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1 IN THE UNITED STATES DISTRICT COURT
2 WESTERN DISTRICT OF ARKANSAS

3 FAYETTEVILLE DIVISION

4 JOHN S. LaTOUR L PLAINTIFF
5 V. No. 02-5001

6 CITY OF FAYETTEVILLE, et al DEFENDANT

9 Before Honorable Jimm Larry Hendren, U. S. District Judge, as follows:

10 PRELIMINARY INJUNCTION HEARING

December 13, 2002

11 Fayetteville, Arkansas

14 APPEARANCES:

15 MR. JOHN S. LaTOUR PRO SE
410 North Oliver Avenue
16 Fayetteville, AR 72701

17 MR. WOODY BASSETT ON BEHALF OF THE DEFENDANT
BASSETT LAW FIRM

18 221 North College

Fayetteville, AR 72701
19

REPORTED BY: Dianne Hinson, CCR-CVR

21 Official Court Reporter

United States District Court

22 Western District of Arkansas

23 1605 Hunter Hill

Van Buren, Arkansas 72956

24 Proceedings reported by stenomask; transcript produced from ,
25 dictation.

1 INDEX

2 Page

3 Court's Opening Remarks 3

4 Witnesses Sworn 7

5 Opening Statement on behalf of the Plaintiff

6 By Mr. LaTour 9

7 Opening Statement on behalf of the Defendant

By Mr. Bassett 12

8 WITNESSES ON BEHALF OF THE PLAINTIFF
9

Examination of Keith Emis

10 Direct by Mr. LaTour 19
Cross by Mr. Bassett 25

11 Redirect by Mr. LaTour 31

12 Examination of John LaTour

Testimony by Plaintiff LaTour 35

13 Cross by Mr. Bassett 43

Further Testimony by Plaintiff LaTour 57
14

15 EXHIBITS ON BEHALF OF THE PLAINTIFF MARKED RECEIVED

16 Exhibit 1 21 20
Exhibit 2 21 20

17 Exhibit 3 21 20
Exhibit 4 21 20

18 Exhibit 5 21 20

Exhibit 6 21 20

19 Exhibit 7 22 22

Exhibit 8 22 22

20 Exhibit 9 22 22

Exhibit 10-A 42 42

21 Exhibit 10-B 42 42

Exhibit 11 18 18

22 Exhibit 12 37 38

Exhibit 13 38 38

23 Exhibit 14 39 39

24 Exhibit 15 40 40

Exhibit 17 24 24

25 Exhibit 18 24 24

Page

1 WITNESSES ON BEHALF OF THE DEFENDANT

2 Examination of Kit Williams

3 Direct by Mr. Bassett 59
Cross by Mr. LaTour 67

4 Redirect by Mr. Bassett 85

5 EXHIBITS ON BEHALF OF THE DEFENDANT MARKED RECEIVED
6 Exhibit 2 58 59

Exhibit 5 26 27

7 Closing Argument on behalf of the Plaintiff

8 By Mr. LaTour 87

9 Closing Argument on behalf of the Defendant

10 By Mr. Bassett 92

11 Court's Comments 95

12 Court Reporter's Certification 113

* * *

1 [Open Court - December 13, 2002 - 9:06 a.m.]

2 [Call to Order of the Court]

3 PROCEEDINGS

4 BY THE COURT: The Court calls up for consideration

5 the case of John S. LaTour v. the City of Fayetteville. This

6 hearing was set pursuant to this Court's order of November 13,

7 2002 in which the Court noted that there would be a hearing at 9

8 o'clock a.m. on Friday, December 13 on the plaintiff's Motion

9 for Preliminary Injunction in this case of John S. LaTour v.

10 City of Fayetteville, Case Number 02-5001.

11 That order followed an order of November 18 in which the

12 Court addressed certain matters that were addressed at a

13 previous hearing and in that order, certain parties were

14 dismissed and certain other rulings were made. And then the

15 Court, as already noted, entered its order of November 13 to set

16 this date and time for the hearing on the plaintiff's Motion for

17 Preliminary Injunction.

18 So is the plaintiff present and ready to proceed?

19 BY MR. LaTOUR: Yes, sir, I am.

20 BY THE COURT: Mr. LaTour, good morning.

21 BY MR. LaTOUR: Good morning.

22 BY THE COURT: Is the defendant present and ready to

23 proceed?

