Posted by: Patricia Salkin | May 26, 2019

Eighth Circuit Court of Appeals Determines that Ordinance Restricting “Signs” and “Flags” was Content-Based, Overbroad, and Unconstitutional

This post was authored by Amy Lavine, Esq.

The Eighth Circuit Court of Appeals struck down a Missouri sign ordinance in May, reversing the district court’s prior ruling that the property owner lacked standing to challenge the regulations. The court found on appeal that the ordinance was impermissibly content-based due to the distinctions it made between signs and flags based on the significance the messages displayed. It was also unsupported by any compelling government interests, and even accepting the city’s claimed interests in traffic and aesthetics, there was no evidence that the ordinance was narrowly tailored. The court also found that the ordinance was so excessively restrictive as to be facially invalid, considering that it banned such a broad range of expression as balloons, banners, window stickers, and holiday lights, and also with respect to its limit of no more than one sign and one flag per property.

The plaintiff, Lawrence Wilson, displayed signs in his front yard for “Black Lives Matter,” “Clinton Kaine,” and “Jason Kander for U.S. Senate.” Under an ordinance in the City of Bel-Nor, however, only one sign was permitted per property, and he received a citation in 2017 for violating this provision. The ordinance allowed property owners to display one flag as well as one sign, but Wilson challenged how these terms were defined and he also contended that the ordinance’s various restrictions on the size, placement, and types of allowed signs and flags violated his rights to speech under the First Amendment.

The court first found that it was error for the district court to dismiss Wilson’s case on the basis of standing. Wilson was entitled to challenge the ordinance’s definitional structure, the court explained, because the city necessarily determined that his signs didn’t qualify for the flag exemption when it charged him with violating the ordinance. He was directly affected by the definitions, as a result, and he had standing to contest them.
The court also agreed with Wilson that the sign ordinance was content-based because it defined “speech by particular subject matter.” The specific language used to define a sign included:
Any poster, object, devise [sic], or display, situated outdoors, which is used to advertise, identify, display, direct or attract attention to an object, person, institution, organization, business, product, service, event, idea, belief or location by any means, including but not limited to words, letters, figures, designs, symbols, colors, logos, fixtures, cartoons or images.
The ordinance then specified that flags would not be considered signs, and it defined flags as including “any fabric or bunting containing distinctive colors, patterns or symbols used as a symbol of a government or institution.” Because of this definitional structure, determining whether a display was a sign or a flag required an inquiry into its content. For example, the court explained, “applying the ordinary meaning of ‘government or institution,’ a fabric with a Cardinals logo is a ‘sign,’ while a fabric with an Army logo is a ‘flag.’ This inquiry is content-based because whether a fabric is a sign or a flag—and whether it is prohibited by the Ordinance—depends on the ‘the topic discussed or the idea or message expressed.'”

The city tried to avoid the court’s conclusion that the regulations were content-based by advancing an “exceptionally broad” interpretation of the term “institution,” which it claimed encompassed “[a]ny significant practice, relationship or organization in a society or culture.” According to this argument, it claimed that nearly any flag would be allowed, since “the Cardinals are an institution, marriage is an institution, and even a ‘Black Lives Matter’ sign may be a ‘flag’ under the Ordinance.” The court wasn’t persuaded, though, even accepting the most expansive definition of an “institution.” The city’s promise not to enforce the ordinance based on content distinctions was also beside the point because the regulations themselves distinguished between different messages being displayed, and the courts will “not uphold an unconstitutional statute merely because the Government promise[s] to use it responsibly.”

Having determined that the ordinance was content-based, the court applied strict scrutiny to assess its constitutionality. The ordinance failed this test, the court concluded, because the city’s purported interests in traffic safety and aesthetics, while significant, were not compelling. The city also failed to show that the ordinance was narrowly tailored, the court concluded, since it failed to submit any evidence that the ordinance furthered its purported traffic and aesthetic interests. The mayor’s testimony that the ordinance reflected the city’s interests in preserving its small-city character and combatting distracted driving simply weren’t enough to justify a content-based restriction on free expression, the court emphasized; rather, actual evidence was needed of a “genuine nexus” between the regulation and the city’s interests.

Wilson also argued that the sign ordinance was facially overbroad, and the court agreed that it could review this claim under the relaxed standing rules of the overbreadth doctrine because there was “a realistic danger that the statute itself will significantly compromise recognized First Amendment protections of parties not before the court.” Wilson argued, for example, that the sign ordinance would prohibit a “Welcome Home” banner under its restriction against “fluttering” signs; a home security sticker would be illegal if it were “displayed from the interior of any window”; holiday lighting would violate the illumination restriction; and balloons used to decorate for a birthday party would be illegal because all balloons were prohibited under the regulations. The court agreed that the ordinance’s reach was alarmingly broad, as suggested by these examples, and as a result it concluded that the law was “overbroad and facially invalid because ‘the impermissible applications of the law are substantial when judged in relation to the statute’s plainly legitimate sweep.'”

Moreover, the ordinance’s one-sign limit was simply too restrictive to pass constitutional muster, even if it allowed one two-sided sign and one flag. The court also determined that the ordinance failed to preserve ample alternative channels for communication. “Due to the special significance of the right to speak from one’s own home,” the court explained, “severe restrictions of this right do not afford adequate alternatives.”

Willson v. City of Bel-Nor, 2019 WL 2170661 (8th Cir. 5/24/19).

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