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
7
8
9 Before Honorable Jimm Larry Hendren, U. S. District Judge, as follows:
10 PRELIMINARY INJUNCTION HEARING
December 13, 2002
11 Fayetteville, Arkansas
12
13
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
20
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
* * *
4
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.
5
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.
6
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.
7
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
8
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
9
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.
10
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
11
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.
12
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,
13
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
14
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
15
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.
16
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
17
1 lawyer sign.
2 BY MR. LaTOUR: Down near the bottom of the page,
3 judge.
4 BY MR. BASSETT: Judge, I think what I have here, and
5 I think --
6 BY MR. LaTOUR: Probably the same.
7 BY MR. BASSETT: Well, I have certified copies of the
8 ordinances, the whole deal right here. And this is not -- I'm
9 not trying to pull a fast one here, I just want to get
10 everything before the Court.
11 I have Defendant's 1, Your Honor, and Defendant's 2
12 constitutes, I think, the entire sign ordinance, particularly
13 and Defendant's Exhibit Number 2 contains the entire ordinance
14 that's in the unified development --
15 BY THE COURT: It doesn't matter to me whether it's a
16 plaintiff's or defendant's exhibit. I mean --
17 BY MR. BASSETT: Yeah, sure.
18 BY THE COURT: If that's the ordinance -- If you can
19 agree, that's fine. I don't think we need two copies of it.
20 BY MR. BASSETT: No, probably not.
21 BY THE COURT: Unless there's some suggestion that
22 there's some difference between them.
23 BY MR. LaTOUR: Probably all the same.
24 BY THE COURT: If you're agreeable that they're the
25 same
18
1 BY MR. LaTOUR: Should be the same.
2 BY MR. BASSETT: Okay. Go ahead and put that in. 3 I'll get the rest of it later.
4 BY THE COURT: Okay. And I got divorced from my copy
5 here, Mr. LaTour. I think you've got it. Can you tell me --
6 I'm actually a little confused there. [Laughter]
7 Well, but see, on Number 11, it's not what you said it was.
8 Somebody marked that out.
9 BY MR. LaTOUR: That's right.
10 BY THE COURT: Did somebody get the wrong copy here?
11 BY MR. LaTOUR: I'm sorry. Yeah, Number 11 is down at
12 the bottom.
13 BY THE COURT: Oh.
14 BY MR. LaTOUR: We didn't mark out the 11th --
15 BY THE COURT: Oh, all right. So 11 is here.
16 BY MR. LaTOUR: Sorry about that.
17 BY THE COURT: All right. So Number 11 is the sign
18 ordinance and it's received without objection, Mr. Bassett?
19 BY MR. BASSETT: Yes, sir; no objection.
20 BY THE COURT: All right. Plaintiff's 11 is received
21 without objection and that's a copy of the sign ordinance.
22 [Whereupon, Plaintiff's Exhibit 11 was received into 23 evidence.]
24 BY THE COURT: Now you contend do you not, Mr.
25 Bassett, that that's identical to Defense 1 or not?
19
1 BY MR. BASSETT: Your Honor, I contend that a part of
2 what he put in is identical to Defendant's Exhibit Number 2. I
3 try to get everything in at one time, judge.
4 BY THE COURT: Okay. We'll just barge through it and
5 see but okay. Number 11 is received without objection and it
6 has something to do with the sign ordinance, okay?
7 BY MR. LaTOUR: Yes.
8 BY THE COURT: All right, go ahead.
9 KEITH EMIS, PLAINTIFF'S WITNESS, PREVIOUSLY SWORN ,
10 DIRECT EXAMINATION
11 BY MR. LaTOUR:
12 Q. Would you please state your name and your mailing address
13 for the Court?
14 A. Keith Emis, 16304 River Ridge Road, Fayetteville, Arkansas
15 72704.
16 Q. How many years have you lived in Fayetteville, Arkansas,
17 Mr. Emis?
18 A. Roughly, 22 years.
19 Q. Very good. And what do you do for a living?
20 A. Political work at the present.
21 Q. Very good. I'm going to hand you my proposed Exhibit 11.
22 Can you tell me what it is?
23 A. It is a copy of the sign ordinance in Fayetteville.
24 Q. How do you know that?
25 A. It says so, and yesterday I picked it up from the city
20
1 clerk's office.
2 Q. Okay. And what's happened with that ordinance since the
3 time you picked it up from the clerk's office?
4 A. I initialed it in blue ink right here to make sure that
5 he'd see that, and I kept it in my possession.
6 Q. Since that time?
7 A. Yes, sir.
8 Q. SO you believe it to be legitimately the Fayetteville Sign
9 Ordinance?
10 A. I do, yes.
11 BY MR. LaTOUR: Okay. Judge?
12 BY THE COURT: Well, I've already received it.
13 BY MR. LaTOUR: Okay. So what do I do with it? Thank
14 you.
15 I'd now like to enter our Plaintiff's Exhibits 1 through 6.
16 These are all pictures of the same thing, just different
17 perspectives.
18 BY THE COURT: All right, Plaintiff's 1 through 6.
19 Any objection, Mr. Bassett?
20 BY MR. BASSETT: Let me refresh my memory as to what
21 they are, judge. [Pause] No, sir.
22 BY THE COURT: All right. Be received without
23 objection. Plaintiff's 1 through 6, inclusive.
24 [Whereupon, Plaintiff's Exhibits 1, 2, 3, 4, 5 and 6 were
25 received into evidence.]
21
1 BY MR. LaTOUR:
2 Q. Mr. Emis, what are these pictures of?
3 A. That's a picture of the First Federal Bank and the sign up
4 front.
5 Q. Okay. How do you know that?
6 A. I was there yesterday.
7 Q. Did you observe the sign?
8 A. I did.
9 Q. How was the weather? How was the visibility?
10 A. It was a little overcast, but it was about 2:45. It was a
11 normal fall day.
12 Q. How is your eyesight?
13 A. Twenty/twenty.
14 Q. Thank you. Did you observe the sign functioning in any
15 fashion?
16 A. I observed that it would demonstrate the time and then
17 enter the temperature.
18 Q. Okay?
19 A. It would change every two seconds.
20 Q. And the time and temperature; was there any blank period of
21 time in there or did it just go straight from time to
22 temperature?
23 A. It would go straight from the time to the temperature.
24 Q. Okay. Did you observe any automobile accidents on the
25 street as you were there?
22
1 A. No.
2 BY MR. LaTOUR: Okay, very good. Thank you.
3 Next, judge, I'd like to introduce Plaintiff's Exhibits 7,
4 8 and 9 which again all deal with the same location.
5 BY THE COURT: All right. Now these are photos as
6 well, are they not?
7 BY MR. LaTOUR: Yes.
8 BY THE COURT: All right. Mr. Bassett, any objection?
9 No objection?
10 BY MR. BASSETT: No objection.
11 BY THE COURT: Be received without objection,
12 Plaintiff's 7, 8 and 9. Thank you.
13 [Whereupon, Plaintiff's Exhibits 7, 8 and 9 were received
14 into evidence.]
15 BY MR. LaTOUR:
16 Q. Mr. Emis, what's that?
17 A. That's a picture of the clock at Crossover Court.
18 Q. How many clocks in the picture do you see?
19 A. I see two.
20 Q. How do you know those are pictures of Crossover Court?
21 A. Because I was there yesterday.
22 Q. Okay. What time of day?
23 A. Roughly 5:30, 5:45, somewhere in there.
24 Q. Could you see clearly?
25 A. Very clearly.
23
1 Q. Very good. What did you observe on the two clocks?
2 A. I observed -- One is a typical 12 hour, you know, one
3 minute and hour hand; and the other was a digital clock which
4 would change and show the time as well -- or the temperature as
5 well in both Fahrenheit and Celsius.
6 Q. SO the digital display would show three things; would show
7 the time of day, would show degrees Fahrenheit and degrees
8 Celsius?
9 A. That's correct.
10 Q. Correct. How many seconds elapsed that it would show the
11 time, then how many seconds later would show temperature?
12 A. Something like five or six. It wasn't very long.
13 Q. Okay, very good. But it was functioning, correct?
14 A. Yes, it was.
15 Q. Okay. Did you notice any accidents on the street there?
16 A. I did not.
17 BY MR. LaTOUR: Thank you.
18 Next, judge, I'd like to introduce Plaintiff's Exhibits 17
19 and 18.
20 BY MR. BASSETT: No objection, Your Honor.
21 BY THE COURT: Be received without objection, thank
22 you. Seventeen and 18, was it?
23 BY MR. LaTOUR: Seventeen and 18, correct.
24 BY THE COURT: Be received without objection, 17 and 25 18.
24
1 [Whereupon, Plaintiff's Exhibits 17 and 18 were received
2 into evidence.]
3 BY MR. LaTOUR:
4 Q. Mr. Emis, what is that?
5 A. That is a picture of the Sprint Tax Building on 6th Street.
6 Q. Very good. How do you know that?
7 A. Because I've been by it several times.
8 Q. Okay, very good. So you think that's legitimately the
9 Sprint Tax Building?
10 A. I do, yes.
11 Q. Okay, very good. And is there a sign there?
12 A. There is a sign there.
13 Q. And what does it say?
14 A. It says Recallcooty.com.
15 Q. Do you think that's a political opinion?
16 A. I would certainly expect that, yes.
17 BY MR. LaTOUR: Okay, very good. Did you notice any--
18 Well actually, that sign is no longer functioning. That's all
19 on that one, judge.
20 Your Honor, I have some questions to ask Mr. Emis regarding
21 the sign ordinance. Could I hand that back to him and ask him
22 to read a couple of sections?
23 BY THE COURT: Sure.
24 BY MR. LaTOUR:
25 Q. Mr. Emis, let me get the sections for you. First of all,
25
1 I'm very interested to know what is a sign, according to the
2 Fayetteville Sign Ordinance --
3 BY MR. BASSETT: Your Honor, excuse me. I need to
4 object at this point on the basis that the ordinance says what
5 it says and speaks for itself, and the Court can read the
6 ordinance and will read it -- has read it, I'm sure.
7 BY THE COURT: I think that's true, Mr. LaTour.
8 BY MR. LaTOUR: Okay, that's fine. No further
9 questions for this witness.
10 BY THE COURT: All right. Do you have any questions,
11 Mr. Bassett?
12 BY MR. BASSETT: Just a couple, Your Honor.
13 BY THE WITNESS: Do you want this back?
14 BY THE COURT: That's all right. He may want to ask
15 you about it.
16 Go ahead, please?
17 CROSS-EXAMINATION
18 BY MR. BASSETT:
19 Q. Mr. Emis, you live here in Fayetteville and I think you
20 said you do political work?
21 A. Yes, sir.
22 Q. What kind of political work?
23 A. I work for the Hutchinson for Senate campaign here in
24 Arkansas and then I spent actually about three weeks in
25 Louisiana at the run-off election, working for the -- or
26
1 actually the Anderson Group, which was working for the
2 republican party.
3 Q. And because you did work, I guess, for that campaign and
4 know Mr. LaTour, you're aware, are you not, that Mr. LaTour
5 advertised or expressed his political opinions around the clock
6 during the campaign out at his building out there, didn't he?
7 A. I have see -- Yes, there's been advertising or there's been
8 words on his sign in the past, yes.
9 Q. Well, did he advertise his political opinions with regard
10 to the senate race, for example?
11 A. I believe so in the primary, yes.
12 Q. Do you go out to his office building on a regular basis?
13 A. No, but I grew up in Fayetteville and then, like, just you
14 know, when you travel around.
15 Q. I'm going to hand you what has been marked as Defendant's
16 Exhibit Number 5 --
17 BY MR. BASSETT: Let me show this to Mr. LaTour?
18 BY MR. LaTOUR: No objection, Your Honor.
19 BY THE COURT: Are you wanting to offer it, Mr.
20 Bassett?
21 BY MR. BASSETT: Yes. I'd like to offer Defendant's
22 Exhibit Number 5.
23 BY THE COURT: Received without objection, Number 5.
24 BY MR. BASSETT:
25 Q. Let me show you this, Mr. Emis. This is Defendant's
27
1 Exhibit Number 5. Does that photograph fairly and accurately
2 depict a campaign sign there at Mr. LaTour's office building?
3 A. I believe it does, yes.
4 Q. And it also has right about the political sign, it has a
5 sign that has the name of his business there, Sprint Tax; is
6 that right?
7 A. Yes, sir.
8 Q. And then right around the corner would be the window that
9 has the indoor electric sign, correct?
10 A. Yes, that's correct.
11 BY MR. BASSETT: Your Honor, I hand this to the Court
12 at this point.
13 BY MR. BASSETT:
14 Q. Now Mr. Emis, I guess you're friends with Mr. LaTour?
15 A. Yes, sir.
16 Q. And have known him for quite some time?
17 A. Since I was about five.
18 Q. And I suppose what happened -- this is just a guess on my
19 part -- Did he ask you in the last couple of days to go out and
20 look at a couple of time and temperature signs? 21 A. Yes.
22 Q. Okay. Normally when you're driving down the road, do you
23 even notice those time and temperature signs?
24 A. Yes, I do. I'm interested in what the temperature is.
25 Q. And you're interested in knowing what the temperature is
28
1 right?
2 A. Uh-huh.
3 Q. That's not really sending you any kind of message other
4 than telling you what time it is or what the temperature is,
5 correct?
6 A. It does tell me what the time and temperature are, yes.
7 Q. And if you were driving down a road and there was an
8 electric sign that was scrolling a message on it, a written
9 message, - and I'm not talking about numbers, but I'm talking
10 about words - and you looked at it, would you have to look at it
11 a little bit longer than you would a time and temperature sign
12 to see what it said?
13 A. I guess it depends on the message.
14 Q. Okay. The longer the message, the more you'd have to look
15 or the longer you'd have to look, right?
16 A. That could be assumed, yes.
17 Q. And if you're looking left or looking right and somebody
18 stops in front of you, what could happen on the highway?
19 A. Theoretically, you could rear-end them.
20 Q. Now the shopping center -- and the judge has the
21 photographs up there -- I can't remember the name of the
22 shopping center that's out at the corner of 265 and Highway 45.
