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Billboard against sky background day imageLamar Central Outdoor, LLC v. City of Los Angeles, 2016 WL 911406 (Cal. App.) constituted another round between cities and billboard companies over the limits of regulation. In 2002, defendant banned most billboards in the City, except for those allowed in a certain planned development zone and those advertising goods and services sold on the premises and for noncommercial billboards.   The City also banned alterations to existing billboards.   Exceptions to the ban included billboards allowed under a development agreement, special zoning district, and to work located primarily in a public right of way (such as a bus or transit stop).   The City’s sign code rests on traffic safety and aesthetics.

thumbnailVosse v. City of New York, 2015 WL 7280226 (S.D.N.Y.) was a First Amendment suit by an apartment dweller against the City and its Building Commissioner over an illuminated peace symbol on the exterior of Plaintiff’s 17th floor apartment. Illuminated signs were prohibited more than 40 feet from the ground in the applicable zoning district, but the regulations made an exception for “flags, banners or pennants” on certain religious, philanthropic or community structures. Plaintiff contended the regulation was content-based and thus unconstitutional. The trial court granted summary judgment, finding that Plaintiff lacked standing. The Second Circuit first affirmed, then reconsidered the case in the light of Plaintiff’s alternative argument that assumed standing for an alternative contention that, even if content-neutral, the regulation was not a reasonable time, place and manner restriction.

Sign on grassReed v. Town of Gilbert, No 13­502, June 18, 2015, involved one of 25 exemptions to Respondent's general requirement that a sign permit be secured to display a sign. Those exemptions are based on the content of the sign. The category at issue was a "temporary directional sign relating to a qualified event," which may be sponsored by a religious, charitable or other nonprofit organization. Signs in this category are limited in size (6 square feet), the number which may be placed on property (4), and time (12 hours before and one hour after the event). Those signs are treated less favorably than ideological signs ( which may be 20 square feet, allowed in any zone and unlimited in time) and political signs (which may be 16 to 32 square feet, depending on the status of the property, and allowed 60 days before and 15 days following an election).

Reed, a church pastor, wished to advertise the times and location of his congregation's service, which were not always in the same place, since there was no fixed church site. The signs did not always contain a date and were in place outside the time limits of the regulations. After accommodation failed, Reed filed a First Amendment claim in federal court. After two rounds in the trial court and Ninth Circuit, relief was denied as the categories were deemed content neutral so that no content based regulation occurred. The Supreme Court granted certiorari.

Justice Thomas, writing for the court, said that content based regulations of expression were presumptively unconstitutional and would only be upheld if shown to serve a compelling public interest and narrowly tailored to achieve the same. He added that "content ­based" dealt with either the topic discussed or idea the message expressed. Even content neutral regulations would be subject to strict scrutiny if they cannot be justified without reference to the content of the speech or shown to be adopted due to disagreement with the message conveyed.

The Court found the regulations content based as they depended on the message i.e. a "qualifying event," an ideological matter, an election) which triggered different regulations for each category, thus triggering the strict scrutiny analysis. The Court found the justifications accepted by the Ninth Circuit "unpersuasive."

One justification was that the regulations were not motivated by disagreement with the message? However the Court responded that motivation is irrelevant if the regulations were not content neutral, even if the regulation were facially neutral. Such a regulation may be content ­based even if it does not discriminate based on subject matter or viewpoints. In this case the regulations single out specific subject matter (information on "qualified events), even if it takes no position on those events, and allows signs relating to that event to be treated differently than ideological or political signs ­­ a paradigmatic example of content ­based discrimination." Another justo action was that the regulations were content ­neutral as to speaker and event. The Court said the signs were based on their content, rather than the identity of the speaker. Had the church or its pastor expressed an ideological message or supported a candidate, the regulations would have been different. Thus they are content based. There was no adequate justification for these regulations under a strict scrutiny analysis.

Respondent offered traffic safety and aesthetics, but the Court found the regulations "hopelessly under-inclusive" as they did not deal with other signs causing similar effects, as they allied an unlimited (in time) posting of ideological signs and a multitude of political signs at election time.

The Court asserted that the public had ample content ­neutral means to deal with aesthetics and traffic safety ­­ by dimensional and physical limitations, for example and suggesting the world would not end if more signs resulted from litigation. The Court also stated that some traffic safety signs may survive strict scrutiny? However that issue was not before it and the differing regulations on ideological, political and qualifying event signs were content ­based and did not survive strict scrutiny. The Ninth Circuit decision was thus reversed and remanded.

