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March 21, 2023

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Pagan v. Fruchey
United States Court of Appeals for the Sixth Circuit
December 6, 2006, Argued; June 29, 2007, Decided; June 29, 2007, Filed File Name: 07a0248p.06
No. 04-4414
Reporter
492 F.3d 766 *; 2007 U.S. App. LEXIS 15524 **; 2007 FED App. 0248P (6th Cir.) *** CHRISTOPHER J. PAGAN, Plaintiff-Appellant, v.

POLICE CHIEF MATT FRUCHEY and THE VILLAGE
OF GLENDALE, OHIO, Defendants-Appellees.

Prior History: [**1] Appeal from the United States
District Court for the Southern District of Ohio at
Cincinnati. No. 03-00541. Sandra S. Beckwith, Chief
District Judge.

Pagan v. Fruchey, 453 F.3d 785, 2006 U.S. App. LEXIS
32345 (6th Cir., 2006)
Core Terms
ordinance, regulation, commercial speech, aesthetic,
ban, advertising, billboards, restrictions, signs, streets, prong, traffic safety, governmental interest, common
sense, Village, roadway, posted, advances, public
street, traffic, parked, asserted interest, district court, commonsense, harms, summary judgment, record
evidence, plurality, tailored, studies
Case Summary
Procedural Posture
Appellant, a village resident, sought review of a
summary judgment from the United States District Court
for the Southern District of Ohio at Cincinnati granted in favor of appellees, the village and its police chief, in the resident's action alleging that Glendale, Ohio, Traffic Code § 76.06(A), (C) constituted an unconstitutional
restriction on commercial speech in violation of the First Amendment.

Overview
The resident removed a "For Sale" sign from his vehicle parked on a public street when he was informed that
failure to do so would result in a citation for a violation of the ordinance at issue. The resident argued that the
ordinance constituted an impermissible restriction on his right to engage in protected commercial speech. The
court agreed with the resident that the affidavit provided by the police chief, which was the only evidence
provided by appellees in support of the ordinance, failed to discharge appellees' burden under Edenfield. The
affidavit amounted to nothing more than a conclusory
articulation of governmental interests. While the affidavit sufficed for the second part of the Central Hudson test by identifying two substantial government interests, it completely failed to address the third prong, which was how the particular restriction chosen by the village
directly and materially advanced those interests. The
court rejected appellees' request to adopt a standard of "obviousness" or "common sense." The court also found
that appellees' characterization of the ordinance as a
content-neutral time, place, or manner restriction was
inaccurate.

Outcome
The court reversed the district court's grant of summary judgment, and it remanded the case for further
proceedings consistent with the court's opinion.

LexisNexis® Headnotes
Civil Procedure > ... > Summary
Judgment > Entitlement as Matter of
Law > Appropriateness
Civil Procedure > ... > Summary
Judgment > Appellate Review > Standards of
Review
Civil Procedure > Judgments > Summary
Judgment > Evidentiary Considerations

HN1[ ] Entitlement as Matter of Law,
Appropriateness
The appellate court reviews the grant of summary
judgment de novo. Summary judgment will be affirmed if
the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any
material fact and that the moving party is entitled to a judgment as a matter of law. Fed. R. Civ. P. 56(c). If, on the other hand, a reasonable jury could return a verdict for the non-moving party, summary judgment for the
moving party is inappropriate. In reviewing the district court's decision, the appellate court draws all justifiable inferences in favor of the non-moving party.

Constitutional Law > ... > Freedom of
Speech > Commercial Speech > General Overview
Evidence > Burdens of Proof > Allocation
HN2[ ] Freedom of Speech, Commercial Speech
While other forms of expression are entitled to more
protection under the First Amendment than is
commercial speech, the protection provided to
commercial speech is nevertheless considerable. The
United States Supreme Court has outlined a four-part
test that subjects restrictions on commercial speech to a form of intermediate scrutiny. Under the first prong of the Central Hudson test, the commercial speech at
issue must concern lawful activities and not be
misleading, thus entitling it to First Amendment
protection. If the speech is entitled to protection, the remaining prongs of the Central Hudson test provide the framework for determining the validity of the restriction.

More specifically, a restriction on protected commercial speech will be upheld if the government asserts a
substantial interest in support of its regulation,
demonstrates that the restriction on commercial speech
directly and materially advances that interest, and draws the regulation narrowly. These requirements form the
second, third, and fourth prongs of the Central Hudson
test. On each point, the government bears the burden of establishing the constitutionality of its regulatory
scheme.

Constitutional Law > ... > Freedom of
Speech > Commercial Speech > General Overview
Evidence > Burdens of Proof > General Overview
HN3[ ] Freedom of Speech, Commercial Speech
With respect to the third Central Hudson prong, whether the speech regulation advances the government's
asserted interests in a direct and material way, the
United States Supreme Court has explained that the
state must demonstrate that the challenged regulation
advances the government's interest in a direct and
material way. That burden is not satisfied by mere
speculation or conjecture; rather, a governmental body
seeking to sustain a restriction on commercial speech
must demonstrate that the harms it recites are real and that its restriction will in fact alleviate them to a material degree. Thus, the government must come forward with
some quantum of evidence, beyond its own belief in the
necessity for regulation, that the harms it seeks to
remedy are concrete and that its regulatory regime
advances the stated goals.

Constitutional Law > ... > Freedom of
Speech > Commercial Speech > General Overview
HN4[ ] Freedom of Speech, Commercial Speech
Under the fourth Central Hudson prong, the relevant
question is whether the speech restriction is narrowly
tailored; that is, the court must determine whether the speech restriction at issue is more extensive than is
necessary to serve the asserted interests. The tailoring inquiry does not require a "least restrictive means"
analysis. Instead, there must be a reasonable fit
between the legislature's ends and the means chosen to
accomplish those ends, a means narrowly tailored to
achieve the desired objective. The tailoring prong allows the reviewing court to assure itself that the government has carefully calculated the costs and benefits
associated with the burden on speech imposed by
regulation.

Constitutional Law > ... > Freedom of
Speech > Commercial Speech > General Overview
Evidence > Burdens of Proof > General Overview
HN5[ ] Freedom of Speech, Commercial Speech
Central Hudson requires more from the government
than bald assertions that a particular commercial
492 F.3d 766, *766; 2007 U.S. App. LEXIS 15524, **1; 2007 FED App. 0248P (6th Cir.), ***Cir.)

speech restriction serves its articulated interests.

Constitutional Law > ... > Freedom of
Speech > Commercial Speech > General Overview
Evidence > Burdens of Proof > General Overview
HN6[ ] Freedom of Speech, Commercial Speech
With respect to the second Central Hudson prong
regarding the existence of substantial government
interests to support a restriction on protected
commercial speech, the Central Hudson standard,
unlike rational-basis review, does not permit the court to supplant the precise interests put forward by the state with other suppositions.

Constitutional Law > ... > Freedom of
Speech > Commercial Speech > General Overview
Evidence > Burdens of Proof > Allocation
HN7[ ] Freedom of Speech, Commercial Speech
In contrast to those situations in which the court applies rational basis review, the intermediate scrutiny the court applies in the commercial speech context charges the
government with the burden of justifying its chosen form of regulation. Thus, even common sense decisions
require some justification. Otherwise, the court has no basis for concluding that the legislative decision is
animated by reasoned judgment and not hostility toward
particular speech.

Constitutional Law > ... > Freedom of
Speech > Commercial Speech > General Overview
Evidence > Burdens of Proof > Allocation
HN8[ ] Freedom of Speech, Commercial Speech
In the commercial speech context at least, the court's
review will, to some extent, require examination of the means chosen by the government. The obligation rests
with the government to establish that its regulation is "narrowly tailored" and that it has carefully calculated the costs and benefits of regulation.

Constitutional Law > ... > Fundamental
Freedoms > Judicial & Legislative
Restraints > Time, Place & Manner Restrictions
Constitutional Law > ... > Fundamental
Freedoms > Freedom of Speech > General
Overview
HN9[ ] Judicial & Legislative Restraints, Time,
Place & Manner Restrictions
The United States Supreme Court has made clear that
any regulation that requires reference to the content of speech to determine its applicability is inherently
content-based.

Counsel: ARGUED: Jeff Rowes, INSTITUTE FOR
JUSTICE, Arlington, Virginia, for Appellant.

John W. Hust, SCHROEDER, MAUNDRELL,
BARBIERE & POWERS, Cincinnati, Ohio, for
Appellees.

ON BRIEF: Jeff Rowes, INSTITUTE FOR JUSTICE,
Arlington, Virginia, William H. Mellor, INSTITUTE FOR
JUSTICE, Washington, D.C., for Appellant.

John W. Hust, Lawrence Edward Barbiere,

SCHROEDER, MAUNDRELL, BARBIERE & POWERS,
Cincinnati, Ohio, for Appellees.

Judges: Before: BOGGS, Chief Judge; MARTIN,

SILER, BATCHELDER, DAUGHTREY, MOORE, COLE,

CLAY, GILMAN, GIBBONS, ROGERS, SUTTON,
COOK, McKEAGUE, and GRIFFIN, Circuit Judges.

GIBBONS, J., delivered the opinion of the court, in
which BOGGS, C. J., MARTIN, DAUGHTREY, MOORE,
COLE, CLAY, and GILMAN, JJ., joined. ROGERS, J.,
delivered a separate dissenting opinion, in which SILER, BATCHELDER, SUTTON, COOK, McKEAGUE, and
GRIFFIN, JJ., joined.