23 Do you remember the name of it?
24 BY THE COURT: Do you want to see this?
25 BY THE WITNESS: The Crossover Court, I believe.
29
1 BY MR. BASSETT:
2 Q. I think it is Crossover Court --
3 BY MR. BASSETT: No, judge, thank you.
4 BY MR. BASSETT:
5 Q. Crossover Court is the name of it. There's a clock up
6 there, isn't it?
7 A. Yes, there is.
8 Q. And then right above it, there was a tiny electric sign, I
9 guess, that would have the temperature?
10 A. Yeah.
11 Q. Okay. Now that clock and that temperature sign is actually
12 way removed from that intersection, isn't it?
13 A. Clearly visible from the intersection.
14 Q. But the clock is back in the corner of that shopping center
15 back in the parking lot, is it not?
16 A. It's placed about 35 feet, I would imagine but, yes.
17 Q. You had to get out of your vehicle and actually be on a
18 mission out there to actually see that, didn't you?
19 A. No, that's not true.
20 Q. Now the message that I think was shown on the photograph
21 that was given to the judge a little while ago off Mr. LaTour's
22 sign was a message that said, "Recall Coody"?
23 A. Yeah.
24 Q. Who is the Coody we're talking about?
25 A. I believe it's the mayor, Dan Coody.
30
1 Q. Okay. And to your knowledge, Mr. Emis, has anyone from the
2 City of Fayetteville from the mayor on down, anybody from the
3 City of Fayetteville gone to Mr. LaTour and said hey, you can't
4 put a sign up there that criticizes the mayor? Nobody has done
5 that, have they?
6 A. No, I don't believe so.
7 Q. And to your knowledge, has anybody from the City of
8 Fayetteville in any way tried to restrict Mr. LaTour in the
9 content of his messages that he puts on that electric sign?
10 A. They regulate the amount of content he can put up.
11 Q. But has anybody tried to restrict the content of his
12 message?
13 A. Well, I believe that they had a restriction in the content
14 of his message.
15 Q. But I'm asking has anybody said you can't criticize so and
16 so, or you can't put your own political or personal opinion up
17 there? Nobody has told him that he couldn't do that, have they?
18 A. Well, if you'll look at the amount of speech; you are, in
19 fact, limiting his speech, I believe.
20 Q. If you want to drive by that sign, you can see it 24 hours
21 a day, can't you?
22 A. You can.
23 Q. And 24 hours a day, he can put an opinion up there, can't
24 he?
25 A. True, but he could say recall Coody and fire the city
31
1 counsel, but he can't do that because he can't change the sign.
2 Q. He couldn't put "Recall Coody" up and then later on put
3 "Fire the city counsel" up?
4 A. He could but you wouldn't be able to read it as you passed
5 by.
6 Q. But to your knowledge, has anybody tried to restrict him in
7 what he said; not how many times he said it, but what he said?
8 A. If you put it in that prospective, no; but it is still an
9 illegal limitation on your speech.
10 BY MR. BASSETT: That's all, judge.
11 BY THE COURT: Anything further, Mr. LaTour, on this
12 witness? I'm not suggesting there should be; I'm just offering
13 you the chance.
14 BY MR. LaTOUR: I'm thinking of the question as I walk 15 up here.
16 REDIRECT EXAMINATION
17 BY MR. LaTOUR:
18 Q. Mr. Emis, do you understand the issue in the case is time
19 and temperature can change freely, I cannot?
20 A. I understand that, yes.
21 Q. Okay. So if I could change my sign freely, do you think
22 maybe I could express more of my political opinion instead of
23 just maybe one word?
24 A. I do believe that and I think that's the basis of your
25 argument.
32
1 Q. Did you realize that my sign can only accommodate one or
2 two, maybe three words depending upon the number of characters
3 in those words?
4 A. Uh-huh, yes.
5 Q. Right now, the rule I'm operating under is I can change my
6 message once every three hours, and that means I can use about
7 three words every three hours.
8 If I were to tell you that you have complete freedom of
9 speech but you can only use three words every three hours, would
10 you feel free or encumbered?
11 A. No, I would not feel free.
12 BY MR. LaTOUR: Thank you, Mr. Emis. That's all,
13 judge.
14 BY THE COURT: Anything further?
15 BY MR. BASSETT: No, sir.
16 BY THE COURT: Thank you, sir. You may stand down.
17 May he be released?
18 BY MR. LaTOUR: Sir?
19 BY THE COURT: Well, we don't have the rule. You may
20 go or stay as you like.
21 All right. Do you have any further witnesses, Mr. LaTour?
22 BY MR. LaTOUR: I have some further evidence I need to
23 introduce.
24 BY THE COURT: Okay, but you don't have any other
25 witnesses?
33
1 BY MR. LaTOUR: Unless it would be me.
2 BY THE COURT: Well, that might be a problem since --
3 BY MR. LaTOUR: I understand.
4 BY MR. BASSETT: Judge, this is a little bit
5 different, the procedure here, since Mr. LaTour is pro se; but
6 you know, I would like to ask Mr. LaTour some questions, too, if
7 he's going to, you know, if he's going to make some kind of
8 presentation. And you know, I guess that's up to the Court.
9 BY THE COURT: You would have no objection, I think
10 you're saying, if Mr. LaTour does choose to testify?
11 BY MR. BASSETT: No.
12 BY THE COURT: It's a bit irregular.
13 BY MR. BASSETT: It is, judge, but I wouldn't have any
14 objection to it because Mr. LaTour has filed this lawsuit and I
15 understand it's his day in court as well as ours, and I wouldn't
16 have any objection to that.
17 BY THE COURT: Well, it's irregular, Mr. LaTour, but
18 is that what you wish to do? Do you wish to testify yourself?
19 BY MR. LaTOUR: Yes, sir, I'd be glad to.
20 BY THE COURT: And you know that you'll be cross-
21 examined--
22 BY MR. LaTOUR: Yes, sir, I understand that.
23 BY THE COURT: All right. Then why don't you come
24 around?
25 Do you want him on the witness stand, Mr. Bassett, or does
34
1 it matter?
2 BY MR. BASSETT: Judge, that would probably be easier.
3 BY THE COURT: Okay. Mr. LaTour, please raise your
4 right hand and be sworn.
5 All right. Mr. LaTour, come on around --
6 BY MR. LaTOUR: Should I bring my exhibits I want to
7 introduce with me?
8 BY THE COURT: Sure, sure.
9 All right. Mr. LaTour, let me just request and I
10 compliment you so far on the way that you are conducting
11 yourself here. I think you're doing a fine job as a pro se
12 litigant. It's a little bit unusual for a counsel to testify.
13 As a matter of fact, it's not permitted when counsel is
14 representing someone. They have to disqualify if they're going
15 to be a counsel.
16 But without objection, we'll permit it. I'll simply ask
17 that remember now you are giving testimony and this isn't the
18 time for closing statements or argumentation. So what I'll ask
19 you is to the extent that you are going to testify, you need to
20 testify as to facts. And it's a bit curious to me because
21 remember our last hearing and again today, you say there are not
22 really any facts disputed, so I'm not sure what I'm going to
23 hear about.
24 But I do want to ask you now to remember it is testimony
25 that you are relegated to giving me facts and not what your
35
1 opinions or arguments may be. And if you'll do that, that will
2 help us a long.
3 And Mr. Bassett, again, I'll ask you to be mindful of
4 scope. I do want you to confine your cross to the areas that he
5 gets into. I want to try to keep a pretty tight rein on this.
6 And if you wish to call him back, let's just see how it goes;
7 but I do want to try to keep on focus here.
8 All right, Mr. LaTour, what do you have to say?
9 JOHN LATOUR, PLAINTIFF, SWORN
10 DIRECT TESTIMONY BY THE PLAINTIFF
11 BY MR. LaTOUR: Your Honor, I have some other exhibits
12 that are back at the table. Would you excuse me and let me get
13 those?
14 BY THE COURT: Sure. And are these -- What do we have
15 left here? We have, I believe, 10, 12, 13, 14 and IS? Is that
16 what you have left?
17 BY MR. LaTOUR: That's correct.
18 BY THE COURT: That's what my scorecard says. All
19 right. Are you offering those then?
20 BY MR. LaTOUR: Yes, sir, I am.
21 BY THE COURT: All right. Do you have any objection,
22 Mr. Bassett, to 10, 12, 13, 14 and 15?
23 BY MR. BASSETT: Your Honor, I suppose I do have an
24 objection to -- What was the first number? Plaintiff's 12, 13,
25 14 and 15 on the basis that I don't believe that those documents
36
1 or this evidence is relevant to this proceeding. The Court has
2 -- or the individual defendants have been discharged or released
3 from this, dismissed from this case and these documents --
4 exhibits which Mr. LaTour wants to put in -- has to do with
5 correspondence from the City Prosecutor's Office and I believe
6 some correspondence from the Fayetteville Police Department with
7 regard to the prosecution.
8 BY THE COURT: Well, is it the purpose, Mr. LaTour, of
9 these document that we're talking about -- 12, 13, 14, 15 -- to
10 simply show the city says you cannot work your sign that way and
11 they ticketed you and there was a matter we've already heard.
12 Is that the purpose of this; to simply show that that happened?
13 BY MR. LaTOUR: The purpose of this suit is I'm
14 claiming that my civil rights were violated and Section 1983
15 says that the defendants, or the city in this case right now,
16 would be liable to me money damages for that violation.
17 BY THE COURT: Well, I understand, but now remember
18 what we talked about. You were asking a preliminary injunction
19 and you very correctly and, I thought, did a fine job in
20 pointing out that I need to consider the Dataphase criteria.
21 How do these things fit into that criteria?
22 BY MR. LaTOUR: One of these letters, I am told to
23 completely remove the sign from my window and do away with it.
24 BY THE COURT: All right. Why don't we do this? Mr.
25 Bassett, I thought we could save some time but because of my
37
1 effort, we're wasting time. So Mr. LaTour, why don't you come
2 back on and talk about them and then when you offer them, then
3 if Mr. Bassett has an objection, we'll deal with it at that 4 time.
5 So why don't you just go ahead and tell me. You were
6 talking about which one? Just talk about whichever one you want
7 to.
8 BY MR. LaTOUR: Okay. Exhibit Number 12, Plaintiff's
9 Exhibit Number 12; this is a letter from Mr. Warrick, the deputy
10 prosecutor, where he tells me,
11 "It is not my policy as city Deputy Prosecutor to
12 subject good citizens to the court system, and all
13 that that implies. The purpose of this letter is to
14 make you aware of the complaint, give you an
15 opportunity to" --
16 BY THE COURT: Well, let me -- Before you read it to
17 me, let's offer it. Do you object to it, Mr. Basset?
18 BY MR. BASSETT: Yes, sir, simply on the basis I don't 19 think it's relevant to the issue before the Court.
20 BY THE COURT: Okay. I'm going to overrule the
21 objection and we'll see. Obviously if it is irrelevant to the
22 Court's considerations, I will not give attention to it. But I
23 will permit it to come in.
24 Now you were reading from it, and go ahead.
25 BY MR. LaTOUR: One more -- two more sentences:
38
1 "You need to remove the sign within 14 days from the
2 date of this letter. Failure to comply can result in
3 a summons being issued for your arrest."
4 I was ordered to remove the sign.
5 BY THE COURT: Okay. All right. Number 12 then is
6 received over objection.
7 [Whereupon, Plaintiff's Exhibit 12 was received into
8 evidence.]
9 BY MR. LaTOUR: Should I hand it to someone?
10 BY THE COURT: Hand it up to me.
11 BY MR. LaTOUR: Exhibit 13, Plaintiff's Exhibit Number
12 13 is a letter that I wrote to Mr. Warrick in response to that
13 letter and explained to him --
14 BY THE COURT: All right. Just a minute without going
15 into it, same objection?
16 BY MR. BASSETT: Yes, sir.
17 BY THE COURT: All right. I'm going to overrule it
18 and receive it because I think it might help explain this one if
19 it turns out to be relevant.
20 So Plaintiff's 13 will be received without objection. Go
21 ahead. I mean, over objection -- Excuse me.
22 [Whereupon, Plaintiff's Exhibit 13 was received into
23 evidence.]
24 BY MR. LaTOUR: Okay. It's just explaining my side of
25 the story. It explains that I made two inquiries of the city --
39
1 one with Mike McKimmey, one with Bob Estes -- two weeks apart
2 and neither one of those men had spoken with the other. They
3 both told me the same thing. They said indoor signs are not
4 regulated. They did not say indoor signs do not require a
5 permit as the city now maintains. I was told indoor signs were
6 not regulated.
7 BY THE COURT: Okay.
8 BY MR. LaTOUR: That's--
9 BY THE COURT: That's Number 13.
10 BY MR. LaTOUR: Yes, sir.
11 BY THE COURT: All right, thanks.
12 BY MR. LaTOUR: Number 14 is a copy of the criminal
13 summons where the City of Fayetteville is beginning the
14 prosecution process.
15 BY THE COURT: All right. I take it you have the same
16 objection?
17 BY MR. BASSETT: Yes, sir.
18 BY THE COURT: It will be overruled. It will be
19 received, Plaintiff's 14, the summons -- criminal summons.
20 [Whereupon, Plaintiff's Exhibit 14 was received into
21 evidence.]
22 BY MR. LaTOUR: It lists my date of birth, my driver's
23 license number, my height and my weight. I am flattered by the
24 weight.
25 BY THE COURT: Okay?
40
1 BY MR. LaTOUR: That's all I have to say about that.
2 BY THE COURT: All right.
3 BY MR. LaTOUR: The last one I have to introduce right
4 now, the last of these documents -- I do have a couple of other
5 pictures I want to introduce.
6 This is a letter I received from the Fayetteville Police
7 Department. It says Plaintiff's Exhibit Number 15.
8 BY THE COURT: All right. And I take it the same
9 objection, Mr. Bassett?
10 BY MR. BASSETT: Yes, sir.
11 BY THE COURT: Be overruled, be received, go ahead.
12 [Whereupon, Plaintiff's Exhibit 15 was received into
13 evidence.]
14 BY MR. LaTOUR: This is perhaps the most damaging 15 document I have to the city's case.
16 BY THE COURT: Remember now, Mr. LaTour, don't 17 editorialize.
18 BY MR. LaTOUR: Okay, I'm sorry.
19 This document says:
20 "The Fayetteville Police Department holds an active
21 warrant for your arrest. The Fayetteville Municipal
22 Court has issued Warrant Number 2-0-0-0-5-1-2-3,
23 criminal charge, a criminal summons. You may present
24 yourself to the city jail located at 140-A West Rock
25 Street at any time day or night to take care of this
41
1 matter. In most cases, a cash bond is not needed to
2 meet certain requirements. For further information,
3 call these numbers."
