.

 

1                             PROCEEDINGS OF MAY 12.2003
2

3     THE COURT: Ladies and gentlemen, the Court calls up

4 for consideration the case of John S. LaTour, the Plaintiff,

5 versus City of Fayetteville, Arkansas. This is File Number 02-

6 5001, and the matter is set for trial today by previous orders

7 of the Court.

8         However, the Court has already conducted a short pre-

9 trial in-chambers with Mr. LaTour for the Plaintiff, who is pro

10 se representing himself, and also Mr. Woody Bassett, who is the

11 counsel representing the Defendant, City of Fayetteville. As a

12 result of that pretrial conference, the Court has determined

13 that it is necessary as a preliminary matter to conduct a short

14 Daubert hearing.

15         Mr. LaTour has offered an expert witness to testify in

16 connection with the trial of this matter, and the Defendant,

17 City of Fayetteville, has objected to that testimony on at least

18 a couple of grounds. So before commencing the trial itself, the

19 Court will conduct a short Daubert hearing.

20         Now, is the Plaintiff present and ready to proceed?

21         MR. LaTOUR: Yes, sir, we are.

22         THE COURT: Mr. LaTour, you want to introduce your

23 assistant who will be helping you?

24         MR. LaTOUR: This is Mr. Jeff Kendrick. Jeff helped me

25 on legal research and has been very helpful.

 

  -1-

 

1         THE COURT: All right, Mr. Kendrick, thank you, and

2 welcome. And, Mr. Bassett, you've already indicated you have no

3 objection to Mr. Kendrick sitting --

4         MR. BASSETT: That's correct.

5         THE COURT: All right. Mr. Bassett, is the Defendant

6 present and ready to proceed?

7         MR. BASSETT: Yes, sir. Sitting with me at counsel

8 table, Your Honor, for the record, is Kit Williams, Fayetteville

9 City Attorney.

10         THE COURT: All right, Mr. Williams. Now, gentlemen,

11 you indicated to me in chambers that you wish to invoke the rule

12 sequestering the witnesses, and I think we should do that at the

13 outset even before we commence the Daubert hearing for obvious

14 reasons. So let me ask, do you, Mr. LaTour, have all of your

15 witnesses here that you expect to call today?

16         MR. LaTOUR: Yes, sir, everybody is here.

17         THE COURT: Mr. Bassett, do you have any witnesses you

18 know of?

19         MR. BASSETT: No, sir, unless possibly Mr. Williams.

20         THE COURT: All right. Ladies and gentlemen, if you

21 understand you may be called as a witness in this case in this

22 hearing, please stand and raise your right hand to be sworn.

23 Mr. Williams, you may want to be sworn just in case you're going

24 to be called.

25         MR. WILLIAMS: Yes, sir, I will.

 

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1 (The witnesses were duly sworn by the Court Services Officer.)

2         THE COURT: Thank you. Please be seated. Ladies and

3 gentlemen, just be seated, if you don't mind, for just a moment.

4 Let me just make a few comments. Those of you who will be

5 called as witnesses need to understand that the rule

6 sequestering the witnesses has been invoked, actually by both

7 parties in this case, and the Court routinely grants it as a

8 matter of course when that request is made.

9         The meaning of the granting of the rule means that a

10 person who is going to be called as a witness must stay outside

11 the courtroom where he or she cannot hear what is happening

12 until they come in to testify. While you're outside the court-

13 room, you may not discuss your testimony with each other. You

14 can talk about baseball or apple pie or whatever else you want,

15 but do not discuss your testimony, either what it is going to be

16 if you have not yet been in, or what it has been once you have

17 been in. For example, it would be inappropriate to step back

18 out and say, you know, "Watch the guy in the red tie. He's

19 asking hardball questions." Just don't do that. It would be

20 improper.

21         Once you have completed your testimony, I will ask the

22 attorneys to please release you, and if you are told that you

23 are released, then you may leave, or stay and listen if you

24 like. But nonetheless, even after you have been released, it

25 still would be inappropriate to converse with any witnesses who

 

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1 are still waiting to testify or who have not been released. So

2 if you will accommodate us on that, we will greatly appreciate

3 that.

4        So now I mentioned earlier that we're going to have a

5 short hearing before we commence the trial itself, so I will ask

6 that all those witnesses, with the exception of Mr. Smith and

7 Mr. Williams, to now withdraw, and then we'll call you back as

8 soon as we can.

9         All right, Mr. LaTour, were you going to call your

10 proffered expert and we will hear -- well, before you do that,

11 let me ask, Mr. Bassett, if you wish to state any objection you

12 might have on the record.

13         MR. BASSETT: Yes, sir. The Defendant would object to

14 Mr. Smith testifying, Your Honor, for several reasons. First of

15 all, we were not notified until last week that Mr. LaTour had

16 some intention of calling Mr. Smith to testify, and that, of

17 course -- I realize that Mr. LaTour is representing himself, but

18 that is obviously a clear violation of the Court's Scheduling

19 Order. We had zero notice that Mr. Smith would be called. We

20 have absolutely no idea what his intended testimony might be, so

21 therefore it would be prejudicial for the Plaintiff to be

22 allowed to offer Mr. Smith as a witness, expert witness, at the

23 trial of this case.

24         Also, Your Honor, we would object on the basis that we

25 anticipate that what Mr. LaTour wants to do with Mr. Smith on

 

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1 the witness stand is to elicit certain opinion testimony from

2 him with regard to constitutional law issues, with regard to

3 some of the other legal issues that are involved in this case,

4 and under the Federal Rules of Evidence, Your Honor, we don't

5 believe that that would in any way assist or be helpful to this

6 Court in making a decision on the issues in this case.

7         And furthermore, we believe, or anticipate anyway,

8 with all due respect to Mr. Smith -- I know him personally, and

9 he's a good guy and he's a smart guy, and he's done a lot in his

10 life, but we don't believe that he has the kind of expertise or

11 knowledge that would in any way assist this Court to make a

12 decision in this case. The decision in this case is up to Your

13 Honor and not up to some expert witness who might want to offer

14 opinions about signs and constitutional law matters.

15         So for those reasons, Your Honor, we object.

16         THE COURT: All right, thank you. Mr. LaTour, do you

17 have a response, please?

18         MR. LaTOUR: Your Honor, I readily admit that I was

19 late and tardy in notifying Mr. Bassett about my decision to

20 call Mr. Smith as an expert, but I would point out to the Court

21 that I would not characterize it as zero notice. I noticed him

22 last week on -- I mailed it on Wednesday. He should have

23 received it on Thursday. He had all day Thursday and all day

24 Friday. Mr. Smith did make himself available for deposition

25 twenty-four hours a day. We stated that in the notice to Mr.

 

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1 Bassett for depositions, and apparently counsel for the City was

2 not able to schedule that in. We understand the procedural

3 shortcomings there, and we'd appreciate the Court's leniency in

4 letting Mr. Smith give testimony in spite of those facts.

5         THE COURT: Mr. LaTour, let me ask if Mr. Bassett is

6 correct in his belief that your intention is to call Mr. Smith

7 as an expert on the law.

8         MR. LaTOUR: No, sir, not on the law exactly. In

9 dealing with facts and applying those to the law. We're chal-

10 lenging -- Mr. Smith's testimony will be centered on our 11 challenge as applied, not the facial challenge. 

12         THE COURT: Well, I'm not sure I followed that. Now,

13 you are asking Mr. Smith to consider facts and then determine 14 how the law applies to them?

15         MR. LaTOUR: (No response.)

16         THE COURT: I guess what I'm getting at is, what kind

17 of expert opinion am I getting other than on the law?

18         MR. LaTOUR: He will give you an opinion -- he will

19 give you his expert opinion on how the city sign ordinance was

20 applied in my case, whether that was --

21         THE COURT: That's a conclusion of law, isn't it, or

22 opinion of law?

23         MR. LaTOUR: Yes, sir.

24         THE COURT: Okay. Well, I just want to be sure. All

25 right, thank you.

-6-

 

1     Let me just say for the record, I think the objection

2 is well-taken to the late proffer of the expert witness. The

3 Court entered its Scheduling Order, as I know both parties know,

4 back on September 30~, 2002, and yet like most, if not all of

5 the Court's Scheduling Orders, required in Paragraph 7 that all

6 parties must make initial expert disclosures not later than

7 ninety days prior to the trial date, and rebuttal experts and

8 disclosures must be made within thirty days thereafter.

9         Also incumbent with that requirement is that the

10 expert supply a statement concerning the intended opinions and

11 testimony that he or she intends to give, and the reasons for

12 that, which I think are fairly obvious. It is important for the

13 opponent to know that there's going to be an expert and the

14 tenor of the expert's testimony for a number of reasons, so that

15 that party can decide whether or not to depose the expert wit-

16 ness and whether the deponent desires to get an expert of its

17 own to meet the expected testimony of the expert witness.

18         This wasn't done in this case. The Court observes, as

19 far as it knows, there was not a lot of discovery done in this

20 case by either side, and I suspect that's true because it

21 appears that not many, if any, material facts are in dispute or

22 have been from the outset of this case, and I think that is born

23 out by recent events which led the Court to remove this case

24 from its jury trial docket.

25         So it appears to me that the facts upon which this

 

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1 case turns are not legion or even, frankly, many, nor does it

2 appear that they are inordinately complicated. It seems to me

3 they are rather straightforward. But most importantly, it seems

4 to me that they are not in dispute, although we are going to

5 have a hearing on at least one factual issue that Mr. LaTour

6 claims is still in dispute and that is material, so it's not

7 surprising to me that there was not extensive discovery in the

8 way of depositions and so forth.

9         It is surprising to me, in light of what I have just

10 said, that either side would feel the need to call an expert

11 witness because, as I know Mr. Bassett knows and as Mr. LaTour

12 being a law student, well advanced in his studies as I under-

13 stand it, I'm sure quite well knows, that the Court permits

14 expert testimony when it appears that the trier of fact would be

15 aided by the testimony of an expert witness where you have

16 matters, complicated matters, of science, engineering, and

17 things of that nature that the lay fact finder in the form of

18 jurors would have difficulty understanding in following the

19 proof or the theories that are being offered. Those comments

20 obviously are true with respect to a judge sitting alone, if the

21 judge would be aided by that expert testimony in understanding

22 the facts. The Court is not aware, however, of any authority

23 for the proposition that parties can be permitted, or should be

24 permitted, to call experts on the law to aid the Court in its

25 understanding of the law.

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1 The Court is guided, obviously, by the decisions and

2 the precedential decisions of courts of record, starting with

3 the United States Supreme Court, certainly on constitutional

4 issues, and the Court is also aided in most cases by legal

5 briefs that are filed by the litigants, and that has been the

6 case here, and there are situations in which friend of the court

7 briefs or amicus briefs can and are filed to help in educating

8 the Court as to the existence of precedential decisions and

9 their meaning and their pertinent application to the matters

10 then before the Court.

11         But aside from those features, the Court is not aware

12 of any reason or any authority for the proposition that a party

13 should call as an expert witness a witness who is simply going

14 to opine on what the law is or how it should be applied in a

15 given case.

16         So it seems to me, for a variety of reasons, not the

17 least of which is that the expert was not disclosed in a timely

18 fashion so that the Defendant could have a reasonable oppor-

19 tunity to depose that expert and determine whether there was a

20 basis to object. I assume had that occurred, the Defendant

21 might very well have made a more material objection along the

22 lines that I have been discussing here.

23         So it also seems, as a secondary matter -- and I will

24 certainly hear, I'm sure, from Mr. Smith in a moment, that there

25 is no basis or no reason to require expert testimony in this

 

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1 case because there is no factual dispute or no essential factual

2 dispute, first of all, and secondly, even if there were dis-

3 putes that -- factual disputes, it does not seem to me that they

4 would be of a nature that would require the need for expert

5 testimony in order for the Court, sitting as finder of fact, to

6 understand those facts.

7         And then finally, as I mentioned, I don't believe

8 there is any authority for the proposition that an expert should

9 be offered to aid the Court in knowing and understanding what

10 the law is. So I'll sustain your objection, Mr. Bassett, on the

11 grounds stated, and will not permit Mr. Smith to testify.

12         But as I indicated to you, Mr. LaTour, I certainly

13 will allow you to make a short proffer in line with what I've

14 said. I think there are pretty simple questions to be asked of

15 an expert witness. First, what are your qualifications that

16 make you an expert about whatever you're going to talk about.

17 Number two, what have you looked at and examined and taken in to

18 account as a basis for any opinion that you want to offer, and,

19 three, do you have an opinion, and, four, what it is, and that

20 seems to make a lot of sense to me.

21         So I would ask that when you offer Mr. Smith, if you'd

22 try to follow that guideline so that we can -- if the appellate

23 court has a reason to look at this, at least they can understand

24 what Mr. Smith -- who he is and what he had on his mind and what

25 he would have said if he were permitted to testify. So do you

 

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1 want to call Mr. Smith forward, and I will let you make your

2 proffer.

3         MR. LaTOUR: Yes, sir. I call Steve Smith.

4         THE COURT: Mr. Smith, if you will, come around,

5 please, and have a seat in the witness box. You've been sworn?

6         THE WITNESS: Yes, Your Honor.

7         THE COURT: Al right. Go ahead whenever you're ready.

8 STEPHEN SMITH, being called upon to testify, and having been

9 first duly sworn, testified as follows:

10                                 DIRECT EXAMINATION

11 BY MR. LaTOUR:

12 Q.         Mr. Smith, would you state your name and your mailing
13 address for the Court's record?
14 A.         My name is Stephen Smith. I live at 340 North Ralston
15 Avenue in Fayetteville, 72701.
16 Q.         Mr. Smith, what are your qualifications to speak as an
17 expert on freedom of speech?

18 A.         I have received undergraduate and graduate degrees in
19 Communication, a Ph.D. in communication studies from North-
20 western University. I've been on the faculty at the University
21 of Arkansas for twenty years, currently holding the rank of
22 professor. I have also been a visiting scholar at Stanford Law
23 School and on the faculty of law at the University of Cambridge.
24 I have been teaching courses in freedom of speech and communi-
25 cation theory during that period of time.

-11-

 

1 Q.         Thank you. What did you look at to formulate the basis for

2 your opinion in this case?