Opinion by: JULIA SMITH GIBBONS
Opinion
[*769] [***1] JULIA SMITH GIBBONS, Circuit Judge.

Plaintiff-appellant Christopher J. Pagan filed the instant suit against the Village of Glendale, Ohio ("Glendale" or "the Village") and Glendale Police [**2] Chief Matt
Fruchey, alleging that section 76.06 of the Glendale
Traffic Code constitutes an [***2] unconstitutional
restriction on commercial speech in violation of the First 492 F.3d 766, *766; 2007 U.S. App. LEXIS 15524, **1; 2007 FED App. 0248P (6th Cir.), ***Cir.)

Amendment. Following the parties' cross-motions for
summary judgment, the district court determined that
Glendale's ordinance complied with the requirements of
Central Hudson Gas & Electric Corp. v. Public Service
Commission of New York, 447 U.S. 557, 100 S. Ct.
2343, 65 L. Ed. 2d 341 (1980), and granted summary
judgment in favor of the defendants. Because we
conclude that the defendants have failed to produce
evidence that justifies the restrictions on commercial
speech imposed by the ordinance, we reverse the
decision of the district court and remand for further
proceedings consistent with this opinion. 1
I.

Pagan is a resident of Glendale and formerly the owner
of a 1970 Mercury Cougar that he wanted to sell. After a classified advertisement elicited an inadequate
response, Pagan posted a "For Sale" sign on the
vehicle and left it parked on the public street in front of his residence. Pagan elected to place the car on the
street instead of his driveway because his driveway
abuts an unimproved alley and not a public roadway.

An officer with the Glendale Police Department noticed
the sign, notified Pagan that the sign was a violation of Glendale Traffic Code § 76.06, and asked him to
remove it or face being cited for a municipal violation.

Section 76.06 reads as follows:

It shall be unlawful for any person to stand or park
any vehicle, motorized or towed, upon any public or
private street, road, or highway within the village or
upon any unimproved privately owned area within
the village for the purpose of:
(A) Displaying it for sale, except that a homeowner
may display a motor vehicle, motorized or towed,
for sale only when owned and [**4] titled to said
homeowner and/or a member of said household,
and only when parked upon an improved driveway
or apron upon the owner's private property;
(B) Washing, maintaining or repairing such vehicle
1 The district court, in its order granting summary judgment in favor of the defendants, determined that Chief Fruchey was entitled to qualified immunity. Having failed to challenge this aspect of the district court's order in his briefing, Pagan has waived any argument that the district court's decision
respecting Chief Fruchey was incorrect. See, e.g., McCalvin v.

Yukins, 444 F.3d 713, 723 (6th Cir. 2006) ("It is well
established that issues not raised [**3] by an appellant in its opening brief . . . are deemed waived."). Therefore, we need not review the merits of this aspect of the district court's decision.
except repairs necessitated by an emergency.
(C) Any advertising.

Pagan corresponded with various Glendale officials,
including Fruchey, but was ultimately unsuccessful in
obtaining a satisfactory resolution of his dispute with the Village. In order to avoid a citation, Pagan removed the sign from his vehicle.

Pagan subsequently filed this lawsuit against Fruchey
and Glendale, alleging a violation of his constitutional rights and challenging subsections (A) and (C) of the
ordinance. Pagan's original complaint contained
requests both for injunctive relief and damages, but
Pagan voluntarily [*770] withdrew his request for an
injunction. Both before the district court and before us on appeal, Pagan has argued that subsections 76.06(A)
and (C) constitute impermissible restrictions on his right to engage in protected commercial speech. 2 Following
the parties' cross-motions for summary [***3]
judgment, the district court determined that section

76.06 was a constitutional regulation of commercial
speech [**5] under the Supreme Court's Central
Hudson framework and granted summary judgment to
the defendants. Pagan subsequently appealed.

II.

HN1[ ] This court reviews the grant of summary
judgment de novo. DiCarlo v. Potter, 358 F.3d 408, 414
(6th Cir. 2004). Summary judgment will be affirmed if
"the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if 2 The dissent determines that Pagan has waived any claim that subsection (C) of the Glendale ordinance is
unconstitutional. The subsection (C) claim was referred to in the complaint as an equal protection and due process claim. In his summary judgment motion Pagan withdrew his equal
protection claim and said that Glendale's enforcement of the advertising prohibition contained in subsection (C) was better addressed as a part of his First Amendment claim. Although Pagan did not make further specific mention of subsection (C) in his briefing, we conclude that this does not amount to waiver under the circumstances present here. Pagan's overall claim is and has been that Glendale unconstitutionally limits the posting of "For Sale" signs on cars in the public streets. In any event, although the distinction between subsections (A) and (C) was the subject of considerable questioning at oral argument, the issue of whether the conduct for which Pagan seeks First Amendment protection is reached by subsection (A), subsection (C), or both, is ultimately not germane to the [**6] resolution of Pagan's "as applied" challenge -- a circumstance that likely explains Pagan's failure to distinguish between the subsections in his briefing.
492 F.3d 766, *769; 2007 U.S. App. LEXIS 15524, **2; 2007 FED App. 0248P (6th Cir.), ***2

any, show that there is no genuine issue as to any
material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c). If, on the other hand, "a reasonable jury could return a
verdict for the non-moving party," summary judgment for the moving party is inappropriate. Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 91 L.

Ed. 2d 202 (1986). In reviewing the district court's
decision, this court draws all justifiable inferences in favor of the non-moving party. Matsushita Elec. Indus.

Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S. Ct. 1348, 89 L. Ed. 2d 538 (1986).

HN2[ ] While other forms of expression are entitled to
more protection under the First Amendment than is
commercial speech, see, e.g., Republican Party of
Minn. v. White, 536 U.S. 765, 775, 122 S. Ct. 2528, 153 L. Ed. 2d 694 (2002) (noting that content-based
[**7] restrictions on the political speech of candidates for office are subject to strict scrutiny), the protection provided to commercial speech is nevertheless
considerable. The Supreme Court has outlined a fourpart test that subjects restrictions on commercial speech to a form of intermediate scrutiny. See Cent. Hudson
Gas & Elec. Corp. v. Pub. Serv. Comm'n of N.Y., 447
U.S. 557, 100 S. Ct. 2343, 65 L. Ed. 2d 341 (1980). 3
Under the first prong of the Central Hudson test, the
commercial speech at issue must concern lawful
activities and not be misleading, thus entitling it to First Amendment protection. 447 U.S. at 563-64. If the
speech is entitled to protection, the remainding prongs of the Central Hudson test provide the framework for
[*771] determining the validity of the restriction. More specifically, a restriction on protected commercial
speech will be upheld if the government "assert[s] a
substantial interest in support of its regulation,"
"demonstrate[s] that the restriction on commercial
speech directly and materially advances that interest[,]" and draws the regulation narrowly. Fla. Bar v. Went For It, Inc., 515 U.S. 618, 624, 115 S. Ct. 2371, 132 L. Ed. 2d 541 (1995); see also Thompson v. W. States Med.

Ctr., 535 U.S. 357, 367, 122 S. Ct. 1497, 152 L. Ed. 2d 563 (2002). These requirements [**8] form the second,
third, and fourth prongs of the Central Hudson test. On each point, the government bears the burden of
establishing the constitutionality of its regulatory
scheme. Bd. of Trustees of the State Univ. of N.Y. v.
3 Defendants do not concede that the ordinance is properly viewed as a restriction on commercial speech and make an alternative argument that it is properly analyzed as a contentneutral time, place, and manner restriction. We disagree and explain our reasoning in Part IV of this opinion.

Fox, 492 U.S. 469, 480, 109 S. Ct. 3028, 106 L. Ed. 2d
388 (1989) (noting that "the State bears the burden of
justifying its restrictions").

The parties agree that the speech at issue in this case, the posting of "For Sale" signs on cars, is protected
commercial speech. Furthermore, Pagan takes no issue
with the substantiality of Glendale's asserted regulatory interests: traffic/pedestrian safety and aesthetic
concerns. Thus, the questions before us are whether
Glendale has established (1) that the restriction directly and materially advances its regulatory interests and (2) that it has drawn the restriction narrowly.
[***4] A.

HN3[ ] With respect to the third Central Hudson prong,
whether the speech regulation advances the
[**9] government's asserted interests in a direct and
material way, the Supreme Court has further explained:

Under Central Hudson . . ., the State must
demonstrate that the challenged regulation
advances the Government's interest in a direct and
material way. That burden, we have explained, is
not satisfied by mere speculation or conjecture;
rather, a governmental body seeking to sustain a
restriction on commercial speech must demonstrate
that the harms it recites are real and that its
restriction will in fact alleviate them to a material
degree.

Fla. Bar, 515 U.S. at 625-26 (internal citations and
quotation marks omitted); see also Lorillard Tobacco
Co. v. Reilly, 533 U.S. 525, 555, 121 S. Ct. 2404, 150 L.

Ed. 2d 532 (2001) (quoting Edenfield v. Fane, 507 U.S.
761, 770-71, 113 S. Ct. 1792, 123 L. Ed. 2d 543
(1993)). Thus, the government must come forward with
some quantum of evidence, beyond its own belief in the
necessity for regulation, that the harms it seeks to
remedy are concrete and that its regulatory regime
advances the stated goals. See Edenfield, 507 U.S. at
770-72.

