Geft Outdoor , LLC v. City of Westfield

In the
United States Court of Appeals
For the Seventh Circuit
____________________
Nos. 20-2915 & 20-3101
GEFT O UTDOOR , LLC,
Plaintiff-Appellee,
v.
C ITY OF WESTFIELD, et al.,
Defendants-Appellants.
____________________
Appeals from the United States District Court for the
Southern District of Indiana, Indianapolis Division.
No. 1:17-cv-04063 — Tanya Walton Pratt, Chief Judge.
____________________
A RGUED S EPTEMBER 28, 2021 — DECIDED J ULY 11, 2022
____________________
Before F LAUM and S CUDDER , Circuit Judges.*
SCUDDER , Circuit Judge. Before us for the second time in
three years is an appeal in long-running litigation brought by
GEFT Outdoor to challenge billboard regulations promul-
gated by the City of Westfield, Indiana. The district court, in
*Circuit Judge Kanne died on June 16, 2022, and did not participate in the
decision of this case, which is being resolved under 28 U.S.C. § 46(d) by a
quorum of the panel.

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2 Nos. 20-2915 & 20-3101
the face of a due process challenge, previously declined to en-
join the regulations on a preliminary basis but this time
around, upon considering claims brought under the First
Amendment, entered a permanent injunction precluding the
City’s enforcement of certain provisions.
The Supreme Court’s recent decision in City of Austin v.
Reagan National Advertising of Austin bears heavily upon
GEFT’s challenge to the City of Westfield’s regulatory scheme.
It is only appropriate to allow the district court to revisit its
prior rulings in light of City of Austin. On remand the district
court also will be able to consider other dimensions of this ap-
peal not adequately developed in prior proceedings or the
parties’ briefing on appeal.
I
A
In 2017 the City of Westfield, like many other cities and
towns, adopted an ordinance governing the design, place-
ment, and maintenance of signs within city limits. It then
amended that ordinance—called the Unified Development
Ordinance—in April 2018. Out of a stated concern for public
safety and aesthetics, the ordinance requires those wishing to
install a sign or billboard to apply for a permit, which, in turn,
requires showing that the proposed sign meets certain enu-
merated guidelines. Some signs are altogether prohibited
while others are allowed with a permit or pursuant to express
exceptions within the ordinance. The limitations imposed on
billboards are demanding, requiring them to be of limited size
and kept in good repair.
The ordinance’s sign standards impose special and partic-
ular rules for two categories of signs important to the issues

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Nos. 20-2915 & 20-3101 3
before us. One category excepts from the ordinance (and its
permitting requirement) certain signs, including, for example,
directional signs, scoreboards, particular flags, and notices on
gas pumps and vending machines. See Westfield-Washington
Twp., Ind. Unified Development Ordinance art. 6.17(D). A
second category altogether prohibits certain types of signs, in-
cluding those on poles and those advertising ideas, products,
or services not offered on the same premises (so-called off-
premises signs). See id. art. 6.17(E).
Under the language of the City’s permitting scheme, if a
proposed sign complies with the requirements of the ordi-
nance, then “a sign permit shall be issued.” Id. art. 6.17(C). But
those seeking to install a non-compliant sign are not without
recourse, as the ordinance allows them to appeal the denial of
a permit or, if necessary, request a variance from the Board of
Zoning Appeals. See id. art. 10.3, 10.14.
GEFT Outdoor, a company specializing in the construc-
tion and operation of billboards, applied for a permit to build
a large digital billboard on private property along U.S. High-
way 31 in Westfield. But because of the proposed sign’s non-
compliance with Westfield’s ordinance, including its off-
premises location and use of a pole, the City denied GEFT’s
application and subsequent variance request. In November
2017 GEFT then invoked 42 U.S.C. § 1983 and brought this ac-
tion against the City of Westfield alleging that the City’s sign
ordinance, including its permitting and variance provisions,
violated the First Amendment. In an amended complaint,
GEFT added allegations that the City’s actions to stop instal-
lation of its proposed billboard along Highway 31 violated the
Due Process Clause of the Fourteenth Amendment.

