Advertisers constantly develop new ways to communicate messages to consumers and to the public-at-large. Whether small signs, large billboards, banners following planes or signs with neon lights to attract attention, depending upon time, place and manner, these may all raise legitimate aesthetic and public safety concerns. One of the newest methods of attracting attention to signs is the use of electronic messages. A number of municipalities have started to discuss and ban the use of these signs. According to news accounts, the Federal Highway Administration plans to commission a study this fall to find out whether moving video billboards cause more accidents. Municipalities in New Hampshire, Kentucky and Massachusetts have recently considered and/or enacted bans on these types of signs. Now the First Circuit will have an opportunity to discuss the constitutionality of prohibitions on these types of signs.
The City of Concord, New Hampshire, enacted a sign code that bans all signs “that move or create the illusion of movement, signs which are or appear to be animated or projected, signs that affect or look similar to traffic signs or signals, and electronic message center (EMC) type signs” without regard to the content of the sign. Naser Jewelers, Inc. (NJI) sought a preliminary injunction in federal district court. The magistrate recommended the preliminary injunction be denied because he concluded that NJI was unlikely to succeed on the merits using the Central Hudson test (Central Hudson Gas & Elec. v. Pub. Serv. Comm’n, 447 U.S. 557 (1980)).
The district court agreed with the proposed disposition, but disagreed that Central Hudson controls this decision because the city’s sign code is content neutral. The district court concluded the sign code passes constitutional muster under the time, place, and manner test described in Ward v. Rock Against Racism, 491 U.S. 781 (1989). A content-neutral regulation must meet an “intermediate scrutiny test,” the regulation must be narrowly tailored to serve a significant government interest and allow for reasonable alternative channels of communication. The court noted that the city’s interests in traffic safety and community aesthetics each constitute a substantial governmental interest. The sign code is sufficiently narrowly tailored because the city has not prohibited all signs, “only those signs the city plausibly thinks will adversely affect traffic safety, or prove detrimental to aesthetic values the city seeks to promote.” Naser Jewelers, Inc. v. City of Concord, United States District Court, New Hampshire [trial court], Decided June 25, 2007, 2007 WL 1847307.
The American Planning Association is preparing an amicus curiae brief. The last two paragraphs of this posting are copied, with permission, from 59 PEL 300 (Planning and Environmental Law is published monthly by the American Planning Association. See, http://www.planning.org/PEL/index.htm).
UPDATE: The First Circuit has scheduled oral arguments in this case for December 7, 2007.
