IN THE UNITED STATES
DISTRICT COURT
FOR THE WESTERN DISTRICT OF ARKANSAS
JOHN
S. LA TOUR,
)
Plaintiff, )
v.
)
)
CITY OF FAYETTEVILLE, ARKANSAS ) File Number:
BRANDT WARWICK
)
2-5001
CASEY JONES
)
KIT WILLIAMS
)
BOB ESTES
)
MIKE MCKIMMEY
)
Defendants, in both their individual and official
)
Capacities.
)
__________________________________
Motions for Preliminary
Injunction and Expedited Hearing
I motion this Court, pursuant to Rule 65 of the Federal Rules of Civil
Procedure, to issue a preliminary injunction enjoining the City of Fayetteville
from enforcing its sign ordinance found at The City of Fayetteville Uniform
Development Ordinance Title 15, Chapter 174 (formally Chapter 158) (the
“ordinance”).
This injunction should endure until this Court has had a fair opportunity
to rule on the constitutionality of the ordinance.
Further, I move this Court to set a hearing, if one is required, on the
preliminary injunction motion in an expedited fashion.
My reasons for these motions are as follows:
ILLEGAL PRIOR RESTRAINT
1. A prior restraint results
when a citizen has to obtain official permission to exercise a basic freedom.
The permitting scheme contained in the Fayetteville sign ordinance is
clearly a prior restraint. Although
prior restraints are not illegal per se, they bear a heavy presumption
against their constitutionality.
2. In First Amendment cases,
the Authorities have consistently held that prior restraints will be illegal
where they place the citizen speaker in the
“unbridled discretion” of the local officials.
In order to prevent this, the Courts have established and consistently
applied two safeguards which must be present in an ordinance scheme.
3. First, the ordinance must bind the local official to a brief,
definite period of time in which the official must decide to issue a sign permit
or not. Second, if the official
declines to issue the permit, the ordinance must guarantee a speedy,
independent, judicial review. Further,
during the review period, the status quo must be maintained.
4. Even a casual reading of the Fayetteville ordinance scheme reveals the absence of both of these safeguards. Thus, the Fayetteville sign ordinance produces an illegal prior restraint and is therefore unconstitutional.
CONTENT
REGULATION
5. Where a sign ordinance scheme requires an administrator to exam the content or wording on a sign to determine its legal status, the scheme is content based. Numerous sections of the Fayetteville ordinance require just such an examination. Thus, the Fayetteville sign ordinance scheme is facially content-based under any common sense understanding of the term.
6. Additionally, where the City effectively silences my political opinions by restricting my noncommercial message sign and not restricting substantially similar time and temperature signs, the City is applying its sign ordinance in an unconstitutional fashion.
7. Thus, the ordinance is unconstitutional on its face and as applied.
CONCLUSION
8. The people of Fayetteville and the First Amendment have suffered much at the heavy hand of the Fayetteville sign ordinance. For too long, deeply held opinions have been effectively silenced by the illegal prior restraint and content based regulations of the ordinance. For too long, citizens have been lorded over by officials wielding this unconstitutional ordinance as their authority. For too long, public officials have enjoyed the bully-pulpit of their offices while the rest of us remain silent with no effective or efficient means to publish our opinions.
9. The blood of our forbearers who fought and died to protect this Constitution, and the freedoms it guarantees, cries out for relief. With such compelling weight, it is no wonder I cannot remain silent. This unconstitutional ordinance must be laid to rest once and for all. Thus, I ask this Court for preliminary injunctive relief so that the status quo can be maintained while the issues are being debated. Further, I ask for as much dispatch as possible.
Respectfully submitted,
JOHN S. LA TOUR
BY: ____________________
John S. La Tour, Pro Se
October
3, 2002
JOHN
S. LA TOUR
Certified Public Accountant
112 Center Street, Suite 560
Fayetteville, AR 72701
(479)443-7878