IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF ARKANSAS
JOHN S. LA TOUR, Plaintiff
v. File Number: 02-5001
CITY OF FAYETTEVILLE, ARKANSAS Defendant
Experience should teach us to be most on our guard to protect liberty when the government's purposes are beneficial. Men born to freedom are naturally alert to repel invasion of their liberty by evil-minded rulers. The greater dangers to liberty lurk in insidious encroachment by men of zeal, well-meaning but without understanding."
Justice Louis Brandeis, Olmstead v. United States, 277 U.S. 479 (1928)
REPLY TO COURT ORDER DATED FEB. 6,2003
INTRODUCTION
1. John S. La Tour, now comes to reply to this Court's order dated February 6, 2003 where the Court ordered the parties to brief the issue of standing in constitutional facial challenge cases.
2. For the reasons stated below, I do have standing to bring a facial challenge to the Fayetteville sign ordinance and I have indeed pleaded an overbreadth case. This Court should recognize this in order to protect the free speech rights of others not before this court, who have no access to this court for redress, and who, in all likelihood, self- censor themselves for fear of being prosecuted under this unconstitutional sign ordinance. Moreover, according to at least three Supreme Court cases, this Court should decline to exalt form over substance as it decides these matters.
POSITION AND ARGUMENTS
3. The general standing rules not withstanding, the U.S. Supreme Court carved out significant exceptions to the general rule in Broadrick v. Oklahoma, 413 U.S. 601 (1973).
4. One of the most important exceptions to the general standing rules deals with First Amendment facial challenges. In Broadrick, the Supreme Court noted the First Amendment needs room to breathe. It reasoned that because of the importance of free speech rights, the Courts have recognized the unique needs of citizens to challenge ordinances that have a chilling effect on the exercise of those rights. Any ordinance, no matter how well intentioned it may be, must observe the limits the First Amendment places on government. To ensure the free flow of protected speech, litigants are permitted to bring facial challenges - on First Amendment grounds - even when their personal rights have not been violated by the ordinance.
5. The Court's exception to the general rule finds its genesis in the Court's desire to ensure that all protected speech is encouraged and enabled to the greatest extent possible. There is a fear that some protected speech may be discouraged by the possibility of criminal prosecution or other less "severe" repercussions. Areas in which the Court has allowed plaintiffs to make overbreadth claims include spoken speech, assembly, and "where statutes, by their terms, purport to regulate the time, place, and manner of expressive or communicative conduct, , and where such conduct has required official approval under laws that delegated standardless discretionary power to local functionaries, resulting in virtually unreviewable prior restraints on First Amendment rights." Broadrick, 413 U.S. 601,613 (emphasis added).
6. The Supreme Court clarifies exactly what it fears if this exception to the standing rule is not allowed in the First Amendment cases. Specifically, the Court says that "litigants, therefore, are permitted to challenge a statute not because their own rights of free expression are violated, but because of a judicial prediction or assumption that the statute's very existence may cause others not before the court to refrain from constitutionally protected speech or expression." Broadrick, 413 U.S. 601,612.
7. The fact that some citizens might refrain from protected speech is so odious to the Court that it allows this exception to the general standing rules for situations exactly like the instant case.
8. Indeed, in my amended complaint I argued that specific UDO sections prohibit the use of words such as "go", "stop", or "look" in a sign. Thus, this court could easily rule, with virtual certainty, far beyond "prediction or assumption", that no Fayetteville resident will erect a sign that says "Stop the City Council" or "Look into Official Wrongdoings" or "Go to Church". I further argued that if a Fayetteville resident chose to erect such a sign, she would certainly be risking criminal prosecution under UDO Section 174.36.
9. Thus the simple existence of this UDO provision chills the First Amendment rights of Fayetteville citizens by imposing a very perverse form of self-censorship. As the Broadrick Court put it, the ordinance's "very existence" may perceivably "cause others not before the court to refrain from constitutionally protected speech or expression."
