Posted by: Patricia Salkin | January 23, 2008

First Circuit Court of Appeals Upholds Concord, N.H. Ban on Electronic Messaging Signs

An ordinance enacted by the City of Concord, New Hampshire prohibiting all electronic messaging centers (all signs that “appear animated or projected” or “are intermittently or intensely illuminated or of a traveling, tracing, scrolling, or sequential light type” or “contain or are illuminated by animated or flashing light”) was found to be content-neutral and narrowly tailored to serve a substantial governmental interest and it was upheld by the First Circuit Court of Appeals after finding that there were alternative channels of communication available.   

In a facial attack, the Circuit Court agreed with the District Court that the prohibition does not discriminate based on content. The City satisfied the substantial governmental interest requirement because the stated goals of the regulation included promoting both traffic safety and community aesthetics. The Court said that the City was under no obligation to perform studies or to prove that the ban on these types of signs supports its stated interests.  The Court further found that the was regulation narrowly tailored to meet the stated needs, and noted that the regulators are not required to choose the least restrictive means possible. The Court noted that the City had considered alternatives, but they were all problematic (e.g., limiting the number of times per day a message could change would create monitoring costs and other complications for the City). Lastly, the Court noted that alternative channels of communication were available, such as signs other than those prohibited, advertisements could be placed in newspapers and magazines and on television, the Internet could be used for advertising, as well as direct mailings and cross-promotions with other retailers.  

The Court made it a point to note that “maximizing of profit is not the animating concern of the First Amendment,” nor does it guarantee a right to the most cost-effective means of communication. 

Nasar Jewelers, Inc. v. City of Concord, 2008 WL 162521 (C.A. 1 N.H. 1/18/2008).  

The opinion can also be accessed at: http://www.ca1.uscourts.gov/cgi-bin/getopn.pl?OPINION=07-2098.01A  

The American Planning Association, together with IMLA, the New Hampshire Municipal Lawyers Association and the New Hampshire Planners Association, submitted a brief on behalf of the City.  The brief can be accessed at: http://www.planning.org/amicusbriefs/pdf/naserjewelers.pdf


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