3 A.         Well, primarily, I was looking at the sign environment in

4 terms of communication and aesthetics in the area. I observed

5 the sign that's in question in this dispute here. I observed

6 signs in other parts of Fayetteville adjacent to that area and

7 looked at the Fayetteville sign ordinance to see if it, in fact,

8 contemplated coverage of those items.

9 Q.         Do you have an opinion about how the ordinance was applied

10 to my case?

11 A.         It seems to me that the -- while the purpose and intent of

12 the Fayetteville sign ordinance may be lawful; that is,

13 preventing distractions to drivers or for aesthetic reasons,

14 that it doesn't particularly apply to your sign. In fact, the

15 first time I went to observe your sign, I didn't even see it at

16 all because of the angle at which it can be read. It's much

17 like an LCD screen, that you almost have to be at a ninety

18 degree angle and turn and look at it to actually see the

19 message. My opinion is not on the wisdom of your investment in

20 the sign, but on whether or not it causes a problem for the

21 City.

22         What I did notice in the same area, within the radius

23 of about a mile and a half driving up by the Razorback Road,

24 there's a large illuminated moving billboard in one end of

 25 Razorback Stadium that is certainly more distracting than your

 

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1 sign. There were eleven illuminated beer signs in the window of

2 a liquor store -- Daddy Don's, I believe was the name of the

3 store -- that were more distracting than your sign.

4         And, in fact, just next door to your business is a Chinese

5 restaurant that has illuminated neon allover it, which was --

6 has been malfunctioning for over six months, that flickers and

7 is much more distracting than your sign.

8 Q.         Okay, thank you very much.

9         THE COURT: l right, do you have any questions?

10       MR. BASSETT: No, sir.

11       THE COURT: Al right, thank you, Mr. Smith.

12       May he be released, gentlemen?

13       MR. LaTOUR: Yes, sir.

14       THE COURT: Mr. Bassett?

15       MR. BASSETT: Yes, sir.

16       THE COURT: Al right. Professor Smith, you are

17 released from your oath. You may go or stay as you please.

18       THE WITNESS: Thank you very much, Your Honor. It's

19 always a pleasure to be in your court.

20       THE COURT: Now then, gentlemen, let me call up the

21 case for trial. In the process of doing that, let me mention

22 that, as both parties know, this matter was the subject of a

23 Preliminary Injunction Hearing last December 13, I believe, of

24 2002, and as a result of that hearing, the Court entered an

25 Order denying Plaintiff's then request for a Prelminary Injunc-

 

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1 tion.

2         It is being suggested by the Defendant that the Court

3 should receive and take into account all the proof and other

4 matters that were offered at that hearing, and to that end, the

5 Defendant has proffered a transcript, a copy of which the Plain-

6 tiff already has, and the Plaintiff has made an objection to

7 certain portions of that transcript that the Court has taken

8 under advisement and then is going to look at, and so I will

9 come back to that matter as soon as I've had a chance to review

10 the portions to which Mr. LaTour makes his objection. And the

11 basis for that objection, frankly, or actually the meaning of

12 it, relates to whether it would be appropriate for Mr. LaTour to

13 recall at least one witness who testified at that hearing con-

14 cerning matters that are in that transcript, so I'll come back

15 to that at a later time.

16         The parties have also attended a hearing before this Court

17 through their counsel on May 7, last Wednesday I believe, and

18 at that time they came in at the Court's invitation to determine

19 whether there were material facts left in dispute that neces-

20 sitated a trial by jury, and the case was then set for jury

21 trial as of that time. The Court had concerns and expressed

22 them at that time as to whether there were any material facts

23 left in dispute.

24         We went over at that hearing a list of what the Court,

25 considered to be the material facts gleaned from its examination

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1 of the pleadings and other matters in this file at a previous

2 hearing that was held December 13, it then being the Court's

3 view that those material facts really were not in dispute, and

4 that what was left to be decided was what they meant under the

5 law with respect to the issues that are before the Court as

6 raised in this lawsuit.

7         The Court's belief is that the parties are in agree-

8 ment with the Court that those were essentially the material

9 facts that were in issue. Mr. LaTour, the Plaintiff, suggested

10 that there could be a number of others that were material and in

11 dispute. The Court did not agree with that, and so ruled from

12 the bench on that date, May 7th, but at the same time, the Court

13 mentioned that it would conduct a telephone conference call with

14 the attorneys the next day at 3:00 o'clock on May 8 to then

15 give the attorneys a chance, after having thought of that, to

16 dispute the Court's conclusions in that regard.

17         The main reason for doing that was because most, if

18 not all, of the alleged disputed fact issues that Mr. LaTour

19 raised on May 7 were new. They had not been seen by the Court

20 in the earlier pleadings, and that they were new, I think, to

21 Mr. Bassett as well, but it was the Court's view at that time,

22 and remains the Court's view, that those issues, in light of the

23 issues that are properly framed in this case, and have been

24 since actually it began, that they were not material or neces-

25 sarily even in dispute or material. Not that they were not

-15-

1 material, but they were in dispute.
2         But because it had come up in that fashion, and rather
3 suddenly, the Court felt it wise to give the attorneys a chance
4 to think about it, and after, by the way, reviewing the tran-
5 script of those facts, which my court reporter, Ms. Sawyer,
6 kindly typed up and handed to the attorneys the next morning,
7 that I should give them another chance to be heard on that, and
8 then that conference call, which took place on the 8th at about
9 3:00 o'clock, the attorneys had that transcript before them, and
10 when the Court inquired on their thinking, Mr. LaTour's response
11 from the Plaintiff was that he was in essential agreement that
12 the material facts were there, but he did feel that there was at
13 least one area in which he felt he needed to call some fact
14 witnesses relating to the issue of the rationale for the
15 signing, and I'll let him fill that out more completely when he
16 makes his opening statement.
17         But in light of that position by Mr. LaTour, he said,
18 "I don't believe I need a jury for that," and he then agreed,
19 upon inquiry, that he would waive the jury and simply submit
20 that issue, as well as the other factual issues that we deter-
21 mined are not in material dispute, to this Court sitting as a
22 finder of fact, and which is obviously a judge of the law, and
23 so it was determined that the jury would not be called, and this
24 case would be submitted to the Court sitting as -- by itself
25 without a jury.

-16-

1 The parties then also decided that exhibits, P1ain-
2 tiffs' exhibits that had been offered at earlier hearings, would
3 be received in this hearing in conjunction with the Court's
4 consideration of the case, sitting by itself, and those exhibits
5 were reviewed.

6         Plaintiff's exhibits were reviewed again this morning
7 off the record by the attorneys in chambers, and we determined
8 that those Plaintiff's exhibits are as follows: Numbers 1,2,3,

9 4, 5, 6, 7, 8, 9, 10-A, 10-B, 12, 13, 14, 15, 17, and 18. In

10 that list that I just mentioned, you will notice there was no

11 Plaintiff's Number 11, but I understand that Mr. LaTour agrees

12 and Mr. Bassett agrees that Defense 7 was -- is identical with

13 what had been Plaintiff's Number 11, and I think that was iden-

14 tified as being a copy of the ordinance in question and so --

15 there was no Plaintiff's 16, and I don't recall that being dis-

16 cussed in chambers, so I don't know why there is no Plaintiff's

17 16, and maybe I can be helped on that in a moment.

18         But at this juncture then, gentlemen, I'll ask you to

19 agree with me then that Plaintiff's exhibits, the numbers that

20 I've mentioned, may be received and considered by the Court in

21 the trial of this cause.

22         Do you agree, Mr. LaTour?

23         MR. LaTOUR: I agree, Your Honor.

24         THE COURT: Do you agree, Mr. Bassett?

25         MR. BASSETT: Yes, sir.

 

-17-

1         THE COURT: All right. I will also mention on the
2 record that at the pretrial conference this morning, Mr.
3 Bassett, for the Defendant, offered Plaintiff's 1, 2, 3 --
4 pardon me -- Defense 1, 2, 3, 4, 5, 6, 7, 8 and 9, and these
5 exhibits are copies of city ordinances and excerpts from city
6 ordinances, as well as certain photos of Mr. LaTour's office
7 building, of his electronic sign, and then Number 9, of course,
8 is the transcript of the earlier Preliminary Injunction Hearing
9 of December 13,2002.

10         Now then, may then Defense 1 through 8, inclusive, be

11 received and considered by the Court without objection, Mr.

12 LaTour?

13         MR. LaTOUR: Yes, sir.

14         THE COURT: And Mr. Bassett?

15         MR. BASSETT: Yes, sir.

16         THE COURT: I have 1 through 8 now. Nine is the trans-
17 cript that I mentioned earlier, and I will defer ruling on that

18 until we've had a chance to review that.

19 All right, gentlemen --

20         MR. BASSETT: Judge, may I say one thing about --

21         THE COURT: Sure.

22         MR. BASSETT: -- the Defendant's Exhibit Number 9?

23 Regardless of what conclusion the Court reaches on that, I just

24 want to say for the record that the Defendant was offerinq

25 Exhibit Number 9, which is a transcript of the Preliminary

 

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1 Injunction Hearing, held on December 13, 2002, primarily as a

2 matter of convenience for the Court.

3         We assumed, and I suppose I should ask the Court this,

4 that the testimony and the evidence in the record from that

5 hearing back on December the 13~, 2002, is on the record, in the

6 record, and it's a part of the case now, and we were offering

7 this primarily as a convenience, and just want to make sure that

8 the evidence presented at that hearing is a part of the case and

9 will be considered by the Court in any decisions reached.

10         THE COURT: Al right. Excuse me just a moment.

11 (An off-the-record discussion was held.)

12         THE COURT: Just as an aside -- I'll address that in a

13 moment, Mr. Bassett and Mr. LaTour, but I'm told by my lawyer,

14 Ms. Gay, that Number 16, the old Plaintiff's 16, was the identi-

15 fication of a witness named Emis. Does that sound right to you?

16         MR. LaTOUR: Yes, I think that is correct.

17         THE COURT: So we don't need that, I take it?

18         MR. LaTOUR: Correct.

19         THE COURT: Al right. Let me now respond, Mr.

20 Bassett, to your concerns. As you know, this again came up in

21 the pretrial and in our discussion on the telephone conference

22 call on May the 8~, and I think the record will show that at

23 that time, the parties were pretty much in agreement that the

24 Court can, and should, consider the testimony that was received

25 on the Preliminary Injunction Hearing back on December 13, and

 

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1 that since both parties have copies of that, it would only be

2 fair if the Court would have a copy of it.

3         I think the objection, Mr. LaTour, raised is not

4 necessarily an objection to the Court considering all of that

5 transcript, but his point, I think, is that if the Court is

6 going to do that, then in fairness to him, that he thought he

7 ought to be able to ask some additional questions of a witness.

8 It was Mr. Williams, I believe, who testified at that time.

9 Because that came up rather suddenly, I simply deferred dealing

10 with it until I and my lawyer could kind of review that testi-

11 mony and see what to make of it.

12         I do not mean to suggest to either of you by handling

13 it in that fashion that what the Court already heard, obviously,

14 and took into account back on December 13 should not again be

15 considered. I don't mean to suggest that at all. I just want

16 to see what I want to do with Mr. LaTour's suggestion here that

17 he ought to be able to call back witnesses and supplement what 1

8 they've said. That could be a bit troublesome. I can't recall

19 how many witnesses testified back then, but I don't want to redo

20 that hearing, is what kind of troubled me about that. I'm going

21 to look into this and I'll tell you where I am on that a little

22 bit later if that'll be okay.

23         MR. BASSETT: Yes, sir.

24         THE COURT: Now, gentlemen, let me see if I've covered

25 everything I wanted to talk about preliminarily.

 

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1         In light of what I have gone over, it seems to me that

2 the -- we need to give the Plaintiff an opportunity to present

3 the proof that he has on this additional fact or facts,

4 remaining set of facts that he has in mind that the Court needs

5 to hear about, and so in line with that, I would certainly offer

6 the opportunity to Mr. LaTour, and Mr. Bassett if you wish, to

7 make short opening statements, hopefully short, just on that

8 issue.

9         We pretty well, I think, are acquainted with the

10 overall picture here, and since we have these facts that we have

11 discussed thoroughly the other day, I really don't know that I

12 need to hear about that, but if you want to make a short opening

13 statement to provide a focus for this area of proof that we're

14 going to deal with, I'll be happy to hear that.

15         And I would ask, Mr. LaTour -- why don't we try to

16 shoot for no more than ten minutes? I know you both have asked

17 me, and in a weak moment I think I agreed, to let you have

18 thirty-five minutes for closing, with the Plaintiff to have

19 thirty minutes to open and five minutes to close, and so in

20 light of that, I think it only fair to say a very short opening

21 statement might be in order. Maybe around ten minutes. Is that

22 agreeable, Mr. LaTour?

23         MR. LaTOUR: Very good, sir.

24        THE COURT: Mr. Bassett?

25         MR. BASSETT: Yes, sir.

 

-21-

 

1         THE COURT: Al right. I'm going to put the stopwatch

2 on you, and, Mr. LaTour, and you may go. Go right ahead.

3         MR. LaTOUR: Thank you. I think I can do it in five,

4 Judge.

5         THE COURT: Good. By the way now, just so there's no

6 misunderstanding, I won't let you add that on to the thirty-

7 five.

8         MR. LaTOUR: Okay, very good.

9         The new evidence will demonstrate that the rationale

10 supporting the prohibition in the Fayetteville sign ordinance

11 that prohibits signs from flashing and blinking is misplaced and

12 unreasonable. We are going to show there are signs and attrac-

13 tion devices inside the city limits of Fayetteville that flash

14 and blink very strongly and are very magnificent displays of

15 flashing and blinking lights and they do not cause traffic

16 accidents, and aesthetically, they are the same as time and

17 temperature signs.

18         We also hope to introduce evidence of adjoining cities

19 in our region, Springdale and Rogers, that both allow signs to

20 change and function just like my sign was changing, and we've

21 observed those signs over fairly extended periods of time, and

22 the evidence will show that there were no automobile accidents.

23 There were no screeching tires. There were no near misses and

24 there were no blood marks on the streets and highways where

25 those signs were operating. The new evidence will center on

 

-22-

 

1 those two examples.  Additiona1 attraction devices in Fayette-

2 ville that flash and blink or are animated, and also the

3 adjoining cities

4         We also want to introduce an official copy of the

5 Springdale sign ordinance which itself distinguishes between

6 flashing and changing signs. Springdale, in their ordinance,

7 the evidence will show, allows signs to change. It does not

8 allow signs to flash or blink. Those are the three points.

