IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT United States Court of Appeals
September 28, 2009
Charles R. Fulbruge III
RTM MEDIA, L.L.C.,
CITY OF HOUSTON,
Appeal from the United States District Court for the Southern District of Texas
Before HIGGINBOTHAM, SMITH, and SOUTHWICK, Circuit Judges.
JERRY E. SMITH, Circuit Judge:
RTM Media appeals a summary judgment for the City of Houston. We
Houston's sign code threatens to eliminate most of the fifty-nine billboards
owned by RTM, an outdoor advertising company. The city sued in state court,
accusing RTM of violating the sign code and being a public nuisance; RTM then sued in federal court, alleging that the code violates the First Amendment and
that it cannot be enforced against billboards that have been separately licensed
by the state.
RTM says that the First Amendment prohibits the sign code's disparate
treatment of commercial and noncommercial speech. The code classifies signs
as "on-premise" or "off-premise," depending on whether they provide information
related to the premises on which they are located;1 the code requires the abate-
ment of off-premise signs. It excludes from regulation all noncommercial signs,
a structure that is used exclusively and at all times (except when
there is no copy at all on the structure) for messages that do not con-
stitute advertising, including, but not limited to, political messages,
religious or church related messages, public service, governmental
and ideological messages and other copy of a nature that is not com-
mercial advertising . . . .
S IGN C ODE § 4619(c).2
RTM also contends that Houston does not have the authority to regulate
RTM's signs. The signs in question are located in the city's extraterritorial juris-
diction ("ETJ"), and the state Department of Transportation has issued state
To be precise, according to the code, an on-premise sign is "any sign identifying or ad-
vertising the business, person, activity, goods, products or services primarily sold or offered
for sale on the premises where the sign is installed and maintained when such premises is
used for business purposes." SIGN CODE § 4603(a). An off-premise sign is "any sign that ad-
vertises a business, person, activity, goods, products or services not usually located on the
premises where the sign is installed and maintained, or that directs persons to any location
not on the premises." Id.
Thus, the familiar gas-station sign listing prices for various grades of gas qualifies as
a permitted "on-premise" commercial sign, but a roadside billboard advertising "Shell Gas
Station, Exit 5 Miles Ahead" is a prohibited "off-premise" commercial sign. Signs with non-
commercial messages, such as "Attend Epiphany Catholic Church" or "All change is bad!", are
not regulated by the code.
[End Page 2]
permits for them. RTM argues that the city does not have the right separately
to regulate the ETJ and that any attempt to supersede the state permits is a due
At the outset of the federal litigation, the district court granted RTM's
request for a preliminary injunction to prevent Houston from enforcing the code.
The court determined that the code is probably unconstitutional and that RTM
is therefore likely to succeed on the merits. A year later, however, the court re-
versed course and granted summary judgment for the city, explaining that com-
mercial signs are far more numerous than are noncommercial ones, a fact that
provides an adequate rationale for treating them differently given the objective
of reducing visual clutter and distraction along public roadways.
Having affirmed the constitutionality of the code, the court abstained on
the ETJ issue so that it could be resolved in the pending state court proceedings.
RTM appeals, reasserting that the code violates the First Amendment and con-
tending that the district court should not have abstained. II.
"We review grants of summary judgment de novo, applying the same legal standard used by the district court. Summary judgment is proper when the evi-
dence demonstrates that there is no genuine issue as to any material fact and
that the moving party is entitled to judgment as a matter of law." Chacko v. Sa-
bre, Inc., 473 F.3d 604
, 609 (5th Cir. 2006) (internal citations and quotation
marks omitted). III.
As recognized by the district court and the parties, the First Amendment
issue is governed by Metromedia, Inc. v. City of San Diego, 453 U.S. 490
and City of Cincinnati v. Discovery Network, Inc., 507 U.S. 410
[End Page 3]
therefore apply those decisions to the case at hand. A.
In Metromedia, the Court addressed the constitutionality of a San Diego
ordinance that permitted on-site commercial advertising, banned off-site com-
mercial advertising, and allowed only certain content-specific categories of non-
commercial advertising (e.g., "[t]emporary political campaign signs . . . main-
tained for no longer than 90 days and which are removed within 10 days after
election [sic] to which they pertain.").3 The ordinance therefore made three dif-
ferent kinds of speech distinctions: (1) Within commercial speech, it distin-
guished between on-premise and off-premise commercial speech; (2) within non-
commercial speech, it distinguished between various categories of non-commer-
cial speech; and (3) most broadly, it treated commercial speech differently from
non-commercial speech. All three of those distinctions were challenged.