4 Underlined, in bold print, it says:
5 "Failure to immediately take care of this matter will
6 result" -- not may result -- "in your physical arrest
7 and requirement to post a cash bond."
8 Plaintiff's Exhibit 15.
9 BY THE COURT: Okay, that's in. That's received over
10 objection.
11 Okay, what else, Mr. LaTour?
12 BY MR. LaTOUR: The next two are pictures; Plaintiff's
13 Exhibit 10 and 11.
14 BY THE COURT: Now we have 11, don't we?
15 BY MR. LaTOUR: Eleven is the sign ordinance. You
16 have pictures labeled "Large Sign Sixth Street"?
17 BY THE COURT: Okay. Any objection to that, Mr. 18 Bassett?
19 BY MR. BASSETT: I don't think so, judge.
20 BY MR. LaTOUR: Razorback ball game.
21 BY THE COURT: Why don't you call that 10-A and 10-B?
22 BY MR. LaTOUR: Okay.
23 BY THE COURT: Is that all right?
24 BY MR. BASSETT: No objection.
25 BY THE COURT: Be received without objection, 10-A and
42
1 l0-B.
2 [Whereupon, Plaintiff's Exhibits l0-A and l0-B were
3 received into evidence.]
4 BY THE COURT: Do you want to label those, Mr. LaTour,
5 or Anne can do it --
6 BY MR. LaTOUR: Thank you, Anne.
7 BY THE COURT: All right, sir.
8 BY MR. LaTOUR: These are pictures of a large highway
9 sign that was placed on Sixth Street on Razorback football game
10 day. I think the -- This is a picture taken just this fall.
11 BY THE COURT: Okay.
12 BY MR. LaTOUR: On October 19th. I think we were
13 playing Kentucky that day.
14 This is a changing sign that either the city or highway
15 department was operating in order to direct traffic. It's many
16 times the size of my sign and it operates just like my sign.
17 Yet no traffic accidents I could observe.
18 BY THE COURT: All right, thank you. Anything else,
19 Mr. LaTour?
20 BY MR. LaTOUR: I think that's all.
21 BY THE COURT: All right. Do you have cross, Mr.
22 Bassett?
23 BY MR. BASSETT: Yes, sir, just a few questions.
24 CROSS-EXAMINATION
25 BY MR. BASSETT:
43
1 Q. Mr. LaTour, the sign, the picture of the sign you just put
2 in; the one, I think, you said goes up on about parking on the
3 day of a razorback football game?
4 A. Yes, sir.
5 Q. Okay. First of all, who put that sign up?
6 A. I think it was either the city or the state. I couldn't
7 determine that.
8 Q. It wasn't the city, was it?
9 A. I don't know.
10 Q. It was the state. The University of Arkansas puts those
11 signs up, don't they?
12 A. I don't know that.
13 Q. Well, you don't know that the City of Fayetteville does, do
14 you?
15 A. That's correct.
16 Q. And will you accept the proposition that when they have a
17 game, a razorback football game on university state property,
18 it's the state putting those signs up, not the City of
19 Fayetteville. Will you accept that proposition?
20 A. No, sir, I won't accept that.
21 Q. Okay. And by the way, that sign that you put the
22 photograph in of, that's a sign that -- it just has a message on
23 there, right, about parking?
24 A. It had a changing message.
25 Q. Yeah, about parking?
44
1 A. I think it was about parking or traffic control.
2 Q. And it's only during a football game?
3 A. That's the only time I observed it.
4 Q. Well, you don't think they put those signs up on any other
5 time other than during a razorback football game, do you?
6 A. They're all up and down I-40.
7 Q. No. My question was this sign right here; the one you gave
8 the judge a picture of?
9 A. I don't think it's put up on other days besides football
10 games.
11 Q. Now you apparently, when you got this correspondence from
12 Mr. Warrick over at the prosecutor's office -- Previous to that,
13 you had been cited, I think, with a violation by the sign
14 inspector for the City of Fayetteville, right?
15 A. That's correct.
16 Q. I'm just wondering because apparently you investigated and
17 looked at the sign ordinance. Why didn't you appeal the
18 interpretation to the Board of Sign Appeals?
19 A. I wasn't aware of that provision. I did call the sign
20 inspector and his supervisor.
21 Q. In the ordinance, it says, "A person aggrieved by an
22 interpretation or decision of the building inspector regarding
23 signs may appeal." You didn't look into that?
24 A. Actually, that point, that very point came up this weekend
25 in depositions and appealing a ruling based on the flashing or
45
1 blinking nature as one of the code sections; that's not
2 appealable according to the ordinance.
3 Q. That's your conclusion. The point is, you did not choose
4 to appeal, did you?
5 A. I appealed to the supervisor of the sign inspector. I
6 didn't follow a formal appeal with the board.
7 Q. All right. And let me ask you this also since it came into
8 evidence. The correspondence you got from Mr. Warrick in the
9 prosecutor's office, they told you and let you know repeatedly
10 that they didn't want to prosecute you, didn't they? They just
11 wanted you to comply with the ordinance, correct?
12 A. Many times what's stated in a letter and what's really
13 intended are two different things.
14 Q. Well, the judge has got the letters up there. The letters
15 say what they say. But isn't it true, Mr. LaTour, that Mr.
16 Warrick and everybody in his office told you repeatedly that
17 they did not want to go through this process; that they did not
18 want to prosecute you, they just wanted you to comply with the
19 ordinance; isn't that true?
20 A. Not entirely.
21 Q. Ultimately, the case was resolved and the charges were
22 dismissed after you had been through -- I think it was called
23 Municipal Court then, it's Fayetteville District Court, then on
24 up to Circuit Court, and then the charges were ultimately -- or
25 you were ultimately able to have your fine refunded and your
46
1 costs, correct?
2 A. I had my fine refunded. I'm not at all sure my name has
3 not shown up on a convicted criminals list in Fayetteville's 4 records.
5 Q. Now Mr. LaTour, since then your sign --
6 BY MR. BASSETT: And judge, if I'm getting beyond the
7 scope here, I certainly will do whatever the Court wants me to
8 do.
9 There was a couple of other questions I'd like to cover
10 with Mr. LaTour, if I could.
11 BY THE COURT: All right. Mr. LaTour, why don't we go
12 ahead and do that? I'm trying to keep a tight rein on this but
13 I'd like to go ahead and --
14 BY MR. LaTOUR: That's fine.
15 BY THE COURT: -- get all this out.
16 BY MR. LaTOUR: Be glad to answer his questions.
17 BY THE COURT: I'll give you a chance to respond after
18 he's finished. 19 Go ahead.
20 BY MR. BASSETT:
21 Q. Now Mr. LaTour, you have an electric sign. How big is that
22 sign, by the way?
23 A. I believe it's eight inches tall by seventy-two inches
24 wide.
25 Q. Okay. And I don't want to get into a debate about whether
47
1 that's a big sign, a small sign or a medium sign; but the fact
2 is is that it's not very long, is it? In other words, you can't
3 get a whole lot of letters on there? 4 A. Twenty-one, actually.
5 Q. If you had a larger sign, you could have a longer message
6 on there, couldn't you?
7 A. Think I'd have to have a longer building.
8 Q. Well, yeah, but that's not the city's fault, is it?
9 A. Well, in a way it is.
10 Q. Now Mr. LaTour, since the -- I don't remember what the date
11 was, but since the disposition over there at circuit court, you
12 have been operating that sign and putting whatever message you
13 want to put on it, have you not?
14 A. No, sir, that's not correct.
15 Q. Well, let me ask this: I know your argument is the
16 frequency. What I'm trying to ask though now is as far as the
17 content is concerned of your message of whatever speech you want
18 to put on there, you have been doing that at-will and with no
19 restrictions whatsoever, have you not?
20 A. No, that's not correct.
21 Q. All right. Well, tell me why it's not correct?
22 A. I want to say Tim Hutchinson for U. S. Senate, and I can
23 only get Hutchinson, one word, on my screen. I can put Tim
24 three hours later.
25 Q. Okay. Let me ask you this: It's not the city's fault that
48
1 your sign is too small, is it?
2 A. It's the city's fault that I can't utilize my sign to its
3 complete ability.
4 Q. At the same time that you were wanting to do that - and the
5 judge has the photograph in evidence as Defendant's Exhibit
6 Number 5 - you had a huge sign out there telling anybody who
7 drove by who wanted to look over there that you supported
8 Senator Hutchinson for re-election to the United States Senate,
9 did you not?
10 A. That's correct.
11 Q. And nobody, period, has ever tried to restrict your
12 political views in any form or fashion, have they?
13 A. I think when Mr. Warrick tells me I have to remove my sign,
14 that's a restriction of my views.
15 Q. You haven't had to remove your sign, have you, Mr. LaTour?
16 A. Turn out, after I stood up to his challenge, he backed
17 down; but if I wouldn't have stood up, he would have made me
18 remove the sign.
19 Q. Well, we're talking about what's going on right now with
20 your sign because you're here today asking for the judge to
21 enjoin the City of Fayetteville from enforcing the sign
22 ordinance. And my question is, is at the present time and since,
23 then, have you been putting whatever message - whether it be a
24 political message or personal message or religious message - on
25 your electric sign inside your building out there?
49
1 A. I thought I had answered that question, but the answer is
2 still no.
3 Q. Well, what sort of messages do you put, Mr. LaTour, on your
4 electric sign? Can you give me some examples?
5 A. Right now, the electric sign says, "recallcoody. com."
6 There's a story at that website that explains why I think he's
7 not worthy of serving as mayor.
8 Q. Okay. What other sort of signs or messages do you have on
9 that sign?
10 A. That's all I have operating right now. I'm not changing
11 the message sign.
12 Q. But you put, and have in the past had religious messages,
13 have YOU not?
14 A. That's correct.
15 Q. And you've had all sorts of political messages?
16 A. I think two or three, if that's all sorts.
17 Q. And you've had messages about things that might interest
18 you involving the community or the City of Fayetteville; is that
19 correct?
20 A. No, I haven't. I don't feel like I have enough space to
21 really get into a community debate or really bring a community
22 issue which will change and affect and animate changes in the
23 communities politics and political ideas.
24 Q. Well, you have a number of ways, Mr. LaTour, like all the
25 rest of us to express your opinions here in the City of
50
1 Fayetteville, do you not?
2 A. There are alternative means of communication, I agree.
3 Q. And you're one of those citizens and, Godspeed to you, who
4 utilizes those opportunities, don't you?
5 A. No, I don't because of the added expense and the effort it
6 would take to engage in personally holding a picket sign in
7 front of my building or taking out a political ad in a newspaper
8 or on a television station. I don't engage and the Eighth
9 Circuit specifically ruled on that in City of Ladue v. Gilleo.
10 Many people like myself won't engage in those issues because of
11 the expense of the extra effort required to utilize those other
12 alternatives. That's why these electronic signs are very
13 important.
14 Q. And you have an electric sign that you operate 24 hours a
15 day at your building, do you not? 16 A. It says one thing.
17 Q. Okay. You can change that message more than once a day
18 though if you want to, can't you?
19 A. I'm a three into twenty-four -- Eight times a day.
20 Q. And do you do that?
21 A. No, I don't.
22 Q. Well, you could though, couldn't you?
23 A. Yes, sir, I could but it doesn't seem like worth the effort
24 now. What I'd rather do is have complete freedom to operate my
25 sign just like the other time and temperature displays are
51
1 doing.
2 Q. And if you had complete freedom to operate that sign,
3 you're talking about probably scrolling messages on there?
4 A. No, sir, not at all. I would operate my sign exactly like
5 the time and temperatures do. Time and temperatures do not
6 scroll. This is the unconstitutional application of the sign
7 ordinance. I am not allowed to function just like the time and
8 temperature signs.
9 Q. There's a big difference, though, between a time and
10 temperature number up there as opposed to a scrolling or
11 flashing message, is there not, in terms of what it might do to
12 a passing motorist or in terms of what it might do to ,
13 aesthetics?
14 A. If I were flashing or scrolling my message I suppose that's
15 true, but I would function just like time and temperature;
16 that's the whole point.
17 Q. Weren't you scrolling out there at one time?
18 A. When I first installed the sign. The computer controls the
19 sign and it can be very animated. It's a computer program. The
20 letters can explode, the can scroll up, down, they can scroll to
21 the left or right.
22 When I first installed the sign, for about the first 20
23 days, it was scrolling. It was doing things like that. But as
24 soon as I got a notice from the City of Fayetteville --
25 Remember, I was operating on the assumption that indoor signs
52
1 are not regulated; that's what I was told twice -- and when I
2 got the first notice, I sent John Blevins, an employee, out to
3 the Spring Tax Building to change the sign to make it function
4 just like time and temperature.
5 Q. Mr. LaTour, when you first went in and talked about the
6 electric sign with the city, you didn't tell anybody it was
7 going to flash or scroll, did you?
8 A. I didn't know that at that time. I made that decision
9 after the city told me indoor signs were not regulated. What I
10 was planning to put on when I was talking to the city was just a
11 simple painted sign. But when they told me indoor signs were
12 not regulated, there was no point to restrict my sign to just a
13 painted sign. This way I have flexibility where I can express
\ 14 opinions.
15 Q. What I'm trying, I guess, to ask is if you didn't go in and
16 say to the city officials, to the appropriate people who deal
17 with this and say look, here's what I want to do; here's the
18 kind of sign I want to have; what can I do with that sign; what
19 does the ordinance allow me to do? You never did that, did
20 you?
21 A. I did do that twice, Mr. Bassett. I told them each I want
22 to put a sign inside my office window. With Mr. Estes, I
23 specifically remember the term. I told him I want to know the
24 hoops I have to jump through; tell them to me, I want to jump
25 through them, I want to be legal. He called me back 30 minutes ~
.
53
I 1 later and told me specifically indoor signs -- now he didn't say
2 indoor signs, he used the term signs located behind the glass --
3 are not regulated, do as you please. It wasn't a permit issue.
4 It was a regulation issue.
5 Q. But what I'm trying to ask -- I know Mr. Estes used to be
6 one of your close friends; is that right?