9         THE COURT: All right, thank you. Very good. Mr.

10 Bassett, please?

11       MR. BASSETT: Your Honor, just responding to those

12 particular points, first of all, it is the belief and position

13 of the City of Fayetteville that the sign ordinance in Spring-

14 dale is irrelevant and immaterial to this matter. This is a

15 case involving the Fayetteville sign ordinance, so any ordin-

16 ances from Springdale or any other municipality are simply

17 irrelevant and immaterial.

18         We also believe, Your Honor, that the -- if Mr. LaTour

19 is permitted to present evidence with regard to traffic consid-

20 erations, that there's no way that somebody can go out and sit

21 at a particular location and watch for a few minutes as to

22 whether or not there were any wrecks, and then make the leap or

23 jump to the conclusion that a particular sign might not be dis-

24 tracting or might not in some way be a safety problem.

25 Primarily, what I want to say though, Judge, at this

 

-23-

 

1 point is that -- and I mentioned this back in chambers -- the

2 fact is that the purposes of the Fayetteville sign ordinance,

3 whether it's aesthetics, economics, tourism, attraction, or

4 safety considerations, those are all purposes that were in the

5 ordinance when it was first passed in 1972. Those are legit-

6 imate governmental considerations, legitimate governmental

7 interests, and there's case law from Arkansas and from the

8 United States Supreme Court that says that those are legitimate

9 governmental interests in something that -- and are purposes

10 that are proper for a city to pursue in a sign ordinance.

11 So we believe that any testimony that Mr. LaTour might

12 want to offer today with respect to safety, and aesthetics for

13 that matter, but he seems to be focused in on safety, that any

14 testimony of that nature, Your Honor, would be irrelevant and

15 immaterial, and let me simply read this, because I think it  

16 accurately summarizes why we feel this way.

17 Mr. LaTour has repeatedly admitted that on the issue

18 of whether the ordinance is facially constitutional, there's no

19 genuine factual issue to be decided. He said that in his Brief

20 in Support of his Motion for Partial Summary Judgment, which was

21 filed on October the 9th of 2002.

22 Then last week at the pretrial hearing on May 7th here

23 in open court, Mr. LaTour agreed that there are no factual

24 issues relevant to its facial constitutional challenge of the

25 sign ordinance, and he stated in his Brief, as I mentioned, that

 

-24-

 

1 all that is necessary to determine the constitutional validity

2 of the ordinance is a simple reading of the sign ordinance

3 chapter. So we believe that any evidence concerning traffic

4 safety and aesthetics is not admissible in any theory of a

5 facial challenge.

6         Then talking about the as-applied challenge of Mr.

7 LaTour, he was charged with violating the terms of an estab-

8 lished ordinance and a specific section in that ordinance. The

9 section has to do, and the ordinance violation had to do, with

10 the section on flashing and blinking lights, and had nothing to

11 do with traffic safety and aesthetics. Whether or not Mr.

12 LaTour's sign was beautiful or ugly or caused traffic danger is

13 irrelevant to the violation of this ordinance.

14         In 1972, Your Honor, the City of Fayetteville deter-

15 mined that aesthetics, safety, and economics justified the adop-

16 tion of the sign ordinance. Only if Mr. LaTour sought a facial

17 challenge to the whole ordinance, which he hadn't done, by

18 alleging that the City Council was arbitrary and capricious by

19 relying upon traffic safety and aesthetics to enact the ordin-

20 ance would he be allowed to try to present clear and convincing

21 evidence of the City Council's alleged arbitrary factual 22 findings.

23         So his challenge, Your Honor, is not directed toward

24 that kind of a theory. It's only the alleged content-based

25 discrimination theory that Mr. LaTour has really pled and

 

-25-

 

1 advanced in this case, and accordingly, we don't believe that

2 any evidence or testimony about safety or aesthetics ought to be

3 admissible in this case.

4        THE COURT: All right.

5        MR. BASSETT: Thank you.

6        THE COURT: Thank you, Mr. Bassett. All right, Mr.

7 LaTour, are you ready to go ahead and call your first, please?

8        MR. LaTOUR: Yes, sir, I'm ready. Plaintiff calls

9 Officer Shannon Gabbard.

10      MR. BASSETT: Your Honor, this might be helpful to

11 everybody, just -- I know he's going to call -- Mr. LaTour is

12 going to call several witnesses who are going to testify about

13 the matters I just mentioned. I would just like to note a

14 continuing objection, if that's all right, and that way I don't

15 have to interrupt anybody.

16         THE COURT: Mr. LaTour, he objects to all of them.

17         MR. LaTOUR: Well, I disagree.

18         THE COURT: Well, I'm going to let him have a con-

19 tinuing objection.

20         MR. LaTOUR: That's fine.

21         THE COURT: All right, Mr. LaTour, go ahead.

22 SHANNON GABBARD, being called upon to testify, and having been

23 first duly sworn, testified as follows:

24                                                 DIRECT EXAMINATION

25 BY MR. LaTOUR:

-26-

1 Q.         Officer Gabbard, would you state your full and complete
2 name for the record?

3 A.         Yes, sir, it's Shannon Gabbard.

4 Q.         And where do you live?

5 A.         I live in Rogers, Arkansas.

6 Q.         And who do you work for?

7 A.         The Fayetteville Police Department.

8 Q.         Is the Fayetteville Police Department a division of the

9 Fayetteville city government?

10 A.         Yes, sir, it is.

11 Q.         And who signs your paycheck?

12 A.         I believe that would be Hugh Ernest or Mayor Coody.

 13 Q.        Okay, and they are employees of the City of Fayetteville;

14 is that correct?

15 A.         Yes, sir.

16 Q.         Very good. Officer Gabbard, is it a fact that you are the

17 crime prevention officer for the City of Fayetteville?

18 A.         Yes, sir, that's one of the jobs that I have.

19 Q.         And could you briefly describe for us your duties as the

20 crime prevention -- or the safety prevention and crime preven-

21 tion officer?

22 A.         Certainly. I do a lot of education with young people and

23 adults, senior citizens groups, all the way down to kinder-

24 gartners. Depending on what type of information that they may

25 want to hear about, well, I will try to come out and, to the

 

-27-

 

1 best of my abilities, present information on safety related to

2 that. Sometimes it's the Century ID program with identifying

3 small children in case they were to be abducted. For older

4 folks, many times it's about personal safety or home safety.

5 Q.         Is it also a fact that you talk to, a lot of times, elderly

6 people about traffic safety or driving safety?

7 A.         Sometimes, yes, sir, we do that.

8 Q.         Very good. Would you also agree that one of your functions

9 as the safety officer is a public liaison between the media and

10 the Police Department?

11 A.        One of the jobs I do hold, Mr. LaTour, is the public infor-

12 mation officer's position which does provide information to the

13 public based on inquiries or something where police may have

14 involvement.

15 Q.         Very good. Thank you. Officer Gabbard, is it also true

16 the City of Fayetteville Police Department maintains a database

17 of accident reports and records for the city and those things

18 that occur in the city limits?

19 A.         Yes, sir, we do.

20 Q.         And could you briefly describe how that database works?

21 A.         Sure. We have a database that will allow us to query

22 information based on times, dates, reference of the type of call

23 that may have gone on. It could be anywhere from a breaking or

24 entering to a vehicle at a certain location. It could be an

25 accident. It could be a theft report. It could be a burglary.

 

-28-

 

1 Whatever the nature of crime, if we put in a certain date and a

2 time whenever the offense might have occurred, then we can

3 extract that information and look at each call.

4 Q.         Very good. Is it also true that that database is main-

5 tained and is accurate?

6 A.         I believe so, yes, sir.

7 Q.         Very good. Is it also a fact that you recently ran a query

8 on that database?

9 A.         Yes, sir. I didn't do it myself, but I did ask that it be

10 done, yes, sir.

11 Q.        Okay. Do you trust the results of that query?

12 A. Yes, sir.

13 Q.         And could you describe what that query was for us, please?

14 A.         Certainly. I believe that what we had discussed was, we

15 wanted to look at Accident Reports, and specifically Accident

16 Reports that were from February through May.

17 Q.         June?

18 A.         June, I'm sorry. Through June of 1998, 1999, and the year 19 2000.

20 Q.         Correct.

21 A.         And look at each of those sections of time in each of those

22 years, and look at how many accidents occurred at a given loca-

23 tion, mainly the area of Sixth and Futrall Drive, and backing up

24 to or right in front of your business of -- on tractor supplies

25 and in the business across the street, but right in that main

 

-29-

 

1 section at the twenty-three hundred block, mainly.

2 Q.         Very good, and what were the results of your query from

3 1998?

4 A.         1998, we showed to have had seventeen accidents called in

5 in that stretch of road.

6 Q.         And in 1999?

7 A.         We showed to have twenty-three accidents.

8 Q.         And in the year 2000?

9 A.         We showed to have seven accidents during that time frame.

10 Q.       Very good, and do you trust these statistics as reliable?

11 A.       Yes, sir.

12 Q.       Very good. As Public Relations Officer, Officer Gabbard,

13 if there were a device or some event taking place for the City

14 of Fayetteville that was causing traffic problems, causing

15 people to run off the road or to run into each other, would that

16 be a matter the media might pick up on?

17 A.         If we had some police involvement in that matter or we

18 received inquiries from the media about it, then that would be  

19 probably something that would be funneled through my office.

 20 I'm usually the point of contact for media whenever they inquire

21 about any given subject, that if I can' t answer the question, at .

22 least I can direct them to the person that maybe can answer that

23 question.

24 Q.         Very good. Are you familiar with the Washington County

25 Fair?

-30-

1 A.         Yes, sir.
2 Q.         Have you had any -- 

3         MR. BASSETT: Objection, Your Honor. This is beyond  

4 the scope, I think, of what Mr. LaTour is permitted to get into.

5         THE COURT: What's the nature of this line of ques-

6 tioning, Mr. LaTour?

7         MR. LaTOUR: Your Honor, I'm trying to show examples of  

8 flashing lights in or around Fayetteville, and the fact that  

9 none of them have ever been reported as causing traffic tie-ups

10 or accidents or hampered traffic in any way, form, or fashion. 

11         THE COURT: Well, this is the area we determined there

12 was no need to go into that.

13         MR. LaTOUR: I don't recall we determined in our

14 hearing on Wednesday of last week. I would propose to the Court

15 that the Fayetteville sign ordinance enjoins any sign or attrac-

16 tion device from flashing, blinking, or animation, and we can

17 show that there are other devices around Fayetteville that are

18 flashing and blinking and/or are animated and they're not

19 causing accidents. That would speak to the legitimacy of the

20 reason behind the ordinance.

21         THE COURT: Well, I think I see where you're going with

22 it, but as I recall in our discussion -- and I don't have --

23 well, maybe I do. Just a moment here. In our hearing on the

24 7th, the first additional factor that you suggested we should go

25 into was whether the time and temperature signs were, in fact,

 

-31-

 

1 signs under the ordinance. The second was that you wanted to be

2 able to show that there were several other devices; the

3 Washington County Fair, the University of Arkansas Smart Vision,

4 the carnival law, a sign in the Police Station. Remember that?

5         MR. LaTOUR: Correct.

6         THE COURT: And I think that's some areas which I

7 determined that in light of the way your suit had progressed,

8 that these matters were not material or whether they're in

9 dispute or not. Again, I think I remember some comments about

10 how we would know that as to whether they were flashing lights

11 at the fair, and if so, whether they were being seen from the

12 roadside or just whether there was any similarity at all between

13 what we were talking about, and I believe we determined that

14 those were not relevant or material.

15         And I understood you to say in our conference call on

16 the 8th that the only additional area you wanted to go into was

17 the statistics on traffic safety, to show that there's not been

18 an increase in accidents out near your location while your sign

19 was flashing, and perhaps to show the same thing in these other

20 cities. So it sounds like to me your question about fair-

21 grounds goes far beyond what I thought we were going to deal

22 with here today.

23         MR. LaTOUR: Okay.

24         THE COURT: I'll sustain the objection.

25         MR. LaTOUR: I'll withdraw the question. No further

 

-32-

 

1 questions for this witness, Your Honor.

2         THE COURT: Thank you, sir. Do you have cross?

3         MR. BASSETT: Just a few questions, Your Honor.

4         THE COURT: Go ahead.

5                                             CROSS-EXAMINATION

6 BY MR. BASSETT:
7 Q.         Good morning, Sergeant Gabbard.

8 A.         Good morning.

9 Q.         This database or this information that you looked for, did

10 you do that at the request of Mr. LaTour?

11 A.         Yes, sir.

12 Q.         Okay, and he asked you, I suppose sometime last week after

13 he had subpoenaed you, if you would dig into that information?

14 A.         Yes, sir, we spoke on Friday afternoon.

15 Q.         And being the good officer that you are, you did that,

16 didn't you?

17 A.         Yes, sir.

18 Q.         And you have just told the Court about the data that you

19 came up with with respect to accidents in that stretch of road

20 out there near Mr. LaTour's business. I want to ask you this.

21 Is there an extractable field of data in Accident Reports that

22 would readily show whether one of the contributing factors to an

23 accident was inattention?

24 A.         On the face of the Accident Report itself, if you were to

25 have the original copy, you can look and see what contributing

 

-33-

 

1 factors were, and it will indicate so there. However, if you go

2 into our CAD or AS400 system which is used to extract this

3 information, that's not an extractable field for us to be able

4 to go in and look up that information. All it will show you is

5 the location, the time, the severity of the accident, and where

6 it took place, or actually where it was called in from.

7 Q.         SO in any of these accidents, or at least the statistics of

8 these accidents, you can't tell from what you looked at what any

9 contributing factors may have been in any of those accidents?

10 A.         No, sir. In the three years that we looked at, from

11 February through June, I couldn' t -- I couldn' t tell you in each

12 of those years what any of the contributing factors were in any

13 of the accidents based off the information that I have here.

14 Q.         And with respect to the year 2000 where you said there were

15 seven accidents during that period of time, from February, I

16 believe through June, that doesn't include accidents that may

17 have occurred in January of that year or during the remaining

18 six months of the year 2000?