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4 Nos. 20-2915 & 20-3101
In September 2018 the district court denied GEFT’s motion
for a preliminary injunction against the City’s enforcement of
the ordinance. Alongside that denial, the district court
granted the City’s motion for a restraining order compelling
GEFT to cease any and all actions to install its proposed bill-
board pending the outcome of the litigation. We upheld the
district court’s ruling in a prior appeal. See GEFT Outdoors,
LLC v. City of Westfield, 922 F.3d 357 (7th Cir. 2019).
The litigation then resumed and in time led to the district
court considering the merits of GEFT’s First Amendment
claims. In doing so, it entered summary judgment in the com-
pany’s favor and permanently enjoined the City from enforc-
ing many aspects of its ordinance.
B
Relying on the Fifth Circuit’s decision in Reagan National
Advertising of Austin, Inc. v. City of Austin, 972 F.3d 696 (5th Cir.
2020), the district court concluded that much of the City’s or-
dinance governing sign standards—including its exceptions,
permitting scheme, and off-premises ban—regulated speech
on the basis of its content and therefore was subject to strict
scrutiny. These aspects of the ordinance could not survive
that exacting degree of review because, in the district court’s
view, Westfield could not show the regulations were nar-
rowly tailored to advance the City’s stated interests of en-
hancing aesthetics and promoting public safety.
Turning to the City’s pole sign ban, the district court found
it content neutral and from there applied intermediate scru-
tiny but found the restriction lacked sufficient tailoring. What
troubled the district court was the exception the ordinance af-
forded to particular flag poles. The scope of that flag pole

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Nos. 20-2915 & 20-3101 5
exception, the district court concluded, showed that the City’s
ordinance regulated speech with too much breadth to be nar-
rowly tailored. So the court declared the entirety of the pole
sign ban unconstitutional.
The district court went on to discuss GEFT’s other claims,
including its challenge to Westfield’s variance provision.
GEFT sees the variance allowance as problematic because of
the vast discretion it vests in the City’s Board of Zoning Ap-
peals, effectively allowing the Board to pick and choose fa-
vored and disfavored speakers. Beyond recognizing GEFT’s
contention, however, the district court stopped short of ruling
on the challenge, perhaps owing to the fact that the summary
judgment record included very few facts about how the City
has applied the variance provision.
In the end, then, the court invalidated and enjoined the en-
tirety of the permitting scheme (see Unified Development Or-
dinance art. 6.17(C)), the off-premises and pole sign bans (see
id. art. 6.17(E)(4–5)), and the exception afforded particular
signs (see id. art. 6.17(D)).
The City appealed.
II
A
Following oral argument, we entered an order deferring
decision until the Supreme Court decided City of Austin v.
Reagan National Advertising of Austin, LLC. That decision came
on April 21, 2022. See City of Austin, 142 S.Ct. 1464 (2022).
In City of Austin, the Court considered whether a munici-
pal prohibition on off-premises signs and billboards—much
like the one in the City of Westfield’s ordinance—constituted

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6 Nos. 20-2915 & 20-3101
a content-based regulation. The Fifth Circuit had answered
that question yes, concluding that “because the City’s on-/off-
premises distinction required a reader to inquire ‘who is the
speaker and what is the speaker saying,’ ‘both hallmarks of a
content-based inquiry,’ the distinction was content based”
and therefore subject to strict scrutiny. Id. at 1470 (quoting
Reagan National Advertising, 972 F.3d at 706).
The Supreme Court rejected that approach, explaining
that speech regulation is only content based if it “‘target[s]
speech based on its communicative content’—that is, if it ‘ap-
plies to particular speech because of the topic discussed or the
idea or message expressed.’” Id. at 1471 (quoting Reed v. Town
of Gilbert, 576 U.S. 155, 163 (2015)). The fact that the City must
read a sign to evaluate its conformity with a regulation is not
alone determinative—rather, the decisive issue is whether the
regulation “single[s] out any topic or subject matter for differ-
ential treatment.” Id. at 1472.
Applying that standard to the challenged off-premises
regulation, the Supreme Court held that the City of Austin
had not prohibited any sign based on its political or ideologi-
cal message and, instead, drew regulatory lines only based on
whether a given sign was located on “the same premises as
the thing being discussed or not.” Id. at 1472–73. Because “the
City’s off-premises distinction require[d] an examination of
speech only in service of drawing neutral, location-based
lines” and was “agnostic as to content,” the Court concluded
that the regulation was content neutral on its face and did not
warrant strict scrutiny absent evidence of an impermissible,
content-based purpose or justification. Id. at 1471.

