IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
FAYETTEVILLE DIVISION
JOHN S LA TOUR PLAINTIFF
VS. CASE NO. 02-5001
CITY OF FAYETTEVILLE, ARKANSAS DEFENDANT
MEMORANDUM OPINION
On the 12th day of May, 2003, this matter came on for trial to the Court, plaintiff having waived his right to trial by jury, and the matter proceeded with plaintff representing himself and defendant being represented by counsel. The parties presented documentary and oral evidence as well as legal argument, from all of which the Court finds and orders as follows:
1. Plaintiff challenges the Sign Ordinance of the City of Fayetteville as being unconstitutional -- both facially and as applied to him. He seeks declaratory judgment sustaining his challenges, as well as an injunction (a) permitting him to operate an electronic sign in the same manner as time and temperature signs are allowed to operate, and (b) enjoining the City from prohibiting the operation of electronic signs so long as they carry noncommercial messages.
In response, the City denies that its Sign Ordinance is unconstitutional either facially or as applied to plaintiff.
2. At a pre-trial conference on May 7, 2003, the parties agreed that the following facts in this matter are uncontested:
* Plaintiff has an electronic sign, eight inches by seventy-two inches, mounted inside his office window facing outward, and visible from Sixth Street, Fayetteville, Arkansas.
* Plaintiff's electronic sign can only accommodate twenty-one characters at a time. The sign can be programmed so that it displays those characters for fifteen seconds, goes blank for five seconds, then displays a different group of characters for fifteen seconds, etc. Plaintiff desires to use the electronic sign to display messages , some of which require several different displays to complete the message.
* Mechanically, plaintiff's electronic sign functions in the same manner as several signs in Fayetteville which alternate a display of the time and the temperature.
* Plaintiff's sign can also be used without the flashing or blinking option, simply as a static illuminated sign.
* Plaintiff has in the past used his electronic sign to display his political and religious opinions, such as "choose life," "God listens," "stop abortion," and "recallcoody.com."
* None of the political or religious opinions displayed by the plaintiff have been obscene or threatening.
* On June 16, 2000, plaintiff was charged with violating the Fayetteville Sign Ordinance, found at Section 174 of the Unified Development Ordinance ("UDO") of the City of Fayetteville.
* Plaintiff was convicted in Fayetteville Municipal Court of violating the Sin Ordinance and paid a fine and costs in connection with that conviction.
* Plaintiff appealed his conviction, and the matter was ultimately settled, on terms which allowed plaintiff to change the message on his electronic sign no more often than every three hours. Plaintiff's fine and costs were refunded to him.
* The City has not attempted to regulate what message plaintiff displays on his electronic sign, so long as the message does not flash or blink.
* During Fall, 2002, plaintiff had a painted sign on the west wall of his office, visible from Sixth Street, on which he displayed his political opinions, and the City made no attempt to regulate the content of that sign.
* The City's purpose, reflected in its Sign Ordinance prohibiting flashing or blinking signs, is to promote aesthetics and traffic safety.
3. At the hearing defendant introduced without objection the following portions of the UDO: Chapter 174 (Signs); Chapter 150 (General Provisions); Chapter 152 (Administrations); Chapter 153 (Enforcement); and Chapter 155 (Appeals). These documents will be referred to by their respective chapter citations.
4. The Court turns first to plaintiff's facial challenge. The arguments of the parties on this challenge are contained in plaintiff's Motion for Partial Summary Judgment and defendant's response thereto. No additional arguments were thought necessary at the time of the plenary hearing.
Plaintiff advances the following arguments:
(a) The Sign Ordinance is facially unconstitutional because it does not require local officials to make decisions regarding the issuance of sign permits within a definite and brief period of time.
(b) The Sign ordinance is facially unconstitutional because it does not guarantee prompt judicial review of the denial of a sign permit.
(c) The Sign ordinance is facially unconstitutional because it allows local officials "unbridled discretion" in the issuance of sign permits.
(d) The Sign ordinance is facially unconstitutional because the content of a sign determines whether a permit for that sign is required.
(e) The Sign Ordinance is facially unconstitutional because it prohibits the use of certain words on a sign.