19 A.         That's correct. We're looking at a snapshot from that

 20 particular portion of the year of the accidents reported.

21 Q.         The truth is is that the only way that a determination can

22 really be made as to what mayor may not have caused an accident

23 or what the contributing factors are is by the police officer

24 who actually investigated the accident and by the people who

25 were involved in the accident, correct?

 

-34-

 

1 A.         Yes, sir, and many times when we'll go out and conduct an

2 investigation on an accident, the officer relies on the physical

3 evidence that they see at the accident scene, along with the

4 testimony from each of the persons involved in the accident and

5 witnesses that may have been involved or stopped to give input

6 on that particular accident.

7 Q.         And I suppose it's fair to say that sometimes when people

8 have accidents, they don't admit to inattention or looking away

9 from the road.

10 A.         I would imagine that's probably true in many cases with,

11 you know, as many people as use cell phones now or their atten-

12 tion is distracted for one reason or another. I haven't run

13 across it too many times in my personal history when I've worked

14 an accident that somebody said, "Yeah, I just wasn't looking."

15 Usually it's a little bit more of a -- sometimes blaming each

16 other for the accident.

17 Q.         Sergeant Gabbard, if somebody just quickly glances at a

18 sign or away from the road, they are momentarily going to be

19 diverting their attention from the highway, correct?

20 A.         Yes, sir.

21 Q.         What if a motorist has to -- or what if a motorist looks at

22 a sign that might be operating in this fashion: a sign which

23 would show a text message, and then momentarily go blank, and

24 then resume the text message with the next flash. Go with me

25 for just a moment in that scenario. Would it be fair to say,

 

-35-

 

1 based on your experience as a police officer and your training,

2 that that would cause longer inattention or possibly potentially

3 cause longer inattention by a motorist?

4 A.         I think it could cause inattention. I don't know if I can

5 put it in context longer or not, but I do see that it could

6 cause inattention, as would other things that may distract you

7 from the roadway.

8 Q.         For example, I mean, if somebody was running a sign that

9 said "Woody Bassett is a --" and then you get there and then you

10 see that, and then it goes blank, and you're wanting to know

11 what the rest of it says, and here comes the rest of it up.

12 A.         Yeah.

13 Q.         "-- is a poor lawyer".

14 A.         Yeah.

15 Q.         I mean, if you want to finish the message and you're

16 driving by, you've got to look a lot longer away from the road

17 to see what it says, don't you?

18 A.         Yeah. You're talking about a catch phrase, and then

19 waiting for the end part of your phrase. I could see, yes, that

20 that would draw your attention away, waiting for whatever is

21 going to come next.

22 Q.         Thank you.

23         THE COURT: Mr. LaTour?

24         MR. LaTOUR: Thank you.

25                                                           REDIRECT EXAMINATION

 

-36-

 

1 BY MR. LaTOUR:

2 Q.         Officer Gabbard, would the inattention caused by this

3 changing sign be any more or any intense -- any more intense

4 than inattention caused by other things that distract motorists?

5 A.         I don' t know if I can put into context "other things". The

6 way that this particular question was phrased to me was that

7 there was another part to a phrase that was out there, and I

8 guess it depends on how long the time frame was whenever we're

9 waiting for the next part to come up. What we're looking for

10 would kind of have to come into play with other things that

11 might distract our attention from the roadway.

12 Q.         Officer Gabbard, if I were to pose to you that I was to

13 take my eyes off the road for three or four seconds while I'm

14 traveling down the road at thirty-five miles an hour, would that

15 be safe or dangerous?

16 A.         I wouldn't say that it would be safe.

17 Q.         Okay. A motorist should keep -- you would agree that a

18 motorist should keep his eyes on the road almost constantly?

19 Maybe an occasional glance away, but come right back?

20 A.         It's more of I think a scanning is what we try to talk to

21 most -- when we talk to the elderly population about driving

22 habits, is scanning ahead of you, behind you, especially, you

23 know, checking over your shoulders, look in blind spots, but

24 always having your attention to the roadway.

25 Q.         You mentioned the term "catch phrase" where you have sort

 

-37-

 

1 of a teaser, then you have to wait for the answer to the teaser?

2 A.         Yes.

3 Q.         If I want to know what the temperature of the outside air

4 is at the drive-by time and temperature sign, and I look at the

5 sign right as it's displaying the time, would you say that I

6 would have to keep looking at the sign until the time goes off

7 and the temperature comes on for me to get my answer?

8 A.         I would have to know the time delay.

9 Q.         Four seconds.  

10 A.       Four seconds. I might be able to look away and then look

11 back. I don't know. It just depends. With me, when I'm

12 driving and I look at a time and temperature sign, if it's not

 13 displayed right there, I know it's coming back, so I'll just,

14 you know, put my attention back on the roadway and look back,

15 and it's usually there.

16 Q.         And can we draw the same conclusion for a catch phrase like

17 Mr. Bassett described, maybe with a stare waiting for the

18 answer, but you could glance back at the road, and glance back 19 to see what it was?

20 A.         Maybe so. I think with the time and temperature, there's

21 more of a familiarity with me than a sign like we're talking ;

22 about here. You know, I don't see that as much as I do the time

23 and temperature sign, so I don't know how I'd necessarily react

24 to it.

25 Q.         Officer Gabbard, you mentioned people sometimes fiddle, for

-38-

1 lack of a better term, with their cell phones.
2 A.         Yes.

3 Q.         And that can cause distractions to driving motorists

4 because they actually have to pullout the cell phone, open it

5 up, punch in seven different numbers, watch to see where those

6 numbers are?

7 A.         Uh-huh.

8 Q.         That would be very distracting?

9 A.         Yes.

10 Q.         You would agree with that?

11 A.         Yes.

12 Q.         Would you think that would be more or less distracting than

13 looking at a sign with a catch phrase?

14 A.         Depending on the amount of time and the amount of fiddling

15 you had to do with your phone. You know, a cell phone, if you

16 were having to dial in each number, and you dial in seven

17 numbers, that could distract your attention away from the road-

18 way for quite a long time, depending on how much effort you're

19 putting into pressing those numbers and looking at where you're

20 pressing. You know, sometimes I guess you could feel and know

21 where the numbers are, and then glance back at it and know where

22 to go. I'm not a big proponent of driving and using a cell

23 phone--

24 Q.         I understand.

25 A.         -- in my job because I just -- I don't think it's a very

 

-39-

 

1 good idea.

2 Q.         Officer Gabbard, isn't it true that different persons are

3 distracted by different things?

4 A.         Yes.

5 Q.         For instance, if I am fascinated by jet airplanes and I

6 drive by an airport with large airplanes, I'd have to be very

7 careful not to have my attention diverted from the road?

8 A.         I would suppose so.

9 Q.         Okay. What about if a person that's interested in land- 1

0 scaping drives by a very pretty flower garden may have his

11 attention distracted?

12 A.         Yes, sir.

13 Q.         Okay, very good. So you would agree with me that there are

14 tens, maybe hundreds, of different items that could distract a

15 passing motorist for varying lengths of time?

16 A.         I would imagine, depending on the person, yes.

17 Q.         Exactly. Okay, thank you.

18         MR. LaTOUR: No further questions, Your Honor.

19         MR. BASSETT: Nothing further, Judge.

20         THE COURT: All right. May he be released then?

21         MR. BASSETT: Yes, sir.

22         MR. LaTOUR: Yes, sir.

23         THE COURT: Thank you, sir. You're excuse, you're

24 released, and you may leave if you like.

25         We've been out here about an hour. Let's take a recess and

 

-40-

 

1 come back at 11:15. We'll be in recess.

2 (A recess was taken, after which the following proceedings were

3 held:)

4         THE COURT: Gentlemen, let me state on the record that

5 I advised the attorneys in chambers that I will receive, over

6 Mr. LaTour -- actually, it wasn't an objection, but I'm going to

7 receive and consider the transcript of the December 13th, 2002

8 hearing, and Mr. Bassett, I believe, has withdrawn any global

9 objection to Mr. LaTour calling Mr. Williams as a witness, but

10 reserving the right to make objections if he feels that the

11 inquiry goes beyond where it should be.

12 So, with that in mind now, Mr. LaTour, do you want to

13 go ahead and call your next, please, sir?

14         MR. BASSETT: Judge, before we do this, as far as my

15 exhibits -- and Mr. LaTour may want to do the same -- I need to

16 hand these, I guess, to the clerk. They are admitted, are they

17 not?

18         THE COURT: Sure. I thought I had covered that. I

19 meant to.

20         MR. BASSETT: I'm going to go ahead and tender those..

21         THE COURT: All right. And I think you have, or I

22 have, the Plaintiff's exhibits. I have them before me. If you

23 need them, gentlemen, I have them up here.

24 MR. LaTOUR: Your Honor, as we discussed in chambers

25 before the hearing, this (indicating) is the Springdale City

 

-41-

 

1 Ordinance. I need to get it in the record also, but I don't

2 have it identified yet. Can I get a marking for it?

3         THE COURT: All right. Mr. Bassett, have you seen

4 that?

5         MR. BASSETT: No, sir.

6         THE COURT: That will be Proffered Exhibit, what, 19?

7         MS. GARNER: Yes, Your Honor.

8         MR. LaTOUR: I don't have a list, Your Honor.

9         THE COURT: It'll be 19. And your same objection, Mr.

10 Bassett?

11         MR. BASSETT: Yes, sir.

12         THE COURT: All right. I'm going to receive it, and

13 although I haven't necessarily been ruling on these objections,

14 I'm going to overrule the objection and receive it, and it will

15 be the Court's -- I'll evaluate that once this hearing is over

16 and determine whether to consider it, and if so, to what extent.

17         All right, that's what, Springdale City Ordinance?

18         MR. LaTOUR: Yes, sir, sign ordinance.

19         THE COURT: All right.

20         MR. BASSETT: Your Honor, just one moment. I had not

21 seen this until now, so if --

22         THE COURT: Well, while he is looking, Mr. LaTour,

23 would you go ahead and call in your next witness?

24         MR. LaTOUR: Yes, sir, I sure will. I call Keith Emis

 25 to the stand.

-42-

1         THE COURT: Sir, will you have a seat in the witness
2 box here?

3         THE WITNESS Yes, sir.

4         THE COURT: Al right, go right ahead.

5 HEATH EMIS, being called upon to testify, and having been first

6 duly sworn, testified as follows:

7                                                         DIRECT EXAMINATION

8 BY MR. LaTOUR:

9 Q.     Mr. Emis, would you state your name and address for the

10 record?

11 A.     My name is Heath Emis. I live at 16304 River Ridge Road,

12 Fayetteville, Arkansas.

13 Q.     Thank you. Where were you this weekend, Mr. Emis?

14 A.     All different parts of Northwest Arkansas.

15 Q.     And what did you see while you were going over Northwest

16 Arkansas?

17 A.     I saw lots of different things, but specifically I saw

18 various types of signs on the highway, various highways in

19 Springdale and Rogers. At First National Bank in Springdale, I

20 saw a sign that operated t~e and temperature and various mes-

21 sages, and the same thing is true in Rogers.

22 Q.     Were the messages you saw on those signs commercial or

23 noncommercial?

24 A.     They were commercial in some respects, and then they had

25 one specifically at a Springdale location that was not

 

-43-

 

1 commercial. It said "Congratulations Graduates."

2 Q.     Very good. How good is your eyesight, Mr. Emis?

3 A.     It is twenty-twenty.

4 Q.     When was your last eye exam?

5 A.     Last time I had my Driver's License renewed, which was a

6 little less than two years ago.

7 Q.     What were the weather conditions like this weekend?

8 A.     A little overcast on Saturday, but perfectly fine visi-

9 bility.

10 Q.     Very good. The sign that you saw in Springdale, how did it

11 function? Can you describe the functioning for us?

12 A.     It had two different capacities in how it functioned. The

13 initial one, it would put up the time. It would flash it up

14 like this (indicating), and then it would retract it and put up

15 the temperature. Then it said, "Going fishing? Need a home

16 loan or need to make a loan for a boat" and "Direct Deposit".

17 It functioned like that. Then the "Congratulations Graduates"

18 message would scroll across and go from left to right.

19 Q.     SO would you describe the scrolling function as animated or

20 animation?

21 A.     Definitely.

22 Q.     Okay, and you would describe the changing the time, the

23 temperature, the "Going fishing? How about a home loan"

24 function as flashing?

25 A.     Yes.

 

-44-

 

 1 Q.     All right. Did you see any auto accidents while you

2 observed the sign?

3 A.     I did not.

4 Q.     Specifically talking about the Springdale, Arkansas sign,

5 where is that sign located, Mr. Emis?

6 A.     It's on Highway 412 in between 1-540 and 71 Business.

7 Q.     Okay. How many other flashing or blinking or animated

8 signs did you see on that same strip of highway from 1-540 to 71

9 Business in Springdale?

10 A.     There were two other signs that had a flashing capacity.

11 They were the typical you see on the side of a country road,

12 with an arrow pointing towards the building, and it says, you

13 know, "Come in and eat", or "Come here", and whatever. One was

14 a truck repair facility of some capacity. I'm not sure what

15 it's called, but it had a flashing light, and the other one was

16 a greasy spoon type restaurant closer to the interstate.

17 Q.     How long did you observe the functioning of the sign at the

18 bank in Springdale?

19 A.     Approximately three hours. I was there from 3:00 in the

20 afternoon until 6:00 in the afternoon on Saturday.

21 Q.     Have you had other occasions to see the sign and watch the

22 traffic in that area?

23 A.     Very many times, yes. I grew up in Fayetteville, and my

24 family, when I was a child, attended church in Springdale off of

25 Emma, Fellowship Bible Church, and so driving back and forth

 

-45-

1 Q.     What did you see in Rogers, Mr. Emis?

2 A.     I saw another sign that functioned essentially the same way

3 as the sign location in Springdale.

4 Q.     How long did you observe the Rogers sign?

5 A.     Approximately three hours.

6 Q.     Okay, and, again, visibility was -- what was the visibility

7 like?

8 A.     It was perfectly -- it was a perfect day. It was yesterday

9 afternoon.

10 Q.     Okay, and was there traffic going to and fro in front of

11 that sign?

