John S. La Tour And Sprint Tax, Inc.
Defendants

 

Response to City’s Constitutional Arguments
And
Motion for Declaring the City Sign Ordinance Unconstitutional
Or
Alternatively Motion for a Hearing on the Constitutional Arguments

In its extensive arguments for the constitutionality of its sign ordinance, the city fails entirely to address the gravamens of our constitutional arguments. Instead the city sets up the straw-man decoy arguments of the code exception to time and temperature signs’ permit requirements.

Indeed, as the city amply notes, this city sign ordinance has been hauled into court on numerous occasions. However, the courts have never had the opportunity to rule on the question that we present. Our question is simply,

How can our personal and political message sign be prohibited from operating while time and temperature SIGNS are allowed to operate when both types of signs function in exactly the same manner?

As we have noted before, the only difference in our sign and time and temp. signs is the messages they present. Time and temp. signs present time of day and temperature of the outside air, sometimes even accurately. Our sign presents the political and personal views of its owner.

In its wholesale attempts to justify its content-based sign regulations, the city proves nothing except its ability to argue the wrong points of law.

However, interestingly, the city sites two cases to justify its position but fails to recognize the legal doctrines established in both cases that strongly support the constitutional demise of the Fayetteville sign ordinance.

We discuss these cases here.

In Ladue, the US Supreme Court made several legal points that are applicable in the case at bar. We consider each below.

1. In Ladue, the court recognized a municipal sign ordinance may be legally attacked from two different perspectives. First, the ordinance can be attacked for regulating too little speech and secondly, an ordinance can be attacked for regulating too much speech.

In the case of too little speech, the Court stated,

"While surprising at first glance, the notion that a regulation of speech may be impermissibly under inclusive is firmly grounded in basic First Amendment principles. Thus, an exemption from an otherwise permissible regulation of speech may represent a governmental "attempt to give one side of a debatable public question an advantage in expressing its views to the people" First Nat. Bank of Boston v. Bellotti, 435 U.S. 765, 785-786 (1978). Alternatively, through the combined operation of a general speech restriction and its exceptions, the government might seek to select the ‘permissible subjects for public debate’ and thereby to ‘control…the search for political truth.’ Consolidated Edison Co. of N.Y. v. Public Service Comm’n of N.Y. 447 U.S. 530, 538 (1980) Ibid. at III.

 

The Fayetteville city sign ordinance falls squarely within the latter prohibition. By applying its sign ordinance so as to prohibit the changing of my sign’s message but allowing time and temp. signs to change their messages, the city is seeking to limit its citizens’ ability to engage in meaningful public debate via the medium of electronic signs. In this manner, the city is certainly able to exert considerable control over the search for political truth.

The Court went on to explain that where an ordinance regulates too little speech, it in affect, is regulating based on the content of the speech. In our case, the City is doing precisely that. If my sign said nothing more than time and temperature, this case probably wouldn’t be before this court. We are before this court precisely for the very reason that my sign displayed the "wrong" message.

2. When the city sign ordinance gets into the business of determining which messages are "wrong" and which ones are "right" it is breaching the constitutional guarantee of free expression, which is protected by the First Amendment. In her concurring opinion, Justice O’Connor noted,

"With rare exceptions, content discrimination in regulations of the speech of private citizens on private property or in a traditional public forum is presumptively impermissible, and this presumption is a very strong one (emphasis supplied). Simon & Schuster, Inc. v. New York Crime Victims Board, 502 U.S. 105, 112 S. Ct. 501, 508-509 (1991). Ibid. at Justice O’Connor, concurring.

Additionally, the Court noted that,

"Exemptions from an otherwise legitimate regulation of a medium of speech may be noteworthy for a reason quite apart from the risks of viewpoint and content discrimination: they may diminish the credibility of the government’s rationale for restricting speech in the first place. See Cincinnati v. Discovery Network, Inc.507 U.S. 410, 113, S. Ct. 1505, 1516-17." Ibid. at III.

When the City of Fayetteville applies its restrictive regulations to my sign but fails to apply these same restrictions to time and temp. signs, their very basis for the regulations in the first place is completely undermined and discredited. If allowing time and temp. signs to change their message frequently throughout the day does not impair esthetics or public safety, then changing my sign’s message does NOT impair esthetics or safety either. Yet the city ordinance, as applied, allows the former but prohibits the latter! Such irrationality surely cannot fulfill the policy goals of public safety and esthetics.

3. Of course, the City of Fayetteville could remedy its content regulation by simply prohibiting time and temperature signs or by imposing the same change-frequency regulations that it is attempting to impose on my sign. Thus this portion of its regulations would be content neutral. However, such a result would be unsatisfactory because, in the words of the court, and the second basis for attack, the regulations would prohibit too much speech.

