Municipal – Constitutional – Free Speech – Sign Ordinance – Residential Sign – Protest

Bowden v. Town of Cary. (Lawyers Weekly No. 11-02-0049, 26 pp.) (Louise W. Flanagen, Ch.J.) E.D.N.C.

Holding: The defendant-town’s sign ordinance exempts some signs from regulation based on their content. The purposes of the ordinance – aesthetics and traffic control – are not compelling state interests; even if they were, the ordinance is not narrowly drawn to accomplish those purposes.

Plaintiff is entitled to an injunction prohibiting the town from enforcing its sign ordinance against him.

Background

Roadwork performed by the defendant-town allegedly resulted in flooding of plaintiff’s home. When the town rejected plaintiff’s settlement proposal, plaintiff had a bright orange and pink sign painted on the white siding of his house: “Screwed by the Town of Cary.” On the day the sign was painted, the town served plaintiff with a notice of violation of the town’s sign ordinance.

Plaintiff seeks declaratory and injunctive relief and damages arising from the town’s enforcement of its sign ordinance in violation of his First Amendment right to free speech.

Ordinance

Section 9.3.2(S) of the town’s Land Development Ordinance (LDO) governs “residential signs”, which are defined as “any sign located in a district zoned for residential uses that contains no commercial message.” Under the ordinance, residential signs are permitted only on the following conditions:

“(1) Such signs shall not exceed five square feet per side in area and 42 inches in height;

“(2) There shall not be more than two residential signs on any site containing only a single dwelling unit;

“(3) Such signs shall not be posted in public rights-of-way or on any private common area;

“(4) Such signs shall carry no commercial message other than information on the lease or sale of the premises on which the sign is displayed;

“(5) Such signs shall not advertise or identify the conduct of a permitted home occupation in a residential district; and

“(6) Political signs on residential property are permitted in addition to permitted residential signs.”

In addition, under § 9.3.2(X)(2), each single-family residential property is allowed one “wall sign” provided that it does not exceed two square feet in area, is not separately illuminated, and does not contain any commercial message.”

The sign ordinance defines “sign” to exclude public art, holiday decorations, cemetery markers, and lighting used to accentuate architectural or landscaping features.”

The town notified plaintiff that his sign violated the ordinance because it was too large and because it was in fluorescent pigments, in violation of § 9.8.3(B).

Free Speech

Constitutional jurisprudence demonstrates a special sensitivity to a citizen’s right to speak at his own home through the use of residential signs.

Residential signs occupy a place of special significance among the forms of speech protected by the First Amendment. Because they are unusually cheap and convenient, residential signs allow virtually anyone to participate in public debate, including those of modest means who could not otherwise afford to communicate with large audiences as well as those who cannot afford the time required to distribute leaflets or stand on their lawns with handheld signs.

Further, residential signs are a uniquely effective method of communication, as displaying a sign from one’s own residence carries a message quite distinct from placing the same sign someplace else. By signaling the resident’s opinion on a controversial issue, residential signs can reflect and animate change in the life of the community.

Standing

Plaintiff has standing to raise his as-applied challenge to the sign ordinance as a content-based restriction of speech. The town has attempted to force plaintiff to remove his protest sign or else incur significant fines and civil penalties, which plaintiff alleges amounts to a violation of his First Amendment rights.

Plaintiff’s argument is that, as applied to his protest sign, the exemptions which distinguish signs based on their content render the sign ordinance invalid as a content-based restriction on speech. Plaintiff’s protest sign is subject to heavy restriction under the ordinance, whereas exempted signs would be subject to no restriction at all.

The sign ordinance’s various restrictions hinge upon the application – or non-application – of the sign ordinance’s exemptions. The subjection of plaintiff s sign to the restrictions of the sign ordinance therefore constitutes an implicit acknowledgment that plaintiff s sign does not have the benefit of an exemption due to its content. Plaintiff has therefore demonstrated an injury in fact.

The second and third elements of the standing analysis are likewise satisfied. There is no doubt that the injury is the direct result of the town’s attempted enforcement of its sign ordinance; thus, a causal connection exists between the injury and the conduct complained of. Lastly, there is a likelihood of redress if the challenged sign ordinance is found unconstitutional.

Content-Based Regulation

A content-based purpose is not necessary to show that a regulation is content-based.

As a general matter, laws that by their terms distinguish favored speech from disfavored speech on the basis of the ideas or views expressed are content-based.

A regulation of speech may run afoul of the First Amendment if it is impermissibly under-inclusive by virtue of exemptions which discriminate on the basis of content.

The town’s sign ordinance specifies several types of signs which are exempt from the restrictions that apply to all other types of signs. The LDO specifically excludes public art and holiday decorations from the definition of “sign,” making the sign ordinance inapplicable to those types of displays. The sign ordinance itself contains further categories of signs which are exempt from regulation, including temporary signs erected as part of a “Town-recognized event” and signs erected on behalf of a governmental or quasi-governmental agency.