7 A. He was an acquaintance. I wouldn't describe him as a close
8 friend. I invite him to my Christmas party still, but he never
9 comes.
10 Q. Well, Mr. LaTour, all I'm trying to ask is you didn't go
11 in, like, and do it the way most people do it when they want to
12 put a sign up -- Go in and sit down and say here's what I want
13 to do, here's what I'm thinking about doing, can I do it and if
14 not, why can't I do it?
15 A. Mr. McKimmey and I sat on December 23 -- the day after my
16 son, Nathan Britton -- Nathaniel Britton was born -- we sat in
17 front of the inspections desk, sat down together and we were
18 discussing the building. I asked him if I could have a sign on
19 the north face of the building. He told me that the planning
20 department only allowed me two signs; one facing east and one
21 facing west, which is fine if you're driving toward the building
22 in one of those directions. But if you're stopped in traffic
23 directly in front of the building and you looked at it, there
24 was nothing identifiable to the building.
25 So I asked Mr. McKimmey can I put a sign on the north face?
54
1 He said to do that you have to get a variance. I explained to
2 him I didn't want to go through that process. I then asked
3 could I put a sign in my window. When I said that, he told me
4 if it's inside I don't mess with it, meaning he's not regulated.
5 I was surprised by that answer and I asked him again, pressed
6 him on it; I said even if it's facing outward, meant to attract
7 attention outside? And he stood by his statement. He said if
8 it's inside, I don't mess with it, meaning it's not regulated.
9 Q. I want to ask you something, Mr. LaTour. I ask you if
10 these are some of the messages that you've had on your sign and
11 messages that have been free to run from the getgo. Choose
12 life?
13 A. That was one.
14 Q. Jesus said?
15 A. That's one.
16 Q. God listens?
17 A. That's one.
18 Q. Everybody is a life?
19 A. That's true.
20 Q. Come to me?
21 A. Yes.
22 Q. All you who labor?
23 A. Yes.
24 Q. Waiting for a sign?
25 A. Yes.
55
1 Q. Give you rest?
2 A. Yes.
3 Q. A choice?
4 A. Yes.
5 Q. And I think there were a few occasions when you've
6 advertised your business there, Sprint Tax Time?
7 A. Not since we received the first notice.
8 Q. At one time you were doing that?
9 A. During those first 20 days when I was under the impression
10 and belief as instructed by two city officials that indoor signs
11 were not regulated.
12 Q. SO then you started -- You weren't putting personal
13 messages up at that point then, were you?
14 A. Probably not. It was during tax season. I was probably
15 promoting Sprint Tax at that time.
16 Q. I mean, it was only after a dispute arose that you started
17 with the personal messages, right?
18 A. When I bought the indoor sign, it was with the full
19 intention of expressing my political and religious views.
20 Usually I would do that outside of tax season.
21 Q. Weren't you trying to figure out a way to get around the
22 ordinance then?
23 A. No, sir, not at all.
24 Q. Let me ask you this -- just a couple more. Every baby is a
25 life?
56
1 A. That's correct; that was on there.
2 Q. Then you've had a number of political-type messages on
3 there, have you not?
4 A. A number? Maybe two or three.
5 Q. Well, I think the one that's been on there mostly in recent
6 time has been the one with regard to the mayor?
7 A. That's correct.
8 Q. And nobody, Mr. LaTour, nobody, period, from the City of
9 Fayetteville has ever come to you or in any way tried to stop
10 you from putting whatever kind of critical message of any public
11 official you wanted to on your sign, have they?
12 A. That calls for a conclusion, Mr. Bassett. I did receive a
13 letter from the city prosecutor's office saying I have to remove ~.
14 it. That sounds like stopping me.
15 Q. That was quite some time ago. I'm asking about now. I'm
16 asking about the present here and in recent months, has anybody
17 from the City of Fayetteville tried to regulate the content; in
18 other words, what you wanted to say on that machine?
19 A. Nobody other than yourself in your arguments to this Court.
20 Q. Excuse me?
21 A. Nobody but yourself in your arguments to this Court.
22 BY MR. BASSETT: Well, I'll concede that point. I am
23 trying to win this case for the citizens of Fayetteville.
24 That's all I have, judge.
25 BY THE COURT: All right. Mr. LaTour, do you have
57
1 anything to add pertaining to what Mr. Bassett asked you?
2 FURTHER TESTIMONY OF JOHN LaTOUR
3 BY MR. LaTOUR: Mr. Bassett asked me about things my
4 sign said. He read off various phrases that were on the sign
5 from time to time. I use that very line of reasoning to explain
6 again; for a sign to say "Jesus said" for three hours, does not
7 really communicate very well, therein my speech is restricted.
8 And if a sign says "Every baby is" and doesn't say anything
9 else - that's all I can put on there - then the message is lost.
10 My ability to communicate my political and religious beliefs is
11 being severely hampered by the unconstitutional application of
12 the Fayetteville sign ordinance.
13 Time and temperature signs can freely function --
14 BY THE COURT: Again, that sounds like argument.
15 BY MR. LaTOUR: Yeah, I agree.
16 BY THE COURT: I'll give you a chance to do that
17 later.
18 BY MR. LaTOUR: Excuse me.
19 BY THE COURT: Okay. Anything else of a factual
20 nature?
21 BY MR. LaTOUR: No, sir, not at this time.
22 BY THE COURT: All right. Thank you, sir. You may
23 stand down.
24 I gather now, Mr. LaTour, you've put in all of your
25 exhibits and you have presented all of your testimony?
58
1 BY MR. LaTOUR: I think that's correct.
2 BY THE COURT: Then are you prepared to rest?
3 BY MR. LaTOUR: Closing arguments?
4 BY THE COURT: Well, save closing arguments.
5 BY MR. LaTOUR: Okay.
6 BY THE COURT: The rules say I give them a chance to
7 put on a case. So you rest with your side of it.
8 All right. We've been out here a little over an hour.
9 Let's take a recess and I'd like -- Why don't we take about
15 10 minutes and come back out about 10:25.
11 [Recess taken at 10:08 a.m.] 12 [Open Court - 10:34 a.m.]
13 BY THE COURT: All right. Mr. Bassett, are you ready
14 to call your witness?
15 BY MR. BASSETT: Yes, sir. I call Mr. Kit Williams.
16 BY THE COURT: Mr. Williams, come around, please.
17 BY MR. BASSETT: And judge, before we do that, I only
18 had one other exhibit that I want to put in. Let me show it to
19 Mr. LaTour first.
20 BY THE COURT: All right.
21 BY MR. BASSETT: Judge, I'd like to offer Defendant's
22 Exhibit Number 2 which is a complete copy of the -- it's the
23 Unified Development Ordinance for the City of Fayetteville which
24 includes the Fayetteville sign ordinance. There will be a
25 little duplication probably in what Mr. LaTour put in, but
59
1 there's also some additional part of the ordinance that I think
2 the record ought to contain, so --
3 BY THE COURT: Any objection, Mr. LaTour?
4 BY MR. LaTOUR: No objection, Your Honor.
5 BY THE COURT: Be received without objection.
6 [Whereupon, Defendant's Exhibit 2 was received into
7 evidence.]
8 BY MR. BASSETT: If I might just hand this to the
9 Court?
10 BY THE COURT: Okay.
11 KIT WILLIAMS, DEFENDANT'S WITNESS, PREVIOUSLY SWORN
12 DIRECT EXAMINATION
13 BY MR. BASSETT:
14 Q. Mr. Williams, would you state your name for the record,
15 please?
16 A. My name is Kit Williams.
17 Q. And do you have an official position with the City of
18 Fayetteville?
19 A. I'm the Fayetteville city attorney.
20 Q. Okay. And how long have you been a Fayetteville city
21 attorney?
22 A. About 21 months.
23 Q. Okay. Let's get right down to the meat of the matter here
24 if we could, and let me cover a couple of matters that were
25 brought up when Mr. LaTour, I think, was on the stand.
60
1 Are you familiar with the Fayetteville sign ordinance?
2 A. Yes, I am.
3 Q. And as part of your responsibilities as city attorney, are
4 you required to keep up with the ordinances and know what they
5 say and investigate them and research them from time to time?
6 A. Yes. I often go back and look at the ordinance and read
7 specifically because, of course, I don't have all the words
8 memorized.
9 Q. To the extent that any of this might make a difference in
10 any decision on this case, let me ask you these questions.
11 Mr. LaTour mentioned something about a painted sign on the
12 window. What does the ordinance provide for as far as someone
13 who would want to paint a sign on their window?
14 A. Well, I would call the Court's attention to Section 17402,
15 Subsection L which is entitled, "Signs on Windows," and it
16 states:
17 "Signs painted on or fixed to glass surfaces of
18 windows or doors and pertaining to the lawful business
19 conducted therein," --
20 and that's in the section of signs that do not require permits.
21 Q. Okay. Mr. LaTour also offered some photographs and had
22 some testimony regarding some signs over at the University of
23 Arkansas on the -- I believe they were there on the day of
24 Arkansas football games. Would those signs be regulated by the
25 City of Fayetteville?
61
1 A. I don't think that we could. They appear to be state signs
2 and as you're aware, the city can't regulate the state. We
3 can't regulate the University, either. People often complain
4 that the University makes too much noise, violation of our noise
5 ordinance, but unfortunately the city noise ordinance does not
6 control the University, and neither does our sign ordinance.
7 Q. Okay. Now at my request, did you go back and make a
8 determination to see how many sign applications have been
9 approved since May 1 of this year?
10 A. Yes. I asked planning and inspections, who have
11 responsibilities over signs, the number of applications that
12 were approved from May 1 to about November 15, and that was
13 approximately 125 or about 19 a month is how they run usually.
14 Q. Okay. Now we're here today on Mr. LaTour's Motion for a
15 Preliminary Injunction and therefore I want to ask you, Mr.
16 Williams, some questions and allow you to explain to the Court
17 what the affects would likely be on the City of Fayetteville if
18 the Court should grant the Motion and enjoin the city from
19 enforcing or administering its sign ordinance?
20 A. Well, it would be very disruptive to our whole planning
21 process and everybody that's going through it. The applicants
22 would not know whether or not they need to still comply with the
23 sign ordinance. If they put up non-complying signs or signs
24 that were not permitted, and would they then later have to take
25 them down? As you see, there's lots of sign applications. I
62
1 There's lot of developments that go forward that have signs, a
2 lot of commercial developments and so there would be a lot of
3 confusion, not only for the city administration but also for the
4 development community. That would be one problem.
5 Another problem would be simply the primary reasons for the
6 sign ordinance which is aesthetic quality and traffic safety.
7 If we start having a proliferation of flashing signs in town,
8 that would certainly go directly against the heart of the sign
9 ordinance which was to preserve the aesthetic beauty of
10 Fayetteville. It would also, I think, possibly lead to traffic
11 endangerment and as the Arkansas Supreme Court has stated in
12 upholding the flashing part of this ordinance.
13 Q. Okay. Now the sign ordinance, I believe, was passed in
14 Fayetteville on January 19 of 1973; is that correct?
15 A. I think that's right. It's been here about 30 years now.
16 Q. And has been an enforceable sign ordinance since that time,
17 correct?
18 A. Yes, that's correct.
19 Q. Now in the City of Fayetteville, under the ordinance, are
20 city officials required to take action when they are informed of
21 a possible violation of a city ordinance such as a sign 22 ordinance?
23 A. They are. They're required under Section 15301 that if
24 there is a violation, it states the alleged violation shall be
25 investigated and appropriate action taken. So it's a
63
1 requirement that if they're aware of a violation, they should go
2 forward.
3 Q. Okay. And to your knowledge, is that what occurred in this
4 case; I mean, with the people looking into it, including the
5 city prosecutor's office?
6 A. Yes, that's true. Of course, I didn't look into it myself.
7 This is not directly under my authority. The city prosecutor
8 does work in my department but from my information regarding
9 this entire case, that's what happened. They tried to get
10 voluntary compliance and after that was unsuccessful, they had
11 to go forward.
12 Q. It's true, is it not - if you know - that's it's extremely
13 rare for anyone to be prosecuted under an ordinance like this?
14 A. I can't think of anybody else that has been prosecuted.
15 There might be some, but I'm not aware of that.
16 Q. And that's because people comply when they're approached;
17 isn't that true?
18 A. I would guess that would be correct.
19 Q. Now let's talk for a moment about the appeal process. If a
20 citizen should disagree with the way a city official might
21 interpret a particular provision in any ordinance including the
22 sign ordinance, does that citizen have some opportunity or some
23 right to appeal that?
24 A. In virtually every case, there are appeal procedures for
25 disagreements with an official interpretation of the Unified
64
1 Development Ordinance. We have a specific chapter, which is
2 Chapter 155, entitled "Appeals," and it talks about all the
3 different -- how you do an appeal and where you file the appeal
4 and what type -- where you would go with your appeal.
5 For example, in Mr. LaTour's case, there is Subsection C to
6 that which says, "Appeals to the board, Sign Appeals," and it
7 says, "The following staff interpretations or decisions may be
8 appealed to the Board of Sign Appeals," and it says "Building
9 Inspector," which is what Mr. McKimmey was.
10 "A person aggrieved by an interpretation or decision
11 of the building inspector regarding signs may appeal,"
12 and they would appeal to the board of signs.
13 Q. Okay. And those appeal processes are in place and
14 available to citizen in the city of Fayetteville; is that
15 correct?
16 A. Yes, and they are, in fact, used. We have several boards
17 that do hear appeals: the Planning Commission, Board of Sign
18 Appeals, the Board of Adjustment. They all meet monthly and
19 hear appeals.
20 Q. Okay. Now there are certain types of signs which are
21 exempted under the Fayetteville sign ordinance; is that true?
22 A. Well, they're exempted from having to get a permit. They
23 still must meet the other requirements of the ordinance.
24 But, for example, a sign that would be painted on a window
25 of a business that relates to that business is exempt and there
65
1 are other signs that are exempted, but they still must meet the
2 other requirements of the sign ordinance, to my understanding.
3 Q. What about time and temperature signs, because Mr. LaTour
4 has certainly made that a central point in his case?
5 A. Yes. They're specifically mentioned as exempted from most
6 provisions of the sign ordinance. However, they do have
7 restrictions. They can't have any commercial messages up there
8 and they can only do time and temperature.
