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Ogden City v. Bruce Edwards Memorandom in oppostition to plaintiff’s motion for preliminary injunction

04 April 2002 Published in Litigation Materials

JANELLE P. EURICK (# 8801)
American Civil Liberties Union of Utah Foundation, Inc.
355 North 300 West, Suite 1
Salt Lake City, UT 84103
Telephone: (801) 521-9862

Attorneys for Defendants

IN THE SECOND JUDICIAL DISTRICT COURT OF WEBER COUNTY
STATE OF UTAH

DEFENDANTs’ MEMORANDUM IN OPPOSITION TO PLAINTIFF’s MOTION FOR PRELIMINARY INJUNCTION; COUNTERCLAIM PLAINTIFFs’ MEMORANDUM IN SUPPORT OF MOTION FOR PARTIAL SUMMARY JUDGMENT

Civil No. 020900777
Judge Parley Baldwin

OGDEN CITY, a Utah municipal corporation, Plaintiff,

v.

BRUCE EDWARDS, an individual, and WESLAND DEVELOPMENT L.L.C., a Utah limited liability company, Defendants and Counterclaim Plaintiffs,

v.

OGDEN CITY and MATTHEW GODFREY, Mayor of Ogden City Counterclaim Defendants.

INTRODUCTION AND SUMMARY OF ARGUMENT

Ogden City Ordinance §§16-8B-9 (G) et. seq. ("the Ordinance") requires the owner of a vacant building to remove all signage relating to persons or businesses no longer occupying the premises. §16-8B-9 (G)(1). Further, all interior and exterior signs, displays or graffiti visible from public streets, sidewalks or adjacent properties must be removed. §16-8B-9 (G)(2). "Signs, displays or graffiti" are defined broadly to include any presentation of words, letters, figures, designs, pictures or colors, which are not part of the architectural design of the building. §16-8B-9 (4). The Ordinance carves out a list of exceptions: property signs, signs depicting the building address, signs having historic significance, and off premise signs installed and maintained on the building or premises. §§16-8B-9 (a)-(d). Further, the Ordinance distinguishes between vacant buildings and occupied buildings. In occupied buildings, all signs are presumptively allowed.

Ogden City argues that this repressive Ordinance is somehow necessary to alleviate "visual blight" and maintain the "aesthetic" values of Ogden’s historic district. However, the only thing the Ordinance effectively achieves is to severely curtail speech on one’s own property. In seeking a preliminary injunction, Ogden City has failed to meet any of the necessary requirements. Ogden has not shown (1) irreparable harm stemming from Edwards’ display of signs; (2) that the public interest favors banning constitutionally protected speech; (3) that the balance of the hardships favors the City’s sign ban; or, most importantly (4) that Ogden City is likely to succeed on the merits of the case. To the contrary, Edwards is the party likely to succeed on the merits of the case and stands to suffer injury that cannot be compensated.

The ban on signs in vacant buildings prohibits political, social, religious, and personally expressive signs, decorations, and flags on private property, while at the same time allowing certain City-approved messages in vacant buildings. In effect, the Ordinance restricts too little speech because it excludes certain signs based on their content alone. See Metromedia v. City of San Diego, 453 U.S. 490, 512-517 (1981). Contrary to the presumption that legislative enactments are presumed constitutional, such content-based restrictions are presumptively invalid unless they directly serve a compelling governmental interest. See R.A.V. v. City of St. Paul, 505 U.S. 377, 382 (1992). Ogden City has not and cannot point to any compelling interest in its limited ban on certain signs in vacant buildings. See infra Section I (D)(1).

Even if the Ordinance is not content based, however, Ogden City fails to address Supreme Court precedent finding a similar ordinance unconstitutional because it completely foreclosed a venerable means of communication - core political speech on private property. City of Ladue v. Gilleo, 512 U.S. 43, 55 (1994). . Instead, the City argues that the Ordinance is a valid time, place and manner restriction. Content-neutral time, place and manner restrictions are valid only if they are narrowly tailored to serve a significant government interest and leave open ample alternative channels of communication. Hawkins v. City and County of Denver, 170 F.3d 1281, 1286 (10th Cir. 1999), cert. denied, 528 U.S. 871 (1999) (quoting Perry Educ. Ass’n. v. Perry Local Educators Ass’n., 460 U.S. 37, 45 (1983)).

