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

 

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