Geft Outdoor, LLC v. City of Evansville, Indiana

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 23-1182
GEFT OUTDOOR, LLC,
Plaintiff-Appellant,
v.
CITY OF EVANSVILLE, INDIANA,
Defendant-Appellee.
____________________
Appeal from the United States District Court for the
Southern District of Indiana, Evansville Division.
No. 3:19-cv-00141-JRS-MPB — James R. Sweeney II, Judge.
____________________
ARGUED DECEMBER 6, 2023 — DECIDED AUGUST 1, 2024
____________________
Before FLAUM, EASTERBROOK, and BRENNAN, Circuit Judges.
EASTERBROOK, Circuit Judge. Evansville, Indiana, distin-
guishes between on-premises and off-premises signs. Evans-
ville Ordinances Ch. 18.140. A district court held this distinc-
tion to be a form of content discrimination that violates the
First Amendment, applied to the states by the Fourteenth
Amendment. While the City’s appeal was pending, the Su-
preme Court held in Austin v. Reagan National Advertising of
Austin, LLC, 596 U.S. 61 (2022), that such a distinction is not a

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2 No. 23-1182
form of content discrimination. We vacated the district court’s
decision and remanded for reconsideration.
Back in the district court GEFT Outdoor, the plaintiff, re-
focused its suit as a challenge to the way the ordinance han-
dles permits and allows exceptions to (variances from) the
height, spacing, and placement rules for off-premises signs. In
administering the ordinance, GEFT insisted, the City was
likely to take into account the message of any proposed sign.
Yet before issuing a permit the City does not ask for infor-
mation about a proposed sign’s message, as opposed to its
size, its location, and the space between it and other signs, and
none of the ordinance’s criteria for variances has anything to
do with the sign’s message. Evansville Ordinances Ch.
18.165.010. GEFT applied for (and did not receive) a variance
for a particular sign, which did not meet the criteria because
it was too tall and too close to other signs; GEFT insists that
this decision is unconstitutional.
The district court this time rejected GEFT’s arguments and
dismissed the complaint. 650 F. Supp. 3d 660 (S.D. Ind. 2023).
It observed that GEFT’s problems stem from the fact that its
proposed sign would violate all of the ordinance’s size and
location rules, which the court deemed valid. See Leibundguth
Storage & Van Service, Inc. v. Downers Grove, 939 F.3d 859 (7th
Cir. 2019) (sustaining a similar ordinance against a similar
challenge). Indeed, GEFT has not challenged the size and
placement rules. The court also concluded that the criteria for
granting variances are sufficiently specific that they are not
bound to be a smokescreen for content or viewpoint discrim-
ination.
GEFT appealed again. For a second time, developments
undercut GEFT’s arguments. GEFT Outdoor, LLC v. Monroe

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No. 23-1182 3
County, 62 F.4th 321 (7th Cir. 2023), holds that functionally
identical criteria for variances from another jurisdiction’s sign
ordinance do not violate the First Amendment as too vague.
Most laws are uncertain at their borders, but even in chal-
lenges under the First Amendment the existence of some sub-
jective criteria does not make them invalid. Thomas v. Chicago
Park District, 534 U.S. 316, 324–25 (2002).
Nonetheless, GEFT insisted that even after Monroe County
there remains a potential for content or viewpoint discrimina-
tion, which renders the ordinance invalid. GEFT observes that
some of the ordinance’s rules do not apply to political signs
and some other categories of non-commercial messages, e.g.,
Evansville Ordinances Ch. 18.140.030(C), which it sees as a
clue that Evansville has content on its collective mind—even
though the provisions that block GEFT’s proposed sign apply
to commercial and non-commercial billboards alike.
For a third time, intervening developments sank GEFT’s
arguments. Moody v. NetChoice, LLC, 144 S. Ct. 2383 (2024), re-
iterates the principle that a facial challenge—even one under
the First Amendment—fails unless the plaintiff shows that a
substantial portion of the law’s applications are unconstitu-
tional. Substantial invalidity must be measured against the
law’s legitimate scope. Yet GEFT has not even argued that
most of the sign ordinance is invalid or that any potentially
invalid parts are substantial compared with the law’s legiti-
mate applications. It has focused on the criteria used to deter-
mine variances and the fact that zoning officials used those
criteria to rule against it. GEFT has not challenged the size and
location rules. This strategy effectively concedes that the main
sweep of the ordinance is valid. By focusing on its quest for a

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4 No. 23-1182
variance, GEFT disqualified itself from making a facial chal-
lenge.
GEFT’s reply brief chastises the district court and the City
for ignoring its as-applied challenge to the ordinance. Here
the problem is simple. GEFT has not contested how the City
applied the ordinance to it. That is to say, it has not argued
that the City held the sign’s message against it. GEFT has ar-
gued throughout that the ordinance is defective by its terms
and cannot be applied to any sign. That’s a facial challenge.
When asked at oral argument how it had preserved an as-ap-
plied contest, GEFT’s counsel lacked a clear answer. We did
not find an answer ourselves.
We have so far treated the district court’s decision as re-
solving the merits of GEFT’s challenge. Actually that’s not
what happened. Instead the judge wrote that any unconstitu-
tional features of the ordinance could be severed. As the judge
saw it, this meant that any injury was not redressable and
knocked out standing to sue. 650 F. Supp. 3d at 667–68. We do
not follow the reasoning. Deeming some parts of the ordi-
nance invalid could not be a reason why GEFT lacks standing;
it would instead be a decision in GEFT’s favor (in part) on the
merits. Yet the district court decided against GEFT (in full) on
the merits.
A plaintiff has standing when it suffers an injury, caused
by the defendant and redressable by a judgment in the suit.
See, e.g., Murthy v. Missouri, 144 S. Ct. 1972 (2024) (citing
many other decisions to the same effect). GEFT has suffered
an injury (inability to erect its sign) caused by the ordinance
and redressable by an injunction against the implementation
of that ordinance. Harp Advertising Illinois, Inc. v. Chicago
Ridge, 9 F.3d 1290 (7th Cir. 1993), on which the district court

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No. 23-1182 5
relied, arose from a situation in which one contested ordi-
nance had been repealed and another that blocked the pro-
posed sign had not been challenged, so that an injunction
would not have helped the plaintiff. The Evansville ordi-
nance, by contrast, remains in effect, and any constitutional
problem could be redressed by equitable relief.
GEFT’s problem is not the lack of standing but the fact that
it waged a facial challenge when it should have tried an as-
applied challenge—and even that would have failed (for this
sign) because GEFT did not argue (let alone show) that the
City held the proposed content of the sign against it. GEFT
contends that its request for a variance was denied because its
billboard would have competed against local businesses, yet
it is undisputed that GEFT could have put a smaller billboard
with the same language many places in Evansville. Whether
there are potential problems in the criteria used for variances
is a subject for a different case in which the arguments have
been preserved as applied to a particular sign.
The district court’s judgment is modified to make clear
that GEFT loses on the merits rather than for lack of standing,
and as so modified the judgment is affirmed.

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