A plurality of justices in Metromedia, Inc. v. City of San Diego, 453 U.S. 490 (1981), held, “With respect to noncommercial speech, the city may not choose the appropriate subjects for public discourse: ‘To allow a government the choice of permissible subjects for public debate would be to allow that government control over the search for political truth.”

A plurality opinion does not have the binding effect of a majority opinion. However, this court finds Metromedia persuasive.

Under the sign ordinance, a searching inquiry into the content of a particular sign is required in order to determine whether it is subject to or exempt from regulation. For example, a holiday sign proclaiming “Merry Christmas to the Town of Cary!” would presumably be exempt as a holiday decoration. Such a sign would not be subject to restriction, and could be displayed no matter how oversized, flashing, or fluorescent. On the other hand, plaintiff’s protest sign proclaiming “Screwed by the Town of Cary” is prohibited unless it complies with the sign ordinance’s restrictions. Similarly, a sign proclaiming “Scrooged by the Town of Cary” would necessitate a searching inquiry into its content to determine whether its seasonal nod renders it a holiday decoration and therefore exempt, or whether it is just a protest sign and therefore subject to restriction.

Regulation of speech is content-neutral so long as it is justified without reference to the content of the regulated street. However, the absence of a discriminatory purpose does not necessarily render an ordinance content-neutral.

This case is distinguishable from Covenant Media of S.C., LLC v. City of N. Charleston, 493 F.3d 421 (4th Cir. 2007), in several ways: The town’s sign ordinance places restrictions on certain signs based on particular subject matter, but not on others. The sign ordinance goes beyond distinguishing types of signs requiring a mere “cursory examination” by establishing exemptions which necessarily require greater content-based examination than those in Covenant Media. The town must determine, for example, whether a sign constitutes art or contains a holiday message. This determination requires an inquiry substantially more searching than a mere “cursory examination” such as the examination in Covenant Media.

A regulation that imposes differential burdens upon speech based on its content is subject to strict scrutiny. To survive strict scrutiny, the government must prove that the regulation is necessary to serve a compelling state interest and that it is narrowly drawn to achieve that end.

Section 9.1.1 of the sign ordinance establishes that the primary purposes of the sign ordinance are to maintain the pleasing appearance of the town and to ensure traffic safety. The Fourth Circuit has held that aesthetics and traffic safety are not “compelling state interests” but mere “substantial government interests,” which are insufficient to survive strict scrutiny. Arlington County Repub. Committee v. Arlington County, Va., 983 F.2d 587 (4th Cir. 1993).

The town’s sign ordinance does not promote a compelling government interest. Even if the government’s interests were compelling, however, the sign ordinance would still fail strict scrutiny because it is not narrowly drawn. The town does not explain how the sign ordinance’s content-based restrictions promote its asserted interests in aesthetics and traffic safety. A giant flashing Christmas sign would presumably cause just as many traffic problems as plaintiff s sign, if not more. Yet the Christmas sign would be exempt from regulation as a “holiday decoration,” despite its more likely negative effect on traffic safety, whereas plaintiff s less distracting sign is prohibited. The sign ordinance therefore fails both parts of the strict scrutiny analysis.

Relief

Injunctive relief in this case is appropriate. First, it is clear that plaintiff will suffer an irreparable injury without injunctive relief. The Supreme Court has held that the “loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury.” Elrod v. Burns, 427 U.S. 347 (1976).

The sign ordinance infringes upon plaintiff’s First Amendment rights. Therefore unless the town is enjoined from enforcing the sign ordinance which violates plaintiff s First Amendment rights, plaintiff will suffer an irreparable injury.

Next, plaintiff has no adequate remedy at law to compensate for his injury. First, monetary damages are inadequate on these facts because plaintiff’s actual damages are difficult to ascertain. Where monetary damages are difficult to ascertain, remedies at law are generally inadequate. Multi-Channel TV Cable Co. v. Charlottesville Quality Cable Operating Co., 22 F.3d 546, 551 (4th Cir. 1994). Additionally, monetary damages are generally inadequate where the injury suffered is continuous or repeated.

The hardship to plaintiff is obvious and great. In addition to the possible levying by the town of substantial fines and penalties, plaintiff stands to suffer deprivation of his First Amendment rights. On the other hand, a government is in no way harmed by an injunction prohibiting the enforcement of a constitutionally invalid law. Given that the hardship to plaintiff greatly outweighs the hardship, if any, to the town, a remedy in equity is appropriate in this case.

Finally, upholding constitutional rights serves the public interest.

Summary judgment for plaintiff.