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Ogden City v. Bruce Edwards: Reply

04 March 2014 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

Attorney for Defendants/Counterclaim Plaintiffs

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

Judge Parley Baldwin
Civil No. 020900777

COUNTERCLAIM PLAINTIFFs’ REPLY MEMORANDUM IN SUPPORT OF MOTION FOR PARTIAL SUMMARY JUDGMENT

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.

Counterclaim Plaintiffs respectfully submit this Reply Memorandum in support of their Motion for Partial Summary Judgment in this matter.

INTRODUCTION AND SUMMARY OF ARGUMENT

Most cities that seek to pursue the laudable goal of enhancing the business environment and quality of life for their residents by cutting down on visual clutter properly recognize that the right to speak on one’s own property is a fundamental “stick” in the “bundle of rights” property owners enjoy under both state and federal constitutional protection. Ogden City has chosen to pursue that goal by depriving property owners of that fundamental right. While the City allows certain speech it considers sufficiently related to the property - signs having historical significance, property signs such as for sale signs, and signs conveying address information - regardless of their obtrusiveness, it prohibits all other speech, even core political speech directly related to the property. The result is that private property owners in the City can be not only silenced but also thrown in jail simply for expressing their own opinions on their own property.

Ogden City attempts to justify its novel, censorious, paternalistic, punitive approach on the ground that “[t]he First Amendment does not confer absolute rights.” (Opp. Br. at 9) That, obviously, is not the issue. What is at issue is whether Ogden City can overcome the “very strong” presumption the First Amendment raises against content-based regulations of the speech of private citizens on private property. See City of Ladue v. Gilleo, 512 U.S. 43, 59 (1994) (O’Connor, J., concurring) (“With rare exceptions, content discrimination in regulations of the speech of private citizens on private property . . . is presumptively impermissible, and this presumption is a very strong one.”). Ogden City seeks to ignore that “very strong” presumption, proposing instead a “new test” that essentially reverses the presumption and allows the government tremendous latitude in censoring political speech on private property. Ogden City’s effort is literally unprecedented and should be rejected.

ARGUMENT

Ogden City does not and cannot dispute that the Ordinance imposes content-based restrictions on the non-commercial speech of private citizens on their own private property, or that such restrictions are “presumptively impermissible.” Instead, Ogden City ignores or seeks to obscure that fact, insisting any content-based restrictions in the Ordinance are not “impermissible.” (Opp. Br. at 9-17) Although its discussion of this point is quite long and confusing, Ogden City’s only real argument in support of this conclusion is that this Court should embrace a “new test” which in effect reverses the presumption of unconstitutionality, largely deferring to the government’s judgment in allowing certain “context-sensitive” non-commercial messages that are “significantly related to the locality” while prohibiting all other messages. (Opp. Br. at 12-13, discussing Rappa v. New Castle Cty., 18 F.3d 1043 (3d Cir. 1994). Edwards respectfully requests that this Court reject Ogden City’s invitation to adopt this “new test” and instead apply established precedent circumscribing the government’s ability to regulate the speech of private citizens on their own private property.

1. OGDEN CITY’S BROAD BAN OF CORE POLITICAL SPEECH ON PRIVATE PROPERTY IS FACIALLY UNCONSTITUTIONAL

Ogden City’s opposition brief obscures two important distinctions - between “off-premises” speech and “on-premises” speech, and between commercial speech and non-commercial speech - that are essential to proper analysis of the government’s attempt to regulate outdoor speech. The distinction between off-premises speech and on-premises speech is important because regulation of off-premises speech does not implicate the rights of private property owners to enjoy the full “bundle of rights” that accompany private property ownership, including free speech. Pruneyard Shopping Center v. Robins, 447 U.S. 74, 86-89 (1980) (Free speech is one of the sticks in the bundle of rights private property owners typically enjoy). The distinction between commercial speech and non-commercial speech is similarly important because commercial speech, while entitled to constitutional protection, is less protected than non-commercial speech. Thompson v. Western States Medical Center, 122 S. Ct. 1497, 535 U.S. ____ (2002); Central Hudson Gas & Electric Corp. v. Public Service Comm’n, 447 U.S. 557 (1980).

