IMLA



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International Municipal Lawyers Association

Regional Continuing Legal Education Seminar

Employment Law

November 9-11, 2008

Dallas, Texas

Work Session # 2

Sexual Harassment

Prevention and Training Tips

Internal Complaint Handling

Materials and Presentation by

Attorney Daniel D. Crean

Daniel D. Crean, P.L.L.C.

414 Eastview Drive Pembroke, NH 03275

603-485-8498

creanlaw@

©2008 International Municipal Lawyers Association.

This is an informational and educational paper distributed by the International Municipal Lawyers Association during its 2008 Employment Law Continuing Legal Education Seminar, held November 9-11, 2008 in Dallas, Texas. IMLA assumes no responsibility for the policies or positions presented in the report or for the presentation of its contents.

Contents of Materials for this Segment of Workshop #7

1. Copy of article “Public Employment Relationships in New Hampshire and Their Effect on Discipline and Termination - At-Will Status: Definitions, Exceptions and Practical Concerns

By Daniel D. Crean, reprinted with permission from Awareness in Action: The Journal of New Hampshire Public Risk Management, Issue #6, 2008. All rights reserved.

2. At-Will Status Update for IMLA Employment Law Seminar, November 11, 2008, By Daniel D. Crean

3. Copy of slide presentation, November 11, 2008

Contents

Section 1. Land Use and Commercial Speech

Introduction and Overview

Section 2. Traditional Signs and Land Use Regulation

Section 3: Electronic Signs

Preliminary Discussion and Scope of Session 6.

The First Amendment and corresponding provisions of state constitutions limit governmental power to regulate and control speech. As this seminar does not have a state-specific focus, this session will not discuss specific state constitutional issues, with the understanding that such concerns, of course, may vary from, or be consistent with, federal jurisprudence.

As discussed below, governmental restrictions on speech generally are analyzed using tests and standards setting forth the nature and extent of judicial scrutiny that have evolved over the course of time. As a primary rule, though, land use controls that seek to regulate non-communicative aspects of signs to achieve valid public purposes, such as, traffic safety, historic preservation, or aesthetics, are more generally upheld; attempts to regulate communicative aspects of signs are more likely to be invalidated, as these regulations must past strict scrutiny.[1]

Issues pertaining to speech in regard to signs generally fall into two primary categories based on the nature of the speech as “pure” or “commercial.” Except for a brief introductory discussion, this session will not cover (a) matters pertaining to “pure” speech[2] (i.e., non-commercial speech) or to commercial speech that does not directly involve signs.[3]

Section 1 of these materials provides a brief summary and guide to speech concerns and land use regulation in general, including the traditional framework for analyzing commercial speech concerns. As this session of the seminar is designed for practitioners with moderate experience in this topic, the presentation in Section 1 will be limited, and these materials are designed primarily for review and reference.

Similarly, Section 2 provides a review of commercial speech and land use with regard to more traditional signs.

Section 3, then, presents materials on the specific topic of electronic, changeable text signs, including summaries of recent cases involving the City of Concord, New Hampshire.

Section 1. Land Use and Commercial Speech: Introduction and Overview

In looking at sign issues, one is tempted to proceed directly to First Amendment issues. That may not always be wise or prudent, as sign regulation may involve issues under state enabling legislation or conventional constitutional authority.

A first-level inquiry should examine state enabling laws or laws in home-rule states that purport to limit zoning powers. State laws may preempt, limit, or provide authority for land use controls. Many states have billboard controls vesting jurisdictional control over their location with regard to the category of the abutting highway (federal, state or local roads). Other laws may pose issues with regard to such general land use concerns as the power to use zoning for aesthetic purposes or the manner in which nonconforming land uses (including signs) may be protected or subjected to controls.[4] Naturally, such state-specific controls are beyond the scope of these materials.

In summary, such a state-law-focused analysis may involve questions as to whether an ordinance:

• Furthers a statutorily-stated purpose for which zoning may be enacted;

• Violates provisions regarding, e.g., protections for non-conforming uses; or

• May be preempted by state or federal legislation.

Aside from state-specific legislation, land use controls, including those regulating signs, are subject to constitutional scrutiny aside from First Amendment considerations. At the threshold level, land use controls must pass what is sometimes called the substantive due process test. A common statement of this rule requires that the ordinance be enacted for a proper public purpose and that the means used in the ordinance must bear a rational relationship to achieving those ends. Related concerns require that the ordinance not be vague, i.e., that it imposes standards that can be understood by a “reasonable” person subject to the ordinance.