B.

HN4[ ] Under the fourth Central Hudson prong, the
relevant question is whether the speech restriction is
narrowly tailored; that is, we must determine whether
the speech restriction at issue [**10] is "more extensive than is necessary to serve [the asserted] interests."
Thompson, 535 U.S. at 367 (quoting Cent. Hudson, 447
U.S. at 566). The tailoring inquiry does not require a
"least restrictive means" analysis. Lorillard Tobacco, 533 492 F.3d 766, *770; 2007 U.S. App. LEXIS 15524, **6; 2007 FED App. 0248P (6th Cir.), ***3

U.S. at 556. Instead, there must be a "reasonable fit
between the legislature's ends and the means chosen to
accomplish those ends, . . . a means narrowly tailored to achieve the desired objective." Id. (internal quotation marks omitted). The tailoring prong allows the reviewing court to assure itself that the government has "carefully calculated the costs and benefits associated with the
burden on speech imposed" by regulation. Cincinnati v.

Discovery Network, Inc., 507 U.S. 410, 417, 113 S. Ct.
1505, 123 L. Ed. 2d 99 (1993) (internal quotation marks omitted).
[*772] III.

At the outset, we note appellees' suggestion that
subsection (A) of the ordinance does not implicate the
First Amendment because it prohibits the act of parking a vehicle on Glendale's roadways for the purpose of
displaying it for sale. As a result, appellees contend, the ordinance regulates commercial activity and not speech.

Under appellees' construction, a seller's chosen means
of advertising a desire to sell ( e.g., [**11] posting a "For Sale" sign, placing a classified ad, advertising
online, etc.) is irrelevant. The act of placing a car on the street for the purpose of displaying it for sale purportedly violates subsection (A). Appellees' argument on this
point is not well taken. During argument, they conceded that Glendale has no interest in enforcing subsection
(A), except in those instances where the potential seller has displayed a "For Sale" sign. Thus, even if we
construed the literal language of subsection (A) as not implicating the First Amendment, Glendale concedes
that it enforces the ordinance in a manner that does. In this case, subsections (A) and (C) reach the same
conduct, 4 and we must determine whether or not
Glendale has constitutionally prohibited the posting of "For Sale" signs on cars parked in its streets.
[***5] A.

In arguing that appellees have not met their burden
under the third Central Hudson prong, Pagan relies
heavily on the Supreme Court's decision in Edenfield v.

Fane, 507 U.S. 761, 113 S. Ct. 1792, 123 L. Ed. 2d 543
(1993). [**12] Pagan argues that the affidavit of
Fruchey, the only evidence provided by the appellees in support of section 76.06, fails to discharge appellees' 4 To be sure, subsection (C) is broader than subsection (A) and doubtless reaches speech not prohibited by (A). As
applied to Pagan's "For Sale" sign, however, both provisions prohibit its display.
burden under Edenfield. We agree.

In Edenfield, Scott Fane, a CPA, challenged a Florida
rule that prevented public accountants from engaging in direct, uninvited solicitation of potential clients. 507 U.S. at 763-64. Applying Central Hudson, the Court first
noted that the speech at issue was protected and that
the government had articulated substantial interests to justify the speech restrictions at issue. Id. at 768-70.

As to the third Central Hudson inquiry, the Court held
that the state failed to carry its burden. According to the Court, while fraud prevention and professional ethics
constitute substantial governmental interests, the
absence of any evidence -- statistical, anecdotal, or
otherwise -- to suggest that the speech at issue posed
any threat of concrete harm to those interests caused
the regulation to fail. Id. at 771-72. The Court
characterized the state's evidence as follows:

The only suggestion that a ban on solicitation might
help prevent fraud and overreaching or preserve
CPA independence is the affidavit of Louis Dooner,
[**13] which contains nothing more than a series of
conclusory statements that add little if anything to
the Board's original statement of its justifications.

Id. at 772. In the absence of evidence of real harm, the state could not show that its speech restriction had any connection to furthering its asserted regulatory interests.

See id. Thus, HN5[ ] Central Hudson requires more
from the government than bald assertions that a
particular speech restriction serves its articulated
interests.

Upon review of the record, it is clear that the evidence adduced by the appellees is insufficient to satisfy their burden under Central Hudson. The relevant [*773]
portion of the Fruchey affidavit reads in its entirety as follows:

The primary purpose of the Ordinance is to promote
the goal of traffic safety within the Village of
Glendale. The objective of the Ordinance is to
prohibit attractions or activities which will induce
people to come into the roadway who are not a part
of normal vehicular or pedestrian traffic, such as
individuals washing or repairing their cars which are
parked on the street, or individuals who are looking
over a motor vehicle which is displaying a for sale
sign parked on the street. In addition [**14] . . ., the Ordinance also addresses aesthetic objectives of
the Village of Glendale.
492 F.3d 766, *771; 2007 U.S. App. LEXIS 15524, **10; 2007 FED App. 0248P (6th Cir.), ***4

The Fruchey affidavit amounts to nothing more that a
conclusory articulation of governmental interests. While it suffices for the second part of the Central Hudson test by identifying two substantial government interests, it fails to address the third prong at all: that is, how the particular restriction chosen by Glendale directly and
materially advances those interests. Its reference to
people in the roadway looking at cars displaying "For
Sale" signs is most accurately characterized as simple
conjecture by the police chief about something that
might occur. Certainly, it is not evidence that "For Sale" signs on cars in streets pose any concrete harm to
traffic or aesthetics or that the ordinance has any
connection to the interests Glendale asserts. In fact, the Fruchey affidavit is of exactly the type deemed
insufficient by the Supreme Court in Edenfield.

In addressing this issue, the district court incorrectly applied a deferential standard and ultimately held that Pagan had not pointed to anything in the record that
would suggest that Glendale's belief that section 76.06 was needed to further its [**15] asserted interests was "unreasonable" or "palpably false." The court, relying
upon Railway Express Agency, Inc. v. New York, 336
U.S. 106, 69 S. Ct. 463, 93 L. Ed. 533 [***6] (1949),
improperly placed the burden on Pagan to demonstrate
the unconstitutionality of the ordinance. Railway
Express has no applicability in the present case.

Decided over twenty-five years before the Supreme
Court recognized that commercial speech is entitled to
First Amendment protection, Railway Express examines
the constitutionality of a City of New York ordinance
prohibiting operation of advertising vehicles on the
streets under the due process and equal protection
clauses of the Fourteenth Amendment and applies a
rational basis test. The case is simply irrelevant in the context of intermediate scrutiny, to which we subject
restrictions on commercial speech. See, e.g., Fox, 492
U.S. at 480.

The issue before us is narrow in scope. This is not a
question of the quality of the evidence supporting a
speech regulation. It is the absence of any evidence of the need for regulation that is fatal to section 76.06.

Appellees suggest that it would be difficult, expensive, and time-consuming to conduct studies and provide
empirical evidence in support [**16] of section 76.06.

However, the Supreme Court has made quite clear that
the evidentiary requirement the state must meet under
intermediate scrutiny does not prescribe the manner by
which evidence must be gathered or the precise form
that it must take. 5
[*774] Instead of actual evidence of harm, appellees
ask us to adopt a standard of "obviousness" or
"common sense," under which we uphold a speech
regulation in the absence of evidence of concrete harm
so long as common sense clearly indicates that [**17] a particular speech regulation will directly advance the
government's asserted interest. The difficulty with this proposition, however, is that the standard established by the Supreme Court depends neither on obviousness nor
common sense. Edenfield requires some evidence to
establish that a speech regulation addresses actual
harms with some basis in fact. 6
The thrust of appellees' arguments is not that the
Fruchey affidavit is the type of evidence required by
Edenfield but rather that other Supreme Court authority relieves them from the obligation of meeting the
5 While our task is not to suggest what sort of evidence might suffice in other cases, we observe that there are many types of evidence other than expensive or burdensome studies that would likely demonstrate that a restriction responds to a real, existing problem rather than a hypothetical one. As the Supreme Court noted in Florida Bar, case law does not
"require that empirical data come to us accompanied by a surfeit of background information." 515 U.S. at 628. What is required is a showing of a "concrete, nonspeculative harm." Id. at 629. Fruchey's affidavit is the sort of speculation that might just as well be offered by a person unconnected with the Village about the rationale for the ordinance.
6 In applying Edenfield, the Supreme Court has observed that there are situations in First Amendment contexts other than commercial speech where the articulated harm is so obvious that no evidence is required: "[I]n other First Amendment contexts, we have permitted litigants to justify speech restrictions . . . based solely on history, consensus, and simple common sense." Fla. Bar, 515 U.S. at 628 (citing Burson v.

Freeman, 504 U.S. 191, 211, 112 S. Ct. 1846, 119 L. Ed. 2d 5 (1992)).

However, the alleged harms recited by the appellees cannot be characterized as matters upon which there is longstanding consensus or upon which all can agree. Prospective buyers may be just as likely to exercise caution and avoid entering traffic when viewing cars parked in the street with "For Sale" signs as they are to enter the roadway, or owners may remove a car from the street for [**18] inspection, fearing inspecting buyers might wander into traffic. Also undercutting the notion that these harms derive from common sense and consensus is the likelihood that a "For Sale" sign a few feet off the street in a driveway creates a distraction as great as a "For Sale" sign in a street.
492 F.3d 766, *773; 2007 U.S. App. LEXIS 15524, **14; 2007 FED App. 0248P (6th Cir.), ***5

Edenfield requirements as to how a governmental entity
must meet its burden under Central Hudson. They
present three versions of this general argument.