The Ordinance is not narrowly tailored to achieve the City’s purported interests in "aesthetics." A valid time, place and manner restriction would burden no more speech than necessary to achieve the City’s interest. Id. Here, the City did not regulate the size, placement or condition of signs in order to achieve its goals. Rather, it adopted a broad ban on all signs in vacant buildings. See Infra Section I (D)(2)(a). Moreover, the Ordinance does not leave open ample alternative channels of communication. Edwards’ speech is fundamentally related to the location of his building and his status as a vacant building owner. His message would not have the same impact out of context and the City cannot constitutionally force him to resort to some alternative form of communication that would impded Edwards’ meaningful access to his intended audience. See Infra Section I (D)(2)(b).

Therefore, Edwards asks this Court to deny plaintiff’s attempt to silence Edwards’ constitutionally-protected speech and grant partial summary judgment for the counterclaim plaintiffs, to declare the Ordinance unconstitutional as a matter of law and to permanently enjoin enforcement of the Ordinance.

STATEMENT OF FACTS

1. Wesland Development L.L.C., which is controlled by Bruce Edwards (collectively, "Edwards") is the registered owner of two vacant buildings located in downtown Ogden at 205 25th Street and 207 25th Street (the "vacant buildings"). See Affidavit of Bruce Edwards in Support of Motion for Partial Summary Judgment ("Edwards Aff.") ¶2. Edwards and Ogden City officials are embroiled in a longstanding dispute involving, among other things, these vacant buildings. Edwards Aff. ¶3.

2. In December 2000, Edwards placed signs in the windows of the vacant buildings to publicize his dispute with Ogden City officials. Edwards carefully and deliberately crafted the messages on the signs to respond directly to messages Ogden City itself promulgated, and continues to promulgate, in various forums, including vacant buildings, on the subject of whether Ogden City is a clean, safe, desirable place to live, raise a family and do business. In response, Ogden asked Edwards to remove the signs. Edwards promptly removed them. Edwards Aff. ¶ 4, 5 & 6.

3. In December 2000, Ogden City asked Edwards to remove the signs because they communicate a message different from and opposed to the message the City wished to convey. Edwards removed the signs promptly in order to facilitate a resolution to his underlying disputes with the City. Edwards Aff. ¶ 6.

4. On February 21, 2001, having failed to resolve his disputes with the City, Edwards again placed the signs in the windows of the vacant buildings. On October 4, 2001, he posted a new sign that read, "Ogden City Not Safe." Edwards Aff. ¶4 & 7.

5. On October 9, 2001, Ogden City conducted a City Council meeting where council members discussed how to remove Edwards’ signs. Ogden City then contacted Edwards and demanded that he remove his signs for six months. Edwards declined, instead offering to remove the signs for 60 days. On October 10, 2001, Edwards entered into a stipulated agreement with Ogden to remove the signs from the vacant buildings for sixty days pending efforts to resolve the underlying disputes between Edwards and Ogden. Edwards Aff. ¶8 & 9.

6. Pursuant to the agreement, Edwards removed all signs from the vacant buildings by October 15, 2001. Edwards Aff. ¶9.

7. On December 4, 2001, the Ogden City Council passed Ogden Municipal Code 16-8B-9 (the "Ordinance"). Edwards Aff. ¶10. The Ordinance provides in part: "A vacant building and the premises shall be kept free of all interior or exterior signs, displays or graffiti [including "any presentation of words, letters, figures, designs, pictures or colors, which are not a part of the architectural design of the building"] visible from adjacent public streets, sidewalks or adjacent properties." Ogden Mun. Code § 16-8B-9(G)(2). Excepted from this restriction are: property signs, "signs depicting the building address," "signs having historic significance," and certain off-premise signs. Id. § 16-8B-9(G)(2)(a)-(c).

8. A property sign is a "sign related to the property upon which it is located and offering such property for sale or lease, or announcing the destruction, construction or remodeling of a building, or announcing the enterprise to be allocated in a building under construction, or announcing the name and address of the architect, contractor, or other professional involved in the design or construction of the building, or the owner thereof." Id. § 18-1-3.

9. A sign having historic significance is a sign "[r]elated to a building either designated as a historic resource or located within a historic district" and "[d]etermined by the Ogden City Landmarks Commission as significantly contributing to the historic character of such building or district." Id. § 16-8B-9(G)(3).

10. An off-premise sign is a "sign which directs attention to a use, products, commodity or service not related to the premises on which it is located." Id. § 18-1-3.

11. The Ordinance also prohibits obscuring the windows of a vacant building "in a manner which obstructs visibility into the interior of the building," subject to limited exceptions. Id. § 16-8B-9(J).

12. On December 31, 2001, following the conclusion of the 60-day agreement, Edwards replaced the signs in the vacant buildings. Edwards Aff. ¶10. On January 2, 2002, the Ogden Police Department contacted Edwards about the signs, and on January 9, 2002, Ogden City Building Inspections sent Edwards a letter telling him to remove the signs. Edwards Aff. ¶12.