12 A.     Yes, there was.

13 Q.     And let me ask you that question about Springdale also.

14 A.     Yes, there was.

15 Q.     All right. How were you distracted by these signs? When

16 you were driving by, describe to me what you felt, the attention

17 it grabbed, or how were you distracted. How would you describe

18 that?

19 A.     I would say that it was minimal. I mean, no more so than

20 your typical sign that would attract attention. I mean,

21 obviously, a sign that's put in front of a building is meant for

22 you to read it, but there was no greater attention given to

23 those than any other signs. I mean, there are obviously things

24 that attract me more. As I said, I did landscaping, and so I

25 have a particular interest in landscaping and looking at that

 

-47-

 

1 from church and to restaurants after church, we would drive by

2 there.

3     I also in the process of various employment, worked

4 for my father when I was in tenth to eleventh grade as a truck

5 driver, and I would have to deliver all the time to Springdale

6 and drive by that facility, and then I worked in college doing

7 lawn care, and I would drive from my home in Fayetteville and

8 passed that facility almost every day.

9 Q.     On average, how many times a week would you say you drove

10 by that sign?

11 A.     I would say close to ten times a week for the better part

12 of the last ten to fifteen years.

13 Q.     And were those ten times usually the same time of day or

14 were they different day parts?

15 A.     Completely varied. It just depended upon the situation.

16 Q.     At any time during the time you observed that sign operate

17 and the traffic patterns in and around that sign, have you

18 witnessed an automobile accident there?

19 A.     No, I have not.

20 Q.     Have you ever witnessed any near misses?

21 A.     No, I haven't.

22 Q.     Did you ever see any screech marks on the highway there by

23 the sign where someone might have slammed on their brakes from

24 inattention? 

25 A.     Not that I noticed.

-46-

1 sort of thing, and when I drive around town, I -- I look for
2 yards and things like that to be a greater distraction to me
3 than any flashing sign would be.

4 Q.     How would you describe the distraction of the signs you saw

5 in Springdale and Rogers compared to, say, the time and temper-

6 ature sign on North College?

7 A.     They're essentially the same. I can't find a discernible

8 difference in their function or how they distracted me.

9 Q.     Can you think of other examples of flashing lights that you

10 may have seen inside the Fayetteville city limits?

11 A. Well, I went to school at the University of Arkansas, and

12 the Razorback Transit runs across campus, and they have a

13 flashing sign.

14         MR. BASSETT: Excuse me, Your Honor. I would object

15 on the basis of, again, we're talking about University property.

16 We're talking -- we're getting beyond the scope, I think.

17         THE COURT: Yeah, I think so. Objection sustained.

18 BY MR. LaTOUR:

19 Q.     Disregard that question, please. Did you observe the time

20 and temperature sign on North College?

21 A.     I did, yes.

22 Q.     And can you describe how it functions to me, please, and to

23 the Court?
24 A.     It shows the temperature, or whichever one comes up.
25 Obviously, when you first pull up, it shows either the time or

 

 -48-

1 the temperature, and it comes up and it stays for -- I didn't

2 measure it exactly, but it was five seconds, and then the next

3 sign, the temperature comes up after the time, and it stays for

4 five seconds as well.

5 Q.     Okay. Have you seen any other examples of flashing lights

6 or flashing signs in other cities?

7 A.     Yes, I have. I was in Las Vegas over Easter weekend and

8 saw a few flashing signs there.

9 Q.     And how many automobile accidents did you see while you

10 were--

11         MR. BASSETT: Your Honor, excuse me. We got to Spring-

12 dale and Rogers, and now we're out in Vegas. I object.

13         THE COURT: I really think that's far afield, Las

14 Vegas.

15         MR. LaTOUR: Your Honor, what I'm trying to show is

16 flashing signs do not cause automobile accidents, and I chose

17 the example of Las Vegas because that is probably the epitome of 1

8 flashing signs that I can think of, and Mr. Emis was on the

19 street, driving in Las Vegas for the whole weekend, three

20 straight days, and never saw an accident. That doesn't mean

21 there were no accidents, but at least that's one witness's

22 testimony that he was there pretty much all day and there were

23 no accidents.

24         THE COURT: Well, I'm going to sustain the objection,

25 though, to Las Vegas flashing signs. I think -- I'm not sure

 

-49-

 

1 there's a -- well, I'll just leave it at that. I'll sustain the

2 objection.

3         MR. LaTOUR: Okay. That's all I have for this witness,

4 Your Honor.

5         THE COURT: All right. Mr. Bassett, any questions?

6                                                     CROSS-EXAMINATION

7 BY MR. BASSETT:

8 Q.     Good morning, Mr. Emis.

9 A.     How you doing, sir?

10 Q.     Fine. You, I believe, are a friend of Mr. LaTour's. I

11 believe you testified back in December you all have been friends

12 since you were five years old?

 13 A.     Yeah. Sometime around that, yes.

14 Q.     Now, you went out this past weekend, I take it, at the

15 request of Mr. LaTour?

16 A.     Yes, I did.

17 Q.     And you testified that you spent some period of time up in

18 Springdale at a location, and I believe you went up to Rogers

19 and did the same thing. Is that correct?

20 A.     Yes, it is.

21 Q.     You only did that over this weekend. You haven't done it

22 on other occasions, have you?

23 A.     I haven't spent specifically three hours watching a sign,

24 no, but I have at various points in my past spent quite a bit of

25 time driving around Springdale and Rogers.

 

-50-

 

1 Q.     Yes, sir. Well, I guess we could all say that we've done

2 that, but my question is, is that as far as going up and

3 observing the sign, as I understand it, you were trying to see

4 -- or watch and see if anybody had had an accident, right?

5 A.     Yes.
6 Q.     And you didn't see one?

7 A.     Did not see one.

8 Q.     What about the other three hundred and, I guess, sixty-four

9 days of the year? Were you up there looking then to see if

10 there was an accident?

11 A.     No, I was not, but that doesn't mean that -- well, it

12 doesn't mean anything, per se.

13 Q.     No. In fact, none of this really means anything, does it?

14 The fact that you were there for three hours and didn't observe

15 anything?

16 A.     Well, if something poses a great danger, which it seems to

17 be the contention of your argument today, it would appear that

18 within three hours of time you'd at least see a near miss,

19 especially during heavy periods of traffic.

20 Q.     Well, I don't think that's our argument, but I'm not going

21 to argue with you. The fact is, that's the only time you went

22 up and made some kind of study or made an observation, correct?

23 A.     Well, it wasn't exactly a scientific study, but I mean,

24 through the course of my life, which has been twenty-four years,

25 I've never seen an accident in one of those places.

 

-51-

 

 

1 Q.     You didn't make a study of aesthetics or the impact of

2 aesthetics, did you?

3 A.     No.

4 Q.     You just went up there because of the safety issues, right?

5 A.     I just went to observe the situation and just see what

6 happened. It's more curiosity than anything else, I guess.

7 Q.     Now, the time and temperature sign that you said that you

8 observed, I believe on North College, would you agree that the

9 most characters you would ever see on a time and temperature

10 sign is two -- or excuse me, four for the time, and three for

11 the temperature if it's extremely hot?

12 A.     Well, I suppose you have cold or -- it'll be, roughly,

13 yeah.

14 Q.     Do you agree with that?

15 A.     Yeah.

16 Q.     And Mr. LaTour's sign out at his place of business has room

17 for twenty-one characters on it, doesn't it?

18 A.     I don't know the specifics of what a sign can hold, but --

19 Q.     You don't know the specifics of Mr. LaTour's sign?

20 A.     But I know it's more than four, yes.

21 Q.     You're not a traffic or safety expert are you?

22 A.     Not according to my driving record, no.

23 Q.     What do you mean?

24 A.     I've got some speeding tickets.

25         THE COURT: I'm sorry, what was it, sir?

 

-52-

 

1 A.     I've got some speeding tickets.

2         THE COURT: Oh.

3 BY MR. BASSETT:

4 Q.    And you have no experience in investigating accidents or

5 anything of that nature, do you?

6 A.     No, I don't. I was just simply there to observe how the

7 signs functioned and the environment around them.

8 Q.     Do you work with Mr. LaTour?

9 A.     I do not.

10 Q.     Just friends with him?

11 A.     Uh-huh.

12 Q.     You're not aware, are you, of any attempt by anyone from

13 the City of Fayetteville to try to regulate the content of Mr.

14 LaTour's sign, are you?

15 A.     Well, it seemed to me that telling him he can't say some-

16 thing is content regulation.

17 Q.     What do you mean, he can't say something? He says messages

18 on that machine all the time.

19 A.     But the amount that he's allowed to say is restricted,

20 according to the arrangement, as I understand it.

21 Q.     Well, you were with Senator Hutchinson's campaign when you

22 testified, I believe back here in December. You had been

23 working on that?

24 A.     I had been, yes. I wasn't at the time, but, yes.

25 Q.     And Mr. LaTour had a large sign in support of Senator

 

 -53-

 

1 Hutchinson on the side of his building, didn't he?

 2 A.     He, in fact, did, yes.

 3 Q.     And, in fact, he also had messages on his electronic

4 machine in support of Senator Hutchinson, didn't he?

5 A.     He did.

6 Q.     And, in fact, he had messages on his electronic machine

7 expressing other political opinions or views about certain poli-

8 ticians and about political issues, didn't he?

9 A.    I suppose it could be argued, but the point is that there

10 was a certain restriction on content. He couldn't say "Support

11 Hutchinson and Huckabee", according to the way that your

12 agreement with him was reached.

13 Q.     Well, he could say "Vote for Senator Hutchinson" on that

14 sign, couldn't he?

15 A.     He could, but why couldn't he endorse other candidates as

16 well?

17 Q.     And three hours later, he could say "Vote for Mike

18 Huckabee", couldn't he?

19 A.     Well, but that kind of misses the point if the driver is

20 right there at the time at the stoplight.

21 Q.     SO if a driver was driving by and he had that message on

22 there, "Vote for Senator Hutchinson, Vote for Mike Huckabee",

23 vote for whoever, that wouldn't be distracting?

24 A.     No. "'--'

25 Q.     Let me ask you this. Isn't the real remedy for Mr. LaTour

 

-54-

1 to get a larger sign? ,
2         MR. LaTOUR: I object, Your Honor. He's only an expert I

3 in the sign law.

4         THE COURT: Well, I think it's going a little bit far

5 afield. Objection sustained.

6         MR. BASSETT: That's all I have, Judge.

7         THE COURT: ~l right. Any further?

8         MR. LaTOUR: Yes, I have some.

9                                                         REDIRECT EXAMINATION

10 BY MR. LaTOUR:

11 Q.     Mr. Emis, since Mr. Bassett asked you about my sign, let's

12 talk about my sign a little bit. Have you seen my sign func- 13 tioning?

14 A.     I have, yes.

15 Q.     And how would you describe the distracting nature of my

16 sign functioning compared to the time and temperature sign

17 functioning?

18 A.     I can see like negligible difference there. There's no

19 difference.

20 Q.     How would you describe the message on my sign? Suppose I

21 was expressing a fifty-word essay three words at a time and, you

22 know, whatever amount of enterations it would take me to do

23 that. Would you find it more distracting, or a beautiful land-

24 scaped lawn?

25 A.     I would have to say that since I used to cut the grass at

-55-

1 the Bank America right across the street, that's more inter-

2 esting to me than the sign you have over in your -- in your

3 building.

4 Q.     Thank you. And aesthetically, how would you distinguish my

5 sign from time and temperature signs?

6 A.     I can't tell that there's any aesthetic difference. I

7 mean, I'm not an expert, but it would seem to me that they

8 function exactly the same way, and the way that you look at them

9 is the exact same way, and reading them is the exact same way.

10 Q.   Very good. Thank you.

11         MR. LaTOUR: No further questions, Your Honor.

12         THE COURT: May he be excused then?

13         MR. BASSETT: Nothing further, Judge.

14         THE COURT: Thank you, sir. You are excused. You're

15 released. You may leave if you like.

16 Call your next, please.

17         MR. LaTOUR: My next witness is Mr. Stephen Hargrave.

18         THE COURT: Sir, if you will, please come around and

19 have a seat over here in the witness box, please, sir.

20 STEPHEN HARGRAVE, being called upon to testify, and having been

21 first duly sworn, testified as follows:

22                                                             DIRECT EXAMINATION

23 BY MR. LaTOUR:

24 Q.   Mr. Hargrave, would you please state your name and your

25 address for the record?

-56-

1 A.     Stephen Hargrave, 410 North Oliver.
2 Q.     What do you do for a living, Mr. Hargrave?
3 A.     I'm an intern at Stephens Investment Banks.
4 Q.     Where did you work before you worked for Stephens?
5 A.     I worked for you.
6 Q.     Thank you very much. Do you currently work for me?
7 A.     No.
8 Q.     What did you do this weekend, Mr. Hargrave?
9 A.     Graduated from college.
10 Q.     Congratulations. What else did you do this weekend, Mr.

11 Hargrave?

12 A. I went last night and looked at signs in Rogers and

13 Springdale, as well as time and temperature signs in Fayette-

14 ville.

15 Q.     Okay. Well, the conditions of visibility was how?

16 A.     It was good. It was late at night. It had gotten dark,

17 but everything was very clear. Of course, lit up on all the

18 main streets.

19 Q.     Okay, so it was nighttime, it was dark, so the visibility

20 of the sign was good or poor?

21 A.     It was very good. It was -- you could definitely see it.

22 Q.     In fact, you might conclude the visibility of the sign was

23 better at night than it would be in the daytime?

24 A.     Correct.

25 Q.     And that the lights appear brighter?

 

-57-

 

1 A. Right.

2 Q.     Let's talk about the Springdale sign. What did you see on

3 the Springdale sign?

4 A.     The Springdale sign was a time and temperature sign. It

5 had time and temperatures also that displayed some ads for the

6 bank, and basically the electronic sign that lit up, and some-

7 times words scrolled across the screen. Occasionally, I think

8 it had something where the word disappeared as something fanned

9 across it, kind of in a circular motion, and then sometimes

10 words would just go off and new words would appear.

11 Q.     Okay.

12 A.     It varied.

13 Q.     How good is your memory, Mr. Hargrave?

14 A.     Pretty good.

15 Q.     Are you a member of any organizations that require a high

16 IQ?

17 A.     I'm a member of Mensa.

18 Q.     Okay, thank you. Talk to me about the way the Springdale

19 sign functioned. Again, compare it to the way the time and..

