Severing Content-Based “Public Service” Exemptions While Preserving Content-Neutral Billboard Bans Under Ohio’s Geiger Test

I. Introduction

Case: Norton Outdoor Advertising, Inc. v. Village of St. Bernard, Ohio (6th Cir. Mar. 4, 2026).
Parties: Norton Outdoor Advertising, Inc. (billboard operator) vs. the Village of St. Bernard, Ohio, its Building Commissioner, and its Board of Zoning Appeals.
Background: The Village’s Chapter 711 (“Expressway Advertising”) regulates “outdoor advertising signs” visible from interstate/primary highways and prohibits “variable message outdoor advertising signs” (i.e., digital/remote-change signage). The definitional section also carved out several exceptions—most importantly, a “public service” exception for signs disclosing information such as time or weather, so long as they were not used to promote goods or services.

Key Issues on this second appeal:

  • Forfeiture: Did the Village forfeit the severability argument by not fully developing it earlier?
  • Severability (Ohio law): Can the unconstitutional “public service” exemption be severed, leaving the remainder enforceable?
  • First Amendment merits post-severance: Does the remainder survive intermediate scrutiny as a content-neutral time, place, and manner regulation?
  • Remedies/fees: If Norton earlier succeeded in showing one provision unconstitutional, is it entitled to damages or attorney fees as a “prevailing party”?

Procedural posture: In Norton Outdoor Advert., Inc. v. Village of St. Bernard (“Norton I”), 99 F.4th 840 (6th Cir. 2024), the Sixth Circuit held the “public service” exemption was an invalid content-based restriction (strict scrutiny failed) and remanded for severability. On remand, the district court found severability and upheld the rest under intermediate scrutiny. Norton appealed again.

II. Summary of the Opinion

The Sixth Circuit affirmed. It held:

  • The Village did not forfeit severability; the district court did not abuse its discretion in reaching the issue.
  • Under Ohio severability doctrine—particularly the three-part test from Geiger v. Geiger, 160 N.E. 28 (Ohio 1927), as reaffirmed in State v. Hochhausler, 668 N.E.2d 457 (Ohio 1996)—the “public service” exemption is severable.
  • After severance, the remaining ordinance is content-neutral and satisfies intermediate scrutiny as a time, place, and manner restriction, consistent with “the law of billboards” rooted in Metromedia, Inc. v. City of San Diego, 453 U.S. 490 (1981), and Sixth Circuit cases like Prime Media, Inc. v. City of Brentwood, 398 F.3d 814 (6th Cir. 2005), and Hucul Advert., LLC v. Charter Township of Gaines, 748 F.3d 273 (6th Cir. 2014).
  • Norton is entitled to no damages and is not a “prevailing party” entitled to fees under 42 U.S.C. § 1988(b).

III. Analysis

A. Precedents Cited

1. Framework: Summary judgment and standards of review

  • Hughes v. Gulf Interstate Field Servs., Inc., 878 F.3d 183 (6th Cir. 2017), and Fed. R. Civ. P. 56(a): de novo review and summary judgment standard.

2. Forfeiture vs. waiver and trial-court discretion

  • Hamer v. Neighborhood Hous. Servs. of Chi., 583 U.S. 17 (2017): clarifies “waiver” vs. “forfeiture.”
  • Ohio State Univ. v. Redbubble, Inc., 989 F.3d 435 (6th Cir. 2021), quoting United States v. Petlechkov, 922 F.3d 762 (6th Cir. 2019): definitions—waiver (intentional relinquishment) vs forfeiture (failure to timely assert).
  • Berkshire v. Dahl, 928 F.3d 520 (6th Cir. 2019); Lucaj v. FBI, 852 F.3d 541 (6th Cir. 2017): forfeiture commonly governs late-raised arguments.
  • King v. Taylor, 694 F.3d 650 (6th Cir. 2012), quoting In re Whirlpool Corp. Front-Loading Washer Prods. Liab. Litig., 678 F.3d 409 (6th Cir. 2012), and quoting Ohio ex rel. Skaggs v. Brunner, 629 F.3d 527 (6th Cir. 2010): abuse-of-discretion review and “range of plausible assessments.”
  • Slinger v. Pendaform Co., No. 21-5276, 2022 WL 2133745 (6th Cir. June 14, 2022), quoting Dietz v. Bouldin, 579 U.S. 40 (2016): district court authority to manage proceedings for orderly disposition.

Influence on the decision: These authorities supported the panel’s conclusion that even if severability was not comprehensively briefed pre-Norton I, the Village’s earlier “reservation” and the remand instruction justified addressing severability without finding forfeiture.

