Posted by: Patricia Salkin | August 21, 2020

Fed. Dist. Court in MO Finds Sign Ordinance was a Content-Based Restriction

This post was authored by Matthew Loescher, Esq.

Plaintiff filed this action in January 2018, after he was charged by information with violating §400.120(E) of Bel-Nor’s Code of Ordinances for displaying three separate signs in the yard of his home in Bel-Nor. Plaintiff alleged that §400.120(E) violated the Free Speech Clause of the First Amendment to the United States Constitution on its face and as applied to Plaintiff, and the Due Process Clause of the Fourteenth Amendment. Plaintiff also sought a preliminary injunction against enforcement of § 400.120(E). After the injunction was denied, Plaintiff appealed to the Eighth Circuit Court of Appeals, which held that the preliminary injunction should be granted, and reversed and remanded for further proceedings. In this case, Plaintiff moved for partial summary judgment on liability and the entry of a permanent injunction.

At the outset, the court noted that Bel-Nor’s interests in traffic safety and aesthetics did not justify such a broad restriction of residents’ constitutionally-protected conduct, and that Ordinance 983 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.” Bel-Nor argued that the Ordinance did not substantially limit its residents’ First Amendment rights because they were able to display one sign with two sign faces, “rotate these signs as often as they wish” and display one flag. The Eighth Circuit rejected this argument, holding that even assuming the above, a one-sign limit was still too restrictive under First Amendment doctrine.

Bel-Nor next contended that under any ordinary and reasonable person’s definition, flags for the Black Lives Matter movement, a presidential candidate, or a sporting team, for example, would all be included within the definition of “institution” and would be permitted by the Ordinance. The Eighth Circuit rejected this argument because the Ordinance as written “draws distinctions based on the message a speaker conveys,” and Bel-Nor did not offer a basis for this court to rule differently. The Ordinance was also found to be content based because enforcement authorities were required to determine whether a “sign” fits within the exemption set forth in the definition of “flag” by representing “a symbol of a government or institution,” or whether an otherwise permissible sign was prohibited because it reflects “obscenity.”

As the Ordinance was determined to be a content-based restriction, it had to satisfy strict scrutiny regardless of Bel-Nor’s “benign motive, content-neutral justification, or lack of animus toward the ideas contained in the regulated speech.” The Eighth Circuit found Bel-Nor’s justifying interests in traffic safety and aesthetics were not compelling government interests and were not sufficient to support the Ordinance’s broad restrictions on speech. Accordingly, the Court held Plaintiff was entitled to summary judgment on his claim that Bel-Nor’s sign Ordinance was an unconstitutional restraint on his free speech rights. Thus, the court issued a permanent injunction barring enforcement or threatened enforcement of the Ordinance.

Plaintiff next claimed that the Ordinance was unconstitutionally vague on its face and thereby violated his right to due process under the Fourteenth Amendment to the U.S. Constitution. Specifically, Plaintiff argued that the Ordinance did not define “obscenity” at all, much less with sufficient definiteness that an ordinary person can understand what conduct was prohibited, and encouraged arbitrary and discriminatory enforcement. Since the court held Plaintiff had established that the Ordinance violated his First Amendment free speech rights, it did not reach Plaintiff’s Fourteenth Amendment due process claim, and dismissed the claim without prejudice.

Wilson v City of Bel-Nor, 2020 WL 3639745 (ED MO 7/6/2020)

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