Wednesday, October 19, 2016

Court of Appeals affirms City's sign law restriction

Political signs remain the easiest and cheapest way to promote your views. We know that during election season, when lawn and roadside signs pop up like dandelions. But while this is pure First Amendment speech, the government does have some authority to regulate them, particularly if the regulations are content-neutral. That principle dooms a lawsuit filed by a woman who posted an illuminated peace sign in her 17th floor condominium window in New York City.

The case is Vosse v. City of New York, a summary order decided on October 14. Under the City's rules, illuminated signs cannot be posted more than 40 feet off the ground. The issue is whether the restrictions constitute a legitimate "time, place or manner" speech restriction. Under T-P-M restrictions, the government can regulate speech in a content-neutral way (without regard to the message conveyed by the sign) if the regulation is narrowly-tailored and leaves the speaker ample room to communicate that message in other ways. The T-P-M standard gives the government much leeway to regulate speech, in my experience.

Plaintiff says the restriction is not narrowly tailored to serve a significant government interest. Finding otherwise, the Second Circuit (Lynch, Droney and Reiss [D.J.]) says the City has a legitimate interest in maintaining an aesthetically pleasing landscape and preserving neighborhood character. The primary argument on appeal is that the City's rules are not narrowly tailored because the rules exempt other signs, like flags, banners and pennants, which therefore get favorable treatment. The Court accuses the plaintiff of making a content-based discrimination argument, that is, that, the rules favor some signs over others based on the content of the sign. But the issue of content discrimination is not actually before the Second Circuit on appeal. Instead, the rules are narrowly tailored, the Court says, because "a statute or ordinance need not address all aspects of a problem in one fell swoop; policymakers may focus on their most pressing concerns.. The Court further explains:

If Vosse is correct that the ordinance exempts civic organizations from the general non-illumination requirement, that would show that the city could regulate more speech to further its aesthetic goals, but not that the ordinance was so underinclusive as to violate the First Amendment. The district court therefore correctly decided that the relevant provisions of the Zoning Resolution are narrowly tailored to serve a significant governmental interest.
Plaintiff also says the City's rules deny her ample alternative means to promote her message, because the Supreme Court in 1994 said that residential signs are sacrosanct. That argument doesn't work, the Circuit says, because plaintiff can post her sign without lights. While plaintiff says an non-illuminated sign would be hard for passers-by to see, that argument fails, the Court says, because "the First Amendment does not guarantee the right to communicate one's views at all times and places or in any manner that may be desired."

I wondered why the issue of content-based discrimination is not before the Second Circuit in this appeal. The answer is that the Court of Appeals resolved that issue in an earlier appeal, affirming the district court's holding that plaintiff has no standing to challenge the rules on that basis. Here is the district court's reasoning from 2013 on that issue:

if the Court found the exemption in Section 32-62 unconstitutional, the Court could remedy the violation in only one of two ways. First, the Court could simply strike the exemption as a whole, meaning that the law would penalize everyone for displaying flags, banners, or pennants at certain heights. Second, the Court could strike only the limitations on the types of lots that benefit from the exemption — "any zoning lot used primarily for community facility uses of a civic, philanthropic, educational or religious nature." Z.R. § 32-62. Choosing this option would grant everyone the benefit of the exemption relating to flags, banners, and pennants. Regardless of the Court's choice, the plaintiff here would receive no relief with respect to the monetary injury that she claims to have suffered. The first potential remedy — simply removing the exemption for the kind of lots that currently are exempt — would not negate the plaintiff's statutory violation, so she would still have to pay the fine assessed. Alternatively, expanding the exemption for the display of flags, banners, and pennants to all lots would similarly not negate the plaintiff's violation since she did not display a flag, banner, or pennant. Instead, she posted an illuminated sign. Plaintiff has never contended that her sign is a flag, banner, or pennant, and no evidence in the record suggests that the plaintiff's sign was a flag, banner, or pennant. Therefore, plaintiff lacks standing on redressability grounds.
2013 U.S. Dist. LEXIS 169098, at *6-7 (S.D.N.Y. Nov. 6, 2013).
Is this reasoning correct? Courts strike down sign laws all the time as content-based, requiring the government to return to the drawing board to get it right through an amended law that does not discriminate based on content. Striking down a law as unconstitutional under the First Amendment does not mean anyone can post whatever sign they want, unless the municipality wants it that way by declining to amend the law. As for the financial penalty, striking down the law would negate the penalty as a content-based punishment. As for the argument that plaintiff did not post a banner or pennant, courts have held that they are comparable to noncommercial signs (like peace signs) because they all convey a message. If anything, doesn't a peace sign enjoy greater First Amendment rights than a Yankees banner?

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