3. Severability: Ohio’s controlling test and presumption

  • Int'l Outdoor, Inc. v. City of Troy, 77 F.4th 432 (6th Cir. 2023), quoting City of Lakewood v. Plain Dealer Publ'g Co., 486 U.S. 750 (1988): severability of a local ordinance is a state-law question.
  • Geiger v. Geiger, 160 N.E. 28 (Ohio 1927), as applied in State v. Hochhausler, 668 N.E.2d 457 (Ohio 1996): Ohio’s three-part severability test.
  • State ex rel. Sunset Estate Props., LLC v. Village of Lodi, 30 N.E.3d 934 (Ohio 2015), citing Ohio Rev. Code § 1.50: statutory provisions are presumptively severable; invalidity of one provision does not affect others capable of functioning without it.
  • Emmons v. Keller, 254 N.E.2d 687 (Ohio 1970), overruled on other grounds by Kinney v. Kaiser Aluminum & Chem. Corp., 322 N.E.2d 880 (Ohio 1974): severability turns on whether the legislature would have refused the statute without the invalid part and focuses on “general purpose.”
  • State ex rel. Butler Twp. Bd. of Trs. v. Montgomery Cnty. Bd. of Comm'rs, 922 N.E.2d 945 (Ohio 2010): legislative intent determined from statutory language.
  • Village of Ottawa Hills v. Afjeh, No. L-02-1364, 2004 WL 3017241 (Ohio Ct. App. Dec. 30, 2004): example of severing an invalid sign-ordinance component.
  • Lamar Co. v. Lexington-Fayette Urb. Cnty. Gov't, 677 F. Supp. 3d 673 (E.D. Ky. 2023): federal sign-ordinance severability analysis (persuasive, not controlling).

Influence on the decision: The panel treated Geiger/Hochhausler plus Ohio Rev. Code § 1.50 as the governing Ohio rule set, and measured Norton’s objections against those standards—especially the “general purpose” inquiry from Emmons.

4. Rejecting a stricter “no broader law after severance” theory

  • State ex rel. English v. Industrial Commission, 115 N.E.2d 395 (Ohio 1953) (Taft, J., concurring): cited by Norton for a purported rule against severing exceptions.
  • State ex rel. Wilmot v. Buckley, 54 N.E. 272 (Ohio 1899), and State Bd. of Health v. City of Greenville, 98 N.E. 1019 (Ohio 1912): older territorial-coverage severability cases.
  • McCreary v. Bowers, 155 N.E.2d 224 (Ohio Ct. App. 1958): example supporting severability even when an exemption falls away.
  • Recent Ohio cases applying Geiger: City of Columbus v. State, 223 N.E.3d 540 (Ohio Ct. App. 2023); State v. Noling, 75 N.E.3d 141 (Ohio 2016); State v. Romage, 7 N.E.3d 1156 (Ohio 2014); City of Cleveland v. State, 5 N.E.3d 644 (Ohio 2014); and again Village of Lodi, 30 N.E.3d 934.
  • City of Tipp City v. Dakin, 929 N.E.2d 484 (Ohio Ct. App. 2010): relied on by Norton; Sixth Circuit declined to follow it as inconsistent with Ohio Supreme Court practice.
  • Am. Tooling Ctr., Inc. v. Travelers Cas. & Sur. Co., 895 F.3d 455 (6th Cir. 2018), quoting Ziegler v. IBP Hog Mkt., Inc., 249 F.3d 509 (6th Cir. 2001): federal courts ordinarily follow intermediate state appellate decisions unless convinced the state supreme court would rule otherwise.

Influence on the decision: The panel cabined Buckley and City of Greenville to territorial-scope statutes and treated the English concurrence as non-controlling and inconsistent with modern Geiger jurisprudence and Ohio’s severability presumption.

5. First Amendment: content neutrality, scrutiny level, and “law of billboards”

  • Reed v. Town of Gilbert, 576 U.S. 155 (2015): strict scrutiny applies to content-based restrictions.
  • City of Austin v. Reagan Nat'l Advert. of Austin, LLC, 596 U.S. 61 (2022), quoting Ward v. Rock Against Racism, 491 U.S. 781 (1989): intermediate scrutiny and narrow tailoring for content-neutral regulations.
  • Hucul Advert., LLC v. Charter Township of Gaines, 748 F.3d 273 (6th Cir. 2014), quoting Prime Media, Inc. v. City of Brentwood, 398 F.3d 814 (6th Cir. 2005): four-part time, place, and manner test.
  • Metromedia, Inc. v. City of San Diego, 453 U.S. 490 (1981): traffic safety and aesthetics are significant interests; deference to “common-sense” legislative judgments regarding billboard harms.
  • Members of the City Council of L.A. v. Taxpayers for Vincent, 466 U.S 789 (1984): a regulation may “eliminate the exact source of the evil”; supports narrow tailoring.
  • Additional Sixth Circuit billboard precedents: Rzadkowolski v. Village of Lake Orion, 845 F.2d 653 (6th Cir. 1988); Bench Billboard Co. v. City of Covington, 465 F. App'x 395 (6th Cir. 2012).
  • Distinguishing non-billboard intermediate scrutiny cases: Pagan v. Fruchey, 492 F.3d 766 (6th Cir. 2007) (en banc); Sambo's Rests., Inc. v. City of Ann Arbor, 663 F.2d 686 (6th Cir. 1981).
  • Commercial speech test discussed below but rejected as the governing framework here: Central Hudson Gas & Electric Corp. v. Public Service Commission of N.Y., 447 U.S. 557 (1980).

