Posted by: Patricia Salkin | December 8, 2015

Fed. Dist. Court in NY Dismisses First Amendment Challenge to Sign Ordinance Prohibition on Illuminated Signs

In 2010, Brigitte Vosse attached an illuminated peace symbol to the window frame of her seventeenth-floor condo in the Ansonia building on the Upper West Side of Manhattan. Vosse was fined $800 for displaying the symbol in violation of a City zoning ordinance (N.Y.C. Zoning Resolution (“Z.R.”) § 32–655) that generally prohibits illuminated signs from “extending above curb level at a height greater than … 40 feet” in certain districts, including Vosse’s. Vosse argued that the City had placed a content-based restriction on her speech in violation of the First Amendment. Her claim was dismissed by summary judgment, and the dismissal was affirmed on appeal. The Second Circuit remanded the present case which addressed Vosse’s alternative argument that, “irrespective of content, the City’s zoning regulations constitute an unduly restrictive time, place, and manner restriction on speech.”

Vosse’s principle argument was that the City failed to show that any sufficiently real and significant governmental interests would be served by banning non-commercial illuminated signs in residential windows, such as hers. However, many courts have recognized in a number of settings that States and cities may enact land-use restrictions or controls to enhance the quality of life by preserving the character and desirable aesthetic features of a city. Thus, this issue was whether the ordinance was narrowly tailored to achieve this result. Here, the City’s Zoning Resolution did not sweepingly prohibit the displaying of all signs more than 40 feet above curb level in the districts at issue, but instead permitted the displaying of “non-illuminated signs containing solely non-commercial copy with a total surface area not exceeding 12 square feet.” Accordingly, the court found that the ordinance was narrowly tailored to serve the City’s significant interests in maintaining an aesthetically pleasing cityscape and preserving neighborhood character, and did not burden substantially more speech than is necessary to further those legitimate government interests.

Finally, the Court determined that § 32–655 left open ample alternative channels for communication of the information. This was apparent since the parties agreed that had Vosse’s sign been non-illuminated, it would have fallen outside the scope of § 32–655, as it was less than 12 square feet in surface area and did not contain commercial copy. Additionally, Vosse could have displayed a banner across her window with a pictorial representation of the peace symbol or the word “PEACE” itself. Since Vosse’s First Amendment rights had not been violated, the complaint was dismissed with prejudice.

Vosse v City of New York, 2015 WL 7280226 (SDNY 11/18/2015)

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