IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF ARKANSAS

JOHN S. LA TOUR,                                            Plaintiff                                                              

   v.                                                                                                     

CITY OF FAYETTEVILLE, ARKANSAS                  File Number:  
BRANDT WARWICK                                                 02-5001
CASEY JONES                                                             
KIT WILLIAMS                                                
BOB ESTES                                                          
MIKE MCKIMMEY                                             
   Defendants, in both their individual and official       
   Capacities.                                                           
_________________________________________ 

MOTION REQUESTING LEAVE OF THE COURT TO AMEND COMPLAINT
 

INTRODUCTION

            The Plaintiff in the above captioned case comes now for the purpose of filing my Motion Requesting Leave of the Court to Amend the Complaint, states as follows, to-wit:

            1.  I come to the Court under the authority of Rule 15(a) of the Federal Rules of Civil Procedure for the express purpose of amending my complaint.

            2.  This request is made in the furtherance of justice and the protection of significant constitutional rights.

            3.  In my original complaint and its amendment, I challenged the constitutionality of the Fayetteville sign ordinance scheme (the “ordinance”) only as it was being applied to my noncommercial message electronic sign.  Upon further research and analysis I firmly conclude that the ordinance is unconstitutional on its face as well.  Thus I am asking leave of the Court to amend the complaint accordingly.  

PROPOSED AMENDMENT

FACIAL CHALLENGE OF THE FAYETTEVILLE SIGN ORDINANCE

INTRODUCTION

STANDING

               1.  I have standing to bring a facial challenge of the ordinance because the Supreme Court makes special allowances for facial challenges when such challenges involve the important area of First Amendment rights.   Where an ordinance produces content regulation or a licensing scheme that vests unbridled discretion in the local officials, the Courts allows a facial challenge.  Specifically in the First Amendment context, a plaintiff may challenge a law on its face because it is content based, see R.A.V. v. City of St. Paul, 505 U.S. 377, 381, 112 S. Ct. 2538, 120 L.Ed.2d 305 (1992), or because it might chill the First Amendment rights not only of the plaintiff, but of others not before the court. See American Booksellers, 484 U.S. at 392-93, 108 S. Ct. 636 (citing Secretary of State of Maryland v. Munson Co., 467 U.S.  947,956-57, 104 S. Ct. 2839, 81 L.Ed.2d 786 (1984)).

               2.  Even a casual reading of the ordinance reveals that it suffers from both of these ills in that it regulates on the basis of content and it is an illegal prior restraint because it places unbridled discretion in the hands of local officials.

 CONTENT REGULATION

             3.   In the following Fayetteville UDO code sections, the building inspector has to refer to the content of the sign in order to determine whether the sign is legal or  whether or not the sign owner must apply for a permit.  This list is not intended to be exhaustive.

ILLEGAL PRIOR RESTRAINT

             4.  The authorities have repeatedly stated, in a long line or cases, that two things are odious to the Constitution.  The first is content regulation; the second is illegal prior restraint.

            5.  The Fayetteville sign ordinance produces an illegal prior restraint on the free exercise of our freedom of expression.  The ordinance completely fails to, (1) restrict the period of time in which the building inspector must approve or disapprove of a request for a sign permit, (2) assure a speedy judicial review of the process, and (3) maintain the status quo while the judicial review is occurring.

            6.  The absence of these three safeguards places every resident of Fayetteville at the unbridled discretion of local officials.  The United States Constitution cries out against such a scheme. 

DURATIONAL LIMITS ON POLITICAL SPEECH

        7.  In numerous Supreme Court cases the Court has expressed that a sign ordinance may not regulate on the basis of content NOR may it regulate noncommercial speech to a greater extent than it regulates commercial speech.  See, Metro Media v. City of San Diego, 453 U.S. 490 (1981); 44 Liquor mart v. Rhode Island, 517 U.S. 484, 485-486; Cincinnati v. Discovery Networks, Inc., 570 U.S. 410, p.424.

        8.  As demonstrated supra, the Fayetteville Ordinance does regulate on the basis of content but it also regulates noncommercial speech to a greater extent than commercial speech.

        9.  Under specific UDO provisions, it is illegal for a Fayetteville resident to keep a noncommercial “Elect Smith” sign in his yard more than 72 hours past an election.  At the same time, a commercial real estate sign proposing a commercial transaction can remain in place indefinitely.  Thus, noncommercial speech is regulated to a greater extent than noncommercial speech.

        10.  Moreover, the U.S. Supreme Court has ruled that reasonably sized personal signs that express political or other noncommercial opinions are one of the “purest forms of free expression” and as such cannot be restricted.  SEE, City of Ladue v. Gillio, 512 U.S. 43 (1994).  Therefore, reasonably sized “Elect Smith” signs, under the rule, can remain on display for as long as the owner desires.

        11.  Another indication of unbridled discretion in the hands of local officials is the UDO provisions at §158.24.

        12.  Here, the Fayetteville City Counsel presumes to have the power to revoke, AT ANY TIME, a citizen’s right to express his/her opinion through a visual medium.  Such power would and does produce a very chilling affect on the rights of Fayetteville citizens to express, through a sign, a political opinion which differs from the current City administration’s policies and regulations. 

        13.  Additionally, UDO §158.24 does not set any guidelines or criteria upon which the City Counsel should base their decision to revoke a sign permit.  The absence of such guidelines leaves the citizen at the mercy of the local officials unbridled discretion.  Indeed, a more perfect example of unbridled discretion could hardly be found or imagined.  Many citizens would refrain from speaking for fear that their efforts to do so through a sign would be jeopardized and wasted because the City may revoke, at any time, their ability to speak through this medium.  Thus, again, an illegal prior restraint results from the regulation.

REQUEST FOR RELIEF               

14.  I pray and request this Court to grant me (1) declaratory relief by ruling that the Fayetteville sign ordinance is unconstitutional on its face as well as its application, (2) injunctive relief by enjoining the City from enforcing this illegal ordinance.  

15.  Further I ask for money damages for all of the expenses I have incurred in the investigation and challenge of this ordinance.

 CONCLUSION

            16.  Because the Fayetteville sign ordinance regulates on the basis of a sign’s content and because the ordinance is an illegal prior restraint, my constitutional rights to free speech and equal protection have been violated.  I earnestly pray and ask this Court to acknowledge these violations, compensate for them, and prevent them in the future.

JOHN S. LA TOUR  
Certified Public Accountant  
112 Center Street, Suite 560  
Fayetteville, AR  72701  
(479) 443-7878

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