Justice Alito, joined by Justices Kennedy and Sotomayor, concurred and further described how signs may be constitutionally regulated, including limits on size, location, lighting, attachment to other structures, regulation of moving messages, placement on public or private property, differences based on zoning districts, onsite or offsite status, number of signs per roadway mile, onetime signs or signs placed by government action following the Court's decision in Pleasant Grove City v. Summum, 555 U.S. 460, 467­69 (2009). This latter category appears to exempt government signs on public property from content neutrality requirements.

Justice Breyer concurred in the judgment, sounding caution in the formulaic use of strict scrutiny in every content based sign code distinction. While that analysts is helpful when a public forum or viewpoint discrimination is involved, government programs almost always involve content discrimination, such as securities regulation, drug or energy ­conservation labeling, reporting of child abuse or comic able diseases and the like, many of which do not involve commercial matters. While he rejects watering down the strict scrutiny test, Justice Breyer suggests it be a "rule of thumb" in most cases outside the public forum or viewpoint discrimination areas to examine whether the regulation is disproportionate to First Amendment interests in light of regulatory objectives. Such an approach would allow regulation of speech by voters where courts "should hesitate to substitute judicial judgment for that of administrators." In any event, Justice Breyer joined Justice Kagan's concurrence in the Court's judgment.

Justice Kagan's, joined by Justices Breyer and Ginsburg, concurred in the judgment, pointing out that numerous local sign codes exempt or permit various sign categories ­­ "pedestrian crossing" or "George Washington Slept Here" being examples, which codes are now seen as content based and subject to strict scrutiny. She asked rhetorically whether a town had a compelling state interest to say "George Washington Slept Here?" Justice Kagan's found the traditional justifications for strict scrutiny may not apply in such low ­level situations, as they do not interfere with the marketplace of ideas or impose viewpoint or subject matter limitations on speech. If those concerns are not present and the risk is inconsequential, strict scrutiny is unwarranted and sweeps too broadly than the actual harm to free speech interests. Justice Kagan suggested the court exercise common sense, leaving intact laws that do not violate these interests. She noted that in Members of the City Council v. Vincent, 466 U.S. 789 (1984) and more recently in City of Ladue v. Gilleo, 512 U.S. 43 (1994), the Court passed over such distinctions and in City of Renton v. Playtime Theatres, 475 U.S. 41, 46 (1986), the Court used intermediate scrutiny to deal with distinctions between adult and other films shown by a movie house. Justice Kagan suggested using Ladue here, under which the Gilbert code would. To pass strict or intermediate scrutiny ("or even the laugh test") as there was no coherent justification for the distinctions made. There was no reason to apply strict scrutiny here and the Court risks becoming the "Supreme Board of Sign Review" without any necessary First Amendment justification.

Justice Kagan's concerns are certainly justified. In the light of this decision, what is the justification for distinguishing between commercial and noncommercial signs or between onsite and offsite signs? One must read the content of the sign to make such regulatory decisions if regulation is to be done at all. The principal opinion suggests that traffic signs "may" survive strict scrutiny, but what if the multitude of other public or private signs that are not traffic related? Perhaps Summum will allow the public to use its proprietary and regulatory powers to deal with some signs, but that response is insufficient to deal with the host of sign issues facing local governments today. Let us hope we will not have wait another twenty years for answers from a Sphinx­like high court.

Reed v. Gilbert, No. 13­502, June 18, 2015.

2010 GrassSpring Training has begun!  The boys of summer have reported to camp and pre-season games are underway.  While major league teams are preparing for the coming baseball season in sunny Arizona and Florida, the Chicago Cubs baseball club has started its season in federal court in Illinois.  The Cubs are renovating historic Wrigley Field, which includes adding a large video board and signs in the outfield.  The new video board and signs happen to block the view of the field for neighbors beyond right field who have rooftop businesses that provide patrons with food, drinks and views of Wrigley Field events.  The rooftop businesses have sued the Cubs to stop construction.  They have also sued the City of Chicago and the City’s Landmark Commission for approving the renovation to the ballpark in the first place.