5. The first three arguments offered by plaintiff relate to the discretion of local officials to determine what speech will be permitted under the Sign Ordinance. In First Amendment jurisprudence, discretion violates the Constitution when it amounts to what is described in the case law as "unbridled" or "standardless." Discretion is said t be standardless -- and its restraints virtually unreviewable -- where legislation "makes the peaceful enjoyment of freedoms which the Constitution guarantees contingent upon the uncontrolled will of an official -- as by requiring a permit or license which may be granted or withheld in the discretion of such official...." Shuttlesworth v. City of Birmingham, 394 U.S. 147 (1969).
Plaintiff argues that the Sign Ordinance in question fails to provide the requisite safeguards to the application of discretion in regard to signs in four ways:
(1) it gives the Building Inspector free rein to require any information he chooses in support of a sign permit application;
(2) it allows the City Council to revoke a sign permit for any reason;
(3) it fails to specify the time frame within which a sign permit decision must be made; and
(4) it fails to provide for speedy judicial review of a sign permit decision.
The specifics of each of these contentions will be examined in turn.
(a) Plaintiff claims that the Sign Ordinance "mandates that an applicant for a sign permit must provide 'such other information as the building inspector shall require'." 174.02(A) (8). He argues that this allows the building inspector to demand anything at all of an applicant, thus constituting unbridled discretion.
This argument hinges on an incomplete -- and therefore incorrect -- reading of the subsection in question. A full reading of the subsection reveals that it actually says an applicant must provide "[such other information as the Building Inspector shall require to show full compliance with Code of Fayetteville." 174.02(A) (8). The Code limits what may be required of an applicant, and the "discretion" of the Building Inspector to request additional information is therefore not unbridled.
(b) Plaintiff next points to a provision which he says "vests the City Council with the standardless ability to REVOKE a sign permit for any reason." The Ordinance states that "[all rights and privileges acquired under the provisions of this chapter or any amendments thereto are mere licenses revocable at any time by the City Council and all such permits shall contain this provision." 174.01(E).
Plaintiff's contention rests on what the Court regards as a strained interpretation of this provision -- to the effect that it vest unbridled discretion in the City Council to revoke a sign permit at any time for any reason. The Court believes that a more reasonable interpretation of the provision would be that it is a disclaimer which would prevent one holding a sign permit from asserting that he had an absolute right to exercise the powers granted by the permit even if the City Council -- the legislative body -- were to amend the Sign Ordinance in such a way as to make that permit unattainable. A legislative enactment is not overbroad "when a limiting construction has been or could be placed on the challenged statute." Broadrick v. Oklahoma, 413 U.S. 601 (1973). A limiting construction could be placed on this portion of the Sign Ordinance an it is, therefore, not constitutionally infirm as a result of unbridled discretion.
(c) Plaintiff argues that the Sign Ordinance "completely fails to guarantee a brief definite period of time for a sign permit application approval." The Ordinance states as follows in this regard:
It shall be the duty of the Building Inspector, upon the filing of an application for an erection permit, to examine such plans and specifications and other data and the premises upon which it is proposed to erect the sign or other advertising structure, and if it shall appear that the proposed structure, is in compliance with all the requirements of this chapter an all other laws and ordinances of the City, he shall then issue the erection permit.
174.02(B)
Nothing is mentioned in this section about time limitations governing the decision of the Building Inspector, nor has defendant directed the Court's attention to any other provision in the UDO that imposes such limitations. The Court has carefully reviewed the Sign Ordinance and the other chapters of the UDO received into evidence in this matter, and finds nothing in this regard.
In FW/PBS, Inc. v. City of Dallas, 493 U.S. 215 (1990), the Supreme Court held that a scheme for the licensing of protected speech must require the decision to be made within a reasonable period of time, and must offer an opportunity for prompt judicial review. Following the teachings of that case, the Court finds the Sign Ordinance to be constitutionally infirm on its face as to the first of these required safeguards since no limits are imposed on the Building Inspector with regard to the time in which the decision on a permit application must be made. Cf. Freedman v. State of Maryland, 380 U.S. 51 (1965) (failure to place limitations on the time within which a censorship board must make a determination of obscenity is a species of unbridled discretion).
(d) Plaintiff next argues that the Sign Ordinance does not guarantee prompt judicial review of the denial of a sign permit.