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Nos. 20-2915 & 20-3101 7
B
City of Austin—which, of course, the district court did not
have the benefit of at the time of its decision—makes plain
that the City of Westfield’s off-premises ban does not (at least
at the facial level) impose a content-based speech restriction
requiring application of strict scrutiny. Indeed, the Supreme
Court altogether rejected the Fifth Circuit’s reasoning that a
need-to-read requirement—one in which a City official must
read a message displayed on a sign to answer whether the
communication is on-premises or off-premises—necessarily
shows regulation based on the content of speech. This reason-
ing was at the heart of the district court’s conclusions that
Westfield’s off-premises ban, and indeed its entire permitting
scheme (including all exceptions), imposed impermissible
content-based restrictions on speech. This same rationale also
seems to explain, as best we can tell, why the district court
viewed these aspects of the Westfield ordinance as imposing
prior restraints on speech.
The only responsible course is to remand to allow the dis-
trict court to revisit its prior rulings within the intermediate
scrutiny framework articulated in City of Austin. In doing so
we leave to the district court’s sound discretion whether to
permit the parties to supplement the existing summary judg-
ment record to inform, for example, whether challenged pro-
visions of the City of Westfield’s ordinance, although content
neutral on their face, operate in practice in ways that show
impermissible restrictions on speech based on its content.
A cautionary observation also seems in order. The district
court appeared to view the entirety of the City of Westfield’s
permitting scheme as reflecting an impermissible prior re-
straint on speech. It is possible the district court saw this

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8 Nos. 20-2915 & 20-3101
conclusion as following from its determinations that certain
exceptions from the ordinance were content based—a posi-
tion that requires revisiting after City of Austin. Whatever the
rationale, everyone on remand should remember that “prior
restraints are not per se unconstitutional,” and can be “consti-
tutionally legitimate if they are proper time, place, or manner
restrictions.” HH-Indianapolis, LLC v. Consol. City of Indianapo-
lis and County of Marion, Ind., 889 F.3d 432, 440 (7th Cir. 2018)
(internal citations and quotation marks omitted). In short, we
know of no precedent categorically—root and branch—disal-
lowing a municipality from requiring permits for particular
activities, including certain forms of speech, to occur within
city limits.
III
We also remand to allow the district court to reconsider its
ruling on the City’s pole sign ban. To be sure, the district court
correctly concluded that the ban, which prohibits signs “sup-
ported by one or more poles, posts, or braces upon the
ground, in excess of six (6) feet in height, not attached to or
supported by any building,” is a content-neutral time, place,
and manner restriction. But the district court then found,
without any accompanying citations to legal authority, that
the exception afforded to certain flag poles—a type of pole
sign—showed that the broader pole sign ban lacked the nar-
row tailoring necessary to meet Westfield’s stated interests in
promoting community aesthetics and safety.
Intermediate scrutiny is not an overly demanding stand-
ard, as it does not require a perfect or least restrictive fit. All
the City must show is that its pole sign ban furthers its stated
interests without burdening substantially more speech than
necessary. See Ward v. Rock Against Racism, 491 U.S. 781, 798–