10. Therefore, in regard to Fayetteville's regulation of the very words that can be used on a sign, I asserted a full-blown overbreadth claim in precise detail. Surely this court would agree that the City's list of "illegal words" goes beyond a time, place, and manner regulation and produces an over-reaching regulation of speech. Thus an overbreadth claim is asserted in the amended complaint.
11. Similarly, in my amended complaint, I argued that other challenged UDO provisions require Fayetteville residents to remove their noncommercial political campaign signs within 72 hours after an election. The same sign ordinance allows commercial real estate signs to remain in place indefinitely. Thus, a resident who is really passionate about his candidate or cause may desire to continue promoting his candidate or cause with his political sign beyond the 72 hour limit. However, to do this he must risk criminal prosecution under UDO section 174.08(h).
12. Thus again, this court could easily predict, again with virtual certainty, that Fayetteville citizens' free speech rights will be chilled by the threat of criminal prosecution. Indeed, almost all political signs in Fayetteville are removed 72 hours after an election! Total compliance is virtually automatic, precisely because of this threat. Once again, the opinions of Fayetteville citizens are silenced and exactly what the Broadrick Court was attempting to prevent is produced: self-censorship.
13. With regard to the regulation of political signs, I described in complete and precise detail another overbreadth claim against the Fayetteville sign ordinance.
14. Regulation of the very words that can be used on a sign and greater restrictions on noncommercial political signs than on commercial signs are just two examples of where this Court can easily, with a high degree of certainty, predict or assume a chilling of First Amendment rights. There are others.
15. As this Court noted in its order, I am challenging the ordinance as an illegal prior restraint. I noted in my amended complaint that the Courts have outlined at least two safeguards that must exist in any statute that requires a citizen to obtain official permission to exercise a constitutional right.
16. As I pointed out in the amended complaint, read in its entirety, the Fayetteville sign ordinance completely fails to provide either of these two safeguards. In fact, I also argued that UDO Section 174.24 places unbridled discretion in the hands of the City Council in that this section vests the City Council with the standardless ability to REVOKE a sign permit for any reason. Additionally, UDO §174.21 sets out the information required for a successful sign permit applicant. UDO § 174.21 (H) mandates that the applicant must provide "such other information as the building inspector shall require…"
17. I explained that it would be difficult to imagine a more perfect form of unbridled discretion. UDO §174.21(H) makes it clear that the building inspector can require whatever information he desires, and UDO § 174.24 makes it clear the City Counsel can revoke a sign permit for any reason or no reason at all.
18. As I noted, not only does the ordinance fail to provide the required safeguards, it goes to great extremes to ensure that local officials have unbridled discretion in that the local official can exclude any speech or speaker the official desires by requiring "such other information" or by revoking a sign permit.
19. Such a scheme clearly indicates an overreaching by the sign ordinance. This is the precise situation the Supreme Court was targeting with relaxed standing requirements where it stated,
Overbreadth claims have also been entertained where statutes, by their terms, purport to regulate the time, place, and manner of expressive or communicative conduct, and where such conduct has required official approval under laws that delegated standardless discretionary power to local functionaries, resulting in virtually unreviewable prior restraints on First Amendment rights. (Emphasis supplied) Broadrick at 613.
20. Clearly, in my amended complaint, I have challenged precisely this situation. The Fayetteville sign ordinance vests local functionaries, (e.g., the building inspector and the City Council) with standardless discretionary power (e.g., "such other information as the building inspector shall require.. ." or revoking a sign permit for any reason without guidelines).
21. To further illustrate the standardless discretionary power, the sign ordinance completely fails to guarantee a brief definite period of time for a sign permit application approval nor a speedy judicial review where the application is denied. The Broadrick Court listed this "standardless discretionary power" as the very reason for granting standing leniency in cases just like this one.