A fractured Court unambiguously held that the city could discriminate be-
tween on- and off-premise commercial speech.4 The Court began by noting that
commercial speech enjoys lesser, intermediate-scrutiny constitutional protection.
Commercial speech restrictions are evaluated under the four-part framework es-
tablished in Central Hudson Gas & Electric Corp. v. Public Service Commission,
447 U.S. 557
Metromedia, 453 U.S. at 495-96 & n.3. "Thus, under the ordinance (1) a sign adver-
tising goods or services available on the property where the sign is located is allowed; (2) a sign
on a building or other property advertising goods or services produced or offered elsewhere is
barred; (3) noncommercial advertising, unless within one of the specific exceptions, is ev-
erywhere prohibited. The occupant of property may advertise his own goods or services; he
may not advertise the goods or services of others, nor may he display most noncommercial
messages." Id. at 503.
Justice White wrote the plurality opinion, which was joined in full by Justices Stew-
art, Marshall and Powell. Justice Brennan authored a concurring opinion joined by Justice
Blackmun. Justice Stevens's partial concurrence agreed with the plurality's discussion of com-
mercial speech but dissented from the discussion of non-commercial speech. Justice Rehnquist
and Chief Justice Burger each dissented separately.
[End Page 4]
(1) The First Amendment protects commercial speech only if that
speech concerns lawful activity and is not misleading. A restriction
on otherwise protected commercial speech is valid only if it (2) seeks
to implement a substantial governmental interest, (3) directly ad-
vances that interest, and (4) reaches no further than necessary to
accomplish the given objective.
Metromedia, 453 U.S. at 507 (citing Cent. Hudson, 447 U.S. at 563-66).
The Court acknowledged that the ordinance targeted signs that advertised
lawful activity and were not misleading. It found that the city's goal of amelior-
ating traffic hazards and aesthetic unpleasantness was a sufficiently substantial
interest. On the fourth prong, it concluded that the city had not gone further
than necessary to advance its interest.5
The Court therefore focused on whether the regulation directly advanced
the city's objectives. The plaintiff argued that banning off-site commercial bill-
boards would not further the city's interests, given that indistinguishable on-site
advertising was allowed. The Court rejected that argument, holding that the
First Amendment does not prohibit the city from choosing to "value one kind of
commercial speechSSonsite advertisingSSmore than another kind of commercial speechSSoffsite advertising." Id. at 512. Accordingly, the city constitutionally
could conclude that its interests in aesthetics and safety outweigh low-value off- site advertising but should yield to higher-value onsite advertising. Id.
The plurality struck down the ordinance's attempt to distinguish among
various non-commercial messages, explaining that non-commercial speech is af-
forded greater constitutional protection, and "[a]lthough the city may distinguish
between the relative value of different categories of commercial speech, the city
does not have the same range of choice in the area of noncommercial speech to
"If the city has a sufficient basis for believing that billboards are traffic hazards and
are unattractive, then obviously the most direct and perhaps the only effective approach to solving the problems they create is to prohibit them. The city has gone no further than neces- sary in seeking to meet its ends. Indeed, it has stopped short of fully accomplishing its ends:
It has not prohibited all billboards, but allows onsite advertising and some other specifically
exempted signs." Metromedia, 453 U.S. at 508.
[End Page 5]
evaluate the strength of, or distinguish between, various communicative inter-
ests." Id. at 514 (citations omitted). Therefore, "[b]ecause some noncommercial
messages may be conveyed on billboards throughout the commercial and indus-
trial zones, San Diego must similarly allow billboards conveying other noncom-
mercial messages throughout those zones." Id.
Finally, the plurality concluded that the ordinance could not favor on-
premise advertising over non-commercial speech, because the First Amendment
provides greater protection for non-commercial speech than for commercial speech.6 Given San Diego's judgment that on-premise commercial speech out-
weighed its interest in safety and aesthetics, non-commercial speech must also
outweigh that interest. Thus, "[i]nsofar as the city tolerate[d] billboards at all,
it [could not] choose to limit their content to commercial messages; the city may
not conclude that the communication of commercial information concerning
goods and services connected with a particular site is of greater value than the
communication of noncommercial messages." Id. at 513.
In summary, Metromedia established three key propositions. It held that
(1) a billboard ordinance may permit on-premise commercial advertisement
while banning off-premise commercial advertisement; (2) the ordinance may not
distinguish among non-commercial messages on the basis of their content; and
(3) where a city permits commercial billboards, it must also permit non-commer-
cial ones. B.