13. On January 23, 2002, Ogden initiated a criminal prosecution against Edwards. Ogden alleged that Edwards’s signs violated both Section 16-8B-9(G) and Section 16-8B-9(J) of the Ordinance. Edwards Aff. ¶13.

14. On February 6, 2002, Ogden filed a civil complaint against Edwards seeking a temporary restraining order and preliminary injunction ordering Edwards to immediately remove the signs from the vacant buildings. Ogden claimed Edwards’ signs detracted from its efforts "to present itself as a clean, safe, and desirous [sic] environment for parents to raise families and businesses to enjoy prosperity." Cmplt. 29-37.

15. On February 6, 2002, the Court issued a temporary restraining order against Edwards.

16. On February 26, 2002, Edwards filed an answer and counterclaim seeking, among other things, declaratory and injunctive relief because the Ordinance violates the First Amendment of the United States Constitution and Article I Section 15 of the Utah Constitution.

17. As both the criminal and civil actions have proceeded against him, Edwards has documented signs on other vacant buildings that are not being similarly prosecuted or enjoined. Edwards Aff. ¶15 & Exhibit 2. He has also questioned the existence of other Ordinance-violating signs on his own vacant buildings. However, Zoning Compliance Officer Jeff Glum and Ogden City Police Officer Ramsey have informed Edwards that Ogden is not concerned with these signs. Edwards Aff. ¶14 & Exhibit 1.

ARGUMENT

I. OGDEN CITY CANNOT ESTABLISH THE NECESSARY REQUIREMENTS FOR OBTAINING A PRELIMINARY INJUNCTION

A preliminary injunction is appropriate when the movant establishes: (1) a substantial likelihood of success on the merits; (2) a threatened irreparable injury; (2) the "threatened injury" outweighs the damage the proposed injunction may cause the enjoined party; and (4) the injunction would not be adverse to the public interest. Utah R. Civ. P. 65A; see also Water & Energy Sys. Tech. Inc. v. Keil, 974 P.2d 821, 822 (Utah 1999). In this case, Ogden City cannot establish any of the necessary requirements for obtaining a preliminary injunction and therefore the injunction should not be granted.

A. Ogden City Will Not Suffer Irreparable Harm If the Preliminary Injunction Is Denied

Ogden City has not demonstrated irreparable harm flowing from Edwards’s display of signs on his vacant property. In Utah, irreparable harm includes "[w]rongs of a repeated and continuing character, or which occasion damages that are estimated only by conjecture, and not by any accurate standard. . . . ”Irreparable injury” justifying an injunction is that which cannot be adequately compensated in damages or for which damages cannot be compensable in money." Hunsaker v. Kersh, 1999 UT 106 ¶9, 991 P.2d 67 (citation omitted) (emphasis in original).

First, in its memorandum, the City only points to the "once in a lifetime opportunity for the City to display itself" during the Olympics as irreparable harm justifying a temporary restraining order. See Plaintiff’s Memorandum in Support of TRO and Preliminary Injunction ("Plaintiff’s Memorandum") 9. On this point, Ogden City is correct: The Olympics were a once in a lifetime opportunity for Ogden City. Therefore, the harm, if any, which could have affected Ogden City, concluded over two months ago. Currently, however, the Olympics are not capable of repetition and do not constitute a harm of a continuing nature necessary to find "irreparable harm." Id.

Second, when the activity to be enjoined is criminal, the irreparable harm claimed must not result from the criminal activity, but from its secondary effects. See, e.g., Corporation of President of Church of Jesus Christ of Latter-day Saints v. Wallace, 573 P.2d 1285, 1287-88 (Utah 1978) (holding equity "will not enjoin an act merely because it is criminal") (quoting Kleinjans v. Lombardi, 478 P.2d 320, 323 n. 6 (Haw. 1970)). Utah courts only enjoin criminal activity if the party seeking the injunction shows "an individual property right is also threatened or there are other appropriate circumstances." Id. (quoting Kleinjans, 478 P.2d at 323 n. 6). Although Utah case law has not defined "other appropriate circumstances," other jurisdictions include such situations as when an individual’s personal or civil rights are threatened,(1) or where a multitude of suits may occur otherwise.(2)

In this case, Ogden City is attempting to use a preliminary injunction to prosecute an activity that violates a criminal statute instead of following the appropriate criminal process. Therefore, Ogden City must prove Edwards’ actions threaten an individual property right or there are other appropriate circumstances that justify enjoining a criminal violation of the Ordinance. Id. Ogden City has not alleged that Edwards has threatened either the City’s property or civil rights, and his activities do not threaten to incur a multitude of suits. Instead, Edwards has simply engaged in an action that Ogden has deemed criminal, and Ogden wants to stop the action more quickly than its criminal process allows. Since Ogden seeks to promote by preliminary injunction the same interest it seeks to punish by the Ordinance, the injunction should not be issued.