In their suit against the Cubs, the rooftop businesses have alleged that the Cubs are violating the Sherman Antitrust Act by strategically constructing the video board and signs in locations that block the views of the rooftop businesses, while not blocking views from other rooftops that the Cubs own or control.  The rooftop businesses have also alleged that the Cubs’ renovations violate a 2004 settlement agreement between the Cubs and the rooftop owners, which provided that the rooftop owners would pay the Cubs a royalty based on gross revenues in return for unobstructed views of the field.

Last month, the rooftop businesses sought a temporary restraining order against the Cubs to halt construction of the video board and signs.  After considering arguments from both sides, the federal judge threw the rooftop businesses a curve and denied their request for a TRO.  The judge ruled that the rooftop businesses failed to satisfy their burden of proving immediate and irreparable harm from the construction, because the businesses did not provide evidence of potential loss of income.

The ruling is not a home run for the Cubs, however.  A further hearing is scheduled for March 23 to determine whether the rooftop businesses are entitled to a preliminary injunction to halt construction.  With opening day in Wrigley Field scheduled for April 5, and with renovations reportedly behind schedule, the Cubs will be hoping to turn a double play and prevail again so the renovation can be completed.

Ed Sullivan Reed v. Gilbert, 707 F.3d 1057 (9th Cir., 2013), Cert. Granted (July 1, 2014), involved the validity and constitutionality of Defendant Town of Gilbert’s sign regulations as applied to temporary directional signs for church services in an adjacent town.  The instant decision involved an appeal from a Trial Court decision on remand from the Ninth Circuit in which that Court found the temporary sign regulations not to be content-based, but rather a reasonable time, place and manner regulation.  However, the Ninth Circuit also remanded the case to the Trial Court to determine whether the claim that the First Amendment and the Equal Protection Clause are violated if the regulations favor some noncommercial speech over other noncommercial speech.  On remand, the Trial Court found no such violation and the Plaintiff church and its pastor again appealed.  In the meantime, Defendant amended its sign regulations, but the Ninth Circuit observed that those amendments could be challenged by Plaintiffs in separate proceedings.

Plaintiffs asserted  they were under a religious injunction to convert others and to invite them to their services, which they did, inter alia through these temporary directional signs.  There was friction with the Defendant Town, especially because the church services were held in an adjacent town.  Defendants’ sign code required a permit for signs but exempted three categories from these requirements – temporary directional signs of a certain size and placement, which are allowed only twelve hours before and one hour after the event that they advertise; political signs dealing with a candidate or ballot measure placed at any time before and within up to ten days after election on that candidate or ballot measure; and ideological signs which are not limited as to time or number.  Directional signs have the least amount of allowed area, while ideological signs have the most.

The Ninth Circuit in 2009 affirmed the original Trial Court decision, determining that the case involved an applied challenge, that the sign code was not content-based (as the directional aspects dealt with speakers or events rather than the content of the speech involved), that the ordinance was not unconstitutional because of the limited duration categories, that the ordinance was narrowly tailored to advance the town’s interests in traffic safety and aesthetics, and that alternative channels of communication were available.  Additionally, the Court found that commercial speech was not favored over noncommercial speech.

On remand, the Trial Court considered cross-motions for summary judgment to consider the remanded constitutional issues and again dismissed Plaintiffs’ claims.  The Court distinguished among the three noncommercial exemptions and found the distinctions not to be prohibited content-based regulations, and did not favor one type of noncommercial speech over another.  Thus, the Trial Court found it permissible to have differing durational and size requirements for each of the three noncommercial categories.

On review, the Ninth Circuit said it was bound by the “law of the case,” and as there was no new discovery or any asserted evidentiary facts in the second iteration of the case, the sole basis for the remand was whether the distinctions among the three noncommercial categories constituted discrimination that violated the First Amendment or the Equal Protection Clause.

The Ninth Circuit noted the evolution of jurisprudence relating noncommercial speech beginning with the prohibitions on favoring commercial over noncommercial speech in Metromedia, Inc. v. San Diego, 453 U.S. 490, 541 (1981).  While the United States Supreme Court had not directly dealt with this issue since Metromedia, the Ninth Circuit has not been so fortunate.  In G.K. Ltd. Travel v. City of Lake Oswego, 436 F.3d 1064 (9th Cir. 2006) that court found that neither reference to a speaker nor event involved content discrimination as enforcement officers were not required to read the sign to determine whether the sign were exempt.  The Court said the question in this case was whether the differing requirements for each of the three categories of noncommercial speech could be justified without reference to the content of that speech.  The Ninth Circuit responded that it had considered, and rejected, a similar argument in the first iteration of this case adding:

* * *[T]he distinctions between Temporary Directional Signs, Ideological Signs, and Political Signs are content-neutral.  That is to say, each classification and its restrictions are based on objective factors relevant to Gilbert’s creation of the specific exemption from the permit requirement and do not otherwise consider the substance of the sign.  The Political Signs exemption responds to the need for communication about elections. The Ideological Sign exemption recognized that an individual’s right to express his or her opinion is at the core of the First Amendment.  The Temporary Directional Sign exemption allows the sponsor of an event to put up temporary directional signs immediately before the event.  Each exemption is based on objective criteria and none draws distinctions based on the particular content of the sign.  It makes no difference which candidate is supported, who sponsors the event, or what ideological perspective is asserted.  Accordingly, as the speaker and event determinations are generally “content neutral.”  Gilbert’s different exemptions for different types of noncommercial speech are not prohibited by the Constitution. (Footnote omitted)

Moreover, the Ninth Circuit found a similar approach had been validated in Hill v. Colorado, 530 U.S. 703 (2000) where a regulation of speech-regulated conduct within 100 feet of a healthcare facility was upheld as it did not regulate the content of any speech.  Neither was there such a regulation of the content of temporary directional signs in this case.  In Hill, the United States Supreme Court found no regulation of speech content, but only where that speech may be exercised, noting the state interest in protecting access and privacy and a need to provide police with clear guidelines.  The United States Supreme Court also added it was not improper to review the content of speech to determine whether a rule of law applied to a course of conduct.

With regard to the differential treatment of the categories of noncommercial speech, the Ninth Circuit reasoned that the temporary directional sign regulations were, standing alone, content-neutral and not in competition with the other noncommercial categories; moreover, those regulations reasonable with respect to their purposes.

The Ninth Circuit, having found the ordinance to be content-neutral, and to be a reasonable time, place and manner restriction, turned to the issues of whether the ordinance was narrowly tailored to serve a significant governmental interest and left open ample alternative channels of communication.  The Court recognized traffic safety and aesthetics as significant governmental interests and found the temporary directional signs (unlike political and ideological signs) were properly prohibited from being placed in the right-of-way.  Moreover, those signs were not of such core speech importance to be protected as it would be in the other categories which were allowed to be placed in the right-of-way.  As noted, there was no competition among the various commercial categories and no showing that the restrictions on temporary directional signs interfered with their purpose of showing would-be patrons the way to church services.  Moreover, the Court said it would defer to local judgments on sign size and duration, if they be reasonable.  These considerations responded adequately to the obligations of the local government under the First Amendment.  The Court concluded with the regulations need not be uniform among all categories of noncommercial speech and may vary with the type of speech involved and how the town’s interests are affected.  The Court concluded:

* * *In sum, (a) Gilbert was not required to create an exemption for Temporary Direction Signs, (b) the restrictions on directional signs are rationally related to the purpose of the directional signs, and (c) the restrictions are reasonably designed to promote Gilbert’s interests in aesthetics and safety.

Moreover, the Ninth Circuit found a “reasonable fit” between the public agency ends and the regulatory means chosen to reach those ends.  As to alternative channels of communication, the Ninth Circuit was satisfied that Plaintiffs may erect multiple temporary signs in the area and take advantage of other means of communication.

The Ninth Circuit also rejected Plaintiffs’ challenges to the ordinance under the Arizona Free Exercise of Religion Act, vagueness and overbreadth, and equal protection grounds.  However as noted, the Court allowed for new litigation to deal with amendments to the Defendants’ sign code made since the Trial Court's second decision.

The gist of this decision is that all noncommercial speech exemptions need not be treated alike, so long as each of the exemptions in content-neutral, narrowly tailored to serve a significant governmental interest, and leaves open ample alternative channels of communication.

Judge Watford dissented, although he agreed that the post-trial ordinance amendments could be challenged in a separate suit.  Judge Watford pointed out that the first Ninth Circuit decision considered the temporary directional sign provisions in isolation and found it content-neutral.  However, that decision did not evaluate the relationship of that exemption with the political or ideological sign categories; rather the Ninth Circuit remanded the matter to the Trial Court to undertake an analysis of whether favoring one type of noncommercial speech over another was constitutional.  It was clear to the dissent that the terms for the three exemptions were different in terms of sign size and duration and that fact lead the dissent to believe that one type of noncommercial speech was unconstitutionally treated more favorably then another.  The dissent noted that in a public forum, unless a distinction were based upon some non-communicative aspect of the speech involved, the regulation must fall concluding:

* * *The reason is simple: Within the realm of noncommercial speech, the government may not decide that speech on certain subjects is more (or less) valuable—and therefore more (or less) deserving of First Amendment protection—than speech on other subjects.