Twelve years after Metromedia, the Court revisited the issue of discrimi-
nating between commercial and non-commercial speech in Discovery Network.
There, the City of Cincinnati was concerned about the proliferation of newsracks
See id. at 513 n.18 (criticizing courts that "have failed to give adequate weight to the
distinction between commercial and noncommercial speech and to the higher level of protec-
tion to be afforded the latter.").
[End Page 6]
on city sidewalks. Rather than pass a new ordinance to address the issue, it be-
gan aggressively enforcing an old ordinance that outlawed commercial handbills.
Discovery Network, 507 U.S. at 417. The city used the ordinance to remove
newsracks that distributed commercial material, but it did not take any action
to restrict identical newsracks that contained non-commercial material.
Because the ordinance was a regulation of commercial speech, the Court
again applied the Central Hudson four-part test. This time, however, it focused
on the fourth prong, which requires the city to demonstrate that the ordinance
"is not more extensive than is necessary to serve" the asserted interest. Cent.
Hudson, 447 U.S. at 566.
The court found that Cincinnati had not "establish[ed] the reasonable fit
we require" to satisfy that prong. Discovery Network, 507 U.S. at 417 (quoting
Bd. of Trs. of State Univ. v. Fox, 492 U.S. 469
, 480 (1989)). The Court first noted
that the ordinance pre-existed the newsrack problem and was originally de- signed to combat the unrelated problem of handbill littering. Further, "the city
failed to address its recently developed concern about newsracks by regulating
their size, shape, appearance, or number[, which] indicates that it has not "˜care-
fully calculated' the costs and benefits associated with the burden on speech im-
posed by its prohibition." Id. (quoting Fox, 492 U.S. at 480). The Court also
pointed out that non-commercial newsracks far outnumbered commercial news-
The benefit to be derived from the removal of 62 [commercial] news-
racks while about 1,500-2,000 [non-commercial newsracks] remain
in place was considered "˜minute' by the District Court and "˜paltry'
by the Court of Appeals. We share their evaluation of the "˜fit' be-
tween the city's goal and its method of achieving it.
Id. at 417-18.
The Court then rejected, in detail, the city's argument that there was a
reasonable fit between the ban on commercial newsracks "and its interests in
[End Page 7]
safety and esthetics because every decrease in the number of such dispensing
devices necessarily effects an increase in safety and an improvement in the at-
tractiveness of the cityscape." Id. at 418. That argument relied on the premise
that the city could treat commercial and noncommercial speech differently based
on the relatively lower value of the former. But that justification put "too much
importance on the distinction between commercial and noncommercial speech,"
which "bears no relationship whatsoever to the particular interests that the city
has asserted." Id. at 424. The commercial and noncommercial newsracks were
identical and so were "equally at fault." Id. at 426.
The Court therefore concluded that "[i]n the absence of some basis for dis-
tinguishing between" commercial and noncommercial newsracks "that is rele-
vant to an interest asserted by the city," the commercial newsrack ban was un-
justified, because "the city [had] not established the "˜fit' between its goals and its
chosen means[.]" Id. at 428. The holding was "narrow," because it did "not reach
the question whether, given certain facts and under certain circumstances, a
community might be able to justify differential treatment of commercial and
noncommercial newsracks." Id. C.
RTM relies heavily on Discovery Network and argues that Houston has
failed to articulate any reason for distinguishing between commercial and non-
commercial billboards relevant to safety and aesthetics. As with the newsracks
in Discovery Network, there is little here that physically differentiates commer-
cial from non-commercial billboards. RTM also interprets Metromedia as sup-
porting its position, because there the Court disapproved of an attempt to treat
commercial and non-commercial billboards differently.
Houston argues that Discovery Network is distinguishable, because here,
there is a much better fit between the ordinance and the asserted interest: Com-
[End Page 8]
mercial billboards make up the vast majority of signs targeted by the ordinance, so the benefit from the ordinance is not "paltry" or "minute." The city also says
that Metromedia endorsed the approach of regulating commercial signs while
permitting non-commercial ones.7
Houston is correct. Discovery Network plainly indicates that the "minute"
benefit produced by the ordinance was critical to its invalidation.8 Further, the
Court addressed the lack of difference between commercial and noncommercial
newsracks only after agreeing with the district and appellate courts that the
Cincinnati ordinance would have a minimal impact on aesthetics and safety.
