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
On the 13th day of December, 2002, came on for hearing plaintiff's Motion For Preliminary Injunction (document #33). Plaintiff appeared, acting pro se, and defendant appeared through its personal representative and represented by
counsel. Witnesses were called, documentary evidence was received, and legal arguments were presented to the Court, and the Court now makes the following findings and order:
1. Plaintiff brought suit pursuant to 42 U.S.C. §1983, alleging that certain provisions of the sign ordinance ("the Ordinance") of the City of Fayetteville ("the City") are unconstitutional, either on their face or as applied to him.
2. The suit arose out of the City's enforcement of a provision in the Ordinance prohibiting signs which flash or blink. Plaintiff has an electronic sign, installed in an office building facing a window where its changing messages
can be seen from the street outside the building. The sign is only capable of displaying 21 characters at a time. When
operated as plaintiff desires to operate it, which the Court will characterize as "flashing mode," it:. displays three or four words at a time. Each display lasts for some fifteen seconds, then the screen goes blank for about five seconds, and the next words in the message are displayed. In this fashion whole sentences and even longer messages can be displayed over a relatively short period of time. Plaintiff's sign can also be operated as a static illuminated sign, without flashing or blinking, which the Court will characterize as "static mode".
The messages displayed on the sign are plaintiff's political and religious opinions. Plaintiff alleges that the Ordinance is
unconstitutional as applied to him, because the City allows the operation of time and temperature signs that flash messages, yet
denies him that same permission. This is alleged to be a denial of equal protection. Plaintiff further contends that the denial
squelches his political opinions and therefore violates his rights to freedom of expression under the First Amendment.
3. Plaintiff was allowed to amend his Complaint to add claims of facial invalidity, which may be grouped for analysis into two classes:
(a) The Ordinance is facially invalid because it produces content-based regulation, in that the following
sections make some distinction based on the content of the sign
(b) The probability of success on the merits.
(c) The public interest.
The Court will examine each of these factors in light of
the evidence and the arguments of the parties.
5. The threat of irreparable harm to the movant:
It is axiomatic that the loss of First Amendment rights constitutes irreparable harm. Marcus v. Iowa Public
Television, 97 F.3d 1137 (8th Cir. 1996). Defendant argues that plaintiff cannot make the necessary showing of such loss because the Ordinance has not prevented him from displaying his religious and political messages, and therefore he has not lost his First Amendment rights. Plaintiff counters that he cannot display his messages effectively because of the Ordinance's restrictions on how his sign operates.
Plaintiff testified that he wanted to use his electronic sign to publicize his support for Tim Hutchinson in the recent Senate race, but could not effectively do so because of the space limitations of his sign when operated in static mode. He admitted, however, that he was able to publicize his support for the candidate by means of a large painted sign
affixed to the side of the same office building that houses his electronic sign. He has also used the electronic sign to express messages such as "choose life," "God listens," "stop abortion," and "recallcoody.com", but could not express other messages on the electronic sign because there was not enough space to carry the characters of the message unless the sign was operated in flashing mode.
The testimony before the Court was also to the effect that no City official has ever taken any action to prevent plaintiff from displaying any message he chooses on his sign, so long as it does not flash or blink. Both parties agreed, for example, that the City would allow the sign to read "stop abortion," so long as it did not flash, but would not allow the sign to alternately flash the words "stop" and "abortion." With regard to the argument that the Ordinance is facially unconstitutional, plaintiff alleges no harm specific to himself, and therefore no finding of irreparable injury flows from those allegations
Under the circumstances, the Court finds that plaintiff has failed to make a sufficient showing of First Amendment deprivation to justify the grant of a preliminary injunction. The evidence supports a finding that plaintiff has exercised his First Amendment rights continually from the time he obtained the electronic sign until the date of the hearing. While the method of expression has been subject to some control which may ultimately be found to pave constitutional infirmities, the evidence at this point does not persuade the Court that such would amount to a deprivation of plaintiff's First Amendment rights or constitute irreparable harm.
6. The balance between this harm and the injury that unction would inflict on other arties litigant:
The testimony bearing on this factor came entirely from Fayetteville City Attorney Kit Williams. Williams testified that between May 1, 2002, and November 15, 2002, the City processed 125 sign permit applications. If the Ordinance were to be invalidated, permit applicants would not know whether the sign they planned to install would pass muster, and the planning process would be disrupted. If the prohibition against flashing and blinking signs were invalidated, Williams would expect a proliferation of flashing and blinking signs which would adversely impact the aesthetics and traffic safety concerns which prompted the enactment of the provision in the first place.