24 BY MR. BASSETT: Yes, sir.

25 BY THE COURT: Mr. Bassett, good morning.

1 All right. Gentlemen, you've heard me state the purpose of

2 our hearing. I understand that both parties may desire to call

3 certain witnesses and to present certain evidence. I have been

4 given a sheet effecting, I believe, several exhibits. I'm not

5 sure, I believe we have something like 17 or 18 exhibits that

6 Mr. LaTour wishes to introduce. Mr. Bassett, did you see those?

7 BY MR. BASSETT: No, sir, I don't think I have.

8 BY THE COURT: Mr. LaTour, did you give him a copy of

9 that list of exhibits?

10 BY MR. LaTOUR: No, sir, but I will.

11 BY THE COURT: Would you, please?

12 BY MR. LaTOUR: Certainly.

13 BY THE COURT: And let's see if --

14 BY MR. BASSETT: I can look at it real quickly here,

15 Your Honor.

16 BY THE COURT: Well, we can -- Kitty Gay, would you

17 mind making Mr. Bassett a copy of that. Also, Mr. Bassett, I

18 believe you favored me with a list of your proposed exhibits,

19 five of them and one witness. Did you give a copy of that to

20 Mr. LaTour? And if you did not, would you do that as well?

21 BY MR. BASSETT: Yes, sir.

22 BY THE COURT: And Kitty will make you a copy, Mr.

23 LaTour, so both of you will have --

24 BY LAW CLERK: We have copies.

25 BY THE COURT: Do you? All right.

1 Now then, gentlemen, why don't we just take just a moment--

2 Mr. Bassett, have you seen these exhibits that Mr. LaTour

3 proposes? I think there are several photographs. I'm not sure

4 what they are, I've not seen them. Mr. LaTour, is that what

5 they are; photographs?

6 BY MR. BASSETT: I think, judge -- Judge, I believe

7 I've seen -- I think I've seen -- If we might have just a moment

8 to look at the photographs real quickly.

9 BY THE COURT: Sure. And while you're doing that; Mr.

10 LaTour, have you seen what Mr. Bassett proposes to use as his

11 exhibits?

12 BY MR. LaTOUR: They look accurate.

13 BY THE COURT: All right, okay. Now then, Mr.

14 Bassett, have you had a chance to look his over?

15 BY MR. BASSETT: Doing it right now, Your Honor.

16 [Pause] All right, judge.

17 BY THE COURT: Have you seen those?

18 BY MR. BASSETT: Yes, sir.

19 BY THE COURT: All right. Then gentlemen, let me say

20 now I have not looked those over. I'm going to assume now from

21 what's been said that since each of you have looked over the

22 other's submissions, that if and when you offer them to me, we

23 won't have any quarrel about you haven't seen them. I'm not

24 saying you don't have objections -- we'll see about that -- but

25 at least you have viewed them.

1 Now then, I believe you indicate you have one witness, Mr.

2 Keith -- is it Emis?

3 BY MR. LaTOUR: Correct.

4 BY THE COURT: All right. Is he here?

5 BY MR. LaTOUR: He is.

6 BY THE COURT: Good morning, sir. And Mr. Bassett, I

7 believe you indicate you have one witness?

8 BY MR. BASSETT: Yes, sir.

9 BY THE COURT: Mr. Williams? And is Mr. Williams

10 going to be sitting as your corporate representative?

11 BY MR. BASSETT: Yes.

12 BY THE COURT: Okay. Then those are the only two

13 witnesses? And I don't think it makes any sense to invoke the

14 rule. I'm going to allow Mr. LaTour to start first and I assume

15 he'll call Mr. Emis. Now unless -- Do you wish the rule and ask

16 Mr. Emis to withdraw after he's --

17 BY MR. BASSETT: No, sir.

18 BY THE COURT: Okay. All right then, Mr. Emis and Mr.

19 Williams, would you both stand, raise your right hand and be

20 sworn so we can get you sworn in before we start.