The UDO provides that decisions of the Building Inspector may be appealed to the Board of Appeals 155.06(C). Such an appeal is to be filed within ten working days, 155.02(B) (1), and the Board of Sign Appeals must fix a reasonable time for hearing the appeal, 155.02(B) (2). All proceedings in furtherance of the action appealed from are stayed pending the outcome of the appeal, except upon certification that a stay would pose imminent peril to life or property. 155.03.
Chapter 155 of the UDO provides, in relevant part, that "[unless set forth otherwise below, all appeals from final actions taken by the ...Board of Sign Appeal...shall be take to the Circuit Court of Washington County." 155.01. Such appeals receive de novo review pursuant to Arkansas law. A.C.A. 14-56-425.
Appeals from the Board of Sign Appeals may also be taken to the City Council by any member of the City Council, 155.07, but the use of the word "may" means that this subsection is not mandatory, and the Court finds that a fair reading of Chapter 155 is that it does not prohibit an aggrieved permit applicant from going directly from the Board of Sign Appeals to the Circuit Court of Washington County.
The Court therefore concludes that the Ordinance does provide for independent and speedy judicial review of the decisions of the Building Inspector.
6. The remainder of plaintiff's arguments on the facial invalidity of the Sign Ordinance focus on its purported regulation of signs based on their content.
Signs are a form of expression protected by the First Amendment although, unlike oral speech, they may be regulated under the police powers of a municipality because they "take up space and may obstruct views, distract motorists, displace alternative uses for land, and pose other problems that legitimately call for regulation. It is common ground that governments may regulate the physical characteristics of signs. . . ." City of Ladue v. Gilleo, 512 u.s. 43 (1994).
To evaluate the constitutionality of a restriction upon speech imposed by a sign ordinance, the Court must first determine whether the restriction is content-based, and then apply the proper level of scrutiny based on that determination. Whitton v. City of Gladstone, Mo., 54 F.3d 1400 (8th Cir. 1995).
A restriction on speech is content-based when the message conveyed determines whether the speech is subject to the restriction. City of Cincinnati v. Discovery Network. Inc., 507 U.s. 410 (1993).
State action restricting noncommercial speech of a private person based on its content is constitutional only if the regulation is "a precisely drawn means of serving a compelling state interest." Consolidated Edison Co. v. Public Service Commission, 447 U.s. 530 (1980).
(a) Plaintiff first asserts that the Ordinance is invalid because it prohibits "the use of words such as 'go', 'stop', or 'look' in a sign," and that "if a Fayetteville resident chose to erect such a sign, she would certainly be risking criminal prosecution."
This argument depends upon an incomplete -- and therefore incorrect -- reading of the subsection of the Sign Ordinance. Section 174.08(F) prohibits the words in question ("stop," "look," "drive-in," and "danger" are the words listed in the subsection) only where used "in such manner as to interfere with, mislead, or confuse traffic." It is not the words themselves which are prohibited -- only their use in a misleading or confusing manner with regard to the signs and signals drivers rely upon to navigate the roadways safely. Moreover, this provision applies equally to all signs, regardless of their content, and is not, as plaintiff asserts, content-based regulation of speech. Accordingly, the Court finds no facial invalidity in this subsection.
(b) Plaintiff also asserts that the Ordinance is content-based because of a variety of provisions in §174.03,
which sets out a number of exemptions to the requirement of a sign permit. His arguments all center on the same contention: the exemptions give more favorable treatment to commercial speech than to political or religious speech.
Plaintiff focuses his argument on §174.03(H) (1) -- which requires the removal of a political sign within 72 hours after an election -- and §174.03(J) (1) (a) -- which requires removal of election campaign banners within 72 hours after an election -- as compared to §174.03(C), which does not place any specific durational requirement on commercial real estate signs.
Plaintiff relies on Whitton, supra, in support of his argument that this distinction unconstitutionally burdens political speech -- which is deserving of the highest form of protection.
In Whitton, the Eighth Circuit held unconstitutional a sign ordinance which prohibited a landowner from placing a political sign on his property more than 30 days before an election and required the sign to be removed within seven days after the election. Real estate signs were given a longer lease on life. This distinction was found 'to be a content- based restriction on political speech not justified by any compelling interest and not narrowly tailored to serve the asserted interest.