A second-level constitutional analysis determines if a police power ordinance comports with constitutional requirements short of specifically enumerated rights (e.g., free speech), such as due process or equal protection concerns. Traditionally, analysis in this sphere is subjected to “middle tier” analysis by which the regulation must further an important governmental purpose.

While aesthetics is now a generally accepted purpose for which land use powers may be exercised, sign cases may still be subject to narrowed construction due to judicial lack of enthusiasm for esthetic controls.[5]

In summary, then, as with all exercises of the police power to regulate persons and property, zoning ordinances must meet the substantive due process test[6] and generally may not be applied retroactively so as to deny a use of property that has come into existence prior to the adoption of the land use control.

New Hampshire’s Supreme Court, for example, ruled that signs (at least substantial ones) constitute property protected by the Constitution and structures protected under statutory enabling legislation. As a result, it invalidated an arbitrarily selected blanket amortization period within which non-conforming signs had to be removed without compensation based on the value of the sign.[7]

As noted previously, beyond this so-called rational basis analysis, sign regulations may raise issues regarding equal protection.[8] Middle tier analysis requires that the regulation further a substantial governmental interest, not just a public purpose.

A third level of constitutional scrutiny arises if the regulation impinges on a specifically enumerated constitutional right, such as one protected by the Bill of Rights of the U.S. Constitution. One example of such a right is the issue of takings as discussed in session 3 of this seminar and the religious freedom aspects of the First Amendment raised in session 5 of this seminar. The complex structure of scrutiny for First Amendment speech cases is reviewed in section 2 of these materials.

With regard to the specifically enumerated right protected by the First Amendment which this session addresses (i.e., speech), constitutional analysis will involve:

• Forum analysis,

• Time, place and manner restrictions,

• Prior restraint,

• Adequacy of alternate means of communication.

In addition, a key component of First Amendment analysis also will question if a differential treatment under a land use control is premised upon content-based or content-neutral criteria.

This greatly oversimplified overview is intended to set the stage for more in-depth analysis of constitutional issues pertaining to regulation of signs. It is well to keep in mind, however, that these basic fundamental concerns may arise even before reaching the more demanding and involved issues arising under the First Amendment.

Section 2. Traditional Signs and Land Use Regulation

The primary focus of this session, electronic communication devices, constitutes a subset of the means by which commerce communicates its messages to the public. Originally, constitutional protections under the First Amendment did not extend to what is now termed “commercial speech.”[9] Commercial advertising was held to be freely subject to governmental control without regard to free speech concerns.[10] By midway through the 1970s, the Supreme Court of the United States (SCOTUS) first applied the free speech protections of the First Amendment to commercial speech in general[11] and then subsequently applied these protections in a land use context. At a minimum, these rulings altered the traditional deferential judicial review accorded to land use regulations. Since then, land use control of commercial speech can be summarized in very general terms by three SCOTUS decisions.

Aesthetics and traffic safety were held to constitute public purposes sufficient to justify regulation of commercial signage by Metromedia, Inc. v. City of San Diego.[12] The case also indicated that a complete ban on commercial signs would not contravene the First Amendment. However, the city’s ordinance was found to be invalid, as it treated commercial signs more favorably than non-commercial signs. Further, the ordinance was problematic in that it distinguished between types of non-commercial speech allowable, thus basing applicability of the ordinance on criteria that were not “content-neutral.”

In 1984, the Court upheld from constitutional challenge an ordinance that barred the posting of both commercial and non-commercial posters (private signs) on public property (such as utility poles, trees, sidewalks, and wires).[13] Once again, traffic safety and aesthetics constituted a sufficient basis upon which the ordinance might be based.

The third foundational case involved an ordinance that prohibited nearly all noncommercial signs (including political and ideological ones) in a residential area. Finding such a broad proscription of fundamental speech to violate the First Amendment, the Court, without using a content basis, merely found the ordinance to prohibit “too much speech” that could not be justified.[14] This concept of overly intrusive interference with a traditional means of expression for which no adequate substitute can be found remains an essential component of free speech analysis, particularly where it can be argued that commercial speech is allowed more freedom than its non-commercial counterpart.[15]

When it comes to analyzing local government attempts to regulate commercial speech in the form of signs, the distinction between non-commercial and commercial speech must be kept in mind. At the core, this means that commercial speech may be regulated more stringently than non-commercial speech. Ordinances that grant more favorable treatment to commercial speech than non-commercial speech can be expected to fail First Amendment scrutiny.