As the Court noted in Ladue, eliminating all residential signs would hardly offer relief to the respondent "Gilleo".

Likewise, if the City of Fayetteville remedies its content regulation by simply amending its sign ordinance to apply the same restrictions to time and temp. signs, I would be afforded "scant relief". I am not primarily concerned with the exceptions to the city’s rules as applied. What I am interested in is the ability to communicate my political and personal opinions, unencumbered and not censored by the city government.

Moreover, if the city is allowed to remedy in this fashion, an entire means of communication, which is both unique and important, will be rendered virtually useless.

4. Electronic signs, located inside of private property can physically change their messages easily without flashing, blinking, or being animated. To relegate such useful means of communicating to a level of only one change per 24-hour period would seriously damage, if not out right eliminate, the utility of such a sign tool. The Court in Ladue put it this way,

"[Ladue] has totally foreclosed [residential signs] to political, religious, or personal messages. Signs that react to a local happening or express a view on a controversial issue both reflect and animate change in the life of a community" Ibid. at IV.

The City of Fayetteville will no doubt argue that its restrictions still allow for the existence of my sign, just not the functioning of my sign. However, the sign feature that provides such a unique ability to communicate is the sign’s ability to display multiple sentences, one at a time, in an effort to express a complete thought. Indeed, it is very difficult to present a compelling argument using only three or four words per day!

The US Supreme Court has ruled that states, and by extension, municipal governments, may regulate the noncommuicative aspects of signs but NOT the communicative aspects of signs. Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989).

It is difficult to imagine a more fundamental aspect of the communicative aspects of signs than the number of words that can be used. If the number of words is limited or restricted, then communication itself is limited and restricted. This is precisely what the City of Fayetteville is attempting to do by applying its sign ordinance in this fashion. Surely the authorities cry out for a different result.

If the city is allowed to remedy by restricting time and temp. signs, the entire media of electronic signs will be prohibited from effectively communicating political and religious ideas to the community of Fayetteville, AR.

5. Of course, there are other means of communicating such as radio and television, hand-bills, public picketing and demonstrations. However, the Court in Ladue recognized that these means of communicating would often inhibit participation in public debates. The court stated,

"Even for the affluent, the added costs in money or time of taking out a newspaper advertisement, handing out leaflets on the street, or standing in front of one’s house with a hand-held sign may make the difference between participating and not participating in some public debate" Ibid at IV.

However, if these same people could log onto an internet site and enter their message for public display, such ease and economy would surely encourage participation in public debates.

Thus, electronic signs, which do NOT flash, blink or animate, are an important and unique communication tool that should not be relegated to uselessness via restrictive regulations.

In its analysis of Metromedia, the City of Fayetteville misreads the case and/or misapplies its legal principles.

1. For instance, the city maintains that, "A majority of the Court held that the city’s interest in regulating off-site billboards was justified" City of Fayetteville Brief at "First Amendment Challenge". However, the case clearly points out that the distinction between on-site and off-site billboards only applied to commercial messages and not noncommercial messages. The Court strongly stated that San Diego could NOT draw distinctions among noncommercial messages, on-site, off-site, or otherwise, when it stated:

"Although the city may distinguish between the relative value of different categories of commercial speech, the city does not have the same range of choice in the area of noncommercial speech to evaluate the strength of, or distinguish between, various communicative interests.

 

With respect to noncommercial speech, the city many not choose the appropriate subjects for public discourse: ‘To allow a government the choice of permissible subjects for public debate would be to allow that government control over the search for political truth’. Metromedia at V.

In our case, the City of Fayetteville is applying its ordinance in a manner that draws distinctions in noncommercial speech based on the content of that speech. As noted above, if an electronic sign displays only the noncommercial message of time and temperature, it can change its message at will. However, if, as in my sign’s case, the message is a political or personal statement, the sign cannot legally similarly function. In this way the City is drawing distinctions between noncommercial speech topics; time and temperature message signs can change, political message signs cannot. Both types of messages are noncommercial and as such cannot legally be distinguished by the city’s regulations.

The Court continued its prohibition on noncommercial speech distinctions when it stated,

We have observed that time, place, and manner restrictions are permissible if ‘they are justified without reference to the content of the regulated speech …’

And,

It is apparent as well that the ordinance distinguishes in several ways between permissible and impermissible signs at a particular location by reference to their content. Whether or not these distinctions are themselves constitutional, they take the regulation out of the domain of time, place, and manner restrictions. Ibid.

 

The City of Fayetteville has determined that my sign is illegal because my message is different from a time and temperature sign. This distinction can only be made by making reference to the content of the sign (i.e. "regulated speech")

In Metromedia the City of San Diego was determining whether a particular noncommercial sign was legal at a particular location based solely on the sign’s content. In our case, the City of Fayetteville is determining whether our sign’s functioning is legal based solely on the content of our sign. As the Court concluded above, the constitutionality of such applied provisions may be a separate question but such provisions certainly remove the restrictive provision from the time, place, and manner domain.