Influence on the decision: The panel (1) confined strict scrutiny to the content-based exemption already invalidated in Norton I, and (2) applied the time, place, and manner framework from Hucul/Prime Media, heavily informed by Metromedia’s deference to legislative judgment in billboard regulation.

6. Remedies, severance as “interpretive,” and fee-shifting

  • Lindenbaum v. Realgy, LLC, 13 F.4th 524 (6th Cir. 2021): severance is an interpretive endeavor, not itself a remedy.
  • Lackey v. Stinnie, 604 U.S. 192 (2025), quoting Buckhannon Bd. & Care Home, Inc. v. W.V. Dep't of Heath & Hum. Res., 532 U.S. 598 (2001): “prevailing party” is a term of art requiring ultimate success and judicially sanctioned change in the parties’ legal relationship.
  • Rhodes v. Stewart, 488 U.S. 1 (1988) (per curiam): a declaratory judgment that does not modify defendant’s behavior toward plaintiff does not confer prevailing-party status.

B. Legal Reasoning

1. The court’s handling of “forfeiture” on severability

The Sixth Circuit treated Norton’s “waiver” claim as a forfeiture argument because the record showed no intentional relinquishment by the Village. Applying abuse-of-discretion review (King v. Taylor), the panel credited that the Village had at least flagged severability in its initial summary-judgment briefing and that Norton I expressly remanded for the district court to decide severability “in the first instance.” Given Norton’s multi-provision attack on the ordinance, the court found it reasonable that the Village could not be expected to fully brief severability without knowing which provisions would fall.

2. Severability under Ohio law: applying Geiger as the controlling rule

With the parties agreeing the first Geiger factor was satisfied (separability in a textual sense), the opinion turned to factors two and three:

  • Geiger factor two (legislative intent / operability consistent with purpose): The ordinance’s express purposes—traffic safety, reducing distractions, reducing visual blight, increasing property values—remain fully served (if not enhanced) by striking the “public service” carve-out. The panel emphasized that Chapter 711’s “general purpose” is billboard regulation, not the protection of public-service displays.
  • Geiger factor three (no need to insert words to make the remainder work): Norton’s argument that the Village would need to add language to preserve previously exempt variable-message public-service signs misunderstood the inquiry. Ohio’s test asks whether insertion is necessary to give effect to the constitutional remainder—not whether the post-severance regulatory environment replicates the pre-severance one.

The court also rejected Norton’s “cap and replace” objection by clarifying the provision’s actual function: it is not a fixed numeric cap but a “one-in, one-out” requirement tied to face area and faces. Expanding the set of signs subject to that neutral regulatory mechanism did not defeat severability.

3. Resisting a competing severability doctrine and declining to follow City of Tipp City v. Dakin

The court refused to adopt a categorical rule that severance is barred whenever it would produce a “broader” law. It reasoned that such a rule would effectively make unconstitutional exemptions presumptively nonseverable—contrary to Ohio Rev. Code § 1.50 and the modern Ohio Supreme Court’s repeated reliance on Geiger. It further treated Buckley and City of Greenville as territorial-coverage cases not applicable to a local ordinance, and discounted the broader reading urged from the concurrence in English.

On City of Tipp City v. Dakin, the panel acknowledged the usual federal practice of following state intermediate appellate precedent but found “persuasive data” that the Ohio Supreme Court would decide differently given its consistent commitment to Geiger.

4. Intermediate scrutiny after severance: time, place, and manner (not Central Hudson)

The district court had analyzed the ordinance under commercial-speech doctrine (Central Hudson Gas & Electric Corp. v. Public Service Commission of N.Y.), but the Sixth Circuit applied the time, place, and manner test because Chapter 711 applies to noncommercial messages as well as commercial advertising (tracking Hucul Advert., LLC v. Charter Township of Gaines and Bench Billboard Co. v. City of Covington).