The traditional test for validity of commercial sign regulation remains that set forth in the oft-cited Central Hudson case: the restriction must (1) seek to implement a substantial governmental interest unrelated to the suppression of speech; (2) directly advance that interest; and (3) be no more restrictive than necessary to achieve that governmental objective.[16]

Current law might be summarized by noting that content-neutral regulation that limits time, place, and manner of commercial speech is reviewed under the Central Hudson standard noted above. However, if regulation is set in place or altered on the basis of the content of the speech contained in the sign, regulation still may be permissible but is subject to more stringent strict scrutiny analysis requiring that the regulation be based on a compelling governmental interest.

A final component to note at this stage is the requirement that commercial speech attains protected status only if it concerns lawful activity and is not misleading.[17]

To conclude this review that sets the stage for analysis of recent developments in regulation of electronic signs, it is appropriate to summarize the First Circuit’s overview of general sign law that preceded its “electronic” regulatory analysis in a City of Concord case:

. . . courts have long approved subjecting them (signs) to the police powers of local government. . . “signs take up space and may obstruct views, distract motorists, displace alternative uses for land, and pose other problems that legitimately call for regulation. It is common ground that governments may regulate the physical characteristics of signs . . .” (citations omitted).[18]

As will be discussed in section 3, a key issue involves a determination as to whether the sign regulation is content-based when it seeks to limit or control the manner in which text is presented on the sign.

Section 3: Electronic Signs

Though one might expect electronic signage to be solely within the realm of commercial speech, use of electronic signs for communication for political, religious or other purposes is not a rarity. It may extend even into the realm of holiday light displays that can be perceived to annoy neighbors by virtue of intrusive light or the cavalcade of motor vehicles that come to gaze at such extravagant displays.[19]

The focus in this segment, though, is on the more prevalent use of electronic communication signage for commercial purposes. A term used to describe these devices in the cases to be discussed in this section is “electronic messaging centers” or “EMCs.”

The main vehicles leading this discussion will be two challenges to sign controls regulating electronic, changeable text signs adopted by the City of Concord, New Hampshire. The city initially adopted an ordinance barring EMCs but exempting signs that displayed date, time and temperature.[20] A superior court judge (erroneously as later overruled) determined that the “ordinance did not advance its asserted interests” and was “more expansive than necessary.”[21]

The city then enacted a new ordinance banning all EMCs (i.e., signs “that appear animated or projected” or “are intermittently or intensely illuminated or of a traveling, tracing, scrolling, or sequential light type” or “contain or are illuminated by animated or flashing light,” and preserving, of course, lawfully pre-existing non-conforming signs). The revised ordinance resulted in a second legal challenge, this one posed by a national jewelry store chain (Naser Jewelers, Inc. (“NJI”) d/b/a at the Concord store as “Joseph Michaels Diamonds”). After denial of its application to install an EMC on its then-current sign, NJI filed an action in the federal district court in Concord seeking declaratory and injunctive relief and a preliminary injunction to bar enforcement of the revised ordinance. Preliminary relief was denied by a magistrate and then by the court (on differing analytical grounds[22]). NJI appealed that ruling to the First Circuit, which upheld denial of preliminary relief and, on remand the District Court, granted summary judgment to the City, dismissing the case.

Detailed discussion of these two cases will follow, but first an aside on evidentiary issues is appropriate. A key first step, of course, is to identify a proper public purpose justifying imposition of controls or prohibitions on electronic commercial signs in a manner that differs from controls on non-electronic commercial signs. Here, as in sign law generally, courts appear to continue to grant some degree of customary judicial deference to legislative judgment. However, absence of a reasonable record documenting at least some consideration and examination of the reasons for the need for the control may be sufficient, without additional proof, to overturn the ordinance.

In this context, it is appropriate to consider the related issue of adult entertainment or sexually oriented businesses (SOBs). After the initial round of cases documenting the level of proof needed to justify regulation, it now appears that local governments need not have conducted actual studies documenting adverse effects, but instead may rely on studies done elsewhere so long as the studies bear some relevance to the local government’s situation and are not based on studies in very different municipalities or circumstances.[23]

As the same constitutional provisions protect both SOB and commercial sign interests, one might expect a reviewing court to apply similar approaches in analyzing supporting documentation, so that local governments need not “reinvent wheels” by conducting completely independent studies of adverse effects of electronic signs.

One might presume that a potential source of information justifying electronic sign regulation premised upon traffic safety would lie in traffic studies. An available study by the federal government suggests a common sense conclusion:

• Electronic communications by design seek to divert attention of drivers;

• The need to read changeable text means that a driver’s attention is diverted from the task of operating a motor vehicle for a longer time than that needed to scan a stationary sign;

• Longer attention-diversion spans can be expected to lessen traffic safety.