B. The Balance of Hardships Does Not Weigh in Ogden City’s Favor

The equities tip decisively in Edwards’ favor. According to Ogden, the Ordinance is necessary because prohibiting signs on vacant buildings advances the City’s interests in aesthetics and safety. However, Ogden’s threatened injury to aesthetics and safety does not outweigh the damage a preliminary injunction would cause Edwards. If "a commercial message overrides the city’s aesthetics and safety interests, any message that is at least as important in the First Amendment hierarchy also must override those interests." Ackerley Comm. of Mass., Inc. v. City of Somerville, 878 F.2d 513, 517 (1st Cir. 1989) (holding the city, because it made exceptions for commercial signs, "could not decide that its aesthetic and safety interests were outweighed by the need to express commercial messages but not by the need to express noncommercial messages" because "noncommercial speech is entitled to a higher degree of protection than commercial speech"). Ogden has acknowledged that some signs, such as for-sale, historical, address and property signs, which are exempt under the Ordinance, are more important than its interest in safety and aesthetics. If these signs are more important than Ogden’s interest in safety and aesthetics, then signs deserving a higher degree of protection, such as Edwards’ political signs, are also more important than Ogden’s interest in safety and aesthetics. Thus, silencing Edwards’ speech would inflict an injury more substantial than any harm Ogden might suffer by enduring Edwards’ speech.

Further, where an ordinance "sweeps away the right of a property owner to express his opinion on his own property," the government’s "interest in aesthetics does not reasonably outweigh the loss of [the property owner’s] liberty of speech." See, e.g., Peltz v. City of South Euclid, 228 N.E.2d 320, 323-24 (Ohio 1967). In this case, if the requested injunction does not issue, then Ogden will suffer minimal harm. It will simply be forced to endure an alleged aesthetic blight of signs on vacant buildings until its criminal justice system considers the issue; the same way it endures the aesthetic blight of litter and vandalism. Conversely, if the requested injunction issues, then Edwards will be forced to refrain from displaying his personal and political views on his own property until the criminal justice system allows him the opportunity to assert the unconstitutionality of the Ordinance. As discussed below, the Ordinance is unconstitutional under the First Amendment. Forcing Edwards to be silent pending a ruling on the constitutionality of the Ordinance will deny him his First Amendment right to free speech and will far outweigh any alleged harm to aesthetics and safety. See, e.g., Elrod v. Burns, 427 U.S. 347, 373 (1976) (holding "[t]he loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury").

C. The Preliminary Injunction Should Not Be Granted Because It Would Be Adverse to Public Interest

A preliminary injunction in this case is adverse to the public interest. Ogden City’s purely superficial argument that it is in the public interest to be free of visual blight can in no way compare to the important First Amendment rights of Edwards. Visual blight can and does occur in a variety of forms such as graffiti and vandalism that Ogden cannot seek to prevent with a preliminary injunction. Therefore, "no long string of citations is necessary to find that the public interest weighs in favor of having access to a free flow of constitutionally protected speech." ACLU v. Reno, 929 F.Supp 824, 851 (E.D. Pa. 1996), aff”ed, Reno v. ACLU, 521 U.S. 844 (1997).

D. Ogden Is Not Likely to Prevail on the Merits of the Underlying Claim; Instead, Edwards is Entitled to Partial Summary Judgment Because the Ordinance is Unconstitutional on its Face

Most importantly, Ogden City must show there "is a substantial likelihood that the applicant will prevail on the merits of the underlying claim." Utah R. of Civ. P. 65A(e). The merits of Ogden City’s underlying claim depend principally on the constitutionality of the Ordinance. Careful analysis of the Ordinance reveals that it is neither a valid content-based regulation nor a valid time, place and manner restriction. Therefore, it is presumptively invalid, and the City is not likely to prevail on the merits of its underlying claim. To the contrary, Edwards is entitled to partial summary judgment on the constitutionality of the Ordinance.(3)

1. The Ordinance Is a Content-Based Regulation that Is Not Narrowly Tailored to Serve a Compelling Government Interest.

a. The Ordinance Is a Content-Based Regulation.