The Court believes Whitton to be controlling precedent, and the specific issue of differential duration for political and commercial signs was fully aired there. The Court therefore finds that the durational restrictions placed on political signs and banners in §174.03 are facially invalid.
Plaintiff argues that other subsections of §174.03 are similarly content-based. He contends that if the enumerated : categories of signs can be erected without a permit, he should be able to erect an identical sign bearing his political or (religious opinions without a permit, because "the content of the sign determines in part or in whole how big the sign can be or how long it can stay up."
A review of the signs covered in §174.03 reflects some which are content neutral: traffic signs, provisions for repainting signs or changing their lettering where they are despised for such changing, time and temperature displays (see infra, ~8), signs located in buildings, freestanding bulletin boards, and signs on fences and scoreboards in City parks. In the Court's view, plaintiff's arguments do not apply to these particular categories of signs.
As to the remaining categories, the Court is persuaded by plaintiff's arguments that they do impose a burden on "opinion" signs that is not imposed on other types of signs. These categories are:
* professional
nameplates (§174.03(A);
* building construction signs (§174.03(B);
* home occupation signs (§174.03(D);
* memorial signs and building name signs (§174.03(E);
* signs on windows (§174.03(L);
* directional identification and informational signs ( § 1 7 4 . 03 (M) ) ;
* subdivision signs (§174.03(O); and
* fuel price informational signs (§174.03(Q»).
While many of these categories appear to be innocuous in First Amendment terms, an example will demonstrate their potential to burden speech. One need not obtain a permit to erect a professional nameplate on his office building, but if that sign says "stop abortion," a permit is required -- even if the sign is equal in size, color, location, and materials to the professional nameplate.
The City advances no compelling governmental interest to support the distinctions listed above, yet the law is clear that in the absence of such a compelling governmental interest, signs may be regulated as to location, size, materials, illumination, duration, and other content-neutral aspects, but not as to the content of their message. It follows that the distinctions are constitutionally impermissible.
7. Having determined that the Sign Ordinance is constitutionally deficient with regard to the lack of a specified time frame within which the Building Inspector must make a decision about whether to issue a sign permit, and with regard to many of the exemptions from the requirement of a permit, the Court must determine whether those portions of the Sign Ordinance are severable. If they are not, the entire Sign Ordinance must be declared unconstitutional.
The Eighth Circuit has held that "[s]everability is a matter of state law," and further, that the Supreme Court of , Arkansas looks to "two considerations to determine severability:
(1)
whether a single purpose is meant to be accomplished by the act; and
(2) whether the sections of the act are interrelated
and dependent upon each other. . . . [I]t is important whether the portion of
the act remaining is complete in itself and capable of being executed
wholly independent of that which was rejected." Russell v. Burris,
146 F.3d 563 (8th Cir. 1998) (internal citations and quotations omitted).
The
Court's review of the Sign Ordinance reveals that a variety of
purposes are meant to be accomplished thereby. Among other things, the Sign
Ordinance establishes a procedure for the permitting of signs;
establishes categories of signs for which no permit is required;
establishes categories of signs which are absolutely prohibited; and sets
guidelines for the construction, maintenance, and removal of signs. Thus,
the Sign Ordinance addresses multiple purposes which do not appear to be clearly
interrelated and dependent upon each other. For example, the Court notes that,
as to the lack of a specified time within which the Building Inspector
must decide on a permit application, the other purposes (and provisions) of
the Sign Ordinance not featuring the need for a permit would be wholly
unaffected if the flawed permitting process were to be stricken. A
similar observation may be made concerning those portions of the
exemption section which are content-neutral -- they would be wholly unaffected
by a finding that other exemptions were flawed because of being
content-based.
Accordingly, the Court concludes:
(a) that the following flawed portions of the Sign Ordinance -- relating to the permitting process -- are severable:
* §174.01(A)
(Requirement for Permit)
* §174.01(C) (Fees for permit)
* §174.02 (Permit Application/Issuance)
* §174.04 (Sign Identification); and
(b) that the following flawed portions of the Sign Ordinance -- relating to exemptions which are not content- neutral -- are also severable:
* §174.03(A)
(Professional Nameplates);
* §174.03(B) (Building Construction Signs);
* §174.03(D) (Home Occupation Signs);
* §174.03(E) (Memorial Signs, Name Signs);
* §174.03(H) (Election Campaign Signs);
* §174. 03 (J) (Banners) ;
* §174.03(L) (Signs on Windows);
* §174.03(M) (Directional Identification and Informational Signs);
* §174.03(O) (Subdivision Signs); and
* §174.03(Q) (Fuel Price Informational Signs).
