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
)
2-5001
CASEY JONES
)
KIT WILLIAMS
)
BOB ESTES
)
MIKE MCKIMMEY
)
Defendants, in both their individual and official
)
Capacities.
)
___________________________________
Brief in Support of
Motions for Preliminary Injunction
and Expedited Hearing
INTRODUCTION
1. The Fayetteville city
sign ordinance, UDO Chapter 174 (formally Chapter 158) (the “ordinance”) is
unconstitutional on its face and as it is applied.
I am seeking a preliminary injunction enjoining the City from enforcing
this ordinance while this constitutional debate continues.
2.
Because the ordinance regulates on the basis of content and produces an
illegal prior restraint, the citizens of Fayetteville need immediate relief from
this chilling effect on their freedom of expression.
This is particularly true at this time while our country is engaged in a
pivotal election cycle. It is
entirely possible that control of both houses of the U.S. congress could turn on
a very small number of votes. Accordingly,
it is important that Fayetteville citizens be allowed to exercise their freedom
of expression to the maximum extent possible.
3.
A preliminary injunction is the only timely remedy for this hindrance to
our right of free expression.
POSITION
AND ARGUMENTS
TIMING IS IMPORTANT
4. In his concurring opinion
to a landmark case on prior restraint Judge Harlan stated,
Timing
is of the essence in politics….[W]hen an event occurs, it is often necessary
to have one’s voice heard promptly, if it is to be considered at all.
Shuttlesworth v. City of Birmingham, 394 U.S. 147, 163 (Harlan,
J., concurring).
5. Two points should be made
here.
6.
First, the preliminary injunction is required precisely because “timing
is of the essence in politics”. It
is entirely possible that many Fayetteville citizens will choose not to express
their opinions via a sign because of the illegal prior restraint and content
regulation of the ordinance.
7. Moreover, citizens may hesitate to speak via signage because
the City’s scheme will require its removal 72 hours after an election if it is
a campaign sign or the City Council might revoke, at any time and on any basis,
the sign permit. Alternatively,
under the unconstitutional ordinance scheme, it would be illegal for a sign to
say “STOP ILLEGAL DRUGS”.[1]
SEE UDO at § 158.36. These
are only a few examples of the unconstitutional nature of the ordinance and its
chilling effect on free speech.
8.
Second, the City has previously urged that my electronic sign should not
be allowed to change its message like time and temperature signs.
Unlike painted signs, electronic signs can change their message speedily
and efficiently for little or no cost. SEE, City Of Ladue v. Gilleo, 512
U.S. 43 (1994) at IV. This
gives electronic signs the unique ability to respond timely to political and
other events that shape the life of our community.
Thus, this Court should not allow the City to remedy its unconstitutional
application of its sign ordinance by eliminating all electronic signs or their
ability to freely change their messages. This
would be, in affect, eliminating an entire method of speech. Id. at IV.
ILLEGAL
PRIOR RESTRAINT
9.
In a long line of cases, the Courts have held that anytime a citizen is
required to obtain official permission to exercise a constitutional right, a
prior restraint exists. If
the law does not specify criteria upon which the permission must be granted or
otherwise leaves the citizen at the “unbridled discretion of the official”,
the Courts will strike the law as an illegal prior restraint.
Even though prior restraints are not illegal per se, they do bear
a heavy burden of being presumed unconstitutional. FW/PBS, Inc. v. Dallas,
493 U.S. 215 (1990); Thomas
v. Chicago Park Dist., 534
U.S. 316 (2002) Douglas
v. Brownell, 88
F.3d 1511 (1996); Steele v. City of Beidmii, 257
F.3d 902 (2001); Jakes,
Ltd. Inc. v. City of Coates,
284 F.3d 884 (2002); North
Olmsted Chamber of Commerce v. North Olmsted,
86 F. Supp.2d 755 (2000).
10.
In order to give guidance to law makers, the cases have created and
consistently applied at least two safeguards that must me included in any prior
restraint statute to correct the otherwise unbridled discretion of local
officials.
11.
