Cook County Record

Tuesday, October 15, 2019

Appeals court: Downers Grove rules limiting signs painted on buildings does not violate First Amendment

Federal Court

By Karen Kidd | Oct 9, 2019

The painted Leibundguth Storage and Van Service on Warren Avenue in Downers Grove that a village ordinance says must go

CHICAGO – A Downers Grove storage and van company will not be allowed to keep its sign painted across the length of its building, a federal court affirmed Sept. 24 in finding a village sign ordinance does not violate the First Amendment.

In their six-page decision the three-judge panel of the U.S. Seventh Circuit Court of Appeals found that the Downers Grove sign ordinance's limitations on size, presentation, location and other considerations are reasonable forms of zoning and don't violate the Constitution. The appeals court affirmed a previous district court ruling that noted the village's ordinance was based on evidence showing signs painted on walls tended to deteriorate faster than other kinds of signs and "become downright ugly."

The appeals judges also noted that the sign at Leibundguth Storage and Van Service on Warren Avenue in Downers Grove already "is full of chipped paint and flaking bricks."

"Old paint may show through. Efforts to remove paint may leave a ghost image or bleach the brick so that the building becomes mottled," the appeals judges said. "Leibundguth tells us that those effects are too slight to justify legislation, but 'de gustibus non disputandum est' ('There’s no accounting for taste.') People’s aesthetic reactions are what they are. If a large number of people find paint-on-brick ugly, and paint-over-paint-on-brick worse, this is a raw fact that a governmental body may consider."

Seventh Circuit Judge Frank H. Easterbrook wrote the decision. Seventh Circuit Judge William J. Bauer and District Judge Jon E. DeGuilio concurred. DeGuilio, who usually sits on the bench in Indiana's Northern District, had been designated to hear the Leibundguth case with Easterbrook and Bauer.

Leibundguth has been fighting an ordinance adopted by Downers Grove that limits signs painted directly on buildings to a size of 1.5 square feet per linear foot of frontage to maintain the aesthetics of such signage. If Leibundguth were to obey the ordinance, its sign could be 159 square feet, considerably smaller than the current 400 square feet.

In its lawsuit challenging the ordinance, Leibundguth alleged the village violated the First Amendment because it contained "content-based" for political signs, holiday décor and temporary signs, violations as defined in the U.S. Supreme Court's 2015 decision in Reed v. Gilbert.

The appeals court rejected that argument, finding instead that Leibundguth's objections were about size and other surface limitations in its signs rather than its content. Much of the debate has centered around the largest of Leibundguth's three signs painted on a wall. That sign and a second is too large for the ordinance. Of two signs on a third Leibundguth wall, only one is permissible under the ordinance.

Downers Grove maintains its ordinance regulates only commercial speech, which the district concluded was acceptable under another case, Central Hudson Gas & Electric Corp. v. Public Service Commission, decided by the U.S. Supreme Court in 1980.

"We need not decide which decision - Reed or Central Hudson - must give way when a commercial sign law includes content discrimination," the appeals court panel ruled, calling the Downers Grove ordinance "comprehensive."

"The parties dispute how the village's ordinance applies to the signs on two other faces of Leibundguth's building but none of the possibilities poses a constitutional issue distinct from the ones we have already addressed," the judges concluded. "What we have said is enough to show that the ordinance, as applied to Leibundguth, does not violate the First Amendment."

Leibundguth has been represented in the action by attorneys from the Liberty Justice Center, of Chicago.

Downers Grove has been represented by attorney Scott Day, of Naperville.

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Liberty Justice Center U.S. Court of Appeals for the Seventh Circuit Village of Downers Grove

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