9 Q. Okay. Now in terms of a citizen's opportunities here in
10 Fayetteville to express his or her opinion about certain matters
11 of concern whether it's political or otherwise, what other free
12 avenues do citizens have in Fayetteville, other than a sign, to
13 express their opinions?
14 A. Well, the city of Fayetteville is the only city in the
15 state of Arkansas that has a public access channel; that it pays
16 tax dollars to have an independent non-profit group operate the
17 public access channel so people can go down there and express
18 their opinions free of charge. There might be some nominal
19 charge, but I don't think so. And we have a real strong
20 commitment to allow the citizens and others to express
21 themselves and that's one of the ways we do it. And of course,
22 at city counsel meetings, anytime that an issue is before the
23 city counsel, public comment is always taken and citizens are
24 allowed to speak and, of course, that is also broadcast over the
25 cable system over the government channel.
66
1 So there are numerous ways that the government of
2 Fayetteville has set for to allow citizens the freest use of the
3 First Amendment rights that we could imagine.
4 Q. Mr. Williams, are you aware of any city official here in
5 the city of Fayetteville who has in any way, at any time, tried
6 to regulate or quash the personal and political and religious
7 views of Mr. LaTour?
8 A. Absolutely not. The only thing that we were trying to do
9 is enforce the ordinance in the manner of the way signs work.
10 It's one of equity. It would not be fair to allow one person
11 like Mr. LaTour to have special privileges where other people
12 would not have them. And so we need to follow the ordinance
~ 13 uniformly and so that's why we've enforced the ordinance but not
14 to its content. Whatever the content that Mr. LaTour wants to
15 put on his sign, that's his own right under the Constitution.
16 Q. And you feel strongly about that, don't you? I
17 A. Absolutely.
18 Q. So does the City of Fayetteville, doesn't it?
19 A. That's why we spend taxpayer dollars to provide other, even
20 public forums so that people can express themselves in
21 Fayetteville.
22 BY MR. BASSETT: I'll pass the witness, judge.
23 BY THE COURT: Mr. LaTour, do you have questions?
24 BY MR. LaTOUR: Yes, sir, judge. I have a few
25 questions.
67
1 CROSS-EXAMINATION
2 BY MR. LaTOUR:
3 Q. Mr. Williams, if I put nothing but time and temperature on
4 my sign, would it be legal or illegal if it changed my message?
5 A. I would think -- Of course, I'm not the official
6 interpreter or the sign ordinance; that is, responsibility
7 according to the Unified Development Ordinance on the building
8 inspection division. But I would think that would, if it was
9 nothing but a time and temperature display and you had no
10 commercial message on it -- So if you complied with that
11 particular provision of the sign ordinance, then I would think
12 yes, that would be proper for you to put time and temperature on
13 there.
14 Q. I have no commercial message. So if my message said time
15 and temperature -- and you would agree with me that's not a
16 commercial message, correct?
17 A. That's correct.
18 Q. All right. Is it not also true if I say "stop Abortion,"
19 that also is a non-commercial message?
20 A. That's correct. That's not a commercial message.
21 Q. Okay. So you would say if I say time and temperature, I'm
22 legal, I'm fine, I can change my message as often as I like.
23 But if I say "stop Abortion," I cannot. Correct?
24 A. My understand is if you comply with the provision about.
25 time and temperature so that's all you have and you meet the
68
1 other requirements that are in that section for time and
2 temperature displays then yes, then you would be able to place
3 that in a flashing sort of way. In other words, that's the only
4 way that can work is if it changes.
5 Q. So if I understand what you're telling me correctly; in
6 order to determine whether or not the sign is legal or its
7 functioning is legal, you'll have to look at the sign and see
8 what the message is? If the message is just time and
9 temperature, it's legal. If it's something else other than
10 that, it cannot change and be illegal; is that correct?
11 A. If its time and temperature, I think it would be legal.
12 And if you attempt to put other messages on there with it
13 flashing and changing; yes, I think that would be a violation of
14 the sign ordinance.
15 Q. Very good, thank you. So the determination is based on
16 what the sign says, correct?
17 A. Yes. We also do that in relation between political signs
18 and commercial signs and things like that. For example, we
19 allow more latitude for political signs. They can be in
20 districts that commercial signs cannot be in - residential
21 districts during elections - and the only way you can
22 differentiate between a commercial sign and a political sign, I
23 guess you have to look at it and read it.
24 So there is some reading of signs to understand what they
25 say in order to be able to properly adjudicate what they are and
69
1 where they would fall within the ordinance.
2 Q. If I put a sign in my yard that says "Elect Smith to
3 Congress," how long can I keep that sign up - according to the
4 ordinance - in my yard?
5 A. "Elect Smith to Congress"?
6 Q. Whomever you'd like; a campaign sign?
7 A. I would need to look at the sign.
8 Q. How long could I keep that in my yard?
9 A. I think -- Of course, the ordinance speaks for itself. But
10 we have, under Subsection H, there is a section on election
11 campaign signs and they say:
12 "Political signs are permitted to be placed on private ~
13 property in any district subject to the following
14 conditions; and districts where signs are not
15 otherwise permitted" --
16 which was residential districts. Signs are normally permitted
17 in commercial and industrial districts --
18 "In districts where signs are not otherwise permitted,
19 a political sign may be erected but said sign shall be
20 removed within 72 hours following the final election
21 to which it applies."
22 Q. So according to the ordinance, I have to remove my
23 political campaign sign within 72 hours after the election,
24 correct?
25 A. Following the final election to which it applies.
70
1 Q. Okay, very good. If I put up a "Jim Lindsey for sale sign
2 by Jim Lindsey, call this number to buy this house" sign, how
3 long can I leave that sign up in my yard, according to the
4 ordinance?
5 A. Well, let's see. I have to go to that section. That would
6 be Subsection C, Real Estate Signs. And there it states, and it
7 has several different things, but it states that on a lot in any
8 district including a home district, residential district, there
9 may be erected on site one on-site unanimated real estate sign
10 providing when the lot is listed simultaneously with two real
11 estate firms, one sign per firm shall be permitted. And I don't
12 think that it states when the sign must be removed.
13 Q. Okay. So probably you don't have to remove that sign; it
14 could stay up as long as I wanted it to, correct?
15 A. I would think that would be correct.
16 Q. Is a political sign a commercial sign or a non-commercial
17 sign?
18 A. Well, I would think by saying it's political, it is
19 political and that's not commercial, my understanding.
20 Q. I agree with you. Very good. A political sign is not a
21 commercial sign.
22 Would you say a for sale sign by Jim Lindsey real estate is
23 a commercial sign or non-commercial sign?
24 A. It's a special sign, a real estate sign. It is for the
25 commerce of selling a home, though.
71
1 Q. Very good. So what we're saying is the ordinance restricts
2 non-commercial signs to a greater degree than they restrict
3 commercial sign. My political non-commercial sign has to be
4 removed within 72 hours after the final election to which it
5 applies, but my "For Sale by Jim Lindsey Real Estate" can stay
6 up as long as I like?
7 A. I think that's actually incorrect. The city counsel, when
8 they were looking at this and devising, trying to make it fair
9 for everyone involved, realized that real estate signs needed to
10 probably remain until the property was sold. If people began to
11 use real estate signs not to sell property but instead to
12 advertise a business, then I think that would be -- no longer
13 meet the real estate sign ordinance and if that actually had to
14 change -- if that Subsection had to change to make that clear,
15 then that's what would happen because obviously that's not
16 within the spirit of the sign ordinance and would not be within
17 the spirit of that particular exemption.
18 Q. But if my sign is simply trying to sell the house, there's
19 no restriction on how long I can leave it up, correct? As long
20 as it's trying to sell the house?
21 A. As long as you're trying to sell the house. You can, I
22 think, if you're a real estate company, you can put it up.
23 Q. Thank you. What is the underlying reasons for the
24 prohibitions against flashing, blinking or animation?
25 A. I think there are two basic ones: Aesthetics, I think, is
72
1 by far the most important one. I think that was one of the
2 major underlying reasons for the sign ordinance to be originally
3 adopted. And if you look at our general purposes of the Unified
4 Development Ordinances, it talks about one of their primary
5 purposes, which is that Section 150.02, it talks "enhance
6 aesthetic quality." It also talks about moderating street
7 congestion and, of course, safety considerations. Traffic
8 safety is the other primary reason, I think, behind the
9 prohibition against blinking and flashing signs.
10 Q. Does the ordinance regulate or restrict or limit in any way
11 the number of time and temperature signs that can be erected
12 inside the city?
13 A. Not that I'm aware of.
14 Q. SO under the ordinance scheme, citizens could erect tens of
15 thousands time and temperature displays, but could not erect any
16 other display that functions in a similar fashion that would
17 advocate some political or religious -- some non-commercial
18 message?
19 A. You can erect signs that would, you know, for your
20 particular message if you want to; they just cannot flash or
21 blink. That's correct.
22 Q. But time and temperature can?
23 A. They have to change in order to work. You can't have a
24 time display that does not change and have it work. Just the
25 same thing with temperature. If we tried to say you can put up
73
1 a thermometer or a clock but it can't move, then we said you
2 can't put up a clock or a thermometer and therefore, in order to
3 make it where it would be possible still to provide this public
4 service, we had to provide an exemption for them. Otherwise,
5 time and temperature displays would be basically outlawed in
6 Fayetteville.
7 Q. Where in the ordinance does it exempt time and temperature
8 displays from the prohibitions against flashing, blinking and
9 animation?
10 A. I think because of the fact that it has a specific
11 exemption for them, and I don't know if I'll be able to find
12 that.
13 Q. Tell me, while you're looking that up, what are exempt
14 signs exempt from again? You mentioned that when you were
15 testified with Mr. Bassett --
16 A. Permits.
17 Q. Permits? That's the only thing it's exempted from? In
18 fact, why don't you read that sentence for us? It has limiting
19 language in the sentence, I believe --
20 A. I think you want Section 174.03, Exemptions? It says:
21 "Exemptions shall not be construed as relieving the
22 owner of such signs from the responsibility of
23 complying with certain applicable provisions of this
24 chapter. The exemption shall apply to the sign permit
25 only and no sign permit shall be required for the
74
1 erection of the following sign" --
2 Q. SO again, I ask you -- Let's stop there. Exempt signs are
3 exempted from only one thing, according to the plain language of
4 the ordinance. What is that one thing?
5 A. Well, actually, it says you still have to comply with the
6 responsibility for complying with certain applicable provisions
7 of this chapter.
8 Q. I wonder what those would be?
9 A. Well, for example, set backs, things like that and signs.
10 Q. The exemption shall apply to the requirement for sign
11 permit only. I wonder what that means?
12 A. Well, I guess you don't have to have a sign permit.
13 Q. Exactly. Isn't it true, Mr. Williams, there is no place in
14 this ordinance that prohibits -- that exempts time and
15 temperature signs from the prohibition against flashing,
16 blinking or animation?
17 A. I think that when you read, there's a rule of statutory
18 instruction that an ordinance should be read, or a statute
19 should be read together as a whole. And if there's a reasonable
20 interpretation placed on it, then that's the interpretation you
21 place on it. You don't look for unreasonable or unfeasible
22 interpretations.
23 And since Section 8 says -- Excuse me, Section I says time
24 and temperature displays, it says:
25 "Time and temperature displays without advertising
75
1 matter providing all clearances prescribed herein for
2 signs similarly located or maintained."
3 Since you could not have a time or temperature sign without it
4 changing, then I think it's only reasonable to say that time and
5 temperature displays are not covered by the fluctuating
6 lumination provision -- because you simply would then be saying
7 that the city counsel was negating exactly what they were
8 saying. So that when you look at it and you place the normal
9 rules on instruction on any ordinance, the one of
10 reasonableness, then you must understand that specifically time
11 and temperature displays were allowed under this but all other
12 fluctuating signs that were not specifically in here, like
13 traffic signs and things like that which also change -- and I
14 don't think any of us would say that traffic signs should be
15 prohibited signs -- there's a whole interpretation of
16 reasonableness that we must place upon this ordinance. And so,
17 therefore, those signs I think are allowed under this ordinance
18 and that's why we don't prosecute them.
19 Q. Please explain to me if I'm operating a non-commercial
20 message sign the same way the time and temperature sign
21 operates, same size, same number of characters, time and
22 temperature changes between time and temperature and you say
23 that the rationale for the ordinance is we don't want to
24 distract passing motorists, we don't want to detract from
25 aesthetics; in your interpretation, your application of your
76
1 ordinance you're saying that doesn't, but a "stop Abortion" sign
2 would distract passing motorists. Can you explain to me the
3 differences there? If, in fact, I have to change my sign in
4 order to express my complete thought. You say time and
5 temperature has to change in order to function; I maintain my
6 political sign has to change in order to function to express my
7 complete thought. Tell me the differences there? Why would one
8 distract and the other would not?
9 A. Well, a lot of it is one of degree. If you're driving down
10 a road and you wonder what time it is, it takes only a mere
11 glance at a sign that has the time and temperature display to
12 see what the time is. Now in order for that to be accurate,
13 the time and temperature sign has to change because the time
14 goes on. Same thing with temperature.
15 If, on the other hand, you're driving down the road and
16 someone is wanting to express a complete thought in many words
17 and so they look at a sign like yours and it flashes some words 1
8 and then it flashes some more words, and that each time you're
19 having to read and understand what those words are - you're not
20 just looking at numbers that everybody can understand very
21 quickly -- but you're trying to understand your thoughts, then
22 the time that you take to have to read a sign that would be
23 conveying this political, long political or religious message
24 that you're trying to get through is so long that I think it
25 would be very much more of a traffic hazard. And so I think
77
1 that that is clearly a difference between what you would like
2 to do with your sign and what time and temperature displays are.
3 And I think that's why the city counsel, when they drafted
4 this ordinance 30 years ago, they looked at all these particular
5 provisions and they used their best judgment on what was the
6 proper thing to do, what would be safe, and what maybe was not
7 safe.
8 Q. Did you know that Rogers allows signs to scroll and change?
9 A. No.
10 Q. Did you know that Springdale allows for signs to scroll and
11 change?
12 BY MR. BASSETT: Your Honor, I would simply object on
13 the basis that we're talking about the Fayetteville city
14 ordinance, a sign ordinance, and not --
15 BY THE COURT: Well, and I think, too, that may assume
16 a fact not in evidence, Mr. LaTour. I don't know if that's sure
17 or not but if he says he doesn't know -- I'll sustain the
18 objection. Go ahead.