20 temperature sign functioned on North College.

21         MR. BASSETT: Your Honor, excuse me. I simply would

22 object. I think this testimony is cumulative from what we had

23 from the last witness.

24         THE COURT: Well, it sounds pretty similar, but he's

25 describing how that one worked, isn't he? I'll permit it. Go

 

-58-

 

1 ahead. Objection overruled. Go ahead.

2 BY MR. LaTOUR:

3 Q.     This question -- the question is, compare the way the

4 Springdale sign operated to the way the time and temperature on

5 North College operates.

6 A.     The one on North College is simpler. I think the time

7 appeared, then it went away, and then the temperature appeared,

8 then it went away in three or four seconds or so; whereas, the

9 one in Springdale had maybe a bit more motion.

10 Q.     Okay.

11 A.     Different graphics, but --

12 Q.     Did you find one of the signs more distracting than the

13 other?

14 A.     No, not really.

15 Q.     And did you find -- go ahead.

16 A.     If anything, maybe the Springdale sign, but, I mean,

17 nothing -- nothing really distracting either way.

18 Q.     Okay. Did you find a difference in aesthetics between the

19 two signs? The sign on North College showing time and temp-

20 erature, and the commercial message sign in Springdale?

21 A.     No.

22 Q. Okay. Have you seen my sign functioning on West Sixth

23 Street?

24 A.    Yeah

25 Q.     And how would you compare my sign, the aesthetic effect of

 

-59-

 

1 my sign functioning, compared to the aesthetic effect of the

2 time and temperature sign functioning?

3 A.     About the same. I mean, when it was operating, they both

4 show a message, and then the message goes away, and then another

5 message is shown. Neither of them flashed. Just one, and then

6 the other. I mean, pretty much the exact same functioning. I

7 guess the time and temperature is a little bigger, but --

8 Q.     How big would you say the time and temperature sign is?

9 Can you give me a so much by so much measurement?

10 A.     Gosh.

11 Q.     An estimate?

12 A.     I mean, well, the full thing, maybe six feet by six feet.

13 I'm not sure.

14 Q.     Okay, and it's a matter of fact in the record, I suppose --

15 well, we don't need to talk about how big my sign is. That's a

16 matter of fact in the record. It's been stipulated to. Talk to

17 me about the sign in Rogers. How did it function?

18 A.     Much like the one in Springdale. It had some other

19 messages, some advertising for direct deposit and things like

20 that. It even had a little fishing boat, but it's still an

21 electronic sign. It just had more of the scrolling and flashing

22 and things like that that the two in Fayetteville did not.

23 Q.     Okay, and the aesthetic differences, can you describe for

24 me the aesthetic differences between the time and temperature

25 sign on College and the sign in Rogers?

 

-60-

 

1 A.     Primarily, like I said, the one in Rogers maybe a little

2 bit more motion, but I wouldn't draw any aesthetics difference.

3 Q.     Do you find motion -- or the more motion there is, the less

4 aesthetically pleasing a sign is?

5         MR. BASSETT: Objection, Your Honor. It calls for an

6 opinion.

7         MR. LaTOUR: I withdraw the question.

8         THE COURT: Very well.

9 BY MR. LaTOUR:

10 Q.     Talk to me about the -- tell me about the difference. What

11 is the difference between the Rogers sign as far as the distrac-

12 tion is concerned. Were you more distracted by the Rogers sign

13 or less distracted than the time and temperature sign?

14 A.     Perhaps a little bit more distracted.

15 Q.     Okay. When my sign was functioning, if you witnessed the

16 functioning, were you distracted, or how distracted were you

17 driving by my building?

18 A.     Not real distracting. It's kind of small. It's off the

19 side of the road. I mean, I wouldn't say very distracted at

20 all. I mean, there's a lot of stuff on the road.

21 Q.     Can you name three things that would distract you while

22 you're driving down the road?

23 A.     Sure. If there's a wreck on the side of the road or maybe

24 a building I was interested in or a nice car in a parking lot.

25 Q.     Okay. Have you ever dialed your cell phone while you were

 

-61-

 

1 driving?

2 A.     Yes.

3 Q.     And would you say that you were distracted by that?

4 A.     To some extent. I mean, not to an extent where it impaired

5 driving.

6 Q.     Okay, and would you say you were more impaired by dialing

7 your cell phone, or more impaired or more distracted by my sign?

8 A.     The cell phone.

9 Q.     Okay.

10         MR. LaTOUR: No further questions, Your Honor.

11         THE COURT: Any questions?
12                                         CROSS-EXAMINATION
13 BY MR. BASSETT:

14 Q.     Mr. Hargrave, my name is Woody Bassett. I'm a lawyer here

15 in Fayetteville, and I have the privilege of representing the

16 City today. Congratulations on graduating this past weekend.

17 A.     Thank you.

18 Q.     I'm sorry you had to go look at signs. It was such a

19 wonderful weekend. Now, you said you don't work for Mr. LaTour,

20 right?

21 A.     Right.

22 Q.     But I think you also said you live at 410 Oliver?

23 A.     Right.

24 Q.     That's Mr. LaTour's house, right?

25 A.     Yeah, 400 North Oliver. MY mail comes to 410.

-62-

1 Q.     But you live there at Mr. LaTour's house?

2 A.     Right. Well, it's a separate structure, but on his

3 property, yes.

4 Q.     Now, I think you also said when you observed the sign in

5 Springdale and the one at Rogers --

6 A.     Uh-huh.

7 Q.     -- that they had more motion in them than the one -- the

8 time and temperature sign that you saw in Fayetteville?

9 A.     Correct, yes.

10 Q.     And I think you also said that the signs that had more

11 motion in them might tend to be more distracting to you?

12 A.     Yes.

13         MR. BASSETT: I think that's all I have, Judge.

14         THE COURT: All right. May he be excused?

15         MR. LaTOUR: One more question, Your Honor. It was my

16 oversight.

17                                                             REDIRECT EXAMINATION

18 BY MR. LaTOUR:

19 Q.     How many automobile accidents did you see last night, Mr.

20 Hargrave?

21 A.     None.

22 Q.     How many near misses?

23         MR. BASSETT: Your Honor, that's beyond the scope.

24         THE COURT: Well, I think it is. You didn't cover that

25 on direct, but I'll permit it. Is his answers going to be the

 

-63-

1 same on that score as were the other witnesses?

2         MR. LaTOUR: Yes, sir, I think so.

3         THE COURT: All right, I'll consider that. All right,

4 go ahead.

5         MR. LaTOUR: No further questions.

6         THE COURT: All right. May he be excused?

7         MR. LaTOUR: Yes.

8         MR. BASSETT: Yes, sir.

9         THE COURT: Thank you, sir. You're excused, you're

10 released, and you can leave if you like.

11         THE WITNESS: Thank you.

12         THE COURT: Mr. LaTour, do you have another witness

13 that you can call?

14         MR. LaTOUR: Your Honor, I don't have another witness.

15 I've decided not to recall Mr. Kit Williams after all. I'm

16 about ready to rest. I'd like to make a motion before I rest.

17         THE COURT: Very well.

18         MR. LaTOUR: My motion is, Judge, I'd like to move for

19 a directed verdict on the evidence presented. The evidence we

20 presented this morning clearly shows that my sign is no more

21 distracting than time and temperature signs. MY sign is no

22 different aesthetically than time and temperature signs.

23         Clearly, the City is applying their ordinance in an

24 unconstitutional fashion, regulating signs on the basis of their

25 content. They're not regulating the content of the sign, per

 

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1 se, but their rules and the way they're applying their rules

2 regulate based on the content. In order to know if a sign can

3 function, can change its message, you have to look at the sign,

4 and that's a telltale harbinger of content regulation or

5 regulation on the basis of content. Time and temperature signs

6 can function at will. My sign cannot.

7         THE COURT: Al right. Mr. Bassett, I assume you would

8 be against that motion, and I don't know that you want to be

9 heard, or do you just want to be --

10         MR. BASSETT: No, sir. I mean, I think in what we have

11 submitted to the Court and have filed with the Court, I think

12 our position is pretty clear.

13         THE COURT: ~l right. Let me make an observation.

14 You have styled your motion as a Motion for Directed Verdict,

15 and they now call that Motion for Judgment as a Matter of Law.

16 It's the same thing, but they've changed the nomenclature of it

17 in the federal rules.

18         It is not uncommon for the Court to have such motions

19 at the conclusion of the Plaintiff's proof, but usually they

20 come from the other side, the Defendant saying, "Well, now,

21 Judge, you've heard all they've got to say about it, and there's

22 no way they can win this thing, and so you need to give us

23 judgment as a matter of law." It is not too common that the

24 Plaintiff does that, although I think it's permissible, frankly.

25 I think the rule is couched in terms of if it appears that it's

 

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1 a, I guess you would say a slam dunk, I don't think that's what
2 the rules say, but that it's in order.
3         I will deny the motion at this time, simply because I
4 am having a trial, and I do want to hear everything you want to
5 present to me before I rule, so I will simply note your motion,
6 and I will overrule it at this time.
7         Now, Mr. Bassett, are you ready to proceed? Have you
8 decided whether you're going to call anybody, or where are you?
9         MR. BASSETT: Your Honor, we're not going to call any
10 witnesses.
11         THE COURT: All right. Mr. LaTour, are you going to

12 rest? Normally, you would make a motion after, but whatever.
13 Are you ready to rest?
14         MR. LaTOUR: I rest, Your Honor.
15         THE COURT: All right, Plaintiff rests. Mr. Bassett?
16         MR. BASSETT: Now that Mr. LaTour has rested, I guess

17 on behalf of the Defendant, I would move for judgment as a

18 matter of law.

19         THE COURT: Oh, I can't believe you would do that, but

20 if you wish to make that motion, that's --
21         MR. BASSETT: Judge, I mean, I don't have an argument

22 to make because I think that would be overdoing it. We've given

23 our reasons in filings with the Court.
24         THE COURT: I'll note your motion, but, again, I would

25 deny it. We have come this far. I do want to hear your summa-

 

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1 tions, gentlemen, and let me just say, too, that, normally, as

2 you know, in a bench trial, our rules invite you -- require you,

3 as a matter of fact -- to submit proposed findings of fact and

4 conclusions of law. We didn't do that in this case because this

5 case was set for a jury trial and was taken off the jury trial

6 docket for reasons that I've already mentioned, so I do not

7 think -- but nevertheless, I do not think because we have been

8 favored with your considerable briefing and proof at the

9 Preliminary Injunction Hearing back in December, and now at this

10 one, I don't think that we will be in need of Proposed Findings

11 of Fact from you gentlemen because I think there -- most of them

12 exist without substantial controversy anyway.

13         But I do think that I want to give you an opportunity

14 to suggest conclusions of law. Now, I'm going to leave that

15 open. I want to hear your arguments. If, whenever you have

16 argued this case -- and let's do it after lunch -- you still

17 feel like you need to give me the benefit of written conclusions

18 of law in the form of a Brief, I can let you do that, but I

19 think I know where you stand. I have read your submissions,

20 your authorities, and I'm not even sure I'd need that. I just

21 think where we are is, let me hear your arguments after lunch,

22 and we'll talk about it more, but I wanted to tell you that's

23 where I think we are right now. I'm not going to ask you to go

24 back and prepare a set of Findings of Fact and Conclusions of

25 Law. I don't think we need that. I think I know enough about

 

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1 where we are that you can just not need to go into that.

2         Let's take a break for lunch, and let's come back

3 promptly at 1:00 o'clock, and at that time, Mr. LaTour, I would

4 hear your summation for no more than thirty minutes, if you

5 please, on the first go around, and then we'll hear Mr. Bassett

6 for, I think he said no longer than ten minutes, but we'll let

7 him have however long he needs within the thirty-five minutes,

8 and then, Mr. LaTour, I would hear any final remarks you have

9 for no more than five minutes.

10         And lest you be a fool about that, I had an attorney

11 tell me one time that he thought that that meant that he could

12 only use about twelve minutes of his first thirty, and then tack

13 on the overage at the end, and that really isn't the way it

14 works. It's kind of use it or lose it. So in your first thirty

15 minutes, if you don't feel constrained to go that far, you still

16 only get five minutes when you come back, okay?

17         All right, I'll see you at 1:00 o'clock. We're in

18 recess.

19 (A lunch break was taken, after which the following proceedings

20 were held:)

21         THE COURT: Mr. LaTour, are you ready to make your  

22 opening address?

23         MR. LaTOUR: Yes, sir.

24         THE COURT: Go right ahead.

25         MR. LaTOUR: You said "opening address", Judge. You

 

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1 mean closing arguments?

2         THE COURT: Yes. I thought you were going to split

3 your time.

4         MR. LaTOUR: Yes.

5         THE COURT: Opening for no more than --

6         MR. LaTOUR: Thirty-five and five. It's not cumula-

7 tive time. Use it or lose it.

8         THE COURT: Well, that's --

9         MR. LaTOUR: All right, Judge, thank you for --

10         THE COURT: I hope that if and when you become a

11 lawyer, Mr. LaTour, you don't lose that ability to remember

12 those things. Sometimes I think lawyers do. Al1 right, go

13 right ahead, sir.

14                                                             CLOSING BY MR. LaTOUR

15         MR. LaTOUR: Once again, Judge, I know it's an imposi-

16 tion on schedules. I know it's an imposition on this Court to

17 hear a case of this nature. I appreciate you taking the time.

18 I appreciate the staff and all that you all have done.

19         In closing arguments, I want to begin with this. The

20 City claims that my civil rights have not been breached because

21 I can still express my opinion on other painted signs, and they

22 show pictures of my "Elect Tim Hutchinson" sign. That point

23 specifically misses the point when they argue.

24         Using the same twisted logic the City is using to

25 declare my free speech is still well intact, I can conclude that

 

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1 the civil rights of Rosa Parks were never breached. She

2 couldn't sit in that seat, but she could certainly sit in other

3 seats. The same goes for the four young black Americans who

4 were refused service at the Woolworth store in Greensboro, North

5 Carolina. I conclude their civil rights weren't breached. They

6 couldn' t eat at that lunch counter, but they could certainly eat

7 at other lunch counters.