The dissent described one reason for the invalidity of the sign code in Metromedia’s plurality opinion is that that ordinance valued certain noncommercial speech (i.e., political signs) over other noncommercial messages, thus concluding:

Gilbert’s sign ordinance violates the First and Fourteenth Amendments by drawing content-based distinctions among different categories of non-commercial speech.  The most glaring illustration is the ordinance’s favorable treatment of “political” and “ideological” signs relative to the treatment accorded the non-commercial signs plaintiffs seek to display.  Under the ordinance, plaintiffs’ temporary directional signs may not exceed six square feet in size and may not be displayed more than 12 hours before or one hour after the relevant event—here, Sunday morning church services.  (Given the 9:00 a.m. start time of Good News’s church services, this durational restriction limits the display of plaintiffs’ signs to periods when it is virtually always dark.)  In contrast, “political” signs—defined as “[a] temporary sign which supports candidates for office or urges action on any other matter on the ballot of primary, general and special elections relating to any national, state or local election”—may be up to 32 square feet in size and may be displayed any time prior to an election and removed within 10 days after the election.  “Ideological” signs—defined as “a sign communicating a message or ideas for non-commercial purposes”: that is not a constriction, directional, political, or garage sale sign—may be up to 20 square feet in size and are not subject to any durational limits at all.[1]* * *

The United States Supreme Court has granted certiorari in this case and the matter should be heard before the end of the year and decided before June, 2015.

This case presents a very interesting question of whether the First Amendment allows for differentiation and regulations among noncommercial speech.  Perhaps in this case the Supreme Court will clear up the plethora of inconsistent authorities in dealing with First Amendment regulations.

Reed v. Gilbert, 707 F.3d 1057 (9th Cir., 2013)

[1] In October 2011, Gilbert amended the Sign Code to allow placement of Temporary Directional Signs within the public right-of-way

Brown v. Town of Cary, 2013 WL 221978 (4th Cir.) was an appeal from the judgment of a federal trial court invalidating defendant’s sign code, a part of its Land Development Ordinance (LDO).  The LDO allowed up to two residential signs of not more than 42 feet in height and five sq. ft. per sign in area, but exempted holiday decorations and public art, as defined in the ordinance.  Bowden, a Cary residential property owner who was frustrated by the treatment received to his damage claim from a municipal road-paving project, wrote “Screwed by the Town of Cary” on a 15-foot swath 14-25 inches high across his house in fluorescent orange.  Bowden was prosecuted by the Town for two LDO violations – one of which alleged he had a non-complying wall sign, rather than a residential sign – a wall sign was limited to two feet under the LDO.  Secondly, the Town alleged that the sign was made with high intensity color.  Neither allegation involved the content of the sign.  Bowden then brought a Section 1983 action in federal court challenging the two exemptions under the sign ordinance as content-based.  The trial court agreed, enjoined the ordinance, gave plaintiff $1.00 in damages, and awarded $36,197 in attorney fees and costs.

Bowden died during the pendency of this appeal and plaintiff succeeded him.  Applying North Carolina law, the Fourth Circuit said that Bowden’s claim survived his death even though the damages were nominal.  Moreover, the case involved the legitimacy of the exemption so the Fourth Circuit agreed that Bowden’s successors had standing to litigate the free speech issues.

In approaching the merits, the court reviewed the trial court’s grant of summary judgment to plaintiff on a de novo basis, finding that the case turned on whether the challenged ordinance was content-neutral.  Defendant contended it could differentiate messages based on content so long as its reasons for doing so were not based on the message itself.  The Fourth Circuit said it would reject:

“. . . any absolutist reading of content-neutrality, and instead orient our inquiry toward why – not whether – the Town has distinguished content in its regulation.  Viewed in that light we are satisfied that the Sign Ordinance is content-neutral.  Applying the intermediate scrutiny required for content-neutral restrictions on speech, we hold that the Sign Ordinance does not violate the First Amendment.” 

 While signs are a form of protected expression, they may be regulated by their physical characteristics such as height, area and the like.  Their content cannot be regulated as easily but reasonable time, place and matter restrictions may be imposed.  In those cases the principal issue is whether such regulation is imposed because of disagreement with the content.  The trial court did not have before it the Fourth Circuit’s case of Wag More Dogs, LLC vs. Cozart, 680 F3d 359 (4th Cir., 2012) where the court took a more pragmatic approach used by the U.S. Supreme Court in Hill vs. Colorado, 530 U.S. 703 (2000), finding the content neutrality rule purpose was to prevent the Government from supervising the marketplace of ideas by choosing topics of public debate.  If so, the equation of content distinction and content neutrality is incorrect.  Content neutrality has only those distinctions imposed with a censorial intent, i.e., to value some forms of speech over others so as to restrict public debate or simply because one or more members of the public find the underlying ideas disagreeable.  The court noted that some of its sister circuits had embraced an absolutist notion of content neutrality the way the trial court had decided its case.  However, the Fourth Circuit said that such an approach imputed a censorial purpose to such content distinctions which did not imperil free speech, noting a Ninth Circuit view that, pushed to its logical conclusion, would allow for no sign except the blank sign.

The court applied the Wag More Dogs test:

“A regulation is not a content-based regulation of speech if (1) the regulation is not a regulation of speech, but rather a regulation of the places where some speech may occur; (2) the regulation was not adopted because of disagreement with the message the speech conveys; or (3) the government’s interests in the regulation are unrelated to the content of the affected speech.”

Here, the court saw a distinction between on and off-premises signs which was unrelated to its content and served other aims (such as traffic safety and aesthetics) unrelated to the content of the speech.  The principal case cited by plaintiffs was Metromedia, Inc. vs. City of San Diego, 459 US 490 (1981); however, the court found that this case was not on point because it turned on the preference of commercial over non-commercial messages which was inconsistent with the values of the Constitution that could not be justified in a content-neutral way.  Thus, if the Town could justify a content-based regulation, it might show a “reasonable fit” between its legitimate interests in traffic safety and aesthetics and its exemptions for holiday decorations and public art.  Those regulations could pass muster under the First Amendment.  The court said it separated the issue of content distinction from that of content discrimination based on content and found the question to be whether that distinction bore a reasonable relationship to the asserted content-neutral format for these regulations.

Thus, while the challenged ordinance distinguished content, the court said the case was over whether those distinctions were justified independent of content.  Both exceptions enhanced, rather than diminished aesthetic values.  Moreover, the holiday art was temporary and not much of a strain on traffic.  While it is true that individual exempted signs might have some adverse effects on these goals, the court found the standard to be whether they had a reasonable, rather than an optimal, impact on those goals – a job more properly assigned to the legislative branch.  In this case, the Town used reasonable time, place and manner sign restrictions based on its recognized goals and policies which were unrelated to the suppression of speech.  The court found the regulations to be content-neutral under its intermediate scrutiny analysis (i.e., it furthered the City’s legitimate interests in traffic safety and aesthetics, was narrowly tailored to further those interests, and left open ample alternative channels of communication.)  The size, color and positioning restrictions do no more than eliminate the exact evils sought to be remedied.  The permitted signs gave ample alternative channels of communication.  Finally, the ordinance was not vague as to the differences between the exempted signs and others, and the language used does not lend itself to mathematical precision but does provide sufficient guidance for citizens to understand the reach of its prohibitions.  In any event, the sign at issue does not qualify under the exemptions.  The court concluded:

“Unlike oral speech, signs take up space and may obstruct views, distract motorists, displace alternative uses for land, and pose other problems that legitimately call for regulation.”  * * * The content neutrality doctrine of the First Amendment does not impose an all-or-nothing ultimatum upon municipalities that confront these problems.  What it requires is that any content distinction a government makes must have a reasonable relation to a content-neutral purpose.  What it forbids are content distinctions that jeopardize our most venerated First Amendment principles by regulating public opinion under the guise of public welfare.”

Given the absolutist nature of Oregon’s free speech inquiry under Article I, Section 8 of the State Constitution, the question of this alternative analysis will not arise soon in this state.  Still, the debate over absolutism vs. pragmatism will continue to be controversial.

Brown v. Town of Cary, 2013 WL 221978 (4th Cir.)

Mazdabrook Commons Homeowners’ Assn. v. Khan, 210 NJ 482, 46 A3d 507 (2012) involved the constitutionality of plaintiff homeowners association covenants, which generally banned political signs. Plaintiff ran for town council and posted two political signs – one in his window and another inside his door (which could be seen through the glass outside door). Plaintiff ordered their removal as its rules banned all but “For Sale” signs. In Committee for a Better Twin Rivers v. Twin Rivers Homeowners’ Assn., 192 NJ 344, 929 A2d 1060 (2007), the New Jersey Supreme Court had upheld restrictions limiting signs in windows and in common flower beds adjacent to homes, which was in contrast to the near-complete ban on all expressive activity in this instance. The Appellate Division nevertheless struck the ban in this case and the Association appealed.

Plaintiff Association is made up of 194 members who own townhouses and elect a Board of Trustees which operates the nonprofit corporation that manages homeowner affairs. There are no public streets in the development; however, it is not gated. Prospective homeowner-members are informed of its rules before buying their townhouses and the rules specifically prohibit posting of signs (again except for “for sale” signs), among other things. Under the rules, the Trustees have the authority (but without specific standards) to waive the posting regulations. Plaintiffs sued defendant over the ban, as well as over an unrelated matter, and prevailed on both at trial. Defendant appealed the sign issue and prevailed in the Appellate Division, a majority of which found the rule unconstitutional because it favored commercial speech over political speech, was not content-neutral, and foreclosed a significant type of communication.

Have you ever seen the iconic advertisements on the side of the Hotel Figueroa in Los Angeles? I bet you have - if not on a commute opportunity through the metropolis, then in a movie. Or, perhaps your business is similar to the Pier House 60, Clearwater Beach Marina Hotel where a condition of approval required compliance with both the public art requirements for the development and the local sign code. If you are interested in how to avoid an eight-armed strangle on your business’ commercial speech, read on for guidance about how to avoid problems with local sign regulations.

The Washington Court of Appeals in Catsiff v. McCarty, 167 Wash App 698, 274 P3d 1063 (2012), issued a broad decision regulating commercial speech on signage. If you own a business that is on the lookout for name recognition and the perfect location for the right type of sign, you should consider this case of the Inland Octopus toy store. Catsiff, the owner of a toy store in Walla Walla, decided to paint a wall sign depicting an octopus hiding behind a rainbow over the rear entrance of the store. He did not obtain a permit. Later that year, he painted on the store front an octopus hiding behind several buildings with a rainbow over the buildings. Again, he installed the front entrance sign without obtaining a permit. The City of Walla Walla took code enforcement action against Catsiff for violating the sign code. In response, Catsiff admitted to the facts constituting the violation – exceeding the height limitations and not obtaining a permit to ensure compliance with the downtown design standards, but took umbrage to the overall sign code and countered that the regulations were unconstitutional.

The court reviewed Catsiff’s free speech rights under the state and federal constitutions. The court concluded that the two octopus signs were commercial speech and were placed as an expression related solely to the economic interests of the speaker and audience because their design matched the store’s logo and Catsiff intended to invite people into his store to purchase toys through the advertisement. The court found that the city reasonably exercised its police powers through the adoption of its sign ordinance because such regulation of commercial speech, where the city was concerned about the obstruction of views and distraction to motorists legitimately call for regulation. The court found that the city’s size and design standards were content neutral and that all downtown businesses were subject to the same set of standards.

Similarly, Oregon’s Supreme Court upholds proper time, place and manner regulation of signs as discussed in Outdoor Media Dimensions, Inc. v. Department of Transportation, 340 Or 275, 132 P3d 5 (2006). In that case Outdoor Media Dimensions, Inc. had displayed several outdoor advertising signs without a permit in violation of the Oregon Motorist Information Act (1999) (“OMIA”). The media company, like Catsiff, challenged the citations on several state and federal constitutional grounds. The court concluded that size limits on signs are permissible time, place, and manner restrictions because such regulations are unrelated to the substance of any particular message. However, the court did rule that the OMIA impermissibly required a fee for off-premises signs while exempting on-premises signs from the fee requirement. The court ruled that the on-premises/off-premises distinction is not content neutral because that distinction allows a sign owner without a permit to display one narrowly defined category of message - a message related to activity conducted on the premises where the sign is located - but not to display any message respecting any other subject. Further, the court refused to accept that the state’s reliance on legitimate safety and aesthetic goals of the OMIA justified a prohibition of speech based on content. Therefore, the court concluded that the fee structure based on the type of expression is an impermissible restriction on the subject of expression under the state constitution.

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