IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF ARKANSAS

JOHN S. LA TOUR,
        Plaintiff, 

v.

CITY OF FAYETTEVILLE, ARKANSAS                            File Number: 02-5001

        Defendant

REPLY TO CITY'S BRIEF ON THE ISSUE OF STANDING
 

            In its brief, the City correctly states the issue to be briefed as "whether the plaintiff has standing to bring a facial challenge to the constitutionality of the sign ordinance". SEE, City Brief Page 1, Paragraph 1. Then the City proceeds to brief the wrong issue: the issue of standing under the general rules. Its analysis is complete and its documentation thorough. If this controversy were about a diversity car accident, malpractice issue, or land boundary dispute, the City's analysis would apply and some of its conclusions would be accurate.
           But. This debate is NOT about those issues. It is about the First Amendment freedom of speech issue. The United States Supreme Court has ruled that the First Amendment needs breathing room. It also ruled that a party before the Court can assert claims for other parties not before the Court where the Court can "predict or assume" the other parties will self-censor themselves for fear of criminal prosecution or lesser repercussions. Broadrickv. Oklahoma, 413 U.S. 601 (1973).

As I pointed out in my brief of this issue, such is the case here.

             It is interesting to note the City opted NOT to brief the one case that addresses my standing issue precisely and the very case this Court ordered the parties to brief.

            After the City presents its thorough analysis of the general standing rules, e.g., the wrong issue, it draws conclusions that are not entirely accurate. The following is representative:

1. The City concludes that this Court ruled, "I have not suffered an irreparable injury and my First Amendment rights have not been deprived" (City Brief at Page 4, Paragraph 1). What this Court actually stated was, "While the method of expression has been subject to some control which may ultimately be found to have constitutional infirmities, the evidence at this point does not persuade the Court that such would amount to a deprivation of plaintiffs First Amendment rights or constitute irreparable harm." (emphasis supplied) ~, Court Order dated December 20,2002 at 5.

    Speaking in the context of a Preliminary Injunction ruling, the Court merely explained that the evidence could not support those claims. It did not rule those claims out absolutely. Neither did this Court pretend to have all of the evidence before it. Indeed, the Court readily acknowledged that the regulations placed on my sign may "ultimately be found to have constitutional infirmities".

              2. The City asserts that ".. .the only possible basis for Plaintiff to assert standing lies, at best, in the abstract sense or is purely conjectural or hypothetical... ." Of course, this would be true, but only if the Broadrick Court had not recognized the acute need to guard First Amendment rights with relaxed standing requirements. In my amended complaint, I indeed pleaded a case against the City that the Broadrick court explained it was attempting to guard against. In fact, I alleged that the Fayetteville sign ordinance places unbridled discretion in the hands of local officials. I simply did not label this as overly broad. However, I did describe the overly broad aspects of the sign ordinance in great detail. Indeed the United States Supreme Court has stated, "The government 'cannot foreclose the exercise of [First Amendment] rights by mere labels"'. (Quoting NAACP v. Button, 371 U.S. 415, 429, 83 S.Ct. 328,336).

Additionally, I alleged, among other ills, that the ordinance regulates noncommercial political signs to a greater extent than commercial "For Sale" real estate signs. The Courts, in a long line of cases, have declared this unconstitutional. Moreover, the sign ordinance clearly vests local "functionaries" with unbridled discretion in that inspectors can require "such other information" as they desire for a sign permit application and the City Council can revoke a sign permit for any reason or no reason under specific ordinance provisions.

            Under the Broadrick Court ruling, all of these ills are overbreadth ills. Thus, I pleaded overbreadth ills even though I did not label them as such. Therefore, the Broadrick decision provides standing for me that the City fails to recognize, or worse, chooses to ignore.

               3. The City asserts that I am bringing only "generalized" or "abstract"

grievances. However, the City fails to explain how the criminal conviction I received from this City is "general" or "abstract". The "general or abstract" assertion is even less plausible when considered in light of the First Amendment. I was convicted of a crime for expressing my opinions under a sign ordinance that strikes at the very heart of our Constitution!

Additionally, it is entirely clear that where a defendant is convicted of a crime under the authority of an ordinance, the constitutional nature of that ordinance must be questioned. Thus the wording of the ordinance and its application must be examined.

Precisely because of my conviction, I have standing to question the unconstitutional nature of the sign ordinance's wording. Most assuredly, there is nothing general or hypothetical about my criminal conviction.

            Furthermore, in my complaint I alleged the breech of my First Amendment Rights, the criminal conviction, and, in evidence, I have introduced a letter from the Fayetteville Police Department explaining that they held an "active warrant for my arrest" and that if I ignored this letter I would be (as opposed to might or could be) "physically arrested"! This letter was not addressed to "Whom it may Concern" or "Current Occupant". It was most specific and not at all hypothetical or conjectural in nature. Thus I have alleged specific injuries in the application of the sign ordinance and, as I have stated, I assert standing to bring a facial challenge under the authority of Broadrick v. Oklahoma.

Moreover, it is axiomatic that the loss of First Amendment rights constitutes irreparable harm. Marcus v. Iowa Public Television, 97 F.3d 1137 (8th Cir. 1996). Because it is abundantly clear that the sign ordinance regulates ~l on the basis of their content, I still maintain that I have lost my First Amendment right to free speech in these regards.

Conclusion

I earnestly pray and ask this Court once again to grant my petition for relief. This is a perfect opportunity to give the First Amendment the "breathing room" it needs and deserves in Fayetteville, America. To deny the standing I assert is to re-relegate the citizenry of Fayetteville to the tyranny of a most unconstitutional Fayetteville sign ordinance. I ask this Court to strike a blow for freedom and recognize my standing to bring this facial challenge.

Respectfully submitted,

JOHN S. LA TOUR

1 Whether or not time and temperature displays constitute speech under First Amendment analysis, time

and temperature displays ARE signs under the definition of "sign" in the Fayetteville sign ordinance. Thus, the Fayetteville sign ordinance does regulate SIGNS on the basis of their content. That is to say, if your electronic display is showing the officially "approved" message of time and temperature you can change the sign face as often as you like. Conversely, if your electronic display is showing any other message, you can change the sign face ONLY once every three hours. The only way w tell the difference between these signs is to refer to the content of the sign.

JOHN S. LA TOUR

Certified Public Accountant

112 Center Street, Suite 560

Fayetteville, AR 72701

(479) 443-7878

Certificate of Service:

I, John S. La Tour, the undersigned, have mailed a true and correct copy of the attached complaint today via US mail, first class, prepaid, to the legal counsel of the opposing parties or the opposing party himself if legal counsel does not represent him.