8         The logic is misplaced and twisted because it misses

9 the whole point. The point in Mrs. Parks' case was not that she

10 couldn't sit. The fact was, the City of Montgomery bus system

11 was making distinctions between customers based on their color

12 of skin. The same was true in the Greensboro Woolworth case.

13 The four young men did not sue because they were being refused

14 the right to eat, or eat at lunch counters even. They sued

15 because distinctions were being made based on the color of their

16 skin.

17         The same is true in my sign case. I'm not saying the

18 City is precluding me from speaking at all. I'm saying their

19 sign ordinance and the way they regulate signs in Fayetteville

20 is unconstitutional as applied to me because they're drawing

21 distinctions based on what's on the face of my sign. Every case

22 we looked at and researched, and there have been a long line of

23 them, enjoins two things with regard to content regulations.

24 First, it says governments cannot regulate the content of a

25 sign, meaning they cannot tell me what I have to say.

 

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1         The second, equally as important to the first element

2 is, they cannot base their regulations on the content of the

3 sign. That is precisely what the City of Fayetteville is doing.

4 If my sign says time and temperature, I can flash it as much as

5 I like. If I say anything else, I'm precluded. The restriction

6 applies to me. That is a content-based regulation. That is

7 precluded by the rules, and in -- the rules established in the

8 cases preclude that sort of regulation.

9         Regulating on the basis of content. Although the City 

10 has never told me that I cannot display a certain message, they

11 have not regulated my content, they have regulated on the basis

12 of the content. The cases, every one of them, as I explained

13 earlier, indicate the City cannot regulate the content of a

14 sign, nor can they regulate on the basis of the content. The

15 City of Fayetteville is doing precisely that. Twenty-one

16 characters on my sign is aesthetically pleasing if it is static

17 or if the twenty-one characters is used to communicate time or

18 temperature in a changing mode.

19         I need to regress a little here, Judge, and explain

20 this. Under the rules under the sign ordinance, there is abso-

21 lutely nothing in the sign ordinance that says a time and temp-

22 erature sign is limited to four characters or five characters.

23 That is a myth promoted by the City. It's not in the rules, and

24 I challenge Mr. Bassett and Mr. Williams, show me in the rules.

25 Where? Give me the cite where the sign ordinance says the time

 

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1 and temperature sign has to be limited to four or five char-

2 acters.

3         If I want to spell out the time, and if I want to say

4 "Six o'clock central daylight savings time," I think under the

5 ordinance, that would be appropriate. If I want to spell out

6 the temperature, spell out the word "Fahrenheit", or if want to

7 express the degrees in Celsius, I would be free to do that under

8 the rules. Nothing restricts time and temperature signs to only

9 four characters. It's not there, that restriction. The City

10 also--

11        THE COURT: Let me interrupt you just a minute, Mr.

12 LaTour, and of course this isn't an appellate argument. That's

13 where they interrupt you all the time.

14         MR. LaTOUR: Yes, sir.

15         THE COURT: What if the City, with its time and temper-

16 ature sign, should, with respect to the time, elect to show it

17 on the different time zones, eastern, central, mountain, and

18 western, and they just flash it like "6:00 a.m., 6:00 a.m. E.T.,

19 7:00 a.m., CT, 8:00 a.m., MT, and 9:00 a.m. WT. Do you think

20 that would be permitted, or do you know? Do you have any basis

21 to--

22         MR. LaTOUR: Yes, sir. There's nothing in the rules

23 that preclude that. The rules, or the way they're applying the

24 rules -- and I have to draw a distinction between the facial

25 rules and the way it's being applied.

 

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1         THE COURT: Let me ask, though, if they did, if they

2 said, "No, you can show one time zone and one temperature at one

3 time, but you can't show four times in a row and a temperature,"

4 what if they did it that way?

5         MR. LaTOUR: They're regulating the content of the

6 sign. They're telling me what I can and what I cannot say.

7         THE COURT: Okay.

8         MR. LaTOUR: That's impermissible under the author-

9 ities. Everything we've read, all the cases we've cited, they

10 all find that odious and repugnant.

11         The City argues they've never told me what to say,

12 that they had never stopped me from saying a particular phrase.

13 Thus the argument goes they have not regulated my free speech.

14 However, this point is analogous to City o£ Ladue v. Gi22eo.

15 This is an Eighth Circuit case that went up to the Supreme Court

16 every step of the way, Federal District Court, Eighth Circuit,

17 and the Supreme Court. Each court ruled that Margaret Gilleo's

18 civil rights to free speech were violated.

19         There in that case, the City of Ladue was not telling

20 Margaret Gilleo what to say, but the City did prohibit any signs

21 in residential areas except those that fell into one of ten

22 categories, such as For Sale or For Rent signs. Under that

23 scheme, Gilleo could not -- could only display a sign -- let me

24 start over.

25         Under that scheme, Gilleo could only display a sign if

 

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1 it fell into one of these categories. Her sign dealt with the

2 first Persian Gulf war, and therefore was not legal under the

3 scheme. The Court reasoned that this amounted to content-based

4 regulations because the officials had to refer to the content of

5 the sign to determine whether or not it was legal.

6         In my case, admittedly, the City of Fayetteville is

7 likewise not telling me what I have to say or what I am saying

8 is illegal. However, Fayetteville is regulating on the basis of

9 content, just like the City of Ladue in that they will allow my

10 sign to function if it falls within the one approved category,

11 time and temperature. In this way, Fayetteville is also regu-

12 lating on the basis of content. That is impermissible according

13 to the First Amendment. Citv of Ladue v. Gi1.1.eo.

14 Another quote from the Citv of Ladue -- and this is

15 very interesting -- alternatively, through the combined opera-

16 tion of a general speech restrictions and its exemptions, the

17 Government might seek to select the permissible subjects for

18 public debate, and thereby to control the search for political

19 truth. The City of Fayetteville, it seems to me, is doing

20 precisely that.

21         For them to say on its face, "We're going to prohibit

22 flashing, blinking, or animation," I agree, it's constitutional,

23 but when they apply it to allow time and temperature signs to

24 flash, they are basing their regulations in content.

25 In numerous cases that we've found, if the regulation

 

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1 is not being applied in a content-neutral fashion, even though

2 the interests are substantially being protected, they are not

3 compelling, and strict scrutiny must be applied. That's what

4 I'm asking this Court to do. The standard for evaluation is

5 strict scrutiny.

6         These are not -- the interests are being protected,

7 the City claims, of aesthetic beauty, traffic safety, even

8 economics. All of the cases point to the fact that those are

9 only substantial interests, not compelling interests.

10         By limiting what flashing signs or what changing signs

11 can show to only time and temperature, the City is precluding a

12 whole method of speaking. What they're saying is, "If you're

13 going to change your sign's message, you cannot criticize the 1

4 mayor. You cannot criticize the city government to any direct

15 degree. We'll restrict you to that -- we will restrict your

16 ability to do that," and that's what the Court would find odious

17 is they're regulating on the basis of content.

18         In order to determine whether my sign is legal or not,

19 they have to look at it and see. "Dh, he's not saying time and

20 temperature." Anytime the official, in applying the ordinance,

21 has to refer to what's on the sign, the courts -- all the

22 authorities, I've found no exceptions -- say that's content-

23 based regulation.

24         In my case, admittedly, the City of Fayetteville is

25 likewise not telling me what I have to say or what I'm saying is

 

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1 illegal. However, Fayetteville is regulating on the basis of

2 content, just Ladue, in that they will allow my sign to function

3 if it falls within the one category, time and temperature.

4         Moving on, one thing I think this Court may have

5 observed in one of the orders -- I have not heard the City argue

6 this yet, I don't think -- but one way the City could remedy

7 this unconstitutional case of sign ordinances is simply to

8 eliminate all changing signs, all electronic signs. But the

9 City of Ladue Court argued against that.

10         One way the City of Ladue in Missouri could have

11 remedied theirs is to say, "We'll have no residential signs. We

... 12 won't allow ten categories of exemptions. We'll have no

13 residential signs." But the Court said in that case, "Simple

14 hand-painted signs are one of the purest forms of freedom of

15 expression there is, and it takes on a special significance when

16 they are hung or placed in someone's yard because --" one of the

17 examples they gave was, "Stop the Persian Gulf war" would take

18 on much more significance in the front yard of a retired Army

19 general than it would on the bumper sticker of a passing car.

20 The identity of the speaker lends credence to the speech.

21         In the same way, if a tax preparation office promotes,

22 "Repeal the tax code," that will carry a lot more weight since

23 my tax preparation business makes a lot of money off the current

24 tax code. If I'm willing to say, "Repeal the tax code," that

25 would mean much more than just seeing "Repeal the tax code" on

 

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1 the back of a passing car. That's significant.

2         The Supreme Court said, "Ladue cannot remedy by

3 eliminating all residential signs. That would be regulating too

4 much speech and that would be eliminating an entire method of

5 speaking.

6         Electronic signs have the unique ability to change

7 their faces each morning, each hour, to respond to local events

8 in the life of a community, and they can respond quite well and

9 quite easily. Painted signs would not enjoy the same flexi-

10 bility. Electronic signs need to change in order to fulfill

11 that role and express political and religious thoughts, the

12 highest form of protected speech.

13         Looking at the big picture, I was convicted of a

14 crime. I received a letter from the Police Station telling me

15 that they held an active warrant for my arrest. Report to the

16 jail, day or night, to take care of this matter, i.e., I think,

17 let me put you in jail. The letter specifically stated, and

18 this is in evidence, "If you ignore this letter, you will be

19 physically arrested." This is the height of the breach of my

20 civil rights. I would dare to speak my mind and express my

21 opinion, and my reward for that is a letter saying there's an

22 active warrant out there for my arrest.

23         I appealed my criminal conviction to Washington County

24 Circuit Court. As this Court has noted in its Order, my main

25 plea was that -- my main defense in my appeal was that the sign

 

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1 ordinance was being applied in an unconstitutional fashion.

2 That's all I was arguing before Judge Storey. I motioned the

3 Court in Circuit Court to rule the ordinance unconstitutional.

4 It was only after that that the City came to me and said, "If

5 you drop this appeal, we'll give you all of your fine money back

6 and we'll let you change your sign's messages more frequently

7 than we first ruled."

8         Think logically with me. Why were they willing to

9 give my money back? If they thought their sign ordinance was

10 just fine, that there are no constitutional problems with it,

11 they wouldn't have given my money back. They'd have said,

12 "Tough luck. Go on about your way." They weren't trying to be

13 Mr. Nice Guys. They felt compelled, for they gave my money

14 back, I think, in a direct attempt to shield their ordinance

15 from constitutional scrutiny. They didn't want the judge to

16 rule on them on motion. So after I made the motion, they came

17 and said, "Let's settle the case." That's all they received.

18 Think about the compromise. I got my money back. I got to

19 change my sign's messages more frequently. What did they get?

20 They got to have their ordinance escape constitutional scrutiny.

21 That's why this suit was brought.

22         Earlier, in the December 13th hearing, Mr. Williams

23 argued that the prohibitions against flashing and blinking signs

24 were somehow invalidated by this Court if there would be a

25 proliferation of flashing and blinking signs in Fayetteville,

 

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1 yet the evidence shows, what we heard this morning from the

2 witnesses, that Rogers and Springdale, which allow these signs,

3 have only a few of them. Indeed, on the current application of

4 the ordinance, Fayetteville allows flashing signs in the form of

5 time and temperature signs. There's no restriction in the

6 ordinance that restricts how many time and temperature signs

7 there could be, but to my knowledge, there are only two time and

8 temperature signs in Fayetteville. When the rules freely allow

9 time and temperature signs to be erected and operated without

10 even app1ying for a Sign Permit, you could -- what Mr. Williams

11 predicted was true, you would expect to see many more than two,

12 so such fantastic claims are not likely to materialize.

13         My next point, time and temperature signs distract

14 people for up to four seconds while the viewer is waiting for

15 the time to display when he first looks at the sign and it's

16 just begun to display the temperature. We heard testimony today

17 that the time is displayed for up to four or five seconds, then

18 the temperature is displayed for up to four or five seconds. If

19 I want to know the temperature of the outside air and I'm

20 driving past the time and temperature sign, and I turn and look

21 at it right when it just changed the time, I have to wait four

22 or five seconds before I'll see the temperature.

23         Now, Officer Gabbard testified, "Well, you might

24 glance at the sign, look back at the highway, then glance back.

25 I was trying to show the Court by my cross examination that the

 

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1 same is true for what he termed a baited question or a baited

2 statement like, "Woody Bassett is a --" then stops, and then it

3 comes back and says, ,,-- a poor lawyer," so it kind of baits you

4 and makes you hang there. The same could be said for that.

5 We've heard testimony after testimony today that there is no

6 difference in the distraction level of my sign compared to time

7 and temperature signs. There is absolutely no difference in the

8 aesthetics based on the functioning of the sign.

9         The plain language of the ordinance does not restrict

10 or limit the time and temperature signs to only four characters.

11 We have made this point.

12         Indeed, I would argue my sign measures eight inches

13 tall by seventy-two inches wide. That's approximately three

14 square feet. The time and temperature sign Mr. Hargrave

15 estimated to. be six-by-six, so that would be thirty-six square

16 feet. I estimate it to be ten-by-ten. That would be a hundred

17 square feet. My sign sits inside my office window. The time

18 and temperature sign on North College sits outside on a pole.

19 What is more distracting? What is more likely to block the view

20 or use the land for alternative -- or use up the land that

21 couldn't be used for alternate land uses? My sign does none of

22 that. The time and temperature signs do, so I pose the question

23 to the Court and to the City, which sign would be more dis-

24 tracting? Which would be more imposing? Time and temperature

25 signs, I think, are by far the more imposing just by their

 

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1 physical construction.

2         The Ladue court noted something else. They said that

3 homeowners have strong incentive to maintain high property

4 values so proliferation of residential signs were not likely to

5 happen because that would produce visual blight and would

6 decrease property values, and homeowners have a strong incentive

7 to maintain high property values. I will argue the same thing

8 for my commercial building on Sixth Street.

9         I live on Oliver, right across the street from
10 Razorback Stadium. I never plan to sell my house. I don't plan

11 to ever sell it. I don't care what property values are there.

12 In fact, I'd rather them go down than up because if they go up,

13 some fellow from the county comes out and guesses what my

14 property is worth and bases my taxes on that. I'd like to see

15 my property value go down.