Thus, it is impossible for the City of Fayetteville to sustain its argument that its restrictions on my sign are nothing more than time, place, and manner regulations.

Indeed, as previously stated, the application of the Fayetteville sign ordinance in this manner is nothing more than good old fashion content regulation!

2. The City of Fayetteville seeks to mitigate the effects of its illegal content regulation by attempting to convince this court that a time and temperature sign is not really a sign. This effort is quite impressive given the exhaustive and all-inclusive city definition of a sign:

"Every device, frame, letter, character, mark, plane, point, design, picture, stroke, stripe, trademark, or READING MATTER, which is used or intended to be used to attract attention OR CONVEY INFORMATION..."UDO Ch. 151.

I have two college degrees and I am working on a third and yet I don’t know what is meant by a "mark", "plane", "point", "stroke", or "stripe". However, it sounds like it includes just about everything except the kitchen sink (but only if the kitchen sink has no "mark" on it).

The City has gone to such gross extremes to include every conceivable method of visual communication. It can hardly argue now that a time and temperature sign is not a sign!

I agree with the city. Some things are what they are and nothing more. Time and temperature signs have "marks" and "characters", they are meant to be read, and they do "convey information". Accordingly, based on the city’s very own definition, such devices are signs, plain and simple.

3. The City has now raised the issue of severability. By so doing, the City has now made an issue of the entire sign ordinance. This is so because, in order to save the entire ordinance, all provisions of the ordinance will have to pass constitutional muster in order to be saved if the time and temperature exception is struck.

Here I will consider two aspects of the sign ordinance, which should be examined closely under constitutional scrutiny. This list is not intended to be exhaustive.

a. UDO Sect. 158.08(H): This provision attempts to make the citizens of Fayetteville believe that they must remove their political yard signs within 72 hours after an election. I think the Ladue Court would be dismayed by such a provision.

Under the free expression doctrines established in Ladue, anyone in the country can keep an "Elect Smith" or a "Keep the Peace" sign up in their yard or window for as long as they please.

This UDO section pretends to make such activity illegal 72 hours after and election for all residential districts. This is patently unconstitutional.

b. UDO Section 158.24 states the following:

"All rights and privilege acquired under the provisions of this chapter or any amendment thereto, are mere licenses revocable at any time by the city council and all such permits shall contain this provision."

It sounds as though the Fayetteville City Council believes that it can revoke the First Amendment if they have a mind to.

The citizens of this city have a very strong right to display small residential signs on their private property with or without the city counsel’s permission. Likewise, other persons have strong rights to express their opinion through signage without the counsel’s permission.

This provision, as well, should be struck.

Other Topics

In its very brief discussion of City of Cincinnati v. Discovery Networks, Inc. the city draws the incomplete conclusion that the US Supreme Court found the [Cincinnati] ordinance did not reasonably fit. The city completely misses, or worse ignores, the pivotal issue in Discovery Networks of regulating on the basis of content. Then the city states that the Arkansas Supreme Court has upheld the "flashing" provisions of the UDO. However, the Arkansas Supreme Court has never considered the flashing provisions in the context of content regulations, an entirely different question.

However, the US Supreme Court has considered content regulations and has concluded, as demonstrated above, regulations that are content based cannot be in the domain of time, place, and manner. Thus, Metromedia, Inc nullifies the City’s argument.

Conclusion

The city has patently failed to demonstrate:

1. A compelling, not just substantial, rationale for its sign regulations that discriminate on the bases of content.

2. How the city can justify the rationale basis for their regulations when their exceptions allow signs that function just like my sign. The city cannot explain why my sign adversely affects the public safety or esthetics of Fayetteville but time and temperature signs do not.

3. How the First Amendment freedoms of expression can be preserved and enhanced by eliminating the unique usefulness of an entire method of speaking, i.e., electronic signs.

4. Why, according to its own exhaustive definition, a time and temperature sign is not a sign!

5. Why City of Cincinnati v. Discovery Networks, Inc. is not on point in this case.

6. How the Fayetteville City Council can constitutionally revoke a citizens right to install a noncommercial sign for as long as he/she desires.

Motion for Declaring the Fayetteville, Arkansas Sign Ordinance Unconstitutional

John S. La Tour hereby motions this Court to declare the Fayetteville, Arkansas sign ordinance unconstitutional for all of the above reasons. Alternatively, if the Court should decide that it is premature at this point to rule such, we hereby motion and ask the Court to set a hearing on the constitutionality of the sign ordinance.