The NHTSA report, while suggesting such a conclusion, does not contain comprehensive data conclusively supporting such a finding.[24]

How crucial is supporting documentation of the evils of electronic signage? These recent decisions by the New Hampshire Supreme Court, New Hampshire Federal District Court and the First Circuit may be instructive on this point, as they both upheld the ordinance on the record presented by the City, which did not involve an extensive or intensive study of adverse effects that might arise from EMCs.

The signs that ultimately resulted in the challenges to the ordinance were located, as one might expect, in high traffic areas. The auto dealer sign (Carlson’s) was located on the urban section of a major state highway artery leading into the city. The jeweler’s store was located on a high-traffic corridor that includes a mix of retail and residential development, a large public park, and a fire station, and is in close proximity to an elementary school and more residential areas.[25]

Before proceeding to the issue of content-based determination, a review of the decisions upholding the ordinance is appropriate.

Carlson’s Chrysler v. City of Concord, __ N.H. __ (2007). In the state court litigation, when the auto dealer (Carlson) applied for an EMC sign permit, Ordinance article 28-6-7 prohibited “(a) Signs which move or create an illusion of movement except those parts which solely indicate date, time, or temperature” and “(h) Signs which appear animated or projected, or which are intermittently illuminated or of a traveling, tracing, or sequential light type, or signs which contain or are illuminated by animated or flashing light, except such portions of a sign as consist solely of indicators of time, date, and temperature.”

As noted above, the subsequently amended ordinance (with time and temp exemptions deleted) was separately addressed in federal district court, discussed below, and that version of the ordinance was not at issue in state court.

While acknowledging that the First Amendment indeed limits regulatory authority over speech, the New Hampshire Supreme Court stated:

While signs are a form of expression protected by the Free Speech Clause, they pose distinctive problems that are subject to municipalities’ police powers. Unlike oral speech, signs take up space and may obstruct views, distract motorists, displace alternative uses for land, and pose other problems that legitimately call for regulation.

The court then noted that it is not always easy to identify and separate communicative and non-communicative aspects of sign regulation:

As with other media, the government has legitimate interests in controlling the non-communicative aspects of the medium, but the First and Fourteenth Amendments foreclose a similar interest in controlling the communicative aspects.” Id. (citation omitted). “Because regulation of the non-communicative aspects of a medium often impinges to some degree on the communicative aspects, it has been necessary for the courts to reconcile the government’s regulatory interests with the individuals’ right to expression.”

Thus, the court continued, “. . . protection available for particular commercial expression turns on the nature both of the expression and of the governmental interests served by its regulation.” It then noted the traditional four-part Central Hudson test described previously. The lower court decision found that although the City’s concerns for public safety and aesthetics were substantial governmental goals that satisfied Central Hudson’s second prong, the City failed to meet its burden of proving that the ordinances advanced those asserted interests and reached no further than necessary because the City

presented no evidence that regulating the content of an EMC would promote aesthetics or public safety.

As to aesthetics, the lower court noted that the zoning board of adjustment (ZBA)[26] expressed concerns that numerous signs in a small area might lead to visual clutter or otherwise be unsightly. However, it found an EMC ban did not take into account the character of the area in which the EMC was proposed or the size of the sign or its lettering. The court took judicial notice that the sign proposed in this case

will be situated among many other commercial entities with large, lit advertising signs and found it difficult to imagine that an EMC in this area would have an aesthetically negative effect. As to public safety, the lower court said the City’s assertion that changing text displays might be distracting to motorists and lead to increased traffic accidents made common sense, the city presented no evidence to support that concern.

In reviewing this decision, the Supreme Court first noted its long-standing view that land use regulation is a legislative function, and “judging the wisdom of the

legislation is not the function of this court.” When enacting an ordinance, the government may consider knowledge of its officials “concerning such factors as traffic conditions and surrounding uses resulting from their familiarity with the area involved.” Noting that zoning may be used solely to advance aesthetic values, the Court said that the city need not provide detailed proof that the regulation advances its purported interests of safety and aesthetics, citing Center for Bio-Ethical v. City and County of Honolulu, 455 F.3d 910 (9th Cir. 2006), and held that the lower court erred in substituting its judgment for that of the city’s that prohibiting animated, flashing signs containing commercial advertising will “enhance the appearance and aesthetic environment of the city” and “improve traffic safety.” This ruling is consistent with the notion of judicial deference that legislative determinations are not set aside unless “manifestly unreasonable.”