The foregoing provisions of the Sign Ordinance are hereby declared unconstitutional and, being severable from the rest of the Sign Ordinance, are ordered stricken therefrom.
8. The Court now turns to plaintiff's second challenge to the Sign Ordinance -- his ''as applied" challenge. In this challenge, plaintiff contends that the Sign Ordinance is an unconstitutional content-based regulation as applied to him because, while the City applies it to prohibit his flashing electronic sign, it does not apply it to prohibit the operation of flashing electronic time and temperature signs1.
(a) The Court must first determine whether this portion of the Sign Ordinance constitutes a content-based regulation of speech. Plaintiff argues that, because one must look to the content of the sign to determine whether it will be allowed (i.e. whether it displays time and temperature or some other message) the regulation must be considered "content- based." At first blush the argument seems sound. However, the Court must consider the matter in more depth in light of applicable constitutional law.
While the phrase "content-based regulation" has been used in many analyses of free speech issues, the application of that term to the City's exemption of time and temperature signs from the prohibition against flashing or blinking signs is not automatic in light of the underlying constitutional considerations which must be taken into account. These were explained by the Supreme Court in Turner Broadcastinq System, Inc. v. FCC:
At the heart of the First Amendment lies the principle that each person should decide for himself or herself the ideas and beliefs deserving of expression, consideration, and adherence. Our political system and cultural life rest upon this ideal. Government action that stifles speech on account of its message, or that requires the utterance of a particular message favored by the Government, contravenes this essential right. Laws of this sort pose the inherent risk that the Government seeks not to advance a legitimate regulatory goal, but to suppress unpopular ideas or information or manipulate the public debate through coercion rather than persuasion. These restrictions rais[e] the specter that the Government may effectively drive certain ideas or viewpoints from the marketplace. 512 U.S. 622 (1994) (internal citations and quotation marks omitted) .
In Turner Broadcasting, the Supreme Court acknowledged that "[d]eciding whether a particular regulation is content based or content neutral is not always a simple task," and referenced its statement in Ward v. Rock Against Racism, 491 U.S. 781 (1989), wherein it had explained that the "principal inquiry in determining content neutrality, in speech cases generally and in time, place, or manner cases in particular, is whether the government had adopted a regulation of speech because of disagreement with the message it conveys." (emphasis added).
In the case at bar, the evidence does not support a finding that the Sign Ordinance prohibits flashing or blinking signs because the City favors or disfavors any message a citizen might want to convey by use of such a sign. To the contrary, the evidence shows that -- as long as he does not cause his sign to flash or blink -- a citizen is free to display any message he chooses on an electronic sign. For example, plaintiff acknowledges that he can display the words "stop abortion" on his sign. He cannot, however, alternately flash the words "stop" and "abortion," or flash the words "stop abortion" on and off. This proof, in the Court's view, shows that the prohibition of flashing and blinking signs relates not to the content of plaintiff's message but, rather, to the method by which he wishes to convey it.
This is not a constitutionally impermissible regulation. The City has a legitimate interest in controlling the non- communicative aspects of the medium of speech, as opposed to its communicative aspects. Metromedia. Inc. v. City of San Diego, 453 U.S. 490 (1981).
Notwithstanding the proof mentioned above, plaintiff argues that it is the message rather than the medium that is being controlled by this provision of the Sign Ordinance. He insists that, due to the limitations on the number of characters which can be displayed at one time on his electronic sign, he cannot convey messages longer than three or four words unless he is allowed to flash them in phrases. The Court rejects this argument, especially in light of plaintiff's position at the hearing on his motion for preliminary injunction, wherein he acknowledged that he could not put up a billboard larger than what is permitted under the Sign Ordinance simply because he needed more space to express his message. While size limitations might, in fact, control his message under such a circumstance -- as would the size and capacity limitations of his electronic sign -- it does not follow that such size limitations amount to a content-based regulation of speech.