The first step in analyzing the constitutionality of the Ordinance is to determine whether it is content based or, as Ogden contends, content neutral. Content-based restrictions are those that proscribe speech based on its ideas, its subject matter, or its content. Police Dept. of City of Chicago v. Mosley, 408 U.S. 92, 95 (1972); Cohen v. California, 403 U.S. 15, 24 (1971). Where it is only possible to determine whether the regulation was violated "by determining the specific content" of the speech, the regulation is content-based. Gresham v. Peterson, 225 F.3d 899, 905 (7th Cir. 2000) (finding ordinance that forbad solicitor from asking for cash donations was content-based because "whether a solicitor violates the ordinance depends on whether he asked for cash rather than for something else).4 Such regulations are "presumptively invalid," and to be valid they must survive strict scrutiny: they must serve a compelling state interest, and they must be narrowly tailored to achieve that goal. See R.A.V. v. City of St. Paul, 505 U.S. 377, 382 (1992).

On its face, the Ordinance distinguishes between types of signs based on their message. It allows some signs but not others.(5) Whether a given sign violates the Ordinance cannot be determined without examining the content of the sign. For example, under the Ordinance, the Ogden City Landmarks Commission can exclude a sign from the ban if they find it "significantly contributes to the historic character of the building." Ogden Mun. Code §16-8B-9(G)(3)(b). Such broad discretion to exclude speech based on its content has often been found to restrict too little speech, and thus to violate the First Amendment. Metromedia, Inc. v. City of San Diego, 453 U.S. 490 (1981).

Ordinances that regulate too little speech by distinguishing between commercial and noncommercial speech are highly suspect. Here, a variety of commercial messages are given a higher degree of protection than Edwards’ noncommercial messages. However, courts have consistently accorded noncommercial speech a greater degree of protection than commercial speech. In Metromedia, the plurality of the Court found that a ban on billboards containing noncommercial speech was an unconstitutional content-based restriction on speech. Id. at 513-16. The court found that " the city may not conclude that the communication of commercial information . . . is of greater value than the communication of noncommercial messages." Id. at 513.

The Supreme Court in City of Ladue v. Gilleo, 512 U.S. 43 (1994) found a closely related ordinance unconstitutional that banned all residential signs but those falling within one of ten narrow exceptions. The Court found that exemptions from a ban on signs also shed light on the question of whether the ordinance prohibits too much speech. "Exemptions from an otherwise legitimate regulation of a medium of speech may be noteworthy for a reason quite apart from the risks of viewpoint and content discrimination: they may diminish the credibility of the government’s rationale for restricting speech in the first place." Id. at 52. The Court found that at the very least, the exemptions show that the City found some messages to be too vital to be banned.

Here, Ogden has silenced Edwards’ speech. Signs placed in windows that directly related to and seek to cast doubt on a campaign started by the City itself, to present the City as a safe place to live untainted by other negative messages, have been banned. See Plaintiff’s Memorandum at 9. Signs and banners in support of the City appear in many City-owned properties and some vacant buildings. See Edwards Aff. Exhibit 2. Ogden has not required that these signs be removed. Only the signs that are contrary to the City’s viewpoint have been banned. This is a classic content-based ordinance where too little speech has been regulated and is exactly the concern raised when the government seeks to prohibit messages they disagree with. As Justice O”Connor stated in her concurrence, exemptions like the ones in the Ordinance and the City’s own actions in this case are "especially likely to be improper attempts to value some forms of speech over others." Id. at 60.

Ogden never even cites to, and totally fails to discuss, City of Ladue and peremptorily dismisses the reasoning in Metromedia, both closely analogous and important Supreme Court precedent. Instead, it essentially concedes the Ordinance is content based, but relies on discredited and inapposite authority to unpersuasively argue that the Ordinance simply does not "raise [any] of the concerns that mandate limiting government’s ability to discriminate based on content." Plaintiff’s Memorandum at 12 (quoting Rappa v. New Castle Cty., 18 F.3d 1043, 1063 (3rd Cir. 1994)). Rappa is contrary to the Supreme Court’s clear holding that exemptions in speech regulations "diminish the credibility of the government’s rationale for restricting speech." City of Ladue, 512 U.S. at 52-53 (holding the exemptions in the questioned ordinance "at the very least, . . . demonstrate that Ladue has concluded that the interest in allowing certain messages to be conveyed by means of residential signs outweighs the City’s esthetic interest in eliminating outdoor signs"). Other courts have expressly and sensibly rejected the Rappa rationale. See, e.g., National Advertising Co. v. Town of Niagara, 942 F.2d 145 (2nd Cir. 1991) (requiring strict content neutrality for all regulation of noncommercial speech); Outdoor Systems, Inc. v. City of Merriam, 67 F.Supp.2d 1258 (D. Kan. 1999) (rejecting Rappa because "[c]ommon sense dictates that the[] distinctions are content-based because determining whether a sign may stay up or must come down requires consideration of the message it carries.").