The Court then moved to Central Hudson’s fourth prong, as to which the trial court had found that the city had available other, more narrowly-tailored means to meet its desired objectives such as regulating the number, proximity or placement of EMCs. The Supreme Court, disagreed, noting that “the most effective way to eliminate the problems raised by electronic signs containing commercial advertising is to prohibit them,” citing Metromedia, supra. The EMC ban allows other means of commercial

advertising of a non-electronic nature, and the Supreme Court then said it did “. . . not consider whether the challenged ordinance unfairly distinguishes among various types of non-commercial speech as Carlson has not advanced that argument.” The decision, therefore, leaves for another day that potentially important issue.

One of the five Supreme Court justices filed a separate opinion stating that since the ordinance applied to both commercial and non-commercial speech, the Central Hudson test does not apply.[27] However, he proceeds to analyze the case under that test, ultimately agreeing with the majority, but then asserting that the date, time and temperature exception (which the “majority seems to not address”) had to be analyzed under Central Hudson.[28]

The dissent focused on the lower court’s reliance on the exception in holding the ordinance unconstitutional. In his view Central Hudson required the Court to account for the exception for time, date and temperature,[29] “. . . which makes the analysis a closer question.” Yet, he would “. . . nonetheless conclude that the time, date and temperature exception also directly and materially advances the City’s interests and reaches no further than necessary to accomplish its stated goals. Because a message displaying time, date and temperature is short and rudimentary, the City could have reasonably found that such a message is less distracting and thus poses less of a traffic hazard than other messages” (citing Fayetteville n. 28). Applying judicial deference, the dissent concluded that such a determination is not “manifestly unreasonable and should not be set aside.”

Naser Jewelers, Inc. v. City of Concord, 513 F. 3d 27 (1st Cir. 2008). In federal court, the issue involved the validity of the amended ordinance which did not contain the date, time and temperature exception. NJI asserted that the city bore a heavy burden in demonstrating the need for the ordinance. The First Circuit, having found the ordinance to be content-neutral, ruled that presumptions of unconstitutionality apply when the ordinance is content-based, and NJI thus bore the burden of proof since it was posing a facial attack on the constitutionality of the ordinance. Citing precedent that content-based ordinances reverse the normal presumption of constitutionality, the opinion states the “implication is that content-neutral statutes continue to enjoy the presumption of constitutionality.” The court then proceeds to dismiss the need to assess burden of proof concerns by noting that the city’s express purpose in adopting the ordinance is clear.

NJI next argued that Central Hudson applied as the correct test, regardless of content concern, because the targeted speech is “primarily commercial” and that standard applies to all commercial speech. The First Circuit responded by noting that content-neutral restrictions do not vary by whether the speech is commercial, but instead are permissible so long as they are narrowly tailored to serve a significant government interest and allow for reasonable alternative means of communication, calling this a form of “intermediate scrutiny.”

The opinion then reviews these two prongs of intermediate scrutiny. The primary focus of NJI’s argument on government interests appeared to be its claim that the city’s true intent was to reinstate an exemption for time and temperature. The court responded that it could look only at the ordinance before it, not as some subjective intent that is both “unknown and unknowable.” The stated purposes of traffic safety and aesthetics are long-accepted significant government interests and there can be no doubt that the ordinance advances these interests.

As to narrow tailoring, the court, applying recent precedent,[30] stated that this does not require the government to choose the least restrictive means possible. Would Concord’s goals of traffic safety and aesthetics be achieved less effectively without a ban on EMCs? Following the guidance of Metrodmedia, the court acknowledged “the accumulated common-sense judgments of local lawmakers and of the many reviewing courts that billboards are real and substantial hazards to traffic safety.” It then follows that EMCs, which provide more visual stimuli than traditional signs, logically will be more distracting and more hazardous.

Here, again, the court noted that Concord’s “failure” to have done specific studies was not fatal and that Brennan’s position positing the need for such studies in his opinion in Metromedia was rejected by seven justices.[31]

The court noted that the reason for wanting the electronic signs is that they are more likely to cause bypassers to focus on them – hence it is not unreasonable to conclude they are a greater hazard for traffic. Thus, while courts should not cavalierly apply legislative deference here, legislative judgments are given some latitude even in sign cases.