Under that test, the ordinance survived:

  • Justified without reference to content: once the “public service” carve-out is severed, the ordinance’s key restrictions (including the variable-message ban) do not depend on the sign’s communicative topic.
  • Significant governmental interests: traffic safety, aesthetics, property values—recognized as significant in Metromedia, Inc. v. City of San Diego, Prime Media, Inc. v. City of Brentwood, and Hucul Advert., LLC v. Charter Township of Gaines.
  • Narrow tailoring / reasonable fit: a prohibition on variable-message (digital) billboards and controls on proliferation reasonably address distraction and blight; the Village “eliminate[d] the exact source of the evil,” echoing Members of the City Council of L.A. v. Taxpayers for Vincent.
  • Ample alternatives: Norton did not contest this prong on appeal.

5. Evidentiary burden: no special record proof required in billboard cases

Norton argued the Village needed record evidence beyond the ordinance’s stated purposes to prove narrow tailoring. The panel rejected this in reliance on Metromedia, Inc. v. City of San Diego, where the Supreme Court refused to “disagree with the accumulated, common-sense judgments of local lawmakers” connecting billboards to traffic hazards and aesthetic harms. The court underscored that, per Pagan v. Fruchey, the “law of billboards” is distinct and “demand[s] deferential review” when aesthetics and traffic safety are invoked.

6. No damages and no fee entitlement despite a prior “win” on unconstitutionality

Even though Norton succeeded in Norton I in identifying an unconstitutional exemption, the post-severance regime still lawfully bars Norton’s proposed digital billboard, so Norton obtained no final relief. The panel characterized severance as interpretive (Lindenbaum v. Realgy, LLC) and held Norton was not a prevailing party under 42 U.S.C. § 1988(b), relying on Lackey v. Stinnie, Buckhannon Bd. & Care Home, Inc. v. W.V. Dep't of Heath & Hum. Res., and Rhodes v. Stewart.

C. Impact

  • Severability doctrine in Ohio-sign cases (federal application): The opinion firmly centers Ohio severability analysis on the Geiger v. Geiger / State v. Hochhausler framework plus Ohio Rev. Code § 1.50, and rejects attempts to convert unconstitutional exemptions into presumptively nonseverable provisions.
  • Remedial consequence of partial constitutional success: Plaintiffs who successfully challenge a content-based sign exemption may still leave the overall regulatory ban intact through severance—and may recover neither damages nor fees if the final judgment leaves the government’s enforcement posture toward them unchanged.
  • Reinforcement of “law of billboards” deference: The decision reiterates that municipalities generally need not build an evidentiary record proving the dangers of billboards (especially digital/variable-message signs) to satisfy intermediate scrutiny, given Metromedia’s acceptance of common-sense legislative judgments.
  • Litigation strategy effects: Municipal defendants are encouraged to preserve severability early—even in skeletal form—while plaintiffs should anticipate that striking a content-based exemption may result in a more uniformly restrictive ordinance rather than invalidation of the entire scheme.

IV. Complex Concepts Simplified

  • Content-based vs. content-neutral: A rule is content-based if officials must read the sign to know whether the rule applies (triggering strict scrutiny under Reed v. Town of Gilbert). Here, the “public service” exemption required determining whether a sign was time/weather information rather than advertising, so it was content-based. After removing that exemption, the remaining rules applied without regard to message topic.
  • Strict scrutiny vs. intermediate scrutiny: Strict scrutiny requires a compelling interest and narrow tailoring; intermediate scrutiny (for content-neutral time/place/manner rules) requires a significant interest and a reasonable fit, leaving open ample alternatives.
  • Severability: Severability asks whether a court can “cut out” an unconstitutional part while leaving the rest enforceable. Under Ohio’s Geiger test, courts ask (1) can the parts be separated, (2) does the remainder still serve the law’s overall purpose, and (3) can the remainder function without adding new words.
  • Forfeiture vs. waiver: Waiver is an intentional giving up of an argument; forfeiture is a failure to raise it in time. The court treated the Village’s timing as forfeiture and upheld the district court’s decision to reach severability.
  • “Prevailing party” under § 1988: To recover attorney fees, a civil-rights plaintiff must win meaningful, final relief that changes the defendant’s behavior toward the plaintiff. An intermediate appellate victory that ultimately yields no enforceable relief does not suffice.

V. Conclusion

This Sixth Circuit decision crystallizes a practical rule for sign-ordinance litigation in Ohio: an unconstitutional content-based exemption—like a “public service” carve-out—will often be severed under Ohio’s Geiger test rather than used to invalidate an entire billboard regime. After severance, content-neutral billboard controls, including bans on variable-message/digital billboards and mechanisms limiting proliferation, remain highly defensible under the First Amendment due to the deferential “law of billboards” stemming from Metromedia, Inc. v. City of San Diego. Finally, the opinion underscores that identifying an unconstitutional provision is not enough to secure damages or attorney fees when severance leaves the plaintiff subject to the same practical prohibition and no final relief issues.