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Nos. 20-2915 & 20-3101 9
99 (1989). We have a difficult time seeing how the exception
for flag poles renders the broader pole sign prohibition un-
constitutional. The pole ban, even with an exception for flag
poles, likely furthers the City’s interests in reducing visual
clutter that could occur by permitting a broader range of pole
signs, including billboards. See id. at 800 (“So long as the
means chosen are not substantially broader than necessary to
achieve the government’s interest … the regulation will not
be invalid simply because a court concludes that the govern-
ment’s interest could be adequately served by some less-
speech-restrictive alternative.”).
At this point, though, we are reluctant to reach any con-
clusion on the constitutionality of the pole sign ban because
the district court has not yet considered all relevant aspects of
it. Seemingly as a result of an underdeveloped record, the dis-
trict court reserved judgment on GEFT’s challenge to the
City’s variance scheme, which it says allows the Board of Zon-
ing Appeals to exercise “unbridled discretion in approving or
denying variance requests, including GEFT’s variance,” be-
cause it “lack[s] objective criteria of any type for the approval
or denial of a variance.”
We see this unaddressed variance issue as relevant to, if
not inseparable from, GEFT’s other First Amendment claims,
including its challenge to the pole sign ban. A variance
scheme conferring unbridled discretion on the Board might
call into question the validity of the ordinance’s regulations.
As the Supreme Court cautioned in City of Austin, “evidence
that an impermissible purpose or justification underpins a fa-
cially content-neutral restriction” may render a rule content
based or affect its ability to show narrow tailoring. 142 S.Ct.
at 1475–76. Of course, the existence of a variance scheme on

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10 Nos. 20-2915 & 20-3101
its own is not enough to justify the wholesale invalidation of
the pole sign ban. Rather, the district court needs to consider
how the allowance for variances affects, if at all, the pole sign
ban.
IV
Finally, remand is necessary because the record before us
remains undeveloped on other material points. The parties’
briefs, for instance, offer competing versions of advertising
the City may be allowing to occur at Westfield High School.
According to GEFT, and from what we can discern, the City
allows the high school to maintain two large digital billboards
on the side of its football stadium that display off-premises
advertisements—signs typically prohibited under the ordi-
nance. Aside from these few details, there is little else we can
ascertain about the signs at or near the high school.
The district court also seemed to be aware that the City of
Westfield was allowing some commercial advertising, per-
haps among other displays, at its high school but never ana-
lyzed its significance or lack thereof. This omission strikes us
as significant. To our eye, GEFT seems to be arguing that by
allowing the high school to display off-premises signs, the
City is “pick[ing] and choos[ing] which speakers get to speak
and what messages citizens hear.” The City itself—including
its public high school—operates as a favored speaker, while
GEFT suffers as a non-favored speaker subject to greater re-
strictions. In addition, GEFT contends that the City defeats its
own alleged interests in avoiding visual clutter and promot-
ing public safety by allowing the high school to maintain
signs that others may not.

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Nos. 20-2915 & 20-3101 11
We raised the issue at oral argument but the City declined
to engage, pointing instead to the high school’s zoning status
as a “Planned Unit Development” or what it calls a “PUD.”
The City tells us that, as of July 2019, Westfield High School
sits within this PUD and, as a result, is no longer subject to the
ordinance, or at least major parts of it. That may be an accu-
rate description of how far the ordinance extends. But what
continues to confuse us—and remains unexplained from eve-
rything we see on appeal—is how and why the City’s redes-
ignation of a certain geographical area as a PUD is of First
Amendment relevance. We know the City is not arguing that
it can violate the U.S. Constitution with impunity within an
area it determines to be a PUD. But nowhere does the City
move beyond that easy observation by explaining how its de-
cision to place Westfield High School within a PUD defeats
GEFT’s contention of discrimination. The alleged speech dis-
crimination is occurring within city limits, whether within or
outside a PUD, and that constitutional allegation needs to be
grappled with on remand.
* * *
On remand, the district court will have broad discretion to
structure the proceedings as it sees fit. Our only message to
all involved is to take care to make a thorough and complete
record, one that will allow us in any future appeal to better
follow the record evidence, the scope of the issues presented
for decision, and the basis for any ruling on those issues.
For these reasons, we VACATE the district court’s perma-
nent injunction and REMAND for further proceedings con-
sistent with this opinion.

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