19 BY MR. LaTOUR: Okay. All right.
20 BY MR. LaTOUR:
21 Q. Let's go back to you were talking about, under questioning
22 from Mr. Bassett, if we were to grant the Preliminary Injunction
23 today, it would cause massive havoc with having to redraft the
24 ordinance.
25 How much trouble would it be to redraft the ordinance to
78
1 bring it into compliance with what the Supreme Court has said is
2 the constitutional protection we need, First Amendment rights?
3 A. Well, we think it's already constitutional. It's been
4 tested several times for its constitutionality and found
5 constitutional. To redraft ordinances might be very simple, but
6 I'm telling you right now we're looking at the impact of the
7 ordinance for the City of Fayetteville. This ordinance has been
8 studied, drafted, re-drafted, thought about for two years now
9 and we have not got to the final form. I hope that maybe we are
10 close because certain aldermen who wanted very much to have
11 input on this are about to leave office without being able to
12 even vote on the ordinance.
13 So redrafting ordinances, especially in these complicated
14 areas and, of course, the impact if he has other constitutional
15 questions about it also just like sign ordinances -- these are
16 complicated areas and it's difficult to draft perfect ordinances
17 and it takes time and much thought and work to do that.
18 So that will be a very long and complicated process.
19 Q. Under Section 174.21 in my version of the ordinance - I'm
20 not sure that's going to be the same version as yours --
21 Application for Initial Sign Permit, there are eight
22 requirements listed there, eight pieces of information needed.
23 Mine are enumerated using letters. I think yours might be
24 numbers, might be Item 8?
25 A. I'm sorry. What section was that? I
79
1 Q. 174.21, I think; that's what it is on my version of the
2 ordinance; Application for Initial Sign Permit. It lists the
3 information - name, address, number of applicant, location of
4 building, position of the sign, two blueprints --
5 A. Go ahead.
6 Q. I'd like for you to read for us what the last requirement
7 is?
8 A. Unfortunately, I don't have that with me. You'll have to
9 read it. I don't have that.
10 BY THE COURT: "Such other information as the building
11 inspector shall require; show full compliance with the code of
12 Fayetteville." Isn't that it?
13 BY MR. LaTOUR: That's correct.
14 BY MR. LaTOUR:
15 Q. Such other information, Mr. Williams. I wonder what the
16 city inspector might require. Do you have any idea?
17 A. I'm not sure. I would think that it would be something to
18 make sure it's in compliance with the sign ordinance.
19 Q. Would you agree with me that that provision leaves the
20 citizen at the unbridled discretion of the local official?
21 A. No. Any information he would request would have to be
22 something to make sure that the sign was in compliance with the
23 sign ordinance. He would not have discretion as about anything
24 else.
25 Q. And how does that language limit him there?
80
1 A. Well, he can't do anything beyond what the ordinance says.
2 And you know that's, again, when ordinances are written, there
3 is a presumption that they must be read with reasonableness.
4 And if someone would try to do something that was not allowed,
5 if he tried to ask questions that were not permitted, then
6 certainly anybody who asked a question would not have to respond
7 and could appeal to the Board of Sign Appeals and I'm sure they
8 would sustain a citizen's objection.
9 Q. If they didn't disagree with his political speech, I
10 suppose that's true.
11 Let's talk about the Board of Sign Appeals right quick.
12 Back in the back of the ordinance they talk about the citizen's
13 right to appeal and ask for a variance?
14 A. No, you don't ask for a variance.
15 Q. Okay. You appeal the ruling or you appeal for --
16 A. Yes. It's Chapter 155, Appeals, which actually one of the
17 earlier parts -- We tried to group different things in different
18 chapters so people would be able to find it easier in Subsection
19 C there.
20 Q. Okay. And are there -- My copy is 174.68,
21 "Duties: The Board of Sign Appeals shall have the
22 following powers and it shall be its duty" -- .
23 BY THE COURT: What section is that? Excuse me. What
24 section is it, please?
25 BY MR. LaTOUR: I think 174.68.
81
1 BY THE COURT: Dot 68?
2 BY MR. LaTOUR: Right. That's what it is on my copy,
3 judge.
4 BY THE COURT: I don't even see a 174.68.
5 BY MR. LaTOUR: Do you see a section dealing with the
6 Board of Sign Appeals?
7 BY THE COURT: No, I certainly don't. Can you show me
8 that in either Plaintiff's Number 1 [sic] or Defendant 2 to me?
9 I'm just not finding it. It's 174.68 or dot 68, is that what
10 you're saying?
11 BY MR. LaTOUR: Yes, sir.
12 BY THE COURT: I sure don't see that. It looks like
13 it only goes to 174.13.
14 BY THE WITNESS: That's where mine ends.
15 BY MR. LaTOUR: Do you have a section labeled Board
16 Appeals?
17 BY THE COURT: Well, I just have what you all have
18 been reduced here, Mr. LaTour, and I only see 174.13, Area Size,
19 and then there's a section in Defense 2 that says,
20 Administration, and that's Chapter 152 through 155.07. That's
21 all I have. I don't know what you're talking about there.
22 You need to show me in one of these exhibits that's on the
23 record. If you're going to read to me something that I don't
24 have in front of me, that's a problem.
25 BY MR. LaTOUR: Right.
82
1 BY THE COURT: So why don't you show me what that is
2 here? The only two versions of this are Plaintiff's 11 and
3 Defense 2. Now I may have missed it because I'm not as familiar
4 with that as you are; but would you see if you can find what you
5 want to talk about in those two documents -- in one of them,
6 anyway?
7 It may be, Mr. LaTour - it happens to me sometimes -- that
8 somebody has scrambled your papers; but we'll need to see if
9 that's in the documents there in evidence.
10 BY MR. LaTOUR: Judge, apparently what I introduced as
11 a sign ordinance isn't the same copy I have here. I'll have to
12 go back and research it.
13 So should I withdraw the question?
14 BY THE COURT: Well, yeah -
15 BY MR. LaTOUR: Or introduce more evidence?
16 BY THE COURT: We'd better stay with what we have
17 here. Let me just state parenthetically, too, that when I
18 reviewed - Mr. LaTour - your submissions -- Let's see. I think
19 it was in connection with your Motion for Partial Summary
20 Judgment, there was attached to it what you characterized as the
21 Fayetteville, Arkansas Unified Development Ordinance, Title 15,
22 Chapter 174, formally Chapter 158 of what was attached. It was
23 158 and that's a totally different set of numbers than Chapter
24 174, so I don't know how that correlates. It looks like, to me,
25 they're about the same although I do notice one difference.
83
1 When I helped you out - unsolicited, I might say - with
2 respect to what that requirement was concerning the application
3 of permit requirements, you will recall that I read to you,
4 "Such other information as the building inspector shall require
5 to show full compliance," I read with the code of Fayetteville.
6 But that earlier version said "show full compliance with city
7 ordinances," so I don't know what's going on.
8 What you submitted to me earlier is not what's being
9 submitted here. I assume it's later version but I don't know.
10 BY MR. BASSETT: Your Honor, I -
11 BY THE COURT: I'd really like to know which is the
12 BY MR. BASSETT: And I think we have a witness on the
13 witness stand right now that can explain all that, and I'll be
14 happy to ask or maybe Mr. LaTour, maybe the Court would just
15 want to ask Mr. Williams - Judge, it is confusing but there is
16 a good explanation as to why there's different numbers.
17 BY THE COURT: Well, do you two gentlemen agree that
18 what you've given to me here, that this is the current version,
19 one or both of them, of the applicable city ordinance or city
20 provisions that relate to the signage?
21 BY MR. BASSETT: Yes, sir. Defendant's Exhibit Number
22 2 is, I can assure you.
23 BY THE COURT: Okay. Mr. LaTour?
24 BY MR. LaTOUR: Judge, we went to the city yesterday.
25 Mr. Emis went to the city and asked them for a complete version
84
1 of their sign ordinance, and this is what they gave us. I
2 didn't go back through and check it section for section. I've
3 been operating off of probably an older ordinance; what was in
4 effect when I was convicted.
5 BY THE COURT: Okay. I think you're referring to
6 something I don't have here, so I think we need to leave that
7 aside-
8 BY MR. LaTOUR: Okay.
9 BY THE COURT: -- and I'm going to go on the
10 assumption that what I have here is what's operative until y'all
11 show me different, okay?
12 BY MR. LaTOUR: Okay.
13 BY THE COURT: All right, go ahead.
14 BY MR. LaTOUR: I'll go ahead.
15 BY MR. LaTOUR:
16 Q. Mr. Williams, do prosecutors have discretion in who they
17 prosecute in the City of Fayetteville?
18 A. I think its uniform throughout probably the United States
19 that there is some discretion for prosecutors to make
20 determinations about who they should prosecute, what cases are
21 worthy of prosecution, which cases have sufficient evidence and
22 which do not.
23 Q. SO you'd say yes?
24 A. Yes, I think prosecutors do have discretion.
25 Q. Okay. Did you have any discussions with the city
85
1 prosecuting staff before they began my prosecution?
2 A. I was not city attorney at that point in time. But the
3 answer correctly is no, I did not.
4 Q. Thank you. Once the prosecution began or once this case
5 began, did you do any investigation into what the Constitution
6 requires or what the First Amendment requires the sign ordinance
7 to do in order to not be an illegal prior restraint or regulate
8 -- Did you investigate that?
9 A. I did not personally research the law on that. I was shown
10 briefs by the city prosecutor and deputy city prosecutor in
11 relation to the motions you had filed in circuit court claiming
12 it was unconstitutional and their responses thereto.
13 BY MR. LaTOUR: Okay. Those are all the questions I
14 have, judge.
15 BY THE COURT: All right. Cross? Or redirect, I'm
16 sorry.
17 BY MR. BASSETT: Just one, judge.
18 REDIRECT EXAMINATION
19 BY MR. BASSETT:
20 Q. Mr. Williams, I think I probably should have done this at
21 the outset. I think it would be helpful to the Court and to the
22 record and to all of us to explain, you know, why we have
23 different numbers on some of these ordinances. Can you explain
24 to the Court how all that has occurred?
25 A. In the mid-80s, mid-90s, there was an effort made by the
86
1 planning department and also, I think, the city attorney's
2 office and some aldermen to try to gather up all of the
3 development ordinances in one unified development ordinance and
4 to make some minor changes and do things like put all the
5 appeals rights in one chapter and all the variances in one
6 chapter and all the conditional leases in one chapter to try to
7 make it more user friendly.
8 And after that long effort, which was probably a year and a
9 half or maybe even longer, the city council then adopted this
10 new Unified Development Ordinance. And part of that Unified
11 Development Ordinance that was adopted was Chapter 174, Signs.
12 The other numbers was back when it used to be just part of the
13 Code of Fayetteville, and now it's still really part of the Code
14 of Fayetteville but it's also part of the Unified Development
15 Ordinance.
16 BY MR. BASSETT: Thank you. And the judge may want to
17 ask a follow-up, I don't know. I just thought it was important.
18 Judge, I should have done that at the start. I'm sorry.
19 BY THE COURT: That's okay. Thank you.
20 BY MR. BASSETT: That's all I have, judge.
21 BY THE COURT: All right. Anything further?
22 BY MR. LaTOUR: No, sir.
23 BY THE COURT: All right. Thank you, sir, you may
24 stand down.
25 Anything further, Mr. Bassett?
87
1 BY MR. BASSETT: No, sir.
2 BY THE COURT: All right. Gentlemen, do you care to
3 make arguments beyond what you've already told me? Mr. LaTour?
4 BY MR. LaTOUR: Would these be closing arguments,
5 judge?
6 BY THE COURT: I think it would be.
7 BY MR. LaTOUR: Is there a time limit?
8 BY THE COURT: Well?
9 BY MR. LaTOUR: Five minutes?
10 BY THE COURT: I think five minutes would be very
11 realistic.
12 BY MR. LaTOUR: Okay.
13 Your Honor, I think Mr. Williams basically admitted that if
14 my sign was saying nothing more than time and temperature, it
15 would be legal. Because I'm saying something other than time
16 and temperature, the very basis for the application of the
17 ordinance requires the official to examine the content of the
18 sign. Under any commonsense understanding of the term, that is
19 content regulation.
20 Two things the Constitution and my research -- Two things
21 the Constitution finds to be odious is content regulation and
22 illegal prior restraint. When I read the Fayetteville Sign
23 Ordinance, I find both present and prominent.
24 Prior restraints, although not illegal per se, come with a
25 strong constitutional assumption that they will be illegal.
88
1 Illegal prior restraints exist where the citizen is left with
2 the unbridled discretion of the local official. And in order to
3 prevent that from happening, the Supreme Court in a case called
4 FWPBS v. Dallas, versus City of Dallas, enumerated two
5 safeguards that have to be in any prior restraint ordinance.
6 And those safeguard were the local official has to give his
7 denial or permission for expressive activity within a brief
8 specified period of time.
9 The second requirement was that if the official declines to
10 allow the expressive activity to take place, the ordinance has
11 to guarantee a speedy independent judicial review.
12 Both of those safeguards are noticeably absent from the
13 Fayetteville ordinance. And unlike Mr. Williams'
14 characterization, I don't think adding those to the Fayetteville
15 ordinance would be overly burdensome to the City of
16 Fayetteville, but I think would go a great distance in securing
17 and ensuring our First Amendment freedoms of speech.
18 In the way the sign ordinance is being applied? Let me go
19 back. I'm talking about facial challenges here. I think it's
20 an illegal prior restraint. I also think it regulates the basic
21 content. Each one of the exempt signs specifically requires a
22 sign administrator to read the sign and see what it says in
23 order to determine whether or not that sign has to apply for a
24 sign permit. Sayings such as fuel price signs, building
25 nameplates, time and temperature signs -- all of those
89
1 specifically refer to the content of those signs. It would be
2 impossible to apply the ordinance without first reading the sign
3 and see if it meets the exemption clause because of what it
4 says. That, according to the research I've done, indicates the
5 sign ordinance is content based, on its face.
6 The way the sign ordinance is being applied -- my second
7 challenge to the ordinance -- I -find quote after quote from
8 Supreme Court cases.
9 "Although the city may distinguish between the
10 relative value of different categories of commercial
11 speech, the city does not have the same range of
12 choice in the area of non-commercial speech."
