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Lexington H-L Services, Inc. v. Lexington-Fayette Urban County Government

United States Court of Appeals, Sixth Circuit

January 9, 2018

Lexington H-L Services, Inc., Plaintiff-Appellee,
v.
Lexington-Fayette Urban County Government, Defendant-Appellant.

          Argued: December 7, 2017

         Appeal from the United States District Court for the Eastern District of Kentucky at Lexington. No. 5:17-cv-00154-Karen K. Caldwell, Chief District Judge.

         ARGUED:

          Keith Moorman, FROST BROWN TODD LLC, Lexington, Kentucky, for Appellant.

          John A. Bussian, THE BUSSIAN LAW FIRM, PLLC, Raleigh, North Carolina, for Appellee.

          ON BRIEF:

          Keith Moorman, FROST BROWN TODD LLC, Lexington, Kentucky, for Appellant.

          John A. Bussian, THE BUSSIAN LAW FIRM, PLLC, Raleigh, North Carolina, Mark J. Prak, Charles E. Coble, Brian C. Fork, BROOKS, PIERCE, MCLENDON, HUMPHREY & LEONARD, L.L.P., Raleigh, North Carolina, for Appellee.

          Stephen Kiehl, COVINGTON & BURLING LLP, Washington, D.C., for Amicus Curiae.

          Before: CLAY, GIBBONS, and COOK, Circuit Judges.

          OPINION

          CLAY, Circuit Judge.

          Defendant Lexington-Fayette Urban County Government ("the City") appeals an order granting a preliminary injunction issued by the district court. The order enjoins the City's enforcement of Ordinance 25-2017 (the "Ordinance") based on the First and Fourteenth Amendment claims of Plaintiff Lexington H-L Services, Inc., d/b/a Lexington Herald-Leader ("Plaintiff"), brought pursuant to 28 U.S.C. § 1343(a)(3) and 42 U.S.C. § 1983. For the reasons set forth below, we REVERSE the district court's order and VACATE the injunction.

         BACKGROUND

         The facts of the case are straightforward, and the parties do not challenge the following summary set forth by the district court:

The Herald-Leader sells and distributes numerous publications, including The Community News, which is a weekly four- to six-page non-subscription publication. The Community News contains local news and advertising for the city of Lexington, Kentucky, and the surrounding area. The Herald-Leader delivers The Community News to businesses and residents in Fayette and neighboring counties. The Community News is delivered free of charge to more than 100, 000 households each week.
The Herald-Leader distributes The Community News by various means, including driveway delivery. However, the Herald-Leader's driveway method of delivering The Community News would be prohibited by an ordinance that Lexington has adopted.
That ordinance, which [was scheduled to] go into effect on May 1, 2017, permits the delivery of "unsolicited written materials" only to six specific locations: (1) on a porch, if one exists, nearest the front door; (2) securely attached to the front door; (3) through a mail slot, if one exists; (4) between an exterior front door, if one exists and is unlocked, and an interior front door; (5) in a distribution box located on or adjacent to the premises, if permitted; or (6) personally with the owner, occupant, or lessee of the premises. Lexington, Ky., Ordinance No. 25-2017 (March 2, 2017). The ordinance provides for civil penalties for violations. Id.

Lexington H-L Servs., Inc. v. Lexington-Fayette Urban Cty. Gov't, 259 F.Supp.3d 659, 662 (E.D. Ky. 2017) (record citations omitted).

         Shortly after the City adopted the Ordinance, but before it went into effect, Plaintiff filed suit in the district court claiming that the Ordinance would violate its free speech and free press rights under the First Amendment, as applied to the City through the Fourteenth Amendment. Plaintiff moved for a preliminary injunction to prevent enforcement of the Ordinance until the district court ruled on the merits of its claims. The district court granted Plaintiff's motion and enjoined enforcement of the Ordinance, finding that Plaintiff had demonstrated a likelihood of success on the merits. The City filed this timely appeal.

         DISCUSSION

         A. Standard of Review

         When reviewing an order granting a preliminary injunction in a First Amendment case, this Court "review[s] the District Court's legal rulings de novo (including its First Amendment conclusion), and its ultimate conclusion as to whether to grant the preliminary injunction for abuse of discretion." O'Toole v. O'Connor, 802 F.3d 783, 788 (6th Cir. 2015) (citations omitted). We have explained this hybrid review process as follows:

Whether the movant is likely to succeed on the merits is a question of law we review de novo. We review for abuse of discretion, however, the district court's ultimate determination as to whether the four preliminary injunction factors weigh in favor of granting or denying preliminary injunctive relief. This standard is deferential, but the court may reverse the district court if it improperly applied the governing law, used an erroneous legal standard, or relied upon clearly erroneous findings of fact.

City of Pontiac Retired Employees Ass'n v. Schimmel, 751 F.3d 427, 430 (6th Cir. 2014) (en banc) (internal citations, ...


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