In its opposition brief, Ogden City talks about “sign ordinances” generally as if they were all the same. They are not. Most sign ordinances, including those at issue in virtually all the cases on which the City relies, principally target off-premises outdoor speech, i.e., billboards, while exempting on-premises speech from their otherwise comprehensive bans. Ogden City has taken the opposite approach, primarily targeting on-premises speech, i.e., signs in vacant buildings, with exemptions for certain non-commercial signs and for off-premises signs. As the multiplicity of opinions in Metromedia and subsequent cases illustrate, and as Ogden City concedes, there is considerable analytical confusion about the extent to which the government can regulate outdoor speech. Nevertheless, one can derive from the cases an “outdoor speech hierarchy.” Off-premises commercial speech is at the bottom of that hierarchy, and the least protected category of outdoor speech. There are two intermediate categories - off-premises non-commercial speech, and on-premises commercial speech - which give rise to most of the analytical difficulties. And City of Ladue unequivocally and indisputably establishes that non-commercial speech on residential property rests at the very top of the outdoor speech hierarchy.

The cases on which Ogden City relies suggest, at most, that courts generally allow the government considerable flexibility in regulating off-premises commercial speech. That conclusion is neither surprising nor helpful here, because the essential question is not whether the government can ban off-premises commercial speech, the least-protected type of outdoor speech, or even how much flexibility the government should have in regulating off-premises non-commercial speech, a category of outdoor speech that falls somewhere in the muddled middle of the outdoor speech hierarchy. Ogden City’s Ordinance is a restriction of on-premises speech, with exemptions for certain kinds of noncommercial signs and for off-premises speech. Moreover, it extends to non-commercial speech as well as commercial speech. Thus it involves the category of speech not at the bottom or in the muddy middle but at or near the very top of the outdoor speech hierarchy: political and other core First Amendment speech of private citizens on their own private property. As to that category of speech, Metromedia was quite clear. Six justices - four in the plurality and two concurring - held that the government cannot prohibit most noncommercial signs while allowing certain kinds of noncommercial signs without running afoul of the longstanding, virtually per se constitutional rule against content-based discrimination. Metromedia, 453 U.S. 490, 515 (1981).

More fundamentally, although Ogden City seeks to obscure it, the question before this Court is really very simple: Whether Ogden City’s ban on the free speech of private citizens on their own private property is subject to, and can survive, strict scrutiny. Metromedia does not directly address that issue, but does make clear that the fact that the government may have discretion in regulating certain types of outdoor speech “does not justify prohibiting an occupant from displaying his own ideas or those of others.” Metromedia, 453 U.S. at 513. City of Ladue, however, is both clear and dispositive on that issue. In that case, the United States Supreme Court properly dispensed with academic debate about the finer points of First Amendment jurisprudence and focused on the fact that private property rights, including the right to speak on one’s own property, are fundamental rights entitled to the highest degree of constitutional protection, and that when the government sets about to restrict those rights it must have a compelling interest and demonstrate that the means it has chosen to achieve that interest are narrowly tailored. 512 U.S. 43, 54 (1994); see also Knoeffler v. Town of Makakating, 87 F. Supp. 2d 322 (S.D.N.Y. 2000) (Metromedia, Inc. v. Mayor of Baltimore, 538 F. Supp. 1183, 1187) (D. Md. 1982) (defending the right of a property owner to display his “own ideas or those of others”).

