.G) and political signs pertain only to the
permit requirement; they do not exempt flags or political
signs from §9.020.P, which bars signs painted on walls.
Likewise with the exception for temporary signs
(§9.030.E)-not that "temporary" is a form of
content discrimination in the first place. Anyway,
Leibund-guth does not want to use temporary signs.
insists that the exclusions in §9.030 remove the size
and no-paint-on-walls rules for flags and other listed
subjects. But that's not what §9.030 itself says. It
begins by stating that the excluded signs do not require
permits; it does not say that rules for all signs
stated elsewhere in the ordinance drop out. Section 9.010.B
says that all of the ordinance's rules apply to all signs
unless they are "expressly" excluded; §9.030
does not expressly remove any signs from the size and
no-paint-on-walls rules. Leibundguth's argument rests on
a report prepared by a Village official suggesting that the
ordinance does not prohibit purely decorative murals and
flags. But the Village itself disclaims this nontextual
reading. The Village's understanding of its own ordinance
carries the day, see Forsyth County v. Nationalist
Movement, 505 U.S. 123, 131 (1992), in the absence of
some indication that it has enforced the ordinance in a way
that permits large political signs or flags painted on walls.
See Construction & General Laborers Union v. Grand
Chute, 915 F.3d 1120 (7th Cir. 2019). And Leibundguth
has not offered any evidence that the Village has enforced
the ordinance as Leibundguth reads it, rather than as how the
Village tells us the ordinance works.
on the size and presentation of signs is a standard time,
place, and manner rule, a form of aesthetic zoning. The
Supreme Court has told us that aesthetic limits on signs are
compatible with the First Amendment. Members of City
Council v. Taxpayers for Vincent, 466 U.S. 789, 810-12
(1984). Like other time, place, and manner restrictions, an
aesthetic rule must serve its ends; it cannot be arbitrary.
The rule must be justified without reference to the content
or viewpoint of speech, must serve a significant government
interest, and must leave open ample channels for
communication. See Clark v. Community for Creative
Non-Violence, 468 U.S. 288, 293 (1984).
district court explained, 150 F.Supp. 3d at 922-24, the
Village gathered evidence that signs painted on walls tend to
deteriorate faster than other signs (Leibundguth's own
sign is full of chipped paint and flaking bricks) and, when
revised or painted over, can become downright ugly. Old paint
may show through; efforts to remove paint may leave a ghost
image or bleach the brick so that the building becomes
mottled. Leibundguth tells us that those effects are too
slight to justify legislation, but de gustibus non
disputandum est. ("There's no accounting for
taste.") People's aesthetic reactions are what they
are; if a large number of people find ...