Even if the Court used the dubious Rappa analysis, however, the Ordinance would still be content-based. Under the Rappa analysis, exemptions must be "substantially related to advancing an important state interest that is at least as important as the overall goal advanced by the underlying regulation, be no broader than necessary to advance the special interest, and be narrowly drawn so as to impinge as little as possible on the overall goal." Rappa, 18 F.3d at 1047. Even under the discredited Rappa analysis on which Ogden relies, the Ordinance is unconstitutional. See infra Section D.2.

b. Ogden Cannot Demonstrate a Compelling Government Interest to Justify Silencing Speech on Private Property.

The Ordinance is not justified by any compelling state interest. Government goals must have persuasive factual predicate before restrictive regulations may be enacted in their name. See, e.g., Dills v. Cobb County, 593 F.Supp. 170, 172 (N.D. Ga. 1984) (no evidence that banned signs caused any safety problems), aff”d, 755 F.2d 1473 (11th Cir. 1985). Ogden claims an interest in maintaining the aesthetic quality of the historical district of Ogden. See Plaintiff’s Memorandum 10. It wishes to create a "clean, safe, and desirous environment" to attract families and businesses. Id. However, it appears Ogden has confused a government’s interest in "aesthetics" with its interest in "public health, safety and welfare." Ogden, in a very generalized way, listed "public health, safety and welfare," as a justification for the ordinance in its complaint. See Plaintiffs Compliant at 3. However, in its brief, Ogden exclusively relies on the government’s interest in "aesthetics." See Plaintiffs Memorandum at 9. Regardless, neither interest rises to level of "compelling."

Ogden cannot claim aesthetic motivations because the Ordinance itself does not purport to rely on aesthetic concerns. Dills v. City of Marietta, 674 F.2d 1377, 1381 (11th Cir. 1982) (holding that city could not rely on esthetic interests where preamble of sign ordinance did not refer to aesthetics), cert. denied, City of Marietta v. Dills, 461 U.S. 905 (1983). Here, the preamble of the Ordinance only refers to "dangerous" buildings and does not mention any aesthetic purpose. Further, protecting aesthetics is not a compelling government interest. See, e.g.,Whitton v. City of Gladstone, 54 F.3d 1400, 1408 (8th Cir. 1995) (agreeing with statement of district court that no case had ever held that aesthetics was a compelling government interest).(6) Similarly, promoting business and tourism is not a compelling government interest. See, e.g., Pottinger v. City of Miami, 810 F. Supp. 1551, 1581 (S.D.Fla. 1992) (holding a city does not have a compelling interest in "promoting tourism and business and in developing the downtown area").

The area’s designation as a historical district does not increase Ogden’s interest in aesthetics. In Sandhills Ass’n of Realtors, Inc. v. Village of Pinehurst, 1999 WL 11296240 (M.D.N.C. 1999), the city claimed an increased interest in aesthetics because the regulation applied to a historic district. However, the court rejected this argument because "only a small portion of Pinehurst is designated as a historic district," and maintaining a historic district is similar to maintaining a park, which is not a compelling interest. Id. at 10 (citing Pottinger, 810 F. Supp. at 1581). Similarly, the Ordinance, although it pertains to the historic district, also pertains to the rest of Ogden. Therefore, the existence of the historic district does not elevate Ogden’s interest in aesthetics.

Finally, vague policy statements about "public health, safety and welfare" that Ogden referred to in its complaint fail to establish a compelling state interest. In Dills, the Eleventh Circuit remarked that "[s]uch broad, all encompassing statements . . . permit after the fact rationalizations for regulations." 674 F.2d at 1381. Further, the exemptions from the Ordinance’s ban on signs diminish the credibility of the City’s rationale for restricting speech in the first place. There is no justification for the City to favor some speech at the expense of other non-commercial expression. Hence, Ogden has failed to establish a compelling rationale for its complete ban on expressive, on-premise signs.

c. The Ordinance Is Not Narrowly Tailored.

Any legitimate concerns for public welfare are more appropriately addressed through carefully crafted content neutral regulation of the size, design, placement, or condition of the signs. See City of Antioch v. Candidates’ Outdoor Graphic Serv., 557 F. Supp. 52, 61 (N.D. Cal. 1982). There is nothing here to suggest that less intrusive means would not be effective. See Sable Communications of California v. FCC, 492 U.S. 115, 130-31 (1989).