First, appellees say that even in the absence of
evidence of concrete harm, we should defer to
legislative judgments on matters of traffic safety and
aesthetics. Appellees argue that Metromedia v. City of
San Diego, 453 U.S. 490, 101 S. Ct. 2882, 69 L. Ed. 2d
800 (1981), demands deferential review of speech
regulations promulgated in vindication of traffic safety and aesthetic interests. In their view, because the
Supreme Court found that San Diego's rule banning
offsite billboard advertising -- supported by both [***7] traffic safety and aesthetic concerns -- was permissible under [**19] Central Hudson, the "For Sale" sign ban
addressing the same concerns must also be
permissible.

But Metromedia does not control the outcome of this
case. After noting the difficulty of applying broad First Amendment principles to "unique forms of expression,"
id. at 500, the Metromedia plurality stated, "[e]ach
method of communicating ideas is a law unto itself and
that law must reflect the differing natures, values,
abuses and dangers of each method. We deal here with
the law of billboards." Id. at 501 (internal citations and quotation marks omitted). The plurality recited at some length the Court's many summary rulings upholding
billboard restrictions, referred to the history of billboards, and generally emphasized the frequency with which
governments had placed restrictions on billboards. The
plurality ultimately concluded, "[w]e likewise hesitate to disagree with the accumulated, common-sense
judgments [*775] of local lawmakers and of the many
reviewing courts that billboards are real and substantial hazards to traffic safety." Id. at 509. Thus, Metromedia looked to its own substitute for the sort of evidence
Edenfield requires -- the collective judgment of many
legislative and judicial [**20] decisionmakers. No
similar substitute exists here. 7 The record before us
7 It bears noting that the dissent has done its own evidentiary research and identified a number of ordinances in other jurisdictions similar to that at issue here. Accepting arguendo that the existence of similar statutes would itself be sufficient to meet Glendale's burden, Glendale is the party responsible for accumulating this evidentiary record. A court's role is not to search for evidence that a party could have located and submitted but did not. Nor should a court base its decision on an evidentiary record of its own creation. In contrast to the dissent's approach, the Metromedia opinion bears no
indication that the Court itself did research on legislative demonstrates no comparable legislative or judicial
history supporting the conclusion that restrictions placed on "For Sale" signs posted on vehicles address
concrete harms or materially advance a governmental
interest. 8
The position advocated by the appellees assumes,
without discussion, that billboards and "For Sale" signs posted on parked cars raise practically indistinguishable aesthetic and traffic safety issues. Appellees' analogy hardly strikes us as obvious. In fact, it appears to
sidestep the ultimate issue: namely, whether or not the speech Glendale seeks to regulate poses the harms
that all agree would justify regulation. If "For Sale" signs are a threat to the physical safety of Glendale's citizens or implicate aesthetic concerns, it seems no great
burden to require Glendale to come forward with some
evidence of the threat or the particular concerns. Our
research has revealed only one other case, postEdenfield, that has ruled on this precise issue, and that court arrived at a result identical to ours on the issue of the evidence required by Edenfield. See Burkow v. City
of Los Angeles, 119 F. Supp. 2d 1076, 1080-81 (C.D.

Cal. 2000).

Second, appellees say that Edenfield does not apply to
all commercial speech cases but only to those dealing
[**22] with advertising by professionals. This argument does not explicitly appear in appellees' brief but was
mentioned at oral argument and is perhaps best viewed
as a variation of their first argument that traffic safety and aesthetics are entitled to greater deference than
other interests in analyzing commercial speech cases.

While Edenfield involves advertising by accountants and has been applied in lawyer advertising cases, see Fla.

Bar, 515 U.S. 625-26, nothing in Edenfield or any other Supreme Court precedent suggests that Edenfield 's
applicability is limited in the manner suggested by
appellees. Moreover, the Court's continued reliance on
Edenfield and its requirement that the harms articulated by the state in support of a commercial speech not be
merely conjectural or speculative belies any claim that Edenfield is confined to advertising by professionals.

See, e.g., Lorillard Tobacco, 533 U.S. at 555
action. Rather, it appears that the judicial history of billboard regulation gave the Court information as to the legislative history.
8 Finally, even assuming Metromedia is applicable to this case, Edenfield -- coming more than a decade [**21] later -- must be read as a refinement of the Central Hudson framework relied upon in Metromedia. Edenfield, not Metromedia,
requires the result here.
492 F.3d 766, *774; 2007 U.S. App. LEXIS 15524, **18; 2007 FED App. 0248P (6th Cir.), ***6

(addressing state regulation of tobacco [***8]
advertising); Greater New Orleans Broad. Ass'n, Inc. v.

United States, 527 U.S. 173, 188, 119 S. Ct. 1923, 144
L. Ed. 2d 161 (1999) (addressing FCC restrictions on
advertising of legal gambling); Rubin v. Coors Brewing
Co., 514 U.S. 476, 487, 115 S. Ct. 1585, [*776] 131 L.

Ed. 2d 532 (1995) (addressing restrictions on [**23] the advertising of beverage alcohol content).

Third, appellees focus on the notion that less is required of a governmental entity when its interests are
aesthetics. Appellees suggest that the invocation of
aesthetic objectives carries with it some talismanic
quality that, under case precedents, legitimizes all
signage regulation and relieves them from making the
showing required in Edenfield. Appellees direct our
attention to Members of the City Council of Los Angeles v. Taxpayers for Vincent, 466 U.S. 789, 104 S. Ct. 2118, 80 L. Ed. 2d 772 (1984). They argue that Vincent, when
read in conjunction with Metromedia, establishes that
billboards and signs constitute visual blight and clutter that justify ameliorative regulation. See Vincent, 466
U.S. at 808-09 ("It is not speculative to recognize that billboards by their very nature, wherever located and
however constructed, can be perceived as an 'esthetic
harm.' The same is true of posted signs.") (quoting
Metromedia, 453 U.S. at 510). Under appellees' theory,
they need not provide evidence that "For Sale" signs
create aesthetic harm because the Court has accepted
as a matter of course that signs and billboards may be
considered a visual blight.

The appellees' view of Vincent [**24] overlooks several critical points. The Court in Vincent was not considering a restriction on commercial speech only and was not
applying the Central Hudson test. Rather, the
restrictions on posting signs in Vincent applied to all forms of speech and were truly content-neutral, unlike
the ordinance here (which, as we discuss below, is not
content-neutral). In this context, the Court recognized the legitimacy of aesthetics as a governmental interest, a point with which we agree and Pagan does not
contest. Looking to Metromedia, the Court then noted
that signs as well as billboards could pose aesthetic
harm. This is another point with which we have no
disagreement. We differ from appellees, however, in
believing that recognition of aesthetics as a substantial governmental interest tells us nothing about how to
resolve this case. Vincent certainly does not suggest,
either explicitly or implicitly, that, in examining
restrictions on commercial speech, aesthetic interests
are to be treated differently from other governmental
interests. Also, Vincent gives us no instruction about
application of the Central Hudson test, and it says
nothing about the rule of Edenfield, decided some nine
years [**25] later. In fact, the Court in Vincent does not specifically tell us what evidence Los Angeles presented about its interests or the concerns that prompted
enactment of the ordinance. Vincent, then, to the extent that it is relevant, simply tells us that the Court has recognized that proven aesthetic interests may prompt
restrictions on signs, a point that leads nowhere in the resolution of this case.

Appellees' argument about the special nature of
aesthetic concerns does not address the more
fundamental problem with appellees' aesthetic
justification. As we have noted, as an abstract matter, aesthetic issues are appropriate considerations in
developing speech regulations. The record before us
does not, however, disclose what Glendale's aesthetic
objectives are. Perhaps Glendale hopes to avoid
unsightly signage cluttering neighborhood streets;
perhaps Glendale seeks to avoid having its streets filled with vehicles that may often not be the sort of
automobiles people would like to have parked on their
neighborhood streets; perhaps "For Sale" signs posted
on cars are simply not in keeping with the character of Glendale's neighborhoods. There are various
possibilities, but it is not the [*777] place [**26] of the reviewing court to supply hypothetical justifications for speech regulation. Cf. Edenfield, 507 U.S. at 768
(noting that HN6[ ] with respect to the second Central
Hudson prong regarding the existence of substantial
government interests, "[u]nlike rational-basis review, the Central Hudson standard does not permit us to supplant
the precise interests put forward by the State with other suppositions.") (citing Fox, 492 U.S. at 480).

Even if appellees' view of Metromedia and Vincent is
closer to the mark than ours and whatever the
evidentiary requirement may be to show that a particular medium of communication poses aesthetic harm, a
reviewing court must, as a preliminary matter, be
apprised of what the government's aesthetic motivations are. Glendale fails to supply even this rudimentary
information, [***9] saying in the Fruchey affidavit only that the ordinance addresses unspecified "aesthetic
objectives." This general assertion fails to identify
Glendale's aesthetic concerns with "For Sale" signs.