Ogden City seeks to avoid the straightforward and dispositive effect of City of Ladue and cases similarly recognizing the importance of protecting the speech of private citizens on their private property by insisting that such protections are limited to residential property. Ogden City’s position is that the right of a property owner to express his political, religious or other views is secure only in his residence, not in his commercial properties. The City’s only support for that assertion is that there is a heightened expectation of privacy in the sanctity of the home. (Opp. Br. at 14) But what is at issue here is not private conduct properly shielded from intrusive governmental regulation and surveillance within the privacy of one’s home. What is at issue instead is the permissible nature and extent of governmental censorship of public discourse on deeply public, political questions. Pruneyard, 447 U.S. at 94-95; Cf. Stanley v. Georgia, 394 U.S. 557 (1969) (No rights of privacy are implicated in this First Amendment context); Frisby v. Schultz, 487 U.S. 484 (ordinance serves significant government interest of protecting residential privacy by prohibiting residential protesting of individual homes). Even in the area of speech with less perceived value than the core political speech covered by Ogden City’s Ordinance, the Supreme Court has held that the government cannot properly prohibit the speech just because it is visible to passers-by who might be upset or offended. See Erznoznick v. City of Jacsonville, 422 U.S. 205 (1975). Further, when analyzing a similar ordinance banning commercial and noncommercial signs on both residential and commercial property, other courts have declined to make any distinction between the type of private property and the corresponding right to free speech on that private property. Whitton v. City of Gladstone, 54 F.3d 1400, 1403 (8th Cir. 1995).

2. TO BOLSTER THE BAN OF SPEECH ON PRIVATE PROPERTY OGDEN CITY RELIES ON A “NEW TEST” THAT IS CONTROVERSIAL AND NOT CONTROLLING

Besides attempting to limit City of Ladue to residential property, Ogden City urges this Court to abandon what is and always has been a bright-line test requiring strict scrutiny of content-based regulations such as those at issue here and substitute “a new test.” Adopting that “new test,” however, would essentially reverse the established presumption against the constitutionality of content-based restrictions, and grant the government unprecedented and dangerous discretion in regulating the free speech of private citizens on their own private property. Edwards respectfully requests that this Court decline Ogden City’s invitation, for two primary reasons.

First, the “new test” Ogden City proposes has never been articulated or followed by the United States or Utah Supreme Court. Indeed, it has been articulated only by one United States Court of Appeals - the one with jurisdiction over federal courts in states such as New Jersey. Thus, it is of absolutely no precedential effect in this case. It has not been followed by any other federal circuit court of appeals, and as Edwards demonstrated in his opening brief, other courts have in fact rejected it in favor of the longstanding presumption against content-based restrictions. See Amended Br. at 15. See also Knoeffler v. Town of Mamakating, 87 F. Supp.2d 322, 331 (S.D.N.Y. 2000).

Second, and more importantly, even if one applies the “new test” articulated in Rappa in this case, Ogden City’s ordinance fails. Here is how the Rappa court articulated its “new test”:

Thus, we conclude that when there is a significant relationship between the content of particular speech and a specific location or its use, the state can exempt from a general ban speech having that content so long as the state did not make the distinction in an attempt to censor certain viewpoints or to control what issues are appropriate for public debate and so long as the exception also survives the test proposed by the Metromedia concurrence: i.e. the state must show that the exception is substantially related to advancing an important state interest that is at least as important as the interests advanced by the underlying regulation, that the exception is no broader than necessary to advance the special goal, and that the exception is narrowly drawn so as to impinge as little as possible on the overall goal.

Rappa, 18 F.3d at 1065. Ogden City has not exempted all on-premises speech that has a “significant relationship” to the location on which it appears; if it had, speech similar to that for which Edwards has been censored and threatened with jail would fall within the exemption. Ogden City argues that “speech that is most closely tied to [vacant] buildings - i.e., their availability, their location, and their historic significance - are already protected by the Ordinance’s exemptions for property, address, and historic signs.” (Opp. Br. at 24-25) But that argument reflects only Ogden City’s entirely subjective and arbitrary judgment about what messages have a “significant relationship” to the property. Suppose a sign in a vacant building reads: “This building is vacant because of the incompetence and corruption of the Ogden City administration, which refuses to issue necessary permits in accordance with its own laws and procedures.” That speech certainly has a “significant relationship” to the vacant building, and Ogden City’s suggestion that it could just as effectively and cheaply be delivered by placing a sign on the front lawn of the building owner’s residence, or by the building owner’s renting billboard space off-premises, is ludicrous. In other words, even applying the dubious Rappa test, the exemptions in Ogden City’s Ordinance are fine as far as they go, but they do not go nearly far enough in protecting the fundamental right of private property owners to engage in noncommercial speech on their own property. Without such an exemption, the Ordinance is plainly unconstitutionally overbroad, and must be stricken.