2. The Ordinance Is Not a Valid Time, Place and Manner Regulation.

Even if the Ordinance could somehow be read to be content neutral, it would still be unconstitutional. Content-neutral speech regulations must be narrowly tailored to serve a significant government interest and leave open ample alternative channels of communication. See Wells v. City and Cty. of Denver, 257 F.3d 1132, 1147 (10th Cir. 2001), cert. denied, 122 S. Ct. 469 (2001). The Ordinance fails even this less rigorous constitutional test.

a. The Ordinance Is Not Narrowly Tailored

To qualify as a valid time, place and manner restriction, a regulation must be narrowly tailored to "promote[] a substantial government interest that would be achieved less effectively absent the regulation." Ward v. Rock Against Racism, 491 U.S. 781, 798-99 (1989) (citation and internal quotations omitted). A regulation is not narrowly tailored if "a substantial portion of [its] burden on speech does not serve to advance its goals." Id. at 799. Sign ordinances that broadly ban almost any sign posted on private property are subject to attack because the simply prohibit too much protected speech. City of Ladue, 512 U.S. at51.

Assuming Ogden’s argument in promoting an interest in "aesthetics" rises to the level of "substantial," Ogden has not narrowly tailored the Ordinance to meet this objective.7 In American Legion Post 7 of Durham v. City of Durham, 239 F.3d 601 (4th Cir. 2001), the court determined a regulation restricting the size of flags and height of flagpoles was a valid time, place and manner restriction because it was narrowly tailored to promote aesthetics. The regulation was narrowly tailored because the plaintiff "did not demonstrate that the ordinance burdens more speech than necessary to ensure that the City’s aesthetic interests are vindicated." Id. at 610.

In this case, Ogden argues that there is a significant interest in protecting the aesthetics of the historic district; however, as discussed above, the Ordinance is not narrowly tailored to protect aesthetics in only the historic district because it applies to Ogden in its entirety. Even assuming the City’s interest in aesthetics, however, the Ordinance prohibits more speech than necessary to achieve that interest. Ogden City can achieve its interest in aesthetics just as easily by regulating the placement and size of signs. The fact that a sign hangs in a window cannot detract from Ogden’s interest in aesthetics or it would not have allowed exceptions for certain signs. Therefore, regulating the placement and size of all signs, rather than imposing a complete ban on the content of some signs, seems more appropriate. Moreover, if Ogden is truly concerned about aesthetics then why not regulate window signs in all buildings instead of banning almost all signage in vacant buildings alone. Signs in occupied buildings have the same potential to create visual blight as signs in vacant buildings. The failure to distinguish between signs in vacant and non-vacant buildings casts doubt on the effectiveness of the Ordinance in reaching Ogden’s goals. Edwards’s signs could just as easily be placed in an occupied building, causing the same alleged injury to Ogden. Therefore, Ogden did not narrowly tailor this ordinance to prevent injury to aesthetics and as a result, it has silenced the constitutionally protected speech of Edwards with no justification.

b. The Ordinance Does Not Leave Available Ample Alternative Channels of Communication.

The Ordinance is not a valid time, place, and manner restriction because it does not leave available ample alternative channels of communication. In Ladue, the Supreme Court, assumed for purposes of argument, that the sweeping ban on residential signs was content neutral. However, the Court found even a content neutral ban on signs to be overly broad, in violation of the First Amendment. 512 U.S. at 56.

The Court found that residential signs are an important form of speech because they reveal the "identity of the speaker" which is "an important component of many attempts to persuade." Id. Edwards is no different. Edwards owns property in a highly controversial business district in Ogden. Many of the businesses in this area have simply not survived. Edwards, by placing noncommercial signs in his windows, is exercising a "uniquely valuable or important mode of communication" concerning his opinion about Ogden City’s business decisions for the area. Id. His identity as an owner of a failed business is of fundamental importance to his ability to reach and persuade his audience. The person who displays a residential sign "often intends to reach neighbors, an audience that could not be reached nearly as well by other means." Id. (emphasis in original). Here, Edwards cannot possibly reach his intended audience of future business owners, investors or his neighbors by any alternate means. His vacant building along with his message and thoughts of why it is vacant are essential elements of his message. Removing the vacant building from the message ultimately destroys the effectiveness of Edwards’ communication.

Finally, residential signs "are an unusually cheap and convenient form of communication," and prohibiting these signs "may make the difference between participating and not participating in some public debate." Id. This reasoning is also applicable to owners of vacant and failed business locations.

In Durham, the Fourth Circuit considered the alternative channels allowed by a restriction on the size of flags. 239 F.3d at 610-11. The court followed the reasoning of Ladue even though the plaintiffs were seeking to speak "on private property but not in the home." Id. at 611. Distinguishing this regulation from the regulation in Ladue, the court found the regulation offered ample alternative channels because it "merely establishes a relatively liberal set of limits on flag size and provides a procedure for obtaining temporary and permanent waivers by means of a ’special use” permit." Id.