Certainly, it does not suffice to show concrete harms
addressed by the ordinance or that the ordinance
directly and materially advances the government
interest, as required by the third prong of [**27] Central Hudson. While the dissent questions any requirement
that would mandate a study before limiting speech in
492 F.3d 766, *775; 2007 U.S. App. LEXIS 15524, **21; 2007 FED App. 0248P (6th Cir.), ***7

furtherance of undoubtedly subjective aesthetic aims,
our decision imposes no such requirement. Assuming
that the subjective nature of aesthetics requires that we give regulators a freer hand when examining restrictions on commercial speech, it seems no great burden to
require, as a threshold matter, that they offer something more specific than a bald assertion that the regulation reflects aesthetic considerations.

The dissent critiques our decision as "read[ing] into the First Amendment a requirement that governments go
through pointless formalities before they enact . . .
commonsense rule[s] . . . ." We have no interest in
preventing the adoption of common sense rules or
requiring legislative bodies to engage in "pointless
formalities." HN7[ ] In [**28] contrast to those
situations in which we apply rational basis review, the intermediate scrutiny we apply in the commercial
speech context charges the government with the burden
of justifying its chosen form of regulation. Thus, even common sense decisions require some justification.

Otherwise, we have no basis for concluding that
Glendale's legislative decision is animated by reasoned judgment and not hostility toward particular speech.

Moreover, if the need for the regulation is as obvious as Glendale and the dissent believe it to be, it seems that Glendale should be ideally positioned to provide some
evidence of the need for its regulation -- a task that
Glendale has been entirely unwilling to undertake. 9 We do not hold Glendale's ordinance invalid because
Glendale has failed to produce sufficient evidence.
[*778] Rather, we simply cannot uphold the ordinance
without any evidence at all to support the need for its enactment and simultaneously follow what we view to
be the clear command of the Supreme Court.
9 The dissent particularly notes Jobe v. City of Catlettsburg, 409 F.3d 261 (6th Cir. 2005), in which our court analyzed a content-neutral "time, place, and manner restriction." In Jobe, [**29] we noted that upholding common sense explanations for ordinances like one prohibiting placing leaflets on vehicles does not require proof that the problem has occurred in the past or an "elaborate study of their present-day necessity," referencing particularly the age of the ordinance in question, enacted in 1952. We do not disagree with Jobe. But an
ordinance's long tenure cannot excuse the need for some justification, even though that justification need not come in the form of an "elaborate study" or a recitation of past problems. Here, our only evidence is speculation about why a local legislative body might have wanted such an ordinance. In Jobe, the ordinance drew justification from the town mayor's explanation of its current relevance, its placement in the city code, and the content of the neighboring ordinances.

One aspect of our decision the dissent appears to find
particularly troubling is its belief that it will impose a severe burden on municipalities seeking to regulate
signage that they believe raises legitimate and
undeniably important traffic safety and aesthetic
concerns. While we disagree that the burden is severe
and instead believe it fairly easily met, we note that
[**30] the fact that the First Amendment imposes a
requirement of evidentiary justification upon a regulatory authority is not, in and of itself, a cause for dismay.

As previously stated, our decision today does not
prescribe the manner by which municipalities must
justify these sorts of ordinances. Instead, we simply
conclude that we cannot discharge our obligation to
scrutinize commercial speech restrictions if we deem
sufficient the conjectural affidavit of Glendale's police chief that offers nothing more than a statement of what he believes to be Glendale's regulatory objectives. It is Glendale's obligation to provide something in support of its regulation, and we do not find ourselves free to hold that obligation has been discharged based on principles of common sense or obviousness, especially where, as
here, all do not agree as to what is obvious or a matter of common sense. A judicial pronouncement that an
ordinance is consistent with common sense hardly
establishes that it is so.
[***10] B.

The district court did not specifically address tailoring, but Pagan argued before the trial court, as he does on
appeal, that the regulatory means chosen by Glendale
lack a reasonable fit to the regulatory [**31] ends. The district court did, however, note that Pagan's claims
along these lines were nothing more than conclusory
assertions regarding his own notions of a more
reasonable regulatory scheme and that it was not the
place of the courts to second-guess Glendale's decision regarding appropriate traffic ordinances.

While we need not reach the issue of tailoring because
our decision regarding the third Central Hudson prong is dispositive in this case, it is important to note that, contrary to the district court's conclusion, the regulatory authority bears the burden of establishing a reasonable fit when regulating commercial speech. HN8[ ] In the
commercial speech context at least, our review will, to some extent, require examination of the means chosen
by the government. The obligation rests with the
government to establish that its regulation is "narrowly tailored" and that it has carefully calculated the costs and benefits of regulation. See Discovery Network, 507
492 F.3d 766, *777; 2007 U.S. App. LEXIS 15524, **27; 2007 FED App. 0248P (6th Cir.), ***9

U.S. at 417-18; see also Fox, 492 U.S. at 480.

IV.

Appellees also argue that we need not engage in an
analysis under Central Hudson because the prohibition
on parking a car on the streets of Glendale for the
purpose of advertising is [**32] a content-neutral time, place, or manner regulation and should be analyzed
under that framework. Although their brief does not
specify whether this argument refers to subsection (A)
or (C), or both, it is most naturally understood as relating to subsection (C), because subsection (A) contains its
own implicit reference to content. If appellees were
successful in characterizing the ordinance as contentneutral, our inquiry here would still be a form of intermediate scrutiny, focusing on whether the
restriction is narrowly tailored to serve substantial
government interests and leaves open ample alternative
channels of communication. [*779] See, e.g., Ward v.

Rock Against Racism, 491 U.S. 781, 790, 109 S. Ct.
2746, 105 L. Ed. 2d 661 (1989).

The Glendale ordinance cannot be evaluated as a
content-neutral restriction, however, because, as
appellees conceded during oral argument, the restriction on advertising does depend on the content of the
speech: namely, the ordinance, as construed by
Glendale, draws a distinction between promotional
speech and speech asserting belief or fact. 10 HN9[ ]
The Supreme Court has made clear that any regulation
that requires reference to the content of speech to
determine its applicability is inherently content-based. [**33] Cf. Discovery Network, 507 U.S. at 429 ("Under
the city's newsrack policy, whether any particular
newsrack falls within the ban is determined by the
content of the publication resting inside . . . . Thus, by any commonsense understanding of the term, the ban
in this case is 'content based.'"). Characterization of the ordinance as a content-neutral time, place, or manner
restriction is simply inaccurate.

V.

For the foregoing reasons, we reverse the district court's grant of summary judgment and remand this cause for
further proceedings consistent with this opinion.
10 Specifically, appellees stated at argument, in response to questioning, that the ordinance would apply to both speech promoting a commercial transaction and speech promoting a political candidate but would not apply to speech declaring one's child to be an honor student or advocating readiness for the coming of Jesus.

Dissent by: ROGERS
Dissent
[***11] ROGERS, J., dissenting. The justification for
forbidding the placement of for-sale automobiles on the public streets -- for inspection by potential buyers -- is simply obvious: people may be drawn to stand in the
street for nontraffic purposes. The act of selling a car in a public street invites prospective [**34] buyers into the road to examine the car, and common sense supports a
ban on such acts. To read into the First Amendment a
requirement that governments go through pointless
formalities before they enact such a commonsense rule
is, in my view, to cheapen the grandeur of the First
Amendment. To require a study, or testimony, or an
affidavit, to demonstrate the obvious is to turn law into formalistic legalism. Nothing in Supreme Court
precedent requires such a step.

Indeed, Metromedia strongly supports upholding the
ordinance without any artificial record evidence
requirement. Metromedia, Inc. v. City of San Diego, 453 U.S. 490, 509, 101 S. Ct. 2882, 69 L. Ed. 2d 800 (1981).

In Metromedia, the Supreme Court, in a split opinion,
invalidated a city's ban on off-site billboard advertising because of the extent to which the ban affected
noncommercial speech. Id. at 512-21 (plurality); id. at 521-40 (Brennan, J., concurring in the judgment). Under the reasoning of a strong majority of the Court, however, the city's ban on off-site billboard advertising was
determined to be constitutional to the extent that it
regulated commercial speech. Id. at 503-12 (plurality)
(ban complies with First Amendment to extent it applies to commercial [**35] speech); id. at 541 (Stevens, J.,
dissenting in part) (same); id. at 555-69 (Burger, C.J., dissenting) (ban altogether constitutional); id. at 569-70 (Rehnquist, J., dissenting) (same). While the reasoning of these various opinions differed, a majority of five
justices adopted the reasoning of Justice White's
plurality opinion with regard to the constitutionality of the billboard ban to the extent it dealt with commercial
speech . Since the instant case [*780] deals
exclusively with commercial speech, the portion of
Justice White's opinion for four justices (i.e. Parts I - IV), joined also by Justice Stevens, 453 U.S. at 541
(Stevens, J., dissenting in part), is directly controlling for this court. Cleveland Bd. of Educ. v. Loudermill, 470
U.S. 532, 540-41, 105 S. Ct. 1487, 84 L. Ed. 2d 494
(1985).