(b) The Court must next determine whether plaintiff is being treated differently from others in terms of how the prohibition against flashing and blinking signs is applied. He points out that the City allows the operation of signs which flash the time and temperature, and contends that if time and temperature may be flashed or blinked by others without prohibition under the Sign Ordinance, then he should be able to flash and blink any message he chooses on his electronic sign.
The first problem with this argument is that it attempts to compare apples to oranges. If the facts showed that others were being permitted to flash time and temperature on their signs and plaintiff was not, like situations would be under scrutiny. Similarly, if the facts showed that others were being permitted to flash political or religious messages on their signs and plaintiff was not, like situations would be compared. The facts show neither of these situations and the argument, therefore, has little force.
The second problem with the argument relates back to the teachings of Turner Broadcasting and supra. The evidence does not support a conclusion that the City -- by allowing a sign to flash the time and temperature -- is favoring or disfavoring any message. Time and temperature are not ideas or viewpoints about which citizens might debate and disagree -- they are simply measurable natural phenomena which are the same without regard to who displays them or who sees them. Because time and temperature are not the stuff of public debate, there is no danger that the City -- by distinguishing time and temperature signs from other categories of signs -- will "give one side of a debatable public question an advantage in expressing its views to the people" or "through the combined operation of a general speech restriction and its exemptions. . . seek to select the permissible subjects for public debate and thereby to control the search for political truth." City of Ladue, supra (internal citations and quotation marks omitted). There is no risk of censorship (either by favoring or disfavoring content). The Court, therefore, concludes that the City's failure to prohibit flashing time and temperature signs under the Sign Ordinance does not permit a holding that the Sign Ordinance -- as applied to plaintiff's sign -- thereby becomes a content-based regulation of speech in violation of constitutionally protected rights.
(c) Since the Court has determined that the prohibition against flashing or blinking signs is not a content-based regulation of speech, it is obliged to utilize an intermediate level of scrutiny in further examining the restrictions constituting the prohibition.
Content-neutral regulations of noncommercial speech are permissible if they serve a significant governmental interest; are narrowly tailored to serve that interest; and leave open ample alternative channels for communication of the same information. Purs1ev v. Citv of Favettevi11e. Ark., 820 F.2d 951 (8th Cir. 1987). These criteria are met by the proof presented in this case.
Fayetteville City Attorney Kit Williams testified at the hearing on preliminary injunctive relief that the primary reasons for the Sign Ordinance were aesthetics and traffic safety. Those interests have been held to be significant governmental interests. Metromedia, supra. Also, a . prohibition against flashing or blinking signs has been held to be within the parameters of legitimate police regulation for the health of the people. City of Fayetteville v. S & H, Inc., 261 Ark. 148, 547 S.W.2d 94 (1977).
Plaintiff argues that his sign does not pose any different aesthetic or safety considerations than do time and temperature displays.
With regard to aesthetics, plaintiff suggests that under :he Sign Ordinance, "tens of thousands" of time and temperature displays could be erected. He produced evidence of only two such displays that exist in the City, however. While this proof might show that plaintiff disagrees with the City's conclusions concerning aesthetics and safety considerations, it does not convince the Court that the City's stated reasons for its enact ion of the Sign Ordinance are either false or unreasonable. The Court also expresses its doubt that -- in light of the fact that a time and temperature display cannot contain advertising matter -- it is reasonable to infer that the proliferation of such signs will actually occur as predicted by plaintiff.
Plaintiff also predicts a proliferation of flashing or blinking signs in the City if such signs are allowed to carry messages containing ideas and opinions. While this latter prediction is no more supported by the evidence than is the former, the Court observes that there is, perhaps, a sounder basis for believing such might occur. Moreover, such a prediction, coming from the opponent of the prohibition, tends to lend support to the aesthetic rationale.
The evidence pertaining to the traffic safety rationale was to the effect that time and temperature displays utilize no more than four characters and the alternating information need not be read together to gather meaning -- i.e., generally speaking, the current time has meaning independent of any knowledge of the current temperature and vice versa.
In contrast, the proof showed that plaintiff's sign displays only twenty-one characters at a time. Accordingly, for a passing motorist to receive the longer messages plaintiff desires to display, the motorist would be obliged to " pay attention to the sign long enough to read more than one I display of up to 21 characters flashed in sequence. In other words, it would be necessary to read several displays together in order to perceive the meaning of the message being communicated -- each flashed display would not have meaning independent of the other displays in the message.