In this case, as in Durham, the reasoning of Ladue is applicable because the vacant buildings are private property. However, unlike in Durham, the Ordinance does not leave available ample alternative channels of communication. Like the Ladue regulation, the Ordinance does not offer liberal limits with waivers, but completely prohibits all signs that do not fall under an exemption. Accordingly, owners of vacant buildings are completely banned from participating in the public debate by displaying signs from their own buildings. Like the regulation in Ladue, the Ordinance’s ban on signs will deny owners of vacant buildings the opportunity to reveal their identity along with their speech, will force them to resort to another form of speech that is more expensive and less convenient, and will preclude them from reaching the neighbors and friends who reside and work close to their buildings.

CONCLUSION

For the foregoing reasons, this Court should deny Ogden’s motion for a preliminary injunction and grant partial summary judgment declaring the Ordinance unconstitutional and permanently enjoining its enforcement.

DATED this 5th day of April 2002.

Janelle P. Eurick
Attorney for Defendants/Counterclaim Plaintiffs

FOOTNOTES

1. See, e.g., Wallace, 573 P.2d at 1287 (holding injunction proper because the plaintiffs did not seek to enjoin defendant’s criminal actions but sought to protect their "right to religious worship and the peaceful use of their property") (quoting Central Presbyterian Church v. Black Liberation Front, 303 F. Supp. 894, 898 (E.D. Mo. 1969)) (citing Kleinjans, 478 P.2d 320).

2. See, e.g., Everett v. Harron, 110 A.2d 383, 387 (Pa. 1955) (upholding injunction of owners of pool and tennis club because "the barring of each and every Negro from the pools, and each and every time that he is so barred, will potentially give rise to an action against defendants for damages").

3. Summary Judgment is appropriate when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Utah R. Civ. P. 56(c); see also Surety Underwriters v. E & C Trucking, Inc., 2000 UT 71 ¶14, 10 P.3d 338 (same).

4. See also City of Cincinnati v. Discovery Network, Inc., 507 U.S. 410, 428-29 (1993) (holding a ban on newsracks containing commercial handbills but not newspapers was content-based because "whether any particular newsrack falls within the ban is determined by the content of the publication"); Police Dep”t of City of Chicago v. Mosley, 408 U.S. 92, 95 (1972) (striking an ordinance prohibiting all picketing but labor-dispute picketing because the "operative distinction [between a lawful picket and an unlawful one was] the message on a picket sign"); Desert Outdoor Adver., Inc. v. City of Moreno Valley, 103 F.3d 814, 820 (9th Cir.1996), cert. denied, City of Moreno Valley v. Desert Outdoor Adver., Inc., 522 U.S. 912 (1997) (holding regulation is content-based if officials must examine the sign content to determine whether an exception applies); Whitton v. City of Gladstone, 54 F.3d 1400, 1403-04 (8th Cir.1995) ("The Supreme Court has held that a restriction on speech is content-based when the message conveyed determines whether the speech is subject to the restriction."); National Adver. Co. v. Town of Babylon, 900 F.2d 551, 556-57 (2nd Cir.1990), cert. denied, Town of Babylon v. Nat”l Adver. Co., 498 U.S. 852 (1990) (exceptions for political signs and signs identifying a grand opening, parade, festival, fund drive or other similar occasion were content-based).

5. The Ordinance allows the posting of property signs, signs having historic significance, signs depicting the address and some off premise signs. Ogden Municipal Code §16-8B-9, et. seq. Property signs are defined as "A sign related to the property upon which it is located and offering such property for sale or lease, or announcing the destruction, construction or remodeling of a building, or announcing the enterprise to be allocated in a building under construction, or announcing the name and address of the architect or other professional involved in the design or construction of the building, or the owner thereof." Ogden Municipal Code §18-1-3. Off premise signs are defined as a sign which directs attention to a use, products, commodity or service not related to the premises on which it is located. Ogden Municipal Code §18-1-3.

6. See also, Sandhills Ass’n of Realtors, Inc. v. Village of Pinehurst, 1999 WL 11296240 (M.D.N.C. 1999) (concluding the defendant cites no case, and the Court knows of none, which holds that aesthetics is a compelling interest); Pottinger v. City of Miami, 810 F. Supp. 1551 (S.D.Fla. 1992) (holding a city does not have a compelling interest in "having aesthetically pleasing parks and streets").

7. Ogden’s Ordinance is so sweeping, it not only bans what one would think of as conventional signs, but it also bans "colors" and "designs" that are visible from the outside. §16-8B-9 (4).