That analysis directly supports upholding the ordinance 492 F.3d 766, *778; 2007 U.S. App. LEXIS 15524, **31; 2007 FED App. 0248P (6th Cir.), ***10

in this case. The Metromedia Court majority determined
that the ban on commercial speech met each element of
the Central Hudson test: (1) the speech did not involve unlawful activity and was not misleading, and thus was
entitled to First Amendment protection; (2) the ban
sought to implement a substantial government interest;
(3) it directly advanced that interest; and (4) it
[**36] reached no further than necessary to accomplish
the given objective. 453 U.S. at 507-17. The same result follows in this case. First, the speech does not involve unlawful activity and is not misleading. Second, the
"substantial government interests" identified in
Metromedia, traffic safety and appearance of the city,
are remarkably close to those identified in this case, and Pagan concedes that the Village's asserted interests are "substantial."
The "more serious question" in Metromedia, as in this
case, was the third criterion -- whether the ordinance
directly advanced the identified interests. The Court
majority rejected an argument that the record was
insufficient to establish a connection between billboards and traffic safety. 453 U.S. at 509. Although the record was "meager" on this point, the California Supreme
Court, taking into consideration the fact that "[billboards] are intended to, and undoubtedly do, divert a driver's
attention from the roadway," had refused to strike down a reasonable legislative judgment regarding how to deal best with such distractions. Id. at 508-09. The United
States Supreme Court majority likewise held that San
Diego could constitutionally ban commercial
[**37] speech billboards, hesitating "to disagree with
the accumulated, commonsense judgments of local
lawmakers and of the many reviewing courts that
billboards are real and substantial hazards to traffic
safety." Id. at 509 (emphasis added). The majority
concluded:
[***12]
There is nothing here to suggest that these
judgments are unreasonable. As we said in a
different context:

We would be trespassing on one of the most
intensely local and specialized of all municipal
problems if we held that this regulation had no
relation to the traffic problem of New York City.

It is the judgment of the local authorities that it
does have such a relation. And nothing has
been advanced which shows that to be
palpably false.

Id.

A closely parallel analysis is dispositive here. The
commonsense judgment of Glendale's lawmakers is, if
anything, far more compelling in this case. Simply put, exhibiting cars for sale on the public roadway may
interfere with the dedication of such roadways to traffic and its necessary incidents. The ban on placing cars in the roadway for sale undoubtedly directly advances the
Village's interest in traffic safety.

Noteworthy in the Metromedia Court majority's analysis
is the total absence [**38] of reliance on record
evidence to support its direct advancement rationale.

This despite the Metromedia plaintiffs' assertion that the record was inadequate to support the ban on off-site
billboard advertising and the Court majority's recognition that the California Supreme Court had noted the
meagerness of the record. Common sense prevailed in
that case, and common [*781] sense even more
strongly supports the conclusion that substantial
interests are directly advanced in this case. Indeed, the Supreme Court recognized in Florida Bar v. Went for It, Inc., 515 U.S. 618, 628, 115 S. Ct. 2371, 132 L. Ed. 2d 541 (1995), that even in a First Amendment case
applying strict scrutiny, restrictions may be justified "based solely on history, consensus, and 'simple
common sense.'" (citing Burson v. Freeman, 504 U.S.
191, 211, 112 S. Ct. 1846, 119 L. Ed. 2d 5 (1992)). See also United States v. Edge Broadcasting Co., 509 U.S.
418, 428, 113 S. Ct. 2696, 125 L. Ed. 2d 345 (1993)
(upholding a ban on radio advertisements of lotteries in states where lotteries were illegal and, addressing
Central Hudson 's third prong, stating that "Congress
plainly made the commonsense judgment that each
North Carolina station would have an audience in that
State . . . and that enforcing the statutory restriction would insulate [**39] each station's listeners . . . and hence advance the governmental purpose of supporting
North Carolina's laws against gambling"). Indeed, this
court stated in Jobe v. City of Catlettsburg, 409 F.3d
261, 269 (6th Cir. 2005), a case upholding against a
First Amendment challenge an ordinance against
placing leaflets on vehicles, that "[i]n view of the
common-sense explanations for these types of laws,
they do not invariably require proof that the problem has occurred in the past (a daunting task in view of the 1952 vintage of this law and the understandable absence of
information about why the law was passed) or an
elaborate study of their present-day necessity (an
equally daunting task in view of the difficulty of showing the empirical necessity for a law that has been in place for more than 50 years)." Although the ordinance at
issue in Jobe was analyzed as a content-neutral "time,
place, and manner" restriction, the analysis is
492 F.3d 766, *780; 2007 U.S. App. LEXIS 15524, **35; 2007 FED App. 0248P (6th Cir.), ***11

substantially similar, Lorillard Tobacco Co. v. Reilly, 533 U.S. 525, 554, 121 S. Ct. 2404, 150 L. Ed. 2d 532
(2001), and the same considerations the court
highlighted in Jobe are applicable here. Metromedia
thus compels the conclusion that the ban on selling cars in the street "directly advances" [**40] the traffic safety interest in this case.

The majority in Metromedia relied in part on the large
number of similar local laws throughout the country that had previously been upheld when subjected to
constitutional attack. Metromedia, 453 U.S. at 509 n.14.

Similarly in this case, Glendale is hardly alone in
banning the placement of cars for sale in the public
streets. Just within the four states comprising the Sixth Circuit alone there are more than 200 similar
ordinances. See Appendix; see, e.g., Flint, Mich., Code of Ordinances § 28-9 (1950); Michigan Uniform Traffic
Code for Cities, Townships, and Villages R 28.1814,
Rule 814 (2003); Louisville-Jefferson County, Ky., Code of Ordinances § 72.044 (1960); Toledo, Ohio, Municipal
Code § 351.07 (1997); The Ohio Basic Code § 76.07
[***13] (2002); Memphis, Tenn., Code of Ordinances §
11-40-4 (1985). The large number of municipalities with similar ordinances "suggests that the policy behind them is premised on legitimate rather than contrived policepower concerns." Jobe, 409 F.3d at 269.

To be sure, the Supreme Court held in Edenfield v.

Fane, 507 U.S. 773 (1999), that a state may not
constitutionally ban CPAs from direct contact with
potential [**41] clients without demonstrating that
harms may flow from such contact. Therefore, it is
argued, a city may not ban the exhibiting of automobiles for sale on the public streets without first demonstrating the unprotected harms that may flow from such conduct.

With respect, such a legal inference falls of its own
weight. The ban's effect on the harm addressed in the
CPA case was not clearly established; in the present
case [*782] it is compellingly obvious. The cases are
flatly different on their face.

Nothing in our ironclad obligation to follow the holdings of the Supreme Court requires us to read Edenfield
beyond the facts of the case to a set of facts that is
meaningfully different. In Edenfield, the Court held that a single affidavit was insufficient to support a law banning in-person solicitation by CPAs. 507 U.S. at 771-72.

Although the Court determined in Edenfield that an
affidavit was not sufficient, the Court also had before it a report contradicting the Florida Board of Accountancy's assertions regarding the supposed effects of CPA
solicitation. Id. at 772. It simply does not follow from Edenfield that Glendale is not free, without evidence or studies, to make a commonsense determination
[**42] that allowing business to be conducted in the
street presents certain hazards. Edenfield did not
declare that, henceforth, any regulation of commercial
speech must be accompanied by studies regarding the
harm to be prevented, no matter how obvious that harm
may be. Nor did Edenfield mark the death of common
sense as a useful tool in the lawmaker's toolbox.

Edenfield cannot be read to require a study or evidence of nonspeech harm any time a city wishes to remove
from its roads distractions that are, by their nature,
meant to draw pedestrians into the roadway.

Other cases are even less applicable.

In Florida Bar v. Went for It, 515 U.S. 618, 115 S. Ct. 2371, 132 L. Ed. 2d 541 (1995), the Supreme Court
upheld a commercial speech ban prohibiting lawyers
from sending direct-mail solicitations to victims of recent accidents or disasters, on the ground that the
requirements of Edenfield were met given the existence
of record evidence supporting the ban. Id. at 626-28.

The Court's reliance on the record evidence in Florida
Bar, however, should not lead this court to mistake
sufficiency for necessity, especially given that the Court also emphasized that previous litigants were successful in justifying speech restrictions "by reference [**43] to studies and anecdotes pertaining to different locales
altogether . . . or even, in a case applying strict scrutiny, to justify restrictions based solely on history, consensus, and simple common sense." Id. at 628 (internal citations and quotation marks omitted). The judgment of the
Supreme Court in Florida Bar is simply not a holding
regarding what is required to meet the third prong of
Central Hudson, but is rather a holding as to what is
sufficient, and thus adds nothing to the requirements of Edenfield.

The Supreme Court in Thompson v. Western States
Medical Center, 535 U.S. 357, 122 S. Ct. 1497, 152 L.