21 WITNESSES SWORN

22 BY THE COURT: All right, thank you. Please be

23 seated, gentlemen.

24 Now Mr. LaTour and Mr. Bassett, we have had a previous

25 hearing with which we discussed to some extent the matter that's

1 before you today and you have both filed extensive written

2 briefs and positioned papers on the matter, so I don't know that

3 an opening statement is necessary but if you wish to give one,

4 I'll be happy to hear it.

5 What say you, Mr. LaTour?

6 BY MR. LaTOUR: Yes, sir. I'd like to make an opening

7 statement.

8 BY THE COURT: And Mr. Bassett?

9 BY MR. BASSETT: Judge, yes, I will.

10 BY THE COURT: I assume if he does, you will?

11 BY MR. BASSETT: I guess I should --

12 BY THE COURT: All right. How much time do you think

13 you'll need? And the reason I ask that, Mr. LaTour; if you're

14 like me sometimes -- It reminds me of what Mark Twain said one

15 time ;about a writer. They asked him why his speech was so long

16 and he said, "I just got started writing and it was too late to

17 quit."

18 And so I need to -- How much time do you want to talk in

19 your opening statement?

20 BY MR. LaTOUR: Would five minutes be appropriate?

21 BY THE COURT: That would be fine, whatever. Is that

22 enough for you, Mr. Bassett?

23 BY MR. BASSETT: Yes, sir.

24 BY THE COURT: All right, five minutes. And Ms.

25 Spellman here -- Ardia Anne Spellman, my secretary -- is acting

1 as our courtroom deputy. Do you have a watch down there?

2 Okay. Mr. LaTour, five minutes. We'll be real careful

3 about our time here today. Go ahead.

4 BY MR. LaTOUR: Thank you, Your Honor. Thanks for

5 entertaining these issues before this court.

6 In my research, I turned up four requirements for a

7 Preliminary Injunction and those requirements are stated in the

8 case of Dataphase Systems Inc. v. C.L. Systems. It was an

9 Eighth Circuit case, and they listed four requirements as

10 follows:

11 The threat of irreparable, i.e., not easily calculated

12 monetary terms of harm to the movant, the movant being myself;

13 Two, the state of balance between this harm and the injury

14 that granting the injunction will inflict on the other parties

15 litigant -- in this case, the city;

16 Three, the probability that movant will be successful or

17 will succeed on the merits of the case; and

18 Fourth, public interest.

19 In this particular case applying our facts to these four

20 requirements, I find that the harm that's being perpetrated upon

21 me by the city ordinance and the enforcement of the city

22 ordinance is irreparable. My speech is being squelched, I am

23 being restricted in the operation of my sign when time and

24 temperature displays are operated at their owner's desire and

25 can easily change their messages.

1 The rationale for the prohibition against the function of

2 signs is that it detracts from public safety and it detracts

3 from the aesthetics of the city. However, the city is at a loss

4 to explain why time and temperature signs can function and not

5 invoke these detrimental effects but when my sign functions, it

6 causes these detrimental effects.

7 Moreover, the city has offered no proof whatsoever to

8 indicate that functioning signs cause additional traffic

9 accidents. Since this case began, I've been observing signs and

10 flashing lights at various times of the year in the city of

11 Fayetteville. One of the largest displays of flashing lights

12 occurs every fall during the labor day weekend. It's called the

13 Washington County Fair.

14 The Washington County Fair is operated by the fair board,

15 of course, a non-profit corporation here in Washington County

16 but the carnival comes from Tulsa Oklahoma; the Murphy Brothers

17 Expositions. They are a private, for profit corporation and

18 they're the ones that operate one of the largest displays of

19 flashing and blinking lights in northwest Arkansas every year.