3. OGDEN CITY FAILED TO CONSIDER REASONABLE MEANS OF REGULATING SPEECH ON PRIVATE PROPERTY

Numerous other municipalities have found content neutral and narrowly tailored means to regulate signage on private property while protecting the First Amendment rights of the landowner. In Whitton, the court found that durational limitations applicable only to some political speech are content-based regulations. However, “regarding both traffic safety and aesthetics, the city could regulate the construction of the signs, amount of signage and the duration of time a temporary political sign can remain,” measures that adequately address the ills sought to be suppressed and are less restrictive means of doing so. Id. at 1409. Further, in Sugarman v. Village of Chester, 2002 WL 518690 *10 (S.D.N.Y) the court found that time limitations on all temporary signs, political and commercial, would be a content neutral regulation of signage. See also Long Island Bd. Of Realtors, Inc. v. Incorporated Vill. Of Massapequa, 277 F.3d 622, 628 (2d Cir. 2002) (“Where a legislature’s ends are aesthetics and safety, permissible means have included the regulation of the size, placement, and number of signs.”); Foti v. City of Menlo Park, 146 F.3d 629, 641 (9th Cir. 1998)(upholding numerical and size limitations where “restrictions on the size and number of signs serve the City’s interest in traffic safety”); Knoeffler, 87 F.Supp.2d at 333 (noting that “size and shape regulations have been repeatedly upheld by the courts”).

Ogden City failed to adopt a reasonable regulation of signage on private property and in fact, as a first resort, banned all protected First Amendment speech on vacant buildings. This is facially unconstitutional. As the Supreme Court of the United States recently stated in Thompson v. Western States Medical Center, 122 S. Ct. 1497, 535 U.S. ___ (2002) “if the First Amendment means anything, it means that regulating speech must be the last- not the first- resort. Yet here is seems to have been the first strategy the government thought to try.”

CONCLUSION

Edwards respectfully submits that, with respect to what is at issue in this case, the following conclusion is fully applicable:

Defendants’ laudable efforts to preserve the attractiveness of the [town and the value of private property in the town] deserve all the protection the courts can properly give. There is less inherent sympathy for a [property owner] who undermines those efforts by erecting a small forest of unsightly signs on his property. But where the municipality permits signs of any kind on private property, it cannot discriminate against comparable signs publicizing real or imagined grievances against . . . the town administration. Indeed, this form of speech affords the speaker considerable “bang for the buck.” Plaintiff in this case has undeniably received great notoriety for his messages with a minimal monetary outlay. Others might wish he had chosen a less obtrusive form of express, but true freedom of speech assures the speaker not only control of the content of his message but also a reasonable choice of delivery media, including all those available for messages of less controversial content.

Knoeffler v. Town of Makakating, 87 F. Supp. 2d 322, 333 (S.D.N.Y. 2000).

DATED this 14 day of May 2002.

Janelle P. Eurick
ACLU of Utah Foundation, Inc.

FOOTNOTES

1. As used in the cases and literature, “on-premises” signs are those that a business owner uses to advertise goods or services provided on the site where the sign appears, while “off-premises” signs are basically billboards. “Unlike the on-premises sign, the off-premises billboard ‘is, generally speaking, made available to all comers,’ in a fashion similar to newspaper or broadcasting advertising.” Metromedia, Inc. v. City of San Diego, 453 U.S. 490, 526 (1981) (Brennan, J., concurring).

2. Again as used in the cases and literature, “commercial” speech is speech that proposes a commercial transaction, while “noncommercial” speech includes political and religious speech as well as address and directional signs, historical signs and the other kinds of signs exempted under Ogden City’s Ordinance. See id. at ___;

3. In Metromedia, five justices agreed that a city’s aesthetic interest in removing visual clutter could justify a complete ban on such speech. 453 U.S. at 508.

4. Metromedia itself concerned an ordinance that prohibited all off-premises signs, with certain exemptions, but generally permitted on-premises commercial signs.

5. In fact, on the face of the Ordinance, the prohibition on signs applies to any vacant building within the City of Ogden. There is no distinction between commercial and residential property.