22. My complaint alleges each of these issues, standardless discretionary power and overbreadth manifested as content regulation (e.g. "illegal" word list and over regulation of political signs). Thus, according to Broadrick, I have indeed pleaded an overbreadth claim even though I didn't use the term "overbreadth". My allegations are clearly overbreadth allegations. Surely this Court will not ignore such a gross breach of Freedom of Speech because I simply failed to name the term but described it in every detail!
23. Contrary to previous conclusions, I have indeed pleaded an overbreadth claim. In my complaint, I claim,
1. The sign ordinance, on its face, regulates signs on the basis of their content;
2. The sign ordinance, on its face, vests Fayetteville city officials with standardless d discretionary power; and,
3. The sign ordinance, on its face, regulates noncommercial political speech to a greater
extent than commercial speech.
24. Each of these facial flaws in the sign ordinance amount to overbreadth claims as defined by the Broadrick Court. Each of these ordinance provisions goes beyond the constitutional boundaries that protect our free speech. Thus each of these issues, asserted in my amended complaint, overreach and are, in fact, overbreadth claims.
FORM vs. SUBSTANCE
25. Deciding the issue of standing in this case may very well boil down to deciding if form is more important than substance or vice versa.
26. In the tax world where I live this time of year, the IRS and the Tax Courts ALWAYS rule that the economic substance of a transaction will govern the applicable law and not the form of the transaction given to it by the taxpayer. Indeed, as I am fond of explaining to my clients, if it walks like a duck and quacks like a duck; it IS a duck, no matter what you call it!
27. My staff and I investigated this issue and found several Supreme Court Cases that discussed the issue of form v. substance. Most of the cases were Civil Rights cases were state or local governments were claiming some sort of exemption from Civil Rights legislation based on technicalities in the law (e.g., you can't vote today because you didn't fill out the voter registration application using roman numerals as the law requires!)
28. From these cases we have garnered the following quotes:
1. In Colorado Republican Federal Campaign Comm. v. Federal Election Comm 'n, 518 U.S. 604, 622, (1996) (opinion of BREYER, J.),
"The government 'cannot foreclose the exercise of [First Amendment] rights by mere labels'" (quoting NAACP v. Button, 371 U.S. 415, 429, 83 S.Ct. 328,336,9 L.Ed.2d 405 (1963).
2. In Escobedo v. Illinois, 378 U.S. 478, 486, (1964) where the Court declined to, "exalt form over substance" in determining the temporal scope of Sixth Amendment protections.
3. In Crowell v. Benson, 285 U.S. 22, 53 (1932) where the Court stated,
"Regard must be had, ... in ... cases where constitutional limits are invoked, not to mere matters of form but to the substance of what is required"
29. It appears that the weight of the authorities agrees with the Tax Courts; substance is more important than form. In the instant case, I have pleaded a case against the sign ordinance that is an assertion of over-reaching and overbreadth claims. The substance of my amended complaint is clearly overbreadth. My illegal prior restraint allegations are precisely what the Broadrick Court was attempting to remedy with the relaxed "breathing room" standing requirements in First Amendment cases.
30. The content regulation allegations included in my amended complaint are clearly overbreadth allegations. This is so because the City does not have to regulate which words can be used on a sign in order to regulate the time, place, and manner of the sign. Simply, the sign ordinance goes too far. Thus, content regulation is another overbreadth assertion.
CONCLUSION
31. My amended complaint asserts the overbreadth claims of content regulation and standardless discretionary power in the hands of local functionaries. I described each of these in detail giving the UDO sections that offend the First Amendment. It is my earnest prayer and plea to this Court that these assertions be recognized, acknowledged, and remedied by this Court. Moreover, I assert that, as the authorities have ruled, substance is always superior to form.
Respectfully submitted, JOHN S. LA TOUR
February 27, 2003
JOHN S. LA TOUR
112 Center Street,
Suite 560 Fayetteville, AR 72701
(479) 443-7878
CERTIFICATE OF SERVICE
This is to certify that I have this day served counsel for all parties in the foregoing matter with a copy of this pleading by depositing in the United States mail a copy properly addressed with first class postage thereon.
This 27 day of February,2003.