13 This is from Metro Media v. San Diego, a 1981 case. The city
14 can distinguish between commercial speech or the relative value
15 of commercial statements that are made on signs, but it cannot
16 choose the value between different, non-commercial messages.
17 Time and temperature is a non-commercial message. My
18 message board was a -- is a non-commercial message board. The
19 city is distinguishing between non-commercial messages where it
20 allows time and temperature to function but won't allow my sign
21 to similarly function.
22 Mr. Bassett went to great extremes to indicate that the
23 city was not trying to regulate anyone's speech or not taking
24 that right away. This very issue was addressed in Discovery
25 Network v. City of Cincinnati. There, they were talking about
90
1 newspaper racks. The city was distinguishing between newspaper
2 racks that sold newspapers and those newspaper racks that
3 distributed real estate fliers and commercial speech of that
4 nature.
5 The City of Cincinnati argued that the City of Cincinnati
6 was not limiting based on the content of speech. The Courts,
7 the Justice had this to say:
8 "The argument is unpersuasive because the very basis
9 for the regulation is the difference in content
10 between ordinary newspapers and commercial speech.
11 True, there is no evidence that the city has acted
12 with animus toward the ideas contained within the
13 response publications, but just last term we expressly
14 rejected the argument that discriminatory treatment is
15 suspect under the First Amendment only when the
16 legislature intends to suppress certain ideas.
17 "Regardless of the mens rea of the city, it has
18 enacted a sweeping ban on the use of newspaper racks
19 to distribute commercial handbills but not newspapers.
20 Under the city's news rack policy, whether any
21 particular news rack falls within the ban is
22 determined by the content of the publication resting
23 inside the news rack. Thus, by any commonsense
24 understanding of the term, the ban is content based."
25 And I think that is directly applicable in this case.
91
1 The city says they are not acting with animus toward ideas
2 on expressing, but that's not the only criteria the courts look
3 at to determine whether or not there is content regulation.
4 Under any commonsense understanding of the term, as Mr. Williams
5 readily admitted, if my sign said nothing more than time and
6 temperature, I could change it; if it says something else, I
7 cannot change it anymore frequently than once every three hours
8 under the current rule.
9 I would add furthermore, the time and temperature sign on
10 North College -- I spoke with Mr. Mayhew, who is the president
11 of that financial institution, he informed me -
12 BY MR. BASSETT: Excuse me, now. We're getting into ,
13 testimony that's not in the record, argument, and-
14 BY THE COURT: Yeah, I think so -
15 BY MR. LaTOUR: Excuse me. Okay.
16 BY COURTROOM DEPUTY: Your time is up, Mr. LaTour.
17 BY MR. LaTOUR: Thank you.
18 BY THE COURT: Well, go ahead and finish that thought.
19 BY MR. LaTOUR: The time and temperature -
20 BY THE COURT: I'm going to overrule that. I never
21 get to overrule her in that office back here, but I can on the
22 record. [Laughter] Go ahead.
23 BY MR. LaTOUR: The time and temperature sign has been
24 functioning for nearly 25 years on North College. To my
25 knowledge, it had never been cited, it operates freely, it's not
92
1 causing any of the deleterious effects the city is arguing that
2 my sign would cause.
3 I don't think my sign would cause those, either; for the
4 same reasons, it doesn't.
5 BY THE COURT: All right.
6 BY MR. LaTOUR: Thank you.
7 BY THE COURT: Thank you, sir. Mr. Bassett?
8 BY MR. BASSETT: Your Honor, I think that Mr. Williams
9 did a very good job. I hope we've done a good job in explaining
10 the difference in a time and temperature sign with what Mr.
11 LaTour has out there.
12 Now we're here today on his Motion for a Preliminary
13 Injunction and the Dataphase case, obviously, sets for the
14 considerations for the Court to consider.
15 I did want to say one thing, Your Honor, because the last
16 time we were in this Court, mention was made of, I believe, the
17 Marcus v. Iowa Public Television case out of the Eighth Circuit.
18 And I know the Court made reference a statement in there which
19 said that the loss of First Amendment freedoms for even minimal
20 periods of time unquestionably constitutes irreparable injury.
21 I would like to point out in that case it was political
22 candidates who were trying to be a part of a debate on Iowa
23 Public Television and had been excluded by the Public Television
24 Network from participating in the debate. In other words, it
25 was a situation where if they didn't get relief, they were not
93
1 going to be able to participate at all.
2 In this instance, and I think this is extremely important,
3 Mr. LaTour has an electric sign which is regulated to some
4 extent by the City of Fayetteville only in the sense that it
5 can't fluctuate, it can't scroll, it can't flash; but that in no
6 way, Your Honor, regulates the content or the messages that Mr.
7 LaTour chooses to display on that electric sign. He is free and
8 has been free from the get-go to express any political or
9 personal or religious opinion he wants to on that sign 24 hours
10 a day.
11 In addition to that, under the sign ordinance he has been
12 completely free to express his political opinions and support
13 for political candidates with banners and signs such as he did
14 in this last election.
15 He has been completely free, Your Honor, to express his
16 opinions. Now the First Amendment rights that we all have are
17 dear to all of us and extremely important and ought to be
18 protected to the utmost. It's not a completely unconditional
19 situation where a person can do anything. For example, I mean,
20 you can come down -- you have a right to come have a rally on
21 the square at noon in support of any cause or political view
22 that you might have, but you can't go out into somebody's
23 neighborhood at midnight and do the same thing. There are some
24 reasonable restrictions on all of our First Amendment rights,
25 and Mr. LaTour has not been unreasonably restricted with the
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1 operation of his electric sign in being able to express his
2 views political, religious and otherwise.
3 And when you go back, Your Honor, and look at the factors
4 in the Dataphase case, we would simply suggest - and then I'll
5 sit down - that Mr. LaTour has not demonstrated any degree of
6 irreparable harm and when you consider the balance of any
7 potential harm to Mr. LaTour versus any potential injury to the
8 City of Fayetteville if an injunction was granted, I think Mr.
9 Williams set it out very plainly and very clearly as to the
10 negative impact and the potential injury and damage that would
11 occur to the City of Fayetteville if the Court were to enjoin
12 the city from administering or enforcing its ordinance.
13 And I think, Your Honor, when you consider another factor -
14 the public interest - the Arkansas Supreme Court has said that
15 aesthetics and safety are legitimate concerns of the legislative
16 body in a city, and Fayetteville has chose long ago to make
17 aesthetics, when it comes to signs, a very important factor here
18 in the community. It's something of great concern and interest
19 to the community. And the Supreme Court of Arkansas has said
20 that aesthetics and safety considerations are legitimate goals
21 and are legitimate reasons to have requirements on fluctuating,
22 illuminating, flashing, scrolling signs.
23 And Your Honor, furthermore under Dataphase, Mr. LaTour has
24 to demonstrate a probability that he will succeed on the merits
25 at trial. And we simply believe that he has not met his burden
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1 of proof under the requirements of Dataphase and that this Court
2 ought to deny his Motion for Preliminary Injunctive relief.
3 Thank you, Your Honor.
4 BY THE COURT: All right. Gentlemen, I've heard you
5 out and I thank you for your arguments. I want to ask a
6 question or two. Do not attach to this any significance to
7 these questions. I intend to take the matter under advisement
8 and I will issue a written finding in a written Order. So I
9 wish that you will understand my questions in that framework.
10 It has been mentioned that because of the way the criminal
11 matters were resolved with respect to Mr. LaTour, that since
12 that time - and it's been a matter of several months, I believe ,
13 - that an arrangement has been in place, as I understand it,
14 whereby Mr. LaTour may use his sign - which I understand is
15 eight inches by seventy-two inches - and that he may illuminate
16 it with a message and that he may change that sign every eight
17 hours - not more often than that.
18 BY MR. BASSETT: It's-
19 BY THE COURT: Every three hours; eight times within
20 the 24 hour period.
21 Now am I correct in understanding that that is the
22 arrangement that's in place?
23 BY MR. BASSETT: Yes, sir.
24 BY MR. LaTOUR: That's correct, judge.
25 BY THE COURT: All right. And I assume, well, let me
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1 ask: Is there any basis for that arrangement in the city
2 ordinance as now written, Mr. Bassett?
3 BY MR. BASSETT: No. The ordinance -- It's not in the
4 ordinance. The Court has the ordinance.
5 BY THE COURT: Okay. All right. Is there any -- What
6 is the rationale for saying that it may be changed only every
7 three hours as opposed to every two hours or everyone hour or
8 every ten minutes?
9 BY MR. BASSETT: Well, that was the arrangement, Your
10 Honor, that was reached between the -
11 BY THE COURT: Yeah, I'm aware of that. I'm just
12 questioning what's the rationale? Why three hours as opposed to
13 two or one or -
14 BY MR. BASSETT: I mean, I think that's a very --
15 first off, that's a very fair question and I don't know that --
16 I mean, I wasn't a party to that. But I think if you start --
17 That seemed to be some kind of reasonable, you know, number to
18 use. You start getting it, I guess, down lower, then you start
19 getting in a different situation.
20 But I can't explain how they came up with that number. Now
21 maybe Mr. Williams -
22 BY THE COURT: Well, Mr. LaTour is on his feet. Let
23 me ask him. Do you know, Mr. LaTour?
24 BY MR. LaTOUR: I asked that very question to Mr.
25 Casey Jones in the settlement conference in front of Judge
97
1 storey, Mr. Warrick, Mr. Jones and Mr. Steven Hargraves, an
2 employee of mine were in that meeting -
3 BY THE COURT: Well, I appreciate that you but I need
4 -- Can you tell me why?
5 BY MR. LaTOUR: The rationale was this: I asked him,
6 "You and I would both agree that changing my sign's message once
7 every three hours and not flashing, correct?" He said correct.
8 And I said, "Casey, how about every two hours? How about every
9 one hour? How about every 30 minutes? How about every ten
10 minutes? A sign that says the same thing" --
11 BY THE COURT: Mr. LaTour, I mean, I really want you
12 to focus on the question. Do you know why? Was it just agreed
13 upon? Was there any rationale behind it?
14 BY MR. LaTOUR: He stopped me and said, "Mr. LaTour,
15 you don't understand. I'm a lawyer but I don't get to chose my
16 clients. I have to put up with what the city voters give me. I
17 just don't think I can convince the city council of it."
18 That was his rationale; the political pressures he felt
19 from the city counsel.
20 BY THE COURT: Well, all right. Thank you. Now Mr.--
21 BY MR. BASSETT: Your Honor, could I just say one
22 thing? I mean, and this is -
23 BY THE COURT: Well, again, I don't want you to go off
24 running rabbits on this, but I have understood the city's
25 position to be here that there are two reasons why the flashing.
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1 sign Mr. LaTour wishes to have is violative of the city
2 ordinance. Two concerns: One is aesthetics and second is
3 safety, traffic safety; and that the idea is if it flashes, that
4 a motorist going by might look at it too long and lose control
5 of his or her vehicle. Is that fair? That's what I've
6 understood.
7 BY MR. BASSETT: Yes, sir.
8 BY THE COURT: Now I'm troubled understanding what is
9 the reasonable relationship to a three hour requirement for a
10 motorist passing by. I don't think it would take three hours to
11 go by. And I think you've answered my question; it was simply a
12 compromise that was reached to resolve a criminal matter at that
13 time and it doesn't sound like to me that that three hour period
14 has anything at all to do with traffic safety. You don't feel
15 it does, do you, Mr. Bassett?
16 BY MR. BASSETT: No. Judge, I mean, I wasn't there
17 but it's obvious the plain, honest answer -- It was a
18 compromise. They were trying to accommodate Mr. LaTour; that
19 was what was agreed upon.
20 BY THE COURT: Okay. Is that right, Mr. LaTour;
21 that's kind of where it is, for whatever reason? Whatever Mr.
22 Casey Jones reasons was, but this was an agreement and an
23 accommodation you all reached at that time?
24 BY MR. LaTOUR: Exactly.
25 BY THE COURT: And you have followed it and lived by
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1 it?
2 BY MR. LaTOUR: Exactly.
3 BY THE COURT: All right. Now another question I
4 have. Mr. LaTour, let me address this to you.
5 Now you have argued a number of times that your sign is
6 precisely, exactly the same as time and temperature, no
7 difference; is that right?
8 BY MR. LaTOUR: Correct.
9 BY THE COURT: Now is it really -- Do you believe that
10 Mr. LaTour's view of what the temperature is any given time
11 makes any difference as opposed to what a measuring device says
12 it is or what Mr. Bassett's view is; it is what it is, is it,
13 not?
14 BY MR. LaTOUR: That's correct.
15 BY THE COURT: That's not an expression of your
16 personal view as to what the temperature is or what the bank's
17 is?
18 I imagine that that temperature could be measured by
19 devices that we're all familiar with without the interference or
20 employment of any human thought or expression of an opinion by a
21 human at all. Would you not agree with that?
22 BY MR. LaTOUR: Yes, sir, probably.
23 BY THE COURT: And is it not true that when a time and
24 temperature sign flashes, that's the only thing that flashes 365
25 days a year? There's no variance. It never does flash what
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1 relative humidity is, it doesn't flash barometric pressure.
2 It's only time and temperature. That's not the same thing with
3 your sign, is it? You don't always flash exactly the same
4 thing. I think you have, since you've made your compromise,
5 it's always been something about recalling Mooty [sic] or
6 whatever.
7 But what you desire to do is not to just flash as with time
8 and temperature exactly the same thing over and over again, is
9 it?
10 BY MR. LaTOUR: That's correct, judge. I don't want
11 the same message -
12 BY THE COURT: So it's not exactly the same, is it?
13 You've told me a number of times there's absolutely no
14 difference. Do you really believe that?
15 BY MR. LaTOUR: I believe there's no difference in the
16 functioning. There is a difference in the speech. The content
17 is different but not the functioning.
18 BY THE COURT: Well, but you do contend that simply
19 the display of measuring something I don't think is subject to
20 change no matter what your opinion might be, whether it might be
21 religious or moral or republican or democrat or conservative; I
22 think the temperature is going to be what it is, do you not?
23 BY MR. LaTOUR: I agree.
24 BY THE COURT: So I'm not sure. I just wondered what
25 your thought might be about that.