Ed. 2d 563 (2002), explicitly refrained from holding that the statutory provision at issue failed the third
requirement of Central Hudson. The statutory provision
at issue essentially provided that "as long as
pharmacists do not advertise particular compounded
drugs, they may sell compounded drugs without first
undergoing safety and efficacy testing and obtaining
FDA approval." 535 U.S. at 370. Regarding whether the
advertising ban directly advanced the Government's
asserted interests related to non-FDA approved
compounded drugs, the Court reasoned that,
"[a]ssuming it is true that drugs cannot be marketed on 492 F.3d 766, *781; 2007 U.S. App. LEXIS 15524, **39; 2007 FED App. 0248P (6th Cir.), ***12

a large [**44] scale without advertising, the [statutory] prohibition on advertising compounded drugs might
indeed 'directly advanc[e]' the Government's interests." Id. at 371 (emphasis added). The Court proceeded to
the final Central Hudson prong on the assumption that
the third prong was met. Id. (Under that final prong, the fact that the restrictions were more [***14] extensive
than necessary invalidated the provision: the [*783]
Court identified numerous ways in which large-scale
manufacturing of compounded drugs might be identified
without using the proxy of commercial speech. Id. at
372.)
In Lorillard Tobacco Co. v. Reilly, 533 U.S. 525, 556-61, 121 S. Ct. 2404, 150 L. Ed. 2d 532 (2001), the Supreme
Court held that a ban on advertising for smokeless
tobacco or cigars within 1000 feet of a school did
directly advance a substantial governmental interest
under Central Hudson 's third step. As in Florida Bar,
the government was able to point to record evidence in
the form of studies to support its contention that the ban on commercial speech directly advanced its asserted
interests. Again, however, the presence of studies in
Lorillard merely establishes that such studies are
sufficient, not that they are necessary, to pass muster under Central [**45] Hudson 's third prong. (As in
Thompson, only lack of a "reasonable fit," the fourth
Central Hudson inquiry, rendered the provision
unconstitutional: the 1000-foot rule would constitute
nearly a complete ban on the communication of truthful
information about smokeless tobacco and cigars to adult consumers in some geographical areas. Id. at 562.)
In all of these cases, the only holding that the third step of Central Hudson was not met, in addition to Edenfield, was one aspect of the tobacco sales practices regulated in Lorillard: certain tobacco advertising could not be
placed lower than five feet from the floor of any retail establishment within 1000 feet of a school. This failed the Central Hudson third step, not for lack of empirical evidence but because the five-foot rule "does not seem
to advance th[e] goal" of preventing minors from using
tobacco products. Lorillard, 533 U.S. at 566. Children
under five feet tall, the Court noted, can look up. In
contrast, banning the placement of autos in the public
streets for sales inspection more than "seems" to
advance the goal of traffic safety, it obviously does so.

In short, the Court's holdings, and Edenfield in
particular, do not require [**46] the conclusion that
without record evidence, a regulation that so obviously advances a substantial interest is invalid. It is true that, as the Court majority stated in Metromedia, "[e]ach
method of communicating ideas is 'a law unto itself' and that law must reflect the 'differing natures, values,
abuses and dangers' of each method." 453 U.S. at 502
(quoting Kovacs v. Cooper, 336 U.S. 77, 97, 69 S. Ct.
448, 93 L. Ed. 513 (1949)). We cannot however simply
dismiss the Supreme Court's decision in Metromedia
because the Court pointed out that it was dealing only
with billboards. Indeed, the "natures, values, abuses
and dangers" of selling cars in the streets are far closer to those of setting up billboards than they are to the
direct solicitation of clients by CPAs. The "abuses and dangers" of billboard advertising are indeed very similar to the abuses and dangers of selling cars in the streets:
traffic safety concerns and visual aesthetics. The
abuses and dangers of direct solicitation by CPAs are
entirely distinct: avoiding fraud and maintaining CPA
ethics. Thus any argument that a particular Supreme
Court holding does not apply because of the differences in methods of communicating ideas would require us to
disregard [**47] Edenfield long before it would require us to disregard Metromedia. We should disregard
neither, but apply each to the extent its reasoning
controls on facts meaningfully similar to those in this case.

Of course if the two cases conflict, then Edenfield would control on the theory that the Supreme Court has to that extent overruled Metromedia. We should not rush to that conclusion, however, where [*784] there is a
meaningful distinction between the two cases. With
respect to the third prong of Central Hudson, the
distinction between the ordinance in Metromedia and
the statute in Edenfield is stark: there is obvious "direct advancement" in Metromedia and nothing of the sort in
Edenfield. Accordingly, while the First Amendment
requires record evidence in Edenfield, it does not in
Metromedia. The distinction cuts squarely in favor of
Glendale in this case. It is not up to us to overrule
Metromedia, and Edenfield did not do so, either
explicitly or sub silentio.

Finally, Glendale's ordinance also clearly passes
Central Hudson 's fourth prong. The ordinance is not
more extensive than necessary to serve Glendale's
asserted interests in traffic safety. "The least restrictive means test has no role [**48] in the commercial speech
context." Florida Bar, [***15] 515 U.S. at 632 (internal quotation marks omitted). Glendale need only
demonstrate that there is a fit between its ordinance and the ends it seeks to achieve. Id.

The ordinance exactly serves Glendale's purposes.

Although it is true that cars parked in a private driveway 492 F.3d 766, *782; 2007 U.S. App. LEXIS 15524, **43; 2007 FED App. 0248P (6th Cir.), ***13

fronting a public street may also prove distracting, it is not true that such activity invites people into the
roadway for purposes of inspecting the car that has
been advertised for sale. Glendale has properly limited the reach of the ordinance to public property; Glendale could reasonably conclude that the dangers attendant to placing a car for sale in a public street outweigh any
harm that may occur when a property owner decides to
place an automobile for sale on his own property. Cf.

Metromedia, 453 U.S. at 490 ("[T]he city may believe
that offsite advertising . . . presents a more acute
problem than does onsite advertising."). Indeed, given
Glendale's interests in ensuring that individuals remain out of the roadway, it makes eminent sense to limit the reach of the ordinance to cars parked on public streets.

While it is true that "numerous and obvious lessburdensome [**49] alternatives to the restriction on commercial speech . . . is certainly a relevant
consideration in determining whether the 'fit' between
ends and means is reasonable," Cincinnati v. Discovery
Network, Inc., 507 U.S. 410, 417 n.13, 113 S. Ct. 1505, 123 L. Ed. 2d 99 (1993), the only apparent alternative
for Glendale is to outlaw pedestrians' presence in a
roadway to inspect a vehicle. Of course, this does
nothing to eliminate the very enticement that may lead
prospective buyers into the roadway in the first place
and does nothing to prevent driver distraction.

Because Glendale has crafted an ordinance that goes
no further than necessary to address a substantial
public concern, the judgment of the district court should be affirmed.

It is accordingly not necessary to rely in addition on
Glendale's asserted aesthetic interests, and I treat them only briefly here. Those interests appear independently sufficient to support the restriction on commercial
speech in this case. A majority of seven Justices in
Metromedia concluded that San Diego's aesthetic
interests were sufficient to support San Diego's
ordinance to the extent that it regulated commercial
speech. Metromedia, 453 U.S. at 510 (plurality); id. at 552 (Stevens, J., [**50] dissenting in part); id. at 559-61 (Burger, C.J., dissenting); id. at 570 (Rehnquist, J.,
dissenting). As with respect to San Diego's regulation of commercial billboards, Glendale should not be required
to come forward with studies to support its conclusion
that city aesthetics would be improved by avoiding the
transformation of public streets into used car lots or
open-air markets. In a less obvious case, the Supreme
Court, relying [*785] on Metromedia 's treatment of an
aesthetics interest, upheld a Los Angeles ban on
posting signs on public property such as utility poles.

Members of the City Coun. of Los Angeles v. Taxpayers
for Vincent, 466 U.S. 789, 805-807, 104 S. Ct. 2118, 80 L. Ed. 2d 772 (1984). "It is well settled that the state may legitimately exercise its police powers to advance
esthetic values." Id. at 805. Without reliance on
empirical evidence in the record, the Court reasoned
that The problem addressed by this ordinance -- the
visual assault on the citizens of Los
Angeles presented by an accumulation of signs
posted on public property-constitutes a significant
substantive evil within the City's power to prohibit.
"[The] city's interest in attempting to preserve [or
improve] the quality of urban life is one [**51] that
must be accorded high respect."
Id. at 808 (citations omitted). A similar conclusion
without record evidence is warranted here with respect
to cars placed for sale on city streets. Indeed, insisting on a study regarding aesthetics would be particularly
pointless given the essentially subjective nature of the topic. The Vincent Court also held that the Los Angeles posting ban was not unconstitutionally broad:

By banning these signs, the City did no more than
eliminate the exact source of the evil it sought to
remedy. The plurality wrote in Metromedia: "It is not
speculative to recognize that billboards by their very
nature, wherever located and however [***16]
constructed, can be perceived as an 'esthetic
harm.'" 453 U.S., at 510. The same is true of
posted signs.

Id. at 808. The same can be said of cars placed for sale on city streets.

Finally, I do not address the constitutionality of
subsection (C) of the Glendale ordinance. Pagan initially challenged this portion of the ordinance, which prohibits placing vehicles in the road for the purposes of any
advertising, as a violation of the Equal Protection and Due Process Clauses of the United States Constitution.

However, Pagan withdrew this [**52] claim for relief in his motion for summary judgment in the district court,
choosing to argue instead that Glendale's failure to
regulate other kinds of signs or to fully enforce the
ordinance's ban on advertising undermined Glendale's
asserted interest in traffic safety with respect to
subsection (A). Thus, Pagan expressly limited any
consideration of subsection (C) to whether a failure to enforce that subsection undermined Glendale's
arguments about the constitutionality of subsection (A).