Plaintiff offered no evidence to counterbalance the evidence of the City on this factor, and the Court finds that the evidence in this regard weighs in favor of denying the requested preliminary injunction.
7. The Probability of success on the merits:
Plaintiff's contention that the Ordinance is unconstitutional because of the prohibition against flashing and blinking signs hinges on the fact that the City allows flashing time and temperature displays. Absent that fact (i.e. if the City were not permitting such signs to be operated), there would be little, if any, basis for plaintiff's argument that the provision was content-based
regulation of speech -- and the constitutionality of the provision would be subjected to the level of scrutiny used for content-neutral regulations.
The Court, however, is not convinced by the evidence currently before it that the allowance of flashing or blinking time/temperature displays amount to a content-based regulation. Concerning which, a few observations:
* the evidence (and common knowledge) indicates that time/temperature signs convey the same message every day (and night) -- changing only as the time and temperature themselves change;
* the evidence (and common knowledge) also make obvious the facts that if the "time" message does not change at designated intervals by which time is measured and if the "temperature" message does not also change as and when the measurement of that atmospheric variable changes, both would be of little use; and
* that common sense indicates that the "content" of a time/temperature sign message does not depend upon the views of either the citizen displaying them or the citizen viewing them.
The Court also notes, in passing, the absence of any evidence to indicate that if plaintiff chose to display time/temperature in a flashing mode on his sign, he would be prevented from doing so.
The City admits -- and plaintiff concedes -- that an illuminated sign displaying the words "stop abortion" would be permitted, but that the City would not permit the same sign to alternately flash the words "stop" and "abortion." The asserted reason for this position is that the flashing of a
message expressing a view on anything -- regardless of its content -- could present a distraction to passing motorists and thus constitute a hazard. The argument that the time/temperature sign is "different" rests principally on the notions that (1) they do not express any view on anything and that a passing motorist could easily note one and be informed about a current item of universal data (time) or measured data (temperature) without needing to note the second. Thus, it appears to the Court from the evidence presented that it is not the content of the message, but rather its manner of conveyance that is controlled. The City has a legitimate interest in controlling the non-communicative aspects of the medium, as opposed to its communicative aspects. Metromedia, Inc. v. San Diego, 453 U.S. 490 (1981). Plaintiff's contention that the message itself is controlled because his sign cannot convey longer messages -- or his message in its entirety -- unless it flashes, is seriously weakened by his concession that he could not put up a billboard larger than what is permitted under the Ordinance simply because he needed more space to express his entire message. Although not precisely the same thing, it appears the principal is equally applicable here.
The Court does have concerns about the City's allowance of flashing time and temperature signs under the ordinance which, on its face, would not appear to permit such. However, as noted above -- and as argued by the City -- such signs
convey nothing more than a measurement made by machines and reflected in a form that can be interpreted by humans. Accordingly, there remains in the Court's mind a serious question as to whether time/temperature signs constitute speech as that word is understood in First Amendment jurisprudence. It is a matter, the Court" believes, which warrants further scrutiny which is not necessary to this opinion.
The Court also has concerns about the remedy plaintiff seeks and, thus, about the probabilities that he will be successful in obtaining them on final hearing. If, as contended by plaintiff, the allowance of flashing time and temperature signs makes the Ordinance 'unconstitutional, it might well be that the proper remedy would be to require that the City enforce the Ordinance so as to prohibit them -- rather than to require the City to interpret the ordinance in such a way s to permit plaintiff's sign to operate in a flashing mode as he seeks. These matters, in the Court's opinion, will require a higher modicum of proof on the part of plaintiff than has currently been introduced, and therefore plaintiff has not met his burden of proving a likelihood of success on the merits, although the Court does not discount the possibility that such success could be achieved upon plenary hearing of the issues.
8. The Public interest:
It is without cavil that protecting the freedoms guaranteed in the Bill of Rights is in the public interest. However, unless there is a significant possibility that those freedoms are being infringed, it would not be in the public interest to disrupt the process of municipal planning and development by enjoining the City from enforcing its Ordinance before a plenary hearing in this matter. Given the analyses of the first three Dataphase factors, the Court finds that this factor weighs more heavily in favor of the City than the plaintiff.
9. For the reasons stated in the preceding paragraphs, the Court finds that plaintiff has failed to carry the burden of proof necessary for this Court to issue a preliminary injunction in his favor, and the motion must therefore be denied.
IT IS THEREFORE ORDERED that plaintiff's Motion For Preliminary Injunction is denied.
IT IS SO ORDERED this day of December, 2002.
JIMM LARRY HENDREN
UNITED STATES DISTRICT JUDGE
r