NJI also asserted that the ordinance was not narrowly tailored because the city council considered other options besides the total ban. Citing the city of Boston’s ban on newspaper vending machines in the historic neighborhood of Beacon Hill,[32] the court noted the ironic position that the city had tried a less restrictive approach (exempting time and temperature signs) only to have that met with a legal challenge. Alternatives such as limiting the times that messages might change would have posed unreasonable monitoring and administrative demands on the city. Notably, the city’s consideration of these alternatives, and the reasons for rejecting them, were contained in the record.

A final claim lodged by NJI asserted that the ordinance was invalid as it banned a complete “medium” of communication. While the court noted that this argument raised an interesting factual question (what is a medium of communication), it had no legal basis. Even if an EMC were considered a “medium,” its banning does not equate to lack of narrow tailoring when the medium itself is the “evil the city (seeks) to address,” citing its holding in Globe Newspapers.

A final concern in the opinion related to the availability of alternative channels of communication. NJI may still use static signs, manually changed text, television and radio, magazines, and the internet.

In conclusion, NJI asserted that the increased business at other locations coming after installation of EMCs was clear and the city’s ordinance would interfere with that increased business. The First Circuit’s reply was terse:

The maximizing of profit is not the animating concern of the First Amendment. The fact that restrictions prohibit a form of speech attractive to plaintiff does not mean that no reasonable alternative channels of communication are available. The First Amendment does not guarantee a right to the most cost-effective means of speech. Indeed, we have upheld alternative means of communication despite diminution in the quantity of speech, a ban on preferred method of communication, and a reduction in the potential audience. [At p. 19, internal quotation marks and citations omitted.]

Prologue. Notably the Carlson Chrysler sign and others, including those of restaurants and appliance stores that formerly had commercial messages, now display time and temperature – see powerpoint presentation for photos. The NJI sign contains a static picture.

Content Neutral v. Content Based Determination.

Up to this point in this section of the materials, this key determination has not been discussed in depth, though both court decisions make passing reference to the issue. However, a key point of contention in sign contests may require a determination as to whether an ordinance regulating electronic signs can be viewed as content-based because it distinguishes between text displayed electronically and text that is static or changed only manually. There appear to be two schools of thought: the first exemplified by the Naser Jewelers case dismisses that argument almost cavalierly. A second approach appears to suggest that such a distinction is not content-neutral. As the ordinance would then regulate content of the message, middle tier analysis would be supplanted by strict scrutiny (or perhaps some as-yet unformulated test).

The issue was directly confronted in La Tour v. Fayetteville .[33] An accountant placed a small scrolling electronic sign in his window. After initially advising that an ordinance prohibiting such a sign did not regulate internal signs, the city asserted that it did apply to the sign which was placed in window visible to the public. The sign displayed both commercial and non-commercial expression. A part of the challenge to the ordinance asserted that it was content-based because it was not enforced against time and temperature signs. On its face, the ordinance applied to all signs. Prior circuit precedent held that an ordinance was content-based if its applicability was predicated upon what it said. That precedent was distinguished in this case: the ordinance here was content-neutral on its face – it applied to all signs; the other ordinance applied only to political signs which required a reading of the intent of the message – here the administrative exception was easily applied by a glance at the message; and, most importantly, the political sign ordinance exempted from its scope identical signs presenting identical concerns. The court found that “ubiquitous” time and temperature signs would not give one side an advantage in political matters as might happen with animated political signs. Thus, the ordinance would not be used to control the “search for political truth.”

More to the current point, though, the Eighth Circuit said its recent cases state that an ordinance is content-neutral if it is justified without reference to the content of the regulated speech. A municipality’s desire to promote traffic safety is not tied to the content of the flashing sign it seeks to regulate, and a short and rudimentary time and temperature display would pose less of a safety hazard than a scrolling text or rapidly changing display.

The Flying J Kentucky case[34] mentioned in the Carlson case tested the validity of a Kentucky statute that regulated electronic signs. In particular, if a sign met technical specifications, it could display time and temperature, but not, e.g., the price at which gasoline was sold. The plaintiff operated a service plaza within 660 feet of the right-of-way of I-75 and erected a tall sign on which it displayed time, temperature, information about community activities, and prices of its products. The ordinance was challenged on several constitutional grounds, but only the commercial speech challenge is reviewed here. Without having to apply strict scrutiny, the Kentucky Supreme Court found that the ordinance violated Central Hudson’s fourth prong as being more expansive than required to serve important governmental interests.