Discovery Network, 507 U.S. at 417-18. Finally, the Court stated that its holding
was narrow and applies only where a city has failed to provide a justification for
its differential treatment. Id. at 428. In short, Discovery Network held that be-
cause the city could not justify banning commercial newsracks based on the se-
verity of their contribution to the city's problems (either from number or particu-
larized harm), the city could not resort instead to an irrelevant devaluation of
That is not the case with Houston's sign code. As the district court cor-
See id. at 521 n.26 ("Since our judgment is based essentially on the inclusion of non-
commercial speech within the prohibitions of the ordinance, the California courts may sustain
the ordinance by limiting its reach to commercial speech, assuming the ordinance is susceptible
to this treatment.") (emphasis added).
In addition to the discussion in part III.B, supra, see also Discovery Network, 507 US.
at 418 ("We accept the validity of the city's proposition [that every decrease in the number of
newsracks necessarily effects an increase in safety and esthetics], but consider it an insuffi-
cient justification for the discrimination against respondents' use of newsracks that are no
more harmful than the permitted newsracks, and have only a minimal impact on the overall
number of newsracks on the city's sidewalks.") (emphasis added); id. at 426 (referring to "the
fallacy of the city's argument that a reasonable fit is established by the mere fact that the en-
tire burden imposed on commercial speech by its newsrack policy may in some small way limit
the total number of newsracks on Cincinnati's sidewalks.") (emphasis added); id. at 427 (ob- serving that in a related commercial speech case, "the fact that the regulation "˜provide[d] only
the most limited incremental support for the interest asserted'SSthat it achieved only a "˜mar-
ginal degree of protection' for that interestSSsupported our holding that the prohibition was
invalid.") (quoting Bolger v. Youngs Drug Prods. Corp., 463 U.S. 60
, 73 (1983)).
[End Page 9]
rectly noted, the Houston code differs from the ordinance on almost all the "rea- sonable fit" considerations mentioned in Discovery Network. First, the handbill
ordinance pre-existed newsracks and was designed to combat littering rather
than clutter; Houston's sign code was specifically crafted to address the safety
and aesthetic concerns associated with billboards. Second, Cincinnati failed to
regulate newsracks' size, shape, appearance, or number; the sign code estab-
lishes rules about all four. Finally, and most importantly, Houston produced substantial evidence that (1) the vast majority of area billboards are commercial,
and (2) the sign code has been effective, reducing signage by approximately half
over a twenty-eight-year period.9
Thus, Houston has demonstrated that its approach to ameliorating the
billboard problem is "carefully calculated" and that, because of their number,
commercial billboards pose a greater nuisance than do noncommercial ones. Un-
like Cincinnati, Houston does not need to justify its regulatory approach merely
by placing a lower value on commercial speech. The sign code is therefore
Houston submitted an affidavit from its sign administrator describing city records
about the number of sign fixtures and sign faces over time. RTM objected to her testimony as
hearsay, but the court admitted it under the business records exception of Federal Rule of Evi-
dence 803(6). RTM renews the objection on appeal.
We review evidentiary decisions for abuse of discretion. Johnson v. Ford Motor Co., 988 F.2d 573
, 578 (5th Cir. 1993). RTM argues that the sign administrator testified about a twen-
ty-eight-year period based on only two reports, which "belies the claim that it was a "˜regular
practice' of the City to make" those reports. As the city points out, however, it actually "pro-
duced to RTM twenty-six boxes of Sign Administration records that included hundreds of simi-
lar database reports[.]"
RTM also complains that, during the sign administrator's in-court testimony, she re-
ferred to the 1986 ETJ sign data as a "common knowledge number" that was just an estimate
by her predecessor. But the administrator's affidavit stated that the number of signs in the
ETJ in 1986 was "at least 5058 off-premise structures" based on business records; the in-court
testimony RTM complains about is her estimate that the true number was closer to 7000. The
district court did not abuse its discretion. And regardless of the precise numbers, it is plain
that Houston's code has had more than a "minute" or "paltry" effect on the number of bill-
[End Page 10]
RTM appeals the district court's decision to abstain.11 The city replies that
RTM waived its objections to abstention by failing to address the issue after its
reply in favor of a preliminary injunction. Again, the city is correct.
When RTM moved for injunction, the city argued in response that the dis-
trict court should abstain. RTM replied that the court should not abstain, be-
cause (1) abstention is disfavored where the court is adjudicating First Amend-
ment claims, (2) abstention is inappropriate where criminal prosecution has not
commenced, and (3) abstention does not apply where the state court proceeding
is brought in bad faith for the purpose of harassment.
