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

ORDER

Now on this 21 day of April, 2003, the Court, noting that an {~sue has arisen regarding whether plaintiff has standing to assert certain constitutional claims as to which he can show no 'particularized injury,' finds and orders as follows:

1. Plaintiff challenges the Sign Ordinance ("the Ordinance") of the City of Fayetteville ("the City") as being facially unconstitutional in the following respects:

(a) The Ordinance does not require local officials to make decisions regarding the issuance of sign

permits within a definite and brief period of time.

(b) The Ordinance does not guarantee prompt judicial review of the denial of a sign permit.

discretion" in the issuance of sign permits.

(d) The Ordinance constitutes content-based regulation because the content of a sign determines whether a permit for that sign is required.

(e) The Ordinance is unconstitutional because it prohibits the use of certain words on a sign.

2. In its initial review of plaintiff's pending motion for summary judgment, the Court noted that plaintiff had not specifically asserted an overbreadth claim, nor did he claim to have suffered any injury personal to himself from the alleged facial invalidities, of the Ordinance. Thus the Court questioned whether plaintiff had standing to assert his facial challenges, and requested that the parties submit additional briefings on the standing issue. The Court now takes up that issue.

3. Standing is an inescapable .)component of the jurisdiction of an Article III court, which exists to resolve

cases or controversies. Courts are not roving commissions assigned to pass judgment on the validity of the Nation's

laws. Constitutional judgments. . . are justified only out of the necessity of adjudicating rights in particular cases between the litigants brought before the Court. . . ." Broadrick v. Oklahoma, 413 u.s. 601 (1973) (internal citations

omitted) .

Generally speaking, there are three elements of standing:

* first, plaintiff must have suffered an injury in fact, i.e., an invasion of a legally protected interest which is concrete and particularized and actual or imminent rather than conjectural or hypothetical;

* second, there must be a causal connection between the injury and the conduct complained of; and

* third, it must be likely, as opposed to merely speculative, that the injury will be redressed by a decision in plaintiff's favor. ."

Lujan v. Defenders of Wildlife, 504 U.s. 555 (1992).

4. In First Amendment "overbreadth" cases, the traditional standing requirements are relaxed. The Supreme Court explained the rationale for this in Dombrowski v. Pfister, 380 U.s. 479 (1965):

Because of the sensitive nature of constitutionally protected expression, we have not required that all of those subject to overbroad regulations risk prosecution to test their rights. For free expression -- of transcendent value to all society, and not merely to those exercising their rights -- might be the loser. . . . we have consistently

allowed attacks on overly broad statutes with no requirement that the person making the attack demonstrate that his own conduct could not be regulated by a statute drawn with the requisite narrow specificity. We have fashioned this exception to the usual rules governing standing. . .because of the. . . danger of tolerating, in the area of First Amendment freedoms, the existence of a penal statute susceptible of sweeping and improper application. If the rule were otherwise, the contours of regulation would have to be hammered out case by case -- and tested only by those hardy enough to risk criminal prosecution to determine the proper scope of regulation.

(Internal citations and quotation marks omitted.)

In his submissions, plaintiff asserts that he has in fact asserted an overbreadth claim, albeit without use of the words "overly broad," because he has asserted (a) a time, place and manner restriction of speech and (b) standardless discretionary power on the part of officials who determine whether signs should be permitted. He points to the following language in Broadrick in support of his claim that these allegations are sufficient tp give him. standing:

It has long been recognized that the First Amendment needs breathing space _and that statutes attempting to restrict or burden the exercise of First Amendment rights must be narrowly drawn and represent a considered legislative judgment that a particular mode of expression has to give way to other compelling needs of society. As a corollary, the Court has altered its, traditional rules of standing to permit -- in the First Amendment area --

attacks on overly broad statutes with no requirement that the person, makin.g the attack demonstrate that

his own conduct' could not be regulated by a statute drawn with the requisite narrow 'specificity. * * *

Facial overbreadth claims have. . . 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.

Broadrick, supra (internal citations and quotation marks omitted) .

The Court has examined each of plaintiff's contentions. in light of the provisions of Broadrick and the cases cited therein, and concludes that plaintiff does have standing to assert those claims. He has asserted that the Ordinance purports to regulate the time, place, and manner of communicative conduct and that it grants standardless discretionary power to local functionaries to determine if such conduct will be permitted. Without taking up the substantive merits of any of plaintiff's claims, the Court

finds that plaintiff has asserted an overbreadth claim sufficient to afford him standing. The matter will therefore proceed as previously scheduled.