In light of the evidence, the Court concludes that both the aesthetic and traffic safety rationales are sound, and that the prohibition is narrowly tailored to prevent the traffic risks and to promote the aesthetic considerations that motivated its passage.
The Court also finds that there are ample alternative , channels for plaintiff to communicate his political and religious messages aside from using the flashing and blinking mode of his electronic sign. Plaintiff testified that he has continued to use his electronic sign, in static mode, to carry a variety of political and religious messages. He also testified that he has utilized static painted signs, such as the one painted on the side of the building which houses his electronic sign, to express those messages.
City Attorney Kit Williams testified that the City operates a public access television channel to allow citizens to publicize their ideas and opinions; that City Council meetings offer an opportunity for public comment on issues that come before the Council; and that those meetings are broadcast on the government channel.
Based upon the proof presented, the Court finds that there are ample avenues for plaintiff and the other citizens of Fayetteville to publicize their ideas or opinions without the use of flashing or blinking electronic signs.
(d) Because the Court has found that the prohibition against flashing or blinking signs is content-neutral and
meets the requirements of Pursley, plaintiff's First Amendment ''as applied" challenge must fail.
9. At the preliminary injunction hearing in this case, the Court took note of plaintiff's initial assertion that the .I City's allowance of flashing time and temperature signs denied him the equal protection of the law guaranteed a citizen by our Constitution, even though -- from all appearances -- plaintiff abandoned this argument after pleading it. Having now heard all the evidence, the Court is satisfied that this argument lacks merit.
The purpose of the Equal Protection Clause "is to secure every person within the State's jurisdiction against intentional and arbitrary discrimination, whether occasioned by express terms of a statute or by its improper execution through duly constituted agents." Village of Willowbrook v. Olech, 528 u.s. 562 (2000) (citations omitted). Equal protection analysis "requires strict scrutiny of a legislative classification only when the classification impermissibly interferes with the exercise of a fundamental right or operates to the peculiar disadvantage of a suspect class." Massachusetts Board of Retirement v. Murgia, 427 u.s. 307 (1976) .
Because the prohibition against flashing or blinking signs is content-neutral, it does not "impermissibly interfere[] with the exercise of a fundamental right." Nor is there either allegation or evidence that plaintiff is a member of a "suspect class." Strict scrutiny is therefore not called for in connection with plaintiff's Equal Protection argument. There is no evidence of intentional or arbitrary discrimination. The City has advanced rational bases for the distinction between time and temperature signs and other flashing or blinking signs. Plaintiff's Equal Protection challenge to the Sign Ordinance therefore fails.
IT IS THEREFORE ORDERED that §174.01(A); §174.01(C); §174. 02; §174. 04; §174. 03 (A); §174. 03 (B); §174. 03 (D) ; §1 74.03 (E); §174. 03 (H); §174. 03 (J); §174. 03 (L); §174. 03 (M) ; §174.03(0); and §174.03(Q) of the Fayetteville Sign Ordinance are hereby declared unconstitutional.
IT IS FURTHER ORDERED that §174.01(A); §174.01(C); §174. 02; §1 74.04; §174. 03 (A); §174. 03 (B); §174. 03 (D) ; §174. 03 (E); §174. 03 (H); §174. 03 (J); §174. 03 (L); §174. 03 (M) ; §174.03(0); and §174.03(Q) of the Fayetteville Sign Ordinance are severable, and those sections are hereby severed from the Sign Ordinance.
IT IS FURTHER ORDERED that the Sign Ordinance, as applied to prohibit plaintiff from operating his electronic sign in flashing or blinking mode, is not unconstitutional.
IT IS SO ORDERED, this 19th day of June, 2003.
JIMM LARRY HENDREN
UNITED STATES DISTRICT JUDGE
Footnote 1: Section 174.03(I) exempts "[t]ime and temperature displays without advertising matter, providing all clearances prescribed herein for signs similarly located are maintained," but this is an exemption from the requirement of a permit only. Section 174.08(B) prohibits any "attraction device or sign which flashes, blinks, or is animated."