Posted by: Patricia Salkin | August 19, 2008

1st Circuit Upholds City’s Ban on Electronic Billboards

Earlier this year the First Circuit Court of Appeals affirmed the denial of Naser Jewelers’ motion for a preliminary injunction against the enforcement of a city ordinance prohibiting all Electronic Messaging Centers (“EMCs”),holding that plaintiff had no probability of success on the merits. Finding no probability of success on the merits, the Court held that the City’s ordinance “satisfies the requirements for constitutionality” because it “is a content-neutral regulation, it serves substantial governmental interests, it is narrowly tailored, and it leaves open reasonable alternative channels of communication.” Before the decision was handed down, but after the district court originally denied the plaintiff’s motion for a preliminary injunction, the City moved for summary judgment. Following the First Circuit’s decision, the District court granted summary judgment to the City, finding that the plaintiff could not prevail on its claim because “as a matter of law, the City’s regulation of electronic signs is content-neutral and narrowly tailored to serve significant governmental interests, and allows for reasonable alternative channels of communication.” The Plaintiff appealed this decision to the First Circuit.

 

The First Circuit upheld the granting of summary judgment, applying the law of the case doctrine from the Court’s prior holding. Although the prior Circuit Court decision was one based on the probability of success, the Court said that their decision in the earlier case was rendered after both sides had produced evidence and the district court had made findings and conclusions. In fact, the Court noted that “the record did not significantly change on summary judgment, except perhaps to make Concord’s case stronger.”  The Court also noted that the plaintiff presented no new evidence in its opposition to summary judgment, nor did it file a Rule 56(e) affidavit in opposition to summary judgment, and that the arguments and evidence presented by the Plaintiff in the current appeal are essentially the same ones we previously considered. The argument that the Plaintiff just believes that the Court got it wrong before, did not warrant the Court to “change it’s mind.” 

 

Naser Jewelers v. City of Concord, 2008 WL 3306660 (1st Cir. 8/12/2008 )

 

The opinion can be accessed at: http://www.ca1.uscourts.gov/cgi-bin/getopn.pl?OPINION=08-1305.01A


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