Given that Pagan himself failed to argue the
constitutionality of subsection (C) below, the issue was 492 F.3d 766, *784; 2007 U.S. App. LEXIS 15524, **48; 2007 FED App. 0248P (6th Cir.), ***15

waived and I have no occasion to address whether
subsection (C) violates the First Amendment, Thurman
v. Yellow Freight Sys., Inc., 90 F.3d 1160, 1172 (6th Cir. 1996), or whether, in the absence of any allegation that Pagan intends to engage in activity that violates
subsection (C) without violating (A), he would have
standing to assert a First Amendment challenge to
subsection (C), see Prime Media, Inc. v. City of
Brentwood, 474 F.3d 332, 340 (6th Cir. 2007).

I respectfully dissent.
[***17] APPENDIX
Ordinances Forbidding the Placement of Cars for
Sale in the Public Streets
Kentucky
Alexandria, Code of Ordinances [**53] § 72.11 (1988)
Ashland, Code of Ordinances § 72.004 (1983)
Augusta, Code of Ordinances § 72.11
[*786] Berea, Code of Ordinances § 40.304 (1946)
Bowling Green, Code of Ordinances § 22-4.09 (2001)
Cadiz, Code of Ordinances § 72.11
Cold Spring, Code of Ordinances § 71.04 (1997)
Covington, Code of Ordinances § 75.08 (1967)
Crescent Springs, Code of Ordinances § 72.11
Crestview Hills, Code of Ordinances § 72.11
Danville, Code of Ordinances § 17-35 (1977)
Edgewood, Code of Ordinances § 72.11
Flemingsburg, Code of Ordinances § 72.11
Fort Mitchell, Code of Ordinances § 72.11 (1988)
Fort Thomas, Code of Ordinances § 72.15 (1983)
Fort Wright, Code of Ordinances § 72.11
Hillview, Code of Ordinances § 72.11 (1984)
Louisville-Jefferson County, Code of Ordinances §

72.044 (1960)
Madisonville, Code of Ordinances § 72.11
Pikeville, Code of Ordinances § 72.010
Walton, Code of Ordinances § 72.11
Warsaw, Code of Ordinances § 72.11
Michigan
Bingham Farms, Code of Ordinances § 95.10 (2005)
Burton, Code of Ordinances § 71.02
[***18] Clinton Township, Code of Ordinances §§
886.10; 886.11 (1986)
Eastpointe, Code of Ordinances § 480.05 (1988)
Flint, § 28-9 (1950)
Howell, § 430.05
Marshall, § 73.18 (1992)
Mason, § 8.14
Saginaw, Code of Ordinances [**54] § 72.22 (1959)
Uniform Traffic Code for Cities, Townships, and
Villages, R 28.1814 Rule 814 (2003)
Ohio
Ada, § 351.06
Amherst, § 351.07 (1980)
Avon, § 452.08
Avon Lake, § 452.08
Bay Village, § 351.06
Bedford, § 351.06
Bedford Heights, § 351.06 (1970)
Bellbrook, § 452.08
Bellvue, § 351.06 (2002)
Belpre, § 351.06
Berea, § 751.05 (1988)
Blue Ash, § 351.06
Bowling Green, § 76.09(1965)
492 F.3d 766, *785; 2007 U.S. App. LEXIS 15524, **52; 2007 FED App. 0248P (6th Cir.), ***16

Bratenahl, § 351.06 (1960)
Broadview Heights, § 452.08 (1976)
Brook Park, § 351.06
Brunswick, § 452.06
Bryan, § 351.06
Canal Winchester, § 351.06
[***19] Carey, § 351.06
Carlisle, § 452.08
Chagrin Falls, § 351.06
Cheviot, § 76.18 (1998)
Circleville, § 351.06
Cleveland Heights, § 351.06
Clyde, § 351.06
Conneaut, § 351.06
[*787] Cortland, § 351.06
Cuyahoga Heights, § 452.09
Defiance, § 351.06
Delaware, § 351.06 (1967)
Delphos, § 351.06
Dover, § 351.06 (1966)
Dublin, § 76.04 (1980)
East Palestine, § 452.12 (1956)
Elyria, § 351.06 (1945)
Englewood, § 452.08
Euclid, § 351.08
Evendale, § 452.08 (1952)
Fairfield, § 351.06
Findlay, § 351.06
Forest Park, § 73.12 (1961)
Franklin, § 351.06
Fremont, § 351.06
Gahanna, § 351.06
Gates Mills, § 352.08
Geneva, § 452.08
[***20] Glenwillow, § 351.06
Green, § 452.08
Greenhills, § 351.06
Greenville, § 452.08 (1960)
Greenwich, § 452.08
Grove [**55] City, § 351.06
Groveport, § 351.06
Hamilton, § 351.06
Harrison, § 351.06
Hicksville, § 351.09
Highland Heights, § 351.06
Highland Hills, § 351.06
Hilliard, § 351.06
Hunting Valley, § 351.01
Independence, § 351.09 (1958)
Johnstown, § 351.06
Lakewood, § 351.16 (2001)
Lancaster, § 351.06
Lebanon, § 351.06
Lexington, § 351.06
London, § 452.09 (1998)
Lorain, § 351.06
Lordstown, § 351.06
Louisville, § 351.06
Loveland, § 351.06
Lyndhurst, § 452.08
492 F.3d 766, *786; 2007 U.S. App. LEXIS 15524, **54; 2007 FED App. 0248P (6th Cir.), ***18

Macedonia, § 351.06
Mansfield, § 351.06
[***21] Maple Heights, § 452.08 (1967)
Marble Cliff, § 351.06
Marietta, § 351.06
Massillon, § 351.06
Mayfield Heights, § 351.08
Mayfield Village, § 351.06
Mason, § 351.06
Maumee, § 351.06
Medina, § 351.06
Mentor-on-the-Lake, § 452.08
Middlefield, § 351.06
Milan, § 351.06
Monroeville, § 351.06 (1978)
Montpelier, § 351.06
Mount Gilead, § 351.06
Mount Vernon, § 351.06 (1988)
Munroe Falls, § 351.06
New Albany, § 351.06
New Lebanon, § 73.06 (1980)
Niles, § 351.06
North Canton, § 351.06
North Perry, § 351.06
North Ridgeville, § 452.08
North Royalton, § 452.08
Norton, § 452.09 (1968)
[*788] Norwalk, § 351.06
Oberlin, § 351.06 (1957)
Ontario, § 351.06
[***22] Orange, § 351.06
Orville, § 351.06
Ottawa, § 351.06
Painesville, § 351.06
Parma, § 351.06 (1997)
Perrysburg, § 452.08 (1964) [**56]
Powell, § 351.06
Reading, § 452.08) (1982)
Reminderville, § 351.06 (1990)
Reynoldsburg, § 351.06
Richmond Heights, § 351.06
Riverlea, § 76.07
Rossford, § 351.06 (1966)
St. Bernard, § 351.15
St. Mary's, § 351.06
Sandusky, § 351.06
Shelby, § 452.09
Sidney, § 351.09
Silverton, § 76.16 (1954)
Solon, § 452.08
South Euclid, § 351.06
Springboro, § 452.08
Streetsboro, § 351.06
Strongsville, § 452.08 (2000)
Stow, § 351.06
Summit County, § 351.06
Tallmadge, § 351.06
Tiffin, § 351.06
[***23] Tipp City, § 76.07 (1974)
Toledo, § 351.07 (1997)
492 F.3d 766, *787; 2007 U.S. App. LEXIS 15524, **55; 2007 FED App. 0248P (6th Cir.), ***20

Troy, § 351.06
Twinsburg, § 351.06 (1958)
University Heights, § 452.09
Upper Sandusky, § 351.06
Valley View, § 452.09 (1965)
Vandalia, § 452.09
Van Wert, § 76.07 (1981)
Vermilion, § 452.08
Walton Hills, § 452.09 (1969)
Wapakoneta, § 452.08
Warren, § 351.06
Warrensville Heights, § 351.12
Waynesville, § 76.08 (1982)
Wellington, § 351.06
Westerville, § 351.06
Westfield Center, § 452.09
Wickliffe, § 351.06
Willoughby, § 452.09 (1971)
Willowick, § 351.06
Wilmington, § 351.06
Woodmere, § 351.06
Woodville, § 351.06
Wooster, § 351.06
Worthington, § 351.06
Youngstown, § 351.06
The Ohio Basic Code, § 76.07 (2002)
[***24] Tennessee
Alcoa, § 15-220(6) (1971)
Arlington, § 15-404 (1997)
Belle Meade, § 15-601 (1987)
Bolivar, [**57] § 15-1504 (1976)
Brentwood, § 66-293
Bristol, § 70-203 (2006)
Chattanooga, § 24-293 (1986)
Cleveland, § 15-610 (1981)
Clinton, § 15-601(3)(h) (1969)
Farragut, § 15-110
Germantown, § 20-212 (1986)
Johnson City, § 15-1108 (1985)
Knox County, § 62-189 (1991)
[*789] Knoxville, § 17-291 (1962)
McMinnville, § 15-505 (1982)
Memphis, § 11-40-4 (1967)
Morristown, § 15-809 (1979)
Nashville, § 12.40.150
Oak Ridge, § 15-609 (1969)
Red Bank, § 15-601 (1975)
Sevierville, § 15-603 (1987)
Shelby County, § 20-86 (1992)
Signal Mountain, § 15-706 (1985)
Sparta, § 15-605 (1997)
Winchester, § 15-820 (1983)
End of Document
492 F.3d 766, *788; 2007 U.S. App. LEXIS 15524, **56; 2007 FED App. 0248P (6th Cir.), ***23