Paying little, if any, heed to legislative deference, the Court said the state failed to demonstrate a reasonable connection between the statute that permitted one type of display, not another, and the ends of traffic safety and aesthetics. Permitting the time and temperature display while barring a message that said, e.g., “regular unleaded $1.07” was broader than needed to further highway safety. Tellingly, the court said that the regulation not only did not serve a substantial governmental interest, it served no governmental interest. No proof was offered, expert or otherwise, to support the need for the regulation.

While this case may not make a distinction solely on the basis of electronic versus non-electronic communication, the opinion asks why “simple limits on the number of displays and maximum time limits for those displays will not better serve the governmental interest and highway safety than a content-based restriction that results in a prohibition of certain kinds of commercial speech.”

Marras v. City of Livonia[35] involved muti-faceted litigation between a store owner and the city concerning, inter alia, enforcement of an ordinance barring LED and banner signs. The instant opinion addressed the city’s motion for summary judgment seeking dismissal of Marras’ §1983 action alleging violation of his first amendment rights arising from the prior attempts at enforcing the sign ordinance.

The ordinance, adopted after a six-year process, including review of studies such as the Federal Highway Safety Administration study (supra n.24) and a study by Minnetonka, Minnesota, validating correlation between accidents and roadside advertising. The thirty-three pages of the ordinance comprehensively identified permitted and prohibited signs and contained numerous conditional exceptions and exemptions. The city’s motion for summary judgment characterized the action as an “unwarranted attack on content-neutral time, place, and manner restrictions” and that the ordinance in regulating commercial speech “advances a legitimate governmental interest and is narrowly tailored to that interest” while leaving open adequate other channels of communication.

The court first addressed the threshold question of content-neutrality, citing precedent[36] holding that exceptions-based types of signs (e.g., public signs, integral signs, private traffic direction signs, small signs, temporary land development signs, farm signs, and property address signs) were content-based. The court concluded that the exception[37] prevented the court from finding that the ordinance was content-neutral. The court mentioned the First Circuit NJI case, but it notes that the ordinance there prohibited all electronic signs. As a result, the court denied the motion for summary judgment.

These cases point to one difficult issue in electronic sign cases: the determination of the standard to be applied. However, even if strict scrutiny is not used, practitioners need to be aware of concerns arising when the (overbroad, narrow tailoring) fourth prong middle tier standard is applied, as that may “raise the ante” required of local governments when they seek to justify distinctions between EMCs and other forms of signage.

As there appears now to be a split among some courts, one might expect the issue at some point to reach SCOTUS. However, in the mind of this author, the notion that electronic text controls are content-based elevates form over substance unless the ordinance truly does distinguish between types of content. In essence, it can be argued that electronic displays of changeable text constitute time, place and manner of exercising commercial speech. Thus, they are subject to regulation under the less stringent standard and should not be subject to strict scrutiny, compelling interest analysis.

The Future. Like computers, electronic signs are here to stay, at least in some form and in some places. The reasons supporting their use (they grab attention) are the very same reasons why regulations are adopted (they are distracting and, in the eyes of some, unattractive). Digital signs, extending now to billboards, will elevate the level of discourse and disagreement. Federal and state legislative initiatives may respond. Texas, for example, already has adopted regulations governing the manner in which local governments may respond to digital billboards.

Local governments seeking to impose controls on electronic signs that differ from controls placed on other signs may find defense of such controls enhanced by use of studies on their own, or at least a record demonstrating localized and particularized analysis of studies conducted elsewhere. Legislative purpose statements, if properly phrased, also may lend support to EMC controls. A key element will be the crafting of ordinances that are clear, vest limited discretion in administrators, and rationally demonstrate a connection between the controls imposed and the enumerated and evident purposes of the ordinance.

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[1] See, generally, 13 Powell on Real Property § 79D.02 [4][a].

[2] For example, political advertising or solicitation.

[3] For example, sexually oriented or “adult” businesses.

[4] For example, arbitrary nonconforming sign amortization provisions that failed to consider value and “life expectancy” of the sign were invalidated in Loundsbury v. Keene, 122 N.H. 1006, 453 A.2d 1278 (1982).

[5] Early zoning cases approved sign and billboard regulations based on public safety concerns – premised upon illicit conduct that might occur behind the billboards.

[6] To pass the police power substantive due process test, an ordinance must have a valid public purpose, and the means chosen to attain that purpose must be rationally designed to achieve those ends.

[7] Loundsbury v. Keene, supra.

[8] An ordinance permitting different types of signs for restaurants and businesses featuring nightly entertainment failed middle-tier, equal protection scrutiny by the New Hampshire Supreme Court, Asselin, d/b/a Mario’s Restaurant v. Town of Conway, 135 N.H. 576, 607 A.2d 132 (1992).