The district court granted a preliminary injunction in September 2007 but
explained that it would not abstain, because "facial challenges to statutes on
First Amendment grounds have been exempted from the abstention doctrine[.]"12
As a result of the court's announced intent to proceed, RTM and the city filed a
joint motion to stay state court proceedings in October 2007.
This conclusion accords with the one other circuit court decision that has directly
confronted the same issue. See Riel v. City of Bradford, 485 F.3d 736
, 753 (3d Cir. 2007)
("There is not a similar fit problem in the instant case. As the City has explained, "˜the vast
majority of signs within the City and the Historic District are commercial signs, and such signs tend to be erected for longer periods of time and tend to be larger and more elaborate in
design.' Thus, regulating those signs directly advances the interests asserted by the City, and
the provisions do not fall because of the holding in Discovery Network.").
The district court exercised Younger abstention in deference to the pending state civil
suit brought by Houston against RTM before this federal litigation. "Although Younger ab- stention originally applied only to criminal prosecutions, see Younger v. Harris, 401 U.S. 37
(1971), following Pennzoil Co. v. Texaco Inc., 481 U.S. 1
, 10-11 (1987), it also applies "˜when cer-
tain civil proceedings are pending, if the State's interests in the proceeding are so important
that exercise of the federal judicial power would disregard the comity between the States and
the National Government.'" Health Net, Inc. v. Wooley, 534 F.3d 487
, 494 (5th Cir. 2008).
See Dombrowski v. Pfister, 380 U.S. 479, 489-90 (1965) ("We hold the abstention doc-
trine is inappropriate for cases . . . where . . . statutes are justifiably attacked on their face as
abridging free expression[.]").
[End Page 11]
Three months later, the city moved for summary judgment, arguing that
the district court should abstain on "RTM's remaining non-First Amendment
claims." RTM's response to that motion, filed February 2008, does not mention
abstention. RTM filed its own motion for summary judgment in May 2008,
which did not mention abstention. The city's response again asked the court to
abstain on the non-First Amendment claims. RTM's June 2008 reply did not re- spond to those abstention arguments.
The district court granted summary judgment for the city in September
2008; in that order, it also granted abstention. At the time the order issuedSS
and despite the city's repeated request that the court abstainSSthe last (and on-
ly) argument RTM had made regarding abstention was over a year before in its
reply in support of the preliminary injunction.
On appeal, RTM makes a number of arguments against abstention that
it never presented to the district court. It primarily contends that abstention is
inappropriate because the state court proceedings had been stayed pending
resolution of the federal suit. RTM failed not only to raise that point in district
court but also to even bring the stay to that court's attention. Instead, it re-
quests that we take judicial notice of the stay on appeal.
We will not reverse a district court based on issues not presented to it.13
At best, then, we should consider only the arguments presented by RTM in its
preliminary-injunction reply.14 The single argument made both to the district
court and this panel is that abstention is not appropriate because Houston has
acted in bad faith. But "[t]he bad faith exception is narrow and is to be granted
parsimoniously." Wightman v. Tex. Supreme Ct., 84 F.3d 188
, 190 (5th Cir.
See Miller v. Nationwide Life Ins. Co., 391 F.3d 698
, 701 (5th Cir. 2004) ("We have
frequently said that we are a court of errors, and that a district court cannot have erred as to
arguments not presented to it.").
At worst, we should not consider RTM's arguments at all, given that it repeatedly
failed to respond to the city's requests for abstention in its summary judgment motions.
[End Page 12]
1996). Further, more than an allegation of bad faith is required; the accuser
must "must offer some proof." Id. at 191. RTM did not bear its burden of proof
in the district court, where it submitted only the conclusional allegation that bad
faith is "a description that fits both the state court civil suit against RTM and
the threatened citation and prosecution of its advertisers."
Finally, RTM avers that the city waived its abstention argument by con-
ducting full discovery and fully briefing the merits of the case in its various mo-
tions. As discussed above, however, the city consistently requested that the dis-
trict court abstain.15
Because the sign code does not violate the First Amendment, and RTM has
waived its arguments against abstention, the summary judgment is AFFIRMED.
See O'Neill v. Coughlan, 511 F.3d 638, 642 (6th Cir.) (explaining that for a state to
waive Younger abstention, it must do so explicitly and rejecting the argument that "any re-
quest that the federal court reach the merits of the lawsuit constitutes waiver"), cert. denied,
129 S. Ct. 570
[End Page 13]