16         But the Sixth Street building is not the same. The

17 Sixth Street building that I own would be for sale if the right

18 price came along, so I have more of an incentive to maintain

19 that property value in a high range than even my home.

20     We've heard testimony today from two credible wit-

21 nesses that Springdale and Rogers signs flash and do not produce

22 automobile accidents. The City has not introduced one iota of

23 evidence. All they've offered this Court is the naked assertion

24 that the City Council felt like these would distract passing

25 motorists and would take away from aesthetics. They've offered

 

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1 no proof. The burden of proof, I think, would be on them to

2 prove that flashing a sign or changing a sign does cause traffic

3 accidents.

4         As applied to my sign, the Fayetteville ordinance is

5 content-based. Fayetteville does not limit the number of

6 flashing signs that it has in that the ordinance does not limit

7 the number of time and temperature signs. The City has, how-

8 ever, limited the number of flashing signs that can express

9 political and religious opinions to zero. The way to distin-

10 guish between time and temperature flashing signs and political

11 flashing signs is to refer to the content of the sign. Thus, by

12 any common sense understanding of the term, the restriction is

13 content-based. The Fayetteville sign ordinance scheme on this

14 point is completely analogous to the scheme in the City of

15 Witten versus -- or in the scheme -- the city scheme in Witten

16 v. City of G.ladstone.

17         In Witten, the City required political signs removed

18 within seven days after an election. However, the restriction

19 did not apply to other signs. The Eighth Circuit struck this

20 scheme down as impermissible content regulation in that city

21 officials, in order to apply the ordinance restriction on

22 political signs, had to refer to the content of the sign, a

23 telltale harbinger of content-based regulation.

24         In the same way, Fayetteville officials, in order to

25 apply to the ordinance restrictions on flashing, have to refer

 

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1 to the content of the sign in question. Thus, the ordinance

2 application under any common sense understanding of the term, is

3 content-based.

4         Time and temperature signs change too often. The City

5 has made the point that time and temperature signs have to

6 change in order to show the current time and the current temper-

7 ature. We measured how long the time is displayed as opposed to

8 how long the temperature is displayed, and they're both dis-

9 played for about four or five seconds. With electronic signs

10 controlled by computers, you can easily program the screen into

11 a split screen. You can show time on one-half of the screen.

12 You can show temperature on the other half of the screen. The

13 time only has to change once every minute to be accurate. The

14 temperature could remain constant for hours at a time, as out-

15 side air temperatures do not change every five seconds.

16         Many days the temperature -- many days the temperature

17 is the same, so time and temperature signs do not have to change

18 the way they are changing now. They're flashing much more

19 frequently than they are required to by the laws of physics.

20 Under the Fayetteville scheme, thousands -- to reit-

21 erate, thousands of time and temperature signs could be erected,

22 but not one electronic sign that expresses true political

23 opinion can operate in the same fashion.

24         The Springdale sign ordinance, which we've introduced

25 into evidence today, allows for animated signs and signs that

 

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1 function just like mine was. Under the Springdale ordinance, a
2 distinction is made between "flashing" and "changing". This is
3 rational. Springdale does not allow a sign to flash "Buy here,
4 buy here, buy here, buy here," but it does allow a sign to
5 change. "See rates, one point eight percent, combined with your
6 home loan today. Gone fishing. Congratulations to Graduates."
7 Those are changing signs. They're not flashing signs.

8         Fayetteville, on the other hand, is much less rational

9 in their approach. They lump everything, every electronic sign,

10 into one category called the flashing, blinking, or animated.

11 When they do that, they're drawing distinctions based on the

12 content. Time and temperature signs can flash. Other signs

13 cannot. That is impermissible.

14         At least one court -- this is a District Court case up

15 in North Olmstead, and I'm not sure what state that's in. The

16 content -- at least one court reasoned, "The content of one

17 type of sign is certainly not safer or inherently more aesthet-

18 ically pleasing than the other. It is also not evident why a

19 mural may contain content that would be very distracting, such

20 as a sexually explicit, but not obscene art or aesthetically

21 displeasing, but may not contain words, corporate products, or

22 corporate images. Surely a mural containing the golden arches

23 of McDonald's is not more distracting than Bonacelli's Venus are

24 more aesthetically pleasing than some modern works of art that

25 may be reproduced on the side of the wall."

 

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1 I don't know of anything in the Fayetteville sign

2 ordinance that precludes me from putting a mural on the side of

3 my building, and if I painted Bonacelli's Venus -- and that is

4 a statue with exposed breasts of a female figure -- that would

5 not be deemed obscene, but it would be sexually explicit. That

6 would probably be a lot more distracting than my sign changing

7 its message. Yet under the sign ordinance, I would probably be

8 allowed to do that.

9         The Eighth Circuit -- I want to talk about Witten v.

10 City of Gladstone, and that's particularly applicable.

11 How how much time do I have left?

12         MS. GARNER: You've used twenty-one minutes.

13         MR. LaTOUR: Nine more minutes. Thank you. I think I

14 can finish, Judge.

15         THE COURT: How much did you say?

16         MS. GARNER: Nine more.

17         MR. LaTOUR: The Supreme Court has held that a restric-

18 tion on speech is content-based when the message conveyed

19 determines whether the speech is subject to the restriction.

20 The City of Fayetteville has to read my sign to determine

21 whether or not the flashing should be restricted or not. If it

22 says time and temperature, it's legal. If it says anything

23 else, it's illegal. That is content-based regulation.

24 A purported time, place, and manner restriction is

25 constitutionally permissible so long as it is justified without

 

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1 reference to the content of the regulated speech. In my case,

2 you have to reference the regulated speech to see if it's

3 applicable. If the prohibition is applicable. Simply stated,

4 the ordinance is content-based because it makes impermissible

5 distinctions based solely on the content or message conveyed by

6 the sign. The words on the sign define whether it is subject to

7 the limitations. That was a quote from the case, but it's

8 specifically applicable here in the Fayetteville case. Simply

9 stated, the ordinance is content-based because it makes imper-

10 missible distinctions based solely on the content of the message

11 conveyed by the sign. The words on the sign define whether

12 they're subject to the limitations. These are all quotes from

13 Witten v. City o£ Gladstone, a very important case in this case.

14         The argument that a restriction on speech is content-

15 neutral has been repeatedly rejected by the Supreme Court.

16 Number Five, "Government regulations of expressive activity is

17 content-neutral so long as it is justified without reference to

18 the content of the regulated speech." The way the Fayetteville

19 sign ordinance is being applied, it has to refer to my sign to

20 see what's on the face of it. If it's time and temperature,

21 it's legal. If it's anything else, it's not legal. We

22 observe the first purpose -- this is an interesting quote. This

23 is in this Witten v. Gladstone. I offered this as a

24 stipulation, and the City criticized my offer saying that's only

25 opinion, and to the City, I say, "Yes, you're right, it is only

 

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 1 opinion, but it's the opinion of the Eighth Circuit Court of

2 Appeals. I found this this weekend. "We observed that the

3 first purpose of any sign is to capture the attention of passer-

4 bys. We observe that the first purpose of any sign is to

5 capture the attention of passerby." Indeed, it almost goes

6 without arguing, for a sign to be effective, to effectively

7 communicate its message, it has to capture the attention of

8 those passing by. Every sign is a distraction, therefore, time

9 and temperature signs are a distraction and my sign would be a

10 distraction, but as you heard testimony, people who are

11 interested in landscaping, that would be a distraction. Cell

12 phones are distractions. But all drivers know -- and that was

13 one of my other stipulations -- people are rational to one

14 degree or another. All drivers know they have a duty to keep

15 watch ahead of them, and they may glance at things back and

16 forth, but they generally keep watch ahead. When they don't,

17 they have a tort trial.

18         The City has not presented sufficient evidence that

19 political signs detract from the aesthetics of the city any more

20 than other signs permitted to stand for long periods of time.

21 In the same way, the City of Fayetteville, in the Witten case,

22 what was at issue were political signs, and my case here was an

23 issue of flashing signs.

24         The City has not presented any evidence that flashing

25 political signs detract from the aesthetics of the city any more

 

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1 than flashing time and temperature signs. The point is mani-

2 fest. A flashing sign has the same effect either way, no matter

3 what the message is. As the North Olmstead court said, "Surely

4 one message is not more aesthetically pleasing than another.

5         "Because a message on the sign determines whether or

6 not it may be externally illuminated in a residential zone, we

7 conclude that the section, as applied to residential property,

8 is content-based."

9         In the Witten case v. Gladstone, this very important case,

10 the City said that political signs in residential areas could

11 not be externally illuminated, but other signs in residential

12 areas could be externally illuminated, such as a real estate, For

13 Sale sign, and the Court struck that down as being impermis-

14 sible. This is the Eighth Circuit Court of Appeals. Struck it

15 down as being an impermissible content-based regulation. You

16 say something political, you can't light it, and you say For

17 Sale, you can light it. The same thing is being applied to me

18 in this case.

19         The Court did note, "We are not unsympathetic to

20 Gladstone's concerns for controlling the unpredictable erection

21 of signs. However, when the remedy the local government chooses

22 conflicts with the constitutionally guaranteed right to free

23 speech, and in particular, political speech such as those in

24 Moxley, such concerns must yield."

25         Gladstone cited the same rationale for their sign

 

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1 ordinance. We want to limit the number of signs because of

2 aesthetics and public safety. The Court readily admitted those

3 are substantial interests, but they're not compelling, and

4 you've got to do it in a content-neutral fashion. They failed

5 to do that.

6         The evidence presented by Sergeant Gabbard today, the

7 number of accidents in my block on Sixth Street actually went

8 down during the first four months I was operating my sign. The

9 City can hardly argue that my sign was more distracting to pas-

10 sing motorists. The number of signs in the year just prior to

11 the year I installed my sign was three times as high as it was

12 during the same four-month period when I installed it.

13         And, Judge, let me be real honest with the Court here.

14 That first four months, I was operating under the assumption

15 based on what Bob Estes and Mike McKinney had told me, those

16 signs were not regulated. My sign was flashing, blinking, and

17 scrolling. I changed that when I started getting letters from

18 the City, and I told my employee, "Go make it function just like

19 time and temperature signs." They allow those to function and

20 that's not flashing, apparently, under the application of the

21 ordinance, so mine will be the same, and we did that. That's

22 when they charged me with a crime, when I was operating just

23 like time and temperature signs.

24         But during the period when I was most operating my

25 sign in the most animated fashion, that's when the number of

 

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1 automobile accidents went down. I think it would be very

2 difficult for the City to argue, "Your sign creates more traffic

3 problems than time and temperature signs."

4         To recap very quickly, the Supreme Court has ruled

5 cities cannot regulate content, nor can they regulate based on

6 content, nor can they base their regulations on the content of

7 the sign. That is precisely what is happening with the City of

8 Fayetteville.

9         I ask this Court to please grant me leave. There is

10 no money in this case. All we are seeking is injunctive relief

11 and Declaratory Judgment. All the City has to do is rewrite the

12 sign ordinance. I know Mr. Williams thinks that's a momentous

13 task, but I've given them the keys. They know the answer and

14 it's in the Briefs.

15         MS. GARNER: Mr. LaTour, you have one minute.

16         MR. LaTOUR: Thank you.

17         My father left our home in south Louisiana fighting

18 World War Two, went to the Philippines, and acquired malaria.

19 He died when I was fourteen. He had failing health the rest of

20 his life, but he considered the cause of freedom worthy of the

21 price. I could not stand idly by when I saw what the City of

22 Fayetteville was willing to do to me, a citizen, because I dared 

23 to speak my mind.

24         I ask this Court, please join me in this battle to

25 reform the sign ordinance which so badly needs to be scrutinized

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1 under the constitution, and reformed to meet the current techno-
2 logical advances that we live with. Thank you.
3         THE COURT: All right, thank you, Mr. LaTour. Mr.
4 Bassett, thirty minutes. Thirty-five minutes, excuse me.
5         MR. BASSETT: Thank you, Judge.
6                                                           CLOSING BY MR. BASSETT

7         MR. BASSETT: May it please the Court, Mr. LaTour.
8         Judge, I think the first thing that I want to say,
9 because I am here as the lawyer for the City of Fayetteville in
10 this particular case, and I think the first thing that I want to
11 say to this Court and to Mr. LaTour is that we understand and we
12 believe that he had a right to bring this lawsuit. Freedom of
13 speech is a fundamental right that all Americans have. It's a
14 fundamental right that is guaranteed to all of us under our
15 constitution, but in the final analysis, after months of filing
16 motions and submitting briefs, after several hearings, eviden-
17 tiary hearings, including the one today, it's our belief that
18 Mr. LaTour has not met his burden of proof, and the burden of
19 proof is with Mr. LaTour.
20        Acts of legislatures -- and this includes, of course,
21 City Councils -- are presumed constitutional unless the person
22 who is complaining can prove otherwise by clear and convincing
23 evidence, and we believe that Mr. LaTour has had his day in
24 court, as he is certainly entitled to have. He has accessed
25 into the judicial system, as he has every right to do. The fact

 

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1 that he chose to do it pro se as opposed to hiring a lawyer is

2 perfectly permissible, and even though we got off to kind of a

3 rocky start, we've gotten along pretty well, and certainly with

4 the Court's help, and tried to present this case as reasonably

5 and as efficiently as possible. But at the end of the day, Your

6 Honor, I believe that Mr. LaTour ought to leave this courtroom

7 today knowing that he had his day in court, knowing that he had

8 every opportunity to present his arguments and complaints to

9 this Federal Court.

10         But I think also that the City of Fayetteville, Your

11 Honor, ought to leave here today with a declaration that the

12 sections of its sign ordinance that Mr. LaTour has challenged

13 are constitutional in every respect. I think the City of

14 Fayetteville ought to leave here today with the declaration that

15 at no time, in any way, through any manner, has it infringed on

16 Mr. LaTour's rights as an American citizen to freedom of expres-

17 sion, freedom of speech, and freedom of thought.

18 There has been testimony today with respect to the

19 sign ordinance in the City of Springdale, and there's been test-

20 imony also from various witnesses who went to Springdale and

21 observed signs, and then went to Rogers and observed signs, but

22 the fact is, what's at issue here today, Your Honor, is the

23 Faye