First, the statute must require local officials to make permit decisions
within a definite and brief time
period. Second, the statute has to
guarantee an independent, speedy, judicial review if permission is denied and
the status quo must be maintained during the judicial review.
SEE, FW/PBS, Inc. v.
Dallas, 493 U.S. 215
(1990).
12.
Read in its entirety, the Fayetteville sign ordinance completely fails to
provide these two safeguards. In
fact, UDO §158.21 sets out the information required for a successful sign
permit applicant. UDO §158.21(H)
mandates that the applicant must provide “Such other information as the
building inspector shall require …”.
13.
It would be difficult to imagine a more perfect form of unbridled
discretion. UDO §158.21(H) makes
it clear that the building inspector can require whatever he desires, not
limited by anything.
14.
Not only does the ordinance fail to provide the required safeguards, it
goes to great extremes to insure that the local official can exclude any speech
or speaker he desires by requiring “such other information”.
Such a scheme cannot be tolerated under the Constitution and must be
struck.
CONTENT
REGULATION
15. Reading
the ordinance, one comes across provision after provision that requires the
local official to read or refer to the content of a sign in order to apply the
ordinance. For instance, a permit
is not required if my sign states my name and profession §158.08(A);
a permit is similarly not required if the sign simply displays the name
of the contractor on a building project §158.08(B); likewise, a permit is not
required if the sign memorializes a building’s erection date §158.08(E).
16.
However, if a sign of identical color, size, and location displays the
golden arches of a McDonalds restaurant with an arrow pointing the way to the
nearest hamburger establishment, this sign will require a permit.
17. Moreover, if a
directional sign points the way to a nearby church, civic, or nonprofit
organization, the sign can be located off premises §158.37.
However, a sign of identical size, shape, color, and location directing
people to the nearest McDonalds restaurant would be illegal under the scheme.
18.
Although these are only a few
examples of the facial content regulations of the ordinance, the permit scheme
is replete with many others. The
courts, in another long line of cases, have ruled such content regulations are
patently illegal. SEE Central Hudson v. Public Service Commission, 447
U.S. 557 (1980); Metromedia v. City of San Diego, 453 U.S.
490 (1981); Ward v. Rock Against Racism, 491 U.S. 781 (1989); City of
Cincinnati v. Discovery Network, 507 U.S. 410 (1993); Whitton v. City of
Gladstone, 54
F.3d 1400 (1995); Nightclubs,
Inc. v. City of Paducah, 202
F.3d 884 (2000); Forsyth County v. Nationalist Movement,
505 U.S. 123 (1992); North Olmsted Chamber of Commerce v. North
Olmsted , 86 F. Supp.2d 755 (2000); King Enterprises v. Thomas Township,
Case Number 01-10242-BC (2002); Sugarman v. Village of Chester, et al, 01
Civ. 8667 (WCC) (2002); Savago
v. Village of New Paltz, 1:02-CV-87 (2002).
19. Clearly, the ordinance
regulates on the basis of content both on its face and in ts application.
20.
Once again, ad nauseam, my electronic message sign publishes my
political and religious opinions, but the City refuses to allow the message on
my sign to change in an unrestricted manner.
This is so even though the City, under official policy, does allow other
noncommercial message signs that only state the time and temperature to change
their message unrestricted.
CONCLUSION
21. It is my earnest prayer
and request that this Court will see fit and just to grant my request for a
preliminary injunction which will enjoin the City of Fayetteville, Arkansas from
enforcing their unconstitutional sign ordinance while the constitutional fate of
the ordinance is being decided.
22.
Indeed, a preliminary injunction is the certainly the most effective tool
this Court has available to ensure that the status quo is maintained during an
ongoing judicial review.
[1]
The ordinance scheme goes to such an extreme to regulate the content of signs,
it actually purports to regulate the words which can or cannot be used on a
sign!
Respectfully submitted,
JOHN S. LA TOUR
BY: ____________________
John S. La Tour, Pro Se
October
3, 2002
JOHN
S. LA TOUR
Certified Public Accountant
112 Center Street, Suite 560
Fayetteville, AR 72701
(479)443-7878