[9] See Blaesser & Weinstein, Federal Land Use Law & Litigation, (2008 Edition) §4:2.

[10] Valentine v. Christensen, 316 U.S. 52, 62 S. Ct. 920 (1942).

[11] Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748, 96 S. Ct. 1817, 48 L. Ed. 2d 346 (1976).

[12] 453 U.S. 490, 101 S. Ct. 2882, 69 L. Ed. 2d 800 (1981).

[13] Los Angeles City Council v. Taxpayers for Vincent, 466 U.S. 789, 104 S. Ct. 2118, 80 L. Ed. 2d 772 (1984).

[14] City of Ladue v. Gilleo, 512 U.S. 43, 114 S. Ct. 2038, 129 L. Ed. 2d 36 (1994).

[15] E.g., National Advertising Co. v. Town of Babylon, 900 F.2d 551 (2d Circ. 1990) impermissible discrimination against non-commercial speech; Fisher v. City of Charlestown, 188 W. Va. 518, 425 S.E.2d 194 (1992) ordinance forbidding on-site political signs invalid.

[16] Central Hudson Gas & Electric Corp. v. Public Service Commission of New York, 447 U.S. 557, 100 S. Ct. 2343, 65 L.Ed. 2d 341 (1980).

[17] National Advertising Co. v. Town of Babylon, supra.

[18] Naser Jewelers, Inc. v. City of Concord, 513 F. 3d 27 (1st 2008).

[19] It should be noted, though, that a tactic used by commercial signage proponents is an attempt to invalidate an ordinance on any possible grounds (including, for example, intrusion on non-commercial speech) that then might invalidate a sign control. During the ensuing temporary regulatory void, electronic signs may come into existence and thereby seek to gain status as a protected non-conforming use. See discussion in this section on the Carlson Chrysler case. A key issue in such cases may be that of the standing of the commercial sign proponent/plaintiff to assert a First Amendment challenge for a sign unrelated to its own sign and interests.

[20] The ordinance prohibited “signs which move or create the illusion of movement except those parts of which solely indicate time or temperature.”

[21] The city appealed this decision to the New Hampshire Supreme Court, which reversed the lower court resulting in the decision entitled Carlson’s Chrysler v. City of Concord, __ N.H. __, 2007 WL 3306945 (November 8, 2007), copy included on seminar CD and analyzed below.

[22] The magistrate upheld the ordinance under the Central Hudson commercial speech test. The court, finding the ordinance to be content-neutral and not applicable solely to commercial speech, found the ordinance to be valid, as it was narrowly tailored to serve a significant government interest and allowed for reasonable alternative means of communication.

[23] City of Los Angeles v. Alameda Books, Inc., 535 U.S. 425, 122 S. Ct. 1728, 152 L.Ed. 2d 670 (2002).

[24] The report, “Research Review of Potential Safety Effects of Electronic Billboards on Driver Attention and Distraction” dated September 11, 2001, is available at the Federal Highway Safety administration web site and a link to it is included on the CD for this seminar.

[25] Photos of the signs in their current state (no longer EMCs) and the neighborhoods and other signs in the city are included in the seminar materials.

[26] Under New Hampshire law, a person may appeal a denial of a building permit to the ZBA. The ZBA’s decision in this appeal of an administrative decision was then the basis for the lower court case.

[27] Citing Solantic, LLC v. City of Neptune Beach, 410 F.3d 1250, 1268-69 n.5 (11th Cir. 2005); Cleveland Area Bd. of Realtors v. City of Euclid, 88 F.3d 382 (6th Cir. 1996); Moser v. F.C.C., 46 F.3d 970 (9th Cir. 1995); XXL of Ohio, Inc. v. City of Broadview Heights, 341 F. Supp. 2d 765 (N.D. Ohio 2004); but also citing as contrary authority the federal district court decision on the Naser Jewelers case discussed infra.

[28] Citing La Tour v. City of Fayetteville, Ark., 442 F.3d 1094 (8th Cir. 2006).

[29] Citing Flying J Travel Plaza v. Com., 928 S.W.2d 344 (Ky. 1996).

[30] The test being satisfied “so long as the regulation promotes a substantial government interest that would be achieved less effectively absent the regulation,” Ward v. Rock Against Racism, 491 U.S. 781 (1989) and Hill v. Colorado, 530 U.S. 703 (2000).

[31] The opinion here cites Ackerly Communications of the Northwest, Inc. v. Krochalis, 108 F.3d