101
1 Now let me ask you this -- Thank you, Mr. LaTour. Let me
2 go back to Mr. Bassett.
3 How is it in light of the wording of the ordinance as it
4 now stands, how does a bank know that it may flash time and
5 temperature without being in trouble? Do they just get that by
6 osmosis or does somebody down at city hall say well, the sign --
7 the ordinance says that you can't fluctuate but if it's time and
8 temperature, you can? How do they know that? Can they discover
9 that by reading the ordinance?
10 BY MR. BASSETT: I think they can, Your Honor, by
11 reading the ordinance.
12 BY THE COURT: Well, would you show me now?
13 BY MR. BASSETT: The specific provisions, I think,
14 take precedence over the general provisions.
15 Under -- Let me get the right section.
16 BY THE COURT: Okay. Now again help me, if you will
17 refer to it. I'm kind of curious about that.
18 BY MR. BASSETT: Judge, it's looking under Section
19 174.03(1). It would be on Page 3.
20 BY THE COURT: Okay. You're talking about your -
21 BY MR. BASSETT: Yes, sir. 174.03, Subsection (I).
22 BY THE COURT: Subsection (I). Okay?
23 BY MR. BASSETT: This is the list of the signs that
24 are exempted and if you come down to Subsection (I), it says
25 Time and Temperature Displays -
102
1 BY THE COURT: Yeah, but that says to do there. They
2 don't have to get a permit, right?
3 BY MR. BASSETT: Right.
4 BY THE COURT: But as I think you all discussed
5 earlier that 174.03 says it's not construed to relieve the owner
6 from responsibility of complying with the effective provisions
7 of this chapter. And the one I think you're concerned about is
8 the provision that says it can't flash, right? So does that 9 exempt-
10 BY MR. BASSETT: Well I mean, judge, a time and
11 temperature sign, of course, as Mr. Williams testified; it can't
12 operate unless it does change because the time and the
13 temperature are constantly changing and it's exempted. I
14 understand that the statute says it -
15 BY THE COURT: Okay.
16 BY MR. BASSETT: I will say this: I will not stand up
17 here and claim that this ordinance has been around a long time.
18 I will not claim that all sections of it are as artfully drafted
19 as they possibly could be.
20 BY THE COURT: I don't mean to suggest that.
21 BY MR. BASSETT: Well, no, I'm not but I'm trying to
22 be fair about it. But I think employing a general reading of
23 the entire ordinance as a whole and employing commonsense would
24 mean the time and temperature, obviously, has got to change
25 because the time constantly changes and the temperature
103
1 constantly changes. But under this exemption section, I think
2 that's where a bank would get their authority.
3 BY THE COURT: Well, let me ask you this: I think you
4 said at one time that this was different because it was simply
5 conveying ambient -
6 BY MR. BASSETT: Ambient conditions; yes, sir.
7 BY THE COURT: Well, why could it not put on it the
8 barometric pressure and wind speed and wind shift? Those are
9 ambient conditions, too, are they not?
10 BY MR. BASSETT: They are. They are.
11 BY THE COURT: Why couldn't a bank do that and not be
12 in violation of the ordinance?
13 BY MR. BASSETT: Well, I hadn't thought about that
14 before, Your Honor, but it's a good question. I suppose that
15 they could. I mean, to my knowledge nobody does that.
16 BY THE COURT: But do you not agree that probably a
17 bank would probably be asking somebody down at city hall, "What
18 about that" --
19 BY MR. BASSETT: Absolutely. Absolutely.
20 BY THE COURT: All right. Thank you, Mr. Bassett.
21 And one final question and again, I want to reiterate what
22 I have said: I have enjoyed hearing your arguments and the
23 questions I'm asking you, I don't want you to necessarily
24 believe they're dispositive of anything but they are matters of
25 curiosity that I want to ask about.
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1 Mr. Mr. LaTour, you indicated you went down and talked to
2 the folks down at city hall and that they -- someone down there
3 told you well, if you sign is inside, I don't care about it and
4 it's not covered and so forth; is that right?
5 BY MR. LaTOUR: That's correct.
6 BY THE COURT: But you got a copy of the sign
7 ordinance yourself, did you not, at some point?
8 BY MR. LaTOUR: I think it was after that point. I
9 hadn't studied the ordinance until I started getting notices
10 from the city.
11 BY THE COURT: And did you not then discover that
12 whoever told you that was mistaken?
13 BY MR. LaTOUR: Judge, I knew that flashing and
14 blinking signs were not allowed, but I don't view my sign as a
15 flashing and blinking sign.
16 BY THE COURT: Well, that wasn't my question. Did you
17 not discover that if he told you that a sign inside like yours
18 would be covered, he was mistaken?
19 BY MR. LaTOUR: Right. I discovered that.
20 BY THE COURT: And specifically in the ordinance,
21 doesn't it say under the definitional section -- I think you
22 know what I'm talking about. I'm sure you're more familiar with
23 it than I am -- but there is a definitional section -
24 BY MR. LaTOUR: The definition of sign includes indoor
25 signs. I agree.
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1 BY THE COURT: Well, I'm not sure that I agree with
2 that. I think we ought to be a little more precise than that.
3 I think, if I can find that -- Maybe you can help me with where
4 is that?
5 BY MR. LaTOUR: My definition section is right near
6 the front of the ordinance, 158.03. That would be 174.03.
7 BY THE COURT: Let me see if I can find it. [Pause]
8 Oh, yes, okay. I see that now.
9 What it says in fact, is it not, that any of the above --
10 referring to the description of signs --
11 "Any of the above which is not placed out of doors but
12 which is illuminated with artificial or reflected
13 light, not maintained stationary and constant in
14 intensity, in color at all time when in use, shall be
15 considered a sign within the meaning of one Chapter 4,
16 when placed near the inside surface of a window in
17 such a way as to be in view of the general public and
18 used or intended to be used to attract attention or
19 convey information to the motorists."
20 Would you agree with that?
21 BY MR. LaTOUR: Certainly.
22 BY THE COURT: So it's not just indoor signs.
23 BY MR. LaTOUR: Right.
24 BY THE COURT: It's a sign that's placed in the window
25 with a purpose of having it seen by -- I believe it says
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1 motorists.
2 BY MR. LaTOUR: Motorist, yes.
3 BY THE COURT: Right? So a very easy matter for you
4 to determine by looking at the ordinance itself and whoever told
5 you that was mistaken and that, obviously, it did apply; isn't
6 that true?
7 BY MR. LaTOUR: Right. It was all after the fact
8 after I had spent the money.
9 BY THE COURT: Well, I know but the reason I call that
10 to your attention is that you've mentioned to me a number of
11 times, "But they told me that down there." Well, you know,
12 sometimes people are mistaken. Even I think judges sometimes
13 are wrong about what the law says.
14 But you did find that out and you knew, I take it, by the
15 time that you made your arrangement on the ticket, the criminal
16 matter; you had discovered it at that time?
17 BY MR. LaTOUR: Yes, I had.
18 BY THE COURT: And so you made that arrangement and
19 that's where it stands now?
20 BY MR. LaTOUR: Right.
21 BY THE COURT: All right. One final question. I said
22 that was the last one, but -
23 Now thank you, Mr. LaTour. Mr. Bassett, you mentioned a
24 number of things that Mr. LaTour has shown on his sign.
25 BY MR. BASSETT: Yes, sir.
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1 BY THE COURT: One of which I think was "stop
2 Abortion," right?
3 BY MR. BASSETT: I think that was one of them, Your
4 Honor.
5 BY THE COURT: Okay. And your position, as I
6 understand it, is that if Mr. LaTour puts on his sign -- and I
7 think it would accommodate "stop Abortion" in one showing, would
8 it not?
9 BY MR. LaTOUR: Yes, it probably would
10 BY THE COURT: Okay. That if he puts "Stop Abortion"
11 in his window sign, eight inches by seventy-two inches, and
12 keeps it there for three hours, it's no problem? ,
13 BY MR. BASSETT: Absolutely not.
14 BY THE COURT: All right.
15 BY MR. BASSETT: No problem.
16 BY THE COURT: But you're saying that if he puts
17 "Stop" on the sign and leaves it for ten seconds or a minute,
18 and then it goes blank and then it puts "Abortion" on, that
19 that's a violation of the sign ordinance?
20 BY MR. BASSETT: Yes, sir.
21 BY THE COURT: And it's not because of its content --
22 not the message to stop abortion -- but simply because it's
23 flashing?
24 BY MR. BASSETT: That's absolutely right, Your Honor.
25 BY THE COURT: And you're saying that a motorist going
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1 by could be distracted by it or take in "stop" and then, of
2 course, as opposed to seeing "stop Abortion" --
3 BY MR. BASSETT: We are saying that it has the
4 potential to be a safety hazard but I think the more important
5 consideration is we're saying that signs of this nature that
6 change like that are potentially harmful to the aesthetics of
7 the city, and that's the primary reason they passed the sign
8 ordinance in the city of Fayetteville.
9 BY THE COURT: Well, you say it doesn't matter whether
10 he's talking about politics or peanut butter or whatever?
11 BY MR. BASSETT: Absolutely.
12 BY THE COURT: It doesn't matter as long as it doesn't
13 flash?
14 BY MR. BASSETT: Correct.
15 BY THE COURT: Okay, and I keep thinking one more, Mr.
16 LaTour. I'll give you the last word as a certain television guy
17 says that I've heard about -- never watched.
18 But at any rate, your concern seems to be saying I can't
19 show my entire message at one time.
20 BY MR. LaTOUR: Right.
21 BY THE COURT: Now let me ask this of you. You've
22 talked about certain signs like realtor signs and so forth.
23 Without getting too deep into that, would you agree with me that
24 a city probably has a right to say that in certain locations -
25 perhaps where your's is - that they might permit you to put a
109
~.
1 stationary sign - not a flashing one but just a sign that has a
2 message painted on it that might be, say, four feet by six feet;
3 but you can't put one up there that's 18 feet by 20 feet; you
4 can't put a huge billboard there. Do you agree they probably
5 have a right to do that?
6 BY MR. LaTOUR: I agree.
7 BY THE COURT: What if, Mr. LaTour, you say I think
8 it's useful for the citizenry to be reminded that there is a
9 Bill of Rights, that there are ten of them and that they need to
10 consider them as a whole. And you say I can't put all ten of
11 those on my four by six sign down there because somebody going
12 by couldn't -- they could only see one at a time or two -- I
13 want to make sure they see that there are ten of them
14 altogether, so I need to put them on an 18 by 20 foot billboard
15 and if they don't let me do it, they're restricting my right to
16 communicate my message as a whole.
17 What about that? Would they be justified? Would they say
18 well hey, normally we just permit a four by six sign but since
19 Mr. LaTour wants to be sure they know about all ten amendments
20 at once, we've got to let him put up an 18 by 20 billboard 21 there?
22 BY MR. LaTOUR: In the cases I've read, they would say
23 the city had -- that would be a time to place a manual
24 restriction on the size so long as it's a reasonable size, and a
25 four by six is probably reasonable. So probably I would be
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1 precluded from showing the whole ten Bill of Right elements in
2 one showing based on that theory.
3 BY THE COURT: Okay. Well, I've enjoyed it. I thank
4 you for your comments. And let me just hurry on to say I
5 appreciate, Mr. LaTour, the thoughtful way in which you have
6 conducted yourself. Mr. Bassett, I certainly appreciate that
7 from you although I have to hurry to say that we expect that
8 from members of the bar. And I compliment you for the way
9 you've handled this.
10 I can't let this go without saying that this is a
11 refreshing change from the way this case started out. As you
12 know, there were times when it maybe was a little bit more
13 perhaps than it could be, so I thank you very much for
14 approaching this in the way that you have -- a thoughtful
15 presentation in which you have, Mr. LaTour, focused on the
16 criteria that this Court needs to take a look at; and Mr.
17 Bassett has responded in kind and I appreciate that approach and
18 that attitude.
19 I also say that it is not that common that in a Motion for
20 Preliminary Injunctive relief, that the Court take the matter
21 under advisement because of the very nature of the relief being
22 sought. But I hurry on to say that as you both know, you've
23 made a compromise that's been in place - although not
24 satisfactory I'm sure from either side - that's been in place
25 for a considerable length of time. The relief really wasn't
111
1 asked for immediately when Mr. LaTour filed his suit and there
2 was some changing around because of scheduling -- with your
3 schedule, Mr. LaTour, in your work as an accountant. Also, a
4 little bit of juggling because of this Court's rather busy case
5 schedule mainly. And one of the big concerns that I think you
6 had initially was, obviously, the political season which was
7 then in full swing. But now I don't say I think its passed, I
8 think it's simply started a new cycle and seems it will
9 continuously-
10 But for all these reasons, I do not perceive that the fact
11 that the Court would take a bit of time to give this as
12 thoughtful and thorough consideration, as I think you have up to
13 this point, would be amiss. And Mr. LaTour, I'll give you a
14 chance to respond on that. I suspect you'd like to have a
15 ruling today but that is my intention; to give this more
16 reflection and study and then issue a written opinion.
17 Are you comfortable with that?
18 BY MR. LaTOUR: I'll be glad to go along with that,
19 judge, but I quickly remind the Court that political speech is
20 always timely.
21 BY THE COURT: Well, I didn't mean to suggest that it
22 wasn't as though that I'm sure you know, Mr. LaTour, once one
23 has the opportunity that I've been given to become a federal
24 judge, he loses complete and total interest in political matters
25 except to -- and I said that a little in tongue and cheek, but I
112
1 mean that sincerely. It's my belief that when a person assumes
2 this job, that political considerations should have absolutely
3 no part in how he does his job except to the extent that its
4 figured in to an equation here of whether it's freedom of speech
5 or not.
6 So I thank you for that. Mr. Bassett, are you comfortable 7 with what I've described?
8 BY MR. BASSETT: Yes, sir.
9 BY THE COURT: Very well. Thank you very much. This
10 concludes the matter. We're adjourned.
11 [At this time, the proceedings were concluded at 11:47
12 a.m.]
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1 CERTIFICATE
2 I, Dianne Hinson, CCR-CVR, hereby certify that the
3 foregoing pages contain an accurate transcription of the
4 proceedings held in the above-entitled case.
5 WITNESS MY HAND this 9th day of April, 2003.
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8 Dianne Hinson, CCR-CVR
9 Certificate No. 376
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