20 To my knowledge, no citation has ever been issued, no accidents

21 have been reported and I have to admit, when I drive down 1-540

22 and see those lights over there, the Ferris wheel, I'm

23 interested and I'm somewhat distracted, but not to the extent of

24 causing an automobile accident. So I question the rationale of

25 the city's own ordinance and their rationale for supporting that

1 ordinance.

2 I think the harm being perpetrated upon me is irreparable.

3 It's difficult to measure in monetary terms the value of freedom

4 of speech, but I think we would all agree that freedom of speech

5 is one of our most precious national rights that we have and

6 should be safeguarded at every turn.

7 The second requirement; state of balance between this harm

8 and the injury that granting the injunction will inflict upon

9 other parties litigant: It would be difficult to imagine how

10 the city would be somehow damaged if my sign is allowed to

11 function like time and temperature signs. Now if they maintain

12 otherwise, I would ask them to prove that the functioning of

13 time and temperature signs does not cause the same damage. I

14 think they'll have a difficult test doing that. So I don't

15 think there will be any injury to those parties litigant.

16 The probability that movant will be successful on the

17 merits -- In my Motion for Partial Summary Judgment, I pointed

18 out that there are no legitimate material issues of fact

19 remaining. All that's necessary is that we read the ordinance

20 and apply the laws, the rules of law established in the cases 21 that we cite.

22 The Fayetteville sign ordinance produces an illegal prior

23 restraint and it also regulates on the basis of content. Both

24 of those are odious to the U. S. Constitution as enumerated on

25 numerous occasions by a long line of court cases.

1 And fourth, the public interest: I think it is incumbent

2 upon all of us to safeguard the public interest and I think

3 strongly in that public interest is the right, implied if not

4 expressly stated, is the right to speak our opinion, speak our

5 minds freely in this country, in this state, in this city. And

6 I don't find that I'm able to do that under the current

7 authority of the Fayetteville sign ordinance.

8 So I ask this Court to serious consider these issues and

9 consider what we have to say today, weigh them with what the

10 city will report to you, and I trust your judgment.

11 Thank you.

12 BY THE COURT: Thank you, Mr. LaTour. Mr. Bassett, ,

13 please?

14 BY MR. BASSETT: Thank you, judge.

15 Your Honor, the City of Fayetteville passed the sign

16 ordinance back, I believe, in 1973 and it was designed for a

17 number of reasons, Number 1, I suppose, to aesthetically protect

18 the city of Fayetteville.

19 The citizens of Fayetteville, through their legislative

20 body, decided that they wanted to have some regulations of signs

21 in the city of Fayetteville. This ordinance has been in place

22 since 1973 and on several occasions, the Arkansas Supreme Court

23 has discussed or had the issue before them as to whether or not

24 it was proper to regulate signs. And of course, the Supreme

25 Court has said there is. There was even a case, Your Honor,

1 which addressed the issue of flashing signs. The Arkansas

2 Supreme Court said that the City of Fayetteville had the

3 authority to prohibit flashing, blinking signs.

4 Now the issue before the Court now, the issue which Mr.

5 LaTour has raised is a more narrow issue, and that is whether or

6 not the city not allowing him to flash or scroll his sign is in

7 some way a violation of his First Amendment Speech Rights. And

8 of course, we urge this Court to adopt the view that we've

9 reached that it's not. And there's several reasons for that,

10 Your Honor.

11 First of all, on Mr. LaTour's electric sign out there, he

12 has - and has the right 24 hours a day - to express his

13 political and his personal and his religious views, and he's

14 been doing that ever since he installed that sign. The only'

15 regulation that applies is that he cannot change that message,

16 you know, ever second or two like a time and temperature sign

17 does, for example. But he is allowed and clearly has been

18 expressing his political and personal and religious feelings 24

19 hours a day. And not once has anybody from the City of

20 Fayetteville told Mr. LaTour that he couldn't put any -- that he

21 couldn't express his views on that sign. Nobody has tried to

22 regulate the content.

23 The bottom line is there's only been some regulation of Mr.

24 LaTour's sign and absolutely no regulation of his views and his

25 political and religious opinions. No regulation of that

1 whatsoever.

2 Now Mr. LaTour correctly stated that the Dataphase Systems

3 case sets forth the applicable considerations for this Court to

4 consider on whether or not to grant Mr. LaTour's Motion for a

5 Preliminary Injunction. And we believe, Your Honor, that the

6 evidence produced today based on the applicable law, the Court

7 will conclude that those considerations have not been met.

8 There would be -- Well, first of all, we don't believe

9 there's any irreparable harm. He's expressing his opinion 24

10 hours a day on that sign and, by the way, with other signage on

11 his building out there. And when you balance the possible harm

12 to Mr. LaTour versus the possible injury to the City of

13 Fayetteville, the balance comes out on the side of the City of

14 Fayetteville.

15 If the Court should enjoin the city in this regard, you

16 would have an immediate, or possibly an immediate proliferation

17 of flashing and scrolling signs. And there's a big difference,

18 Your Honor, in someone driving by and seeing a time and

19 temperature sign -- which, by the way, is not speech; it's a

20 statement of ambient conditions -- but it's one thing to look up

21 there and see 30 degrees flashing or 4 o'clock in the afternoon

22 as opposed to driving by and seeing a scrolling message board on

23 a busy highway stating whatever message the person wants to

24 state. That is distracting. That is potentially dangerous and

25 the safety of motorist and aesthetic considerations are

1 legitimate concerns of the city and it's been affirmed by the
2 Supreme Court.

3 The public interest is another consideration and we believe

4 that aesthetics and safety are legitimate public interest

5 considerations and the Court should take those into

6 consideration.

7 And finally, Your Honor, under Dataphase, Mr. LaTour has to

8 prove that there is a probability that he will succeed on the

9 merits in this case and we simply do not believe that he can

10 meet that burden today. And therefore, we're going to ask this

11 Court to respectfully deny Mr. LaTour's motion.

12 Thank you, Your Honor.

13 BY THE COURT: Thank you, Mr. Bassett. All right.

14 Mr. LaTour, are you ready to call your first, please?

15 BY MR. LaTOUR: Yes, sir, I am.

16 BY THE COURT: Please do.

17 BY MR. LaTOUR: I call Keith Emis.

18 BY THE COURT: Gentlemen, I'll permit Mr. LaTour to go

19 first as the seeker of the relief, but I'll certainly give both

20 sides a chance to present whatever they like.

21 BY MR. BASSETT: Your Honor? Procedurally, it might

22 be easier for all concerned, including the Court; Mr. LaTour, I

23 believe you wanted to put in these ordinances also, didn't you?

24 BY MR. LaTOUR: That's correct.

25 BY MR. BASSETT: Can we just do that by agreement, Mr.

1 LaTour?

2 BY THE COURT: That would be fine.

3 BY MR. BASSETT: Judge, will that be all right with 4 you?

5 BY MR. LaTOUR: Can we put in my copy?

6 BY THE COURT: All right. Which are you offering now;

7 the plaintiff's exhibits or the defendant's or both?

8 BY MR. LaTOUR: It was received yesterday.

9 BY MR. BASSETT: Judge, I think it's going to be

10 easier if we just put in our stuff separately.

11 BY THE COURT: Okay, all right. Okay, well, let's

12 just kind of see how it goes.

13 All right. Go ahead, Mr. LaTour, please?

14 BY MR. LaTOUR: Your Honor, I'm ready to offer for

15 consideration Plaintiff's Exhibit 11.

16 BY THE COURT: All right now, Plaintiff's Number 11?

17 Mr. Bassett, do you have any objection to that?

18 BY MR. LaTOUR: This is the sign ordinance.

19 BY THE COURT: It's what, now?

20 BY MR. LaTOUR: The sign ordinance.

21 BY THE COURT: Well, let's see. Eleven?

22 BY MR. LaTOUR: What number do you have?

23 BY COURTROOM DEPUTY: That's what I have.

24 BY THE COURT: Well, it says copy of the sign

25 ordinance and then it's been marked out and it says Sixth Street