Buehrle v. City of Key West, 813 F3d 973 (11th Cir., 2015) was a challenge to Defendant’s ordinance limiting the number of tattoo parlors in its historic district. When Plaintiff challenged the ordinance in state court, Defendant removed the case to federal court. On cross motions for summary judgment the trial court accepted Plaintiff’s contention that tattooing was protected First Amendment expression, but also found the ordinance to be a reasonable time, place and manner restriction.
After the U.S. Supreme Court held that the government cannot single out one form of noncommercial speech over another, comes a series of rulings that similarly should have dealt with the questions of content neutrality, a primary tenet of free speech under the Oregon and federal constitutions. Yet, in the Icon Groupe. LLC v. Washington County series of cases, strategic lawyering seems to have put the free speech issues in the back seat.
In 2010, Icon Groupe, LLC filed applications to locate 17 freestanding signs that exceeded the otherwise applicable size and height restrictions, claiming an exemption from these restrictions on the basis that they were “safety signs,” described as:
“[d]anger signs, trespassing signs, warning signs, traffic signs, memorial plaques, signs of historical interest, holiday signs, public and service information signs such as rest rooms, mailbox identification, [and] newspaper container identification”
Some of the signs cautioned drivers on safety matters, while others exhorted them to have a “safe Memorial Day.”
The county did not contest that the signs qualified as “safety signs.” Rather, it denied the applications stating that the exemption was a content-based regulation that violated the Oregon Constitution that must be severed from the remainder of the code, leaving the remaining dimensional requirements, which if found, were violated. Icon appealed the denials but no final action was taken within 120 days, whereupon Icon asked the circuit court to compel the county to approve all the applications under a state statute. The court granted relief and denied a stay pending an appeal, noting that the 120-day statute required it to grant relief unless the permit would violate a substantive provision of the county’s plan or code and holding that statute did not authorize the court to consider constitutional questions. The county appealed that decision to the Oregon Court of Appeals but authorized a number of the requested sign permits.
While the county’s challenge to the mandamus decision was pending, Icon filed a civil rights action in federal district court, claiming that denial of the sign permit applications violated Icon’s constitutional rights to free speech, due process and equal protection under the U.S. Constitution.
Although the court agreed that the county did not present evidence that regulating signage advances a government interest, the court also found that Icon did not contest the constitutionality of the safety sign exception, effectively arguing that the exemption was constitutional.
The court then evaluated Defendants’ time, place and manner sign regulations, finding them related to valid public concerns, i.e., traffic safety and aesthetics, the code narrowly tailored in its dimensional requirements and allowing for alternative means of communication. Rather than arguing that the county’s sign regulations, including the exception were unconstitutional, Icon argued that the county’s denial of the applications was (1) premised on an impermissible purpose; (2) lacked consideration of less restrictive alternatives; (3) was arbitrary; and (4) a pretextual regulation of speech.
The impermissible purpose was the use of the asserted unconstitutionality of the exemption. However, the reasons given for the denial were the failure to comply with Code dimensional requirements. The court found that Icon did not have a vested or otherwise unfettered right to approval of its applications and content-neutral time, place and manner restrictions on free speech are constitutionally permitted.
As to a less restrictive alternative of approving the applications and dealing with the constitutionality of the exemption later, the court again noted that the denial was based on failure to comply with the narrowly tailored dimensional requirements of the code and the fact there might be imagined a less intrusive on free speech is not unconstitutional. The court also rejected the failure to act on its local appeal in a timely way as a due process violation, as that failure allowed for its mandamus remedy to be pursued successfully. The dimensional requirements was constitutional.
As to an allegedly unwritten policy allowing the building official to operate without standards in dealing with sign matters, allowing the use of a content-based restriction, it was clear that the official did not exercise arbitrary judgment over application of the dimensional standards, which was the basis for denial.
The final allegation was that the denial was pretextual and was really based on hostility to messages that Icon might communicate in the future. While these considerations were present, the dimensional reasons for the denial were valid time, place and manner restrictions that were narrowly tailored to accommodate valid public interests, toallow for free speech and left open other adequate channels for free speech. The court thus granted summary judgment to the county.
As a postscript, it should be noted that the Oregon Court of Appeals affirmed the judgment of the circuit court in ordering mandamus relief, confining itself to the issue of whether a code violation occurred and not considering the constitutionality of the exemption. A Petition for Reconsideration is now pending and a Petition for Review may well be filed in the Oregon Supreme Court.
This is a case that contains many free speech strategic issues under the federal and Oregon constitutions. As a civil rights action, the costs to the county would have been immense had it not prevailed. Perhaps, one can view these cases as an immense chess game in which free speech was an onlooker.
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.* * *
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)
 In October 2011, Gilbert amended the Sign Code to allow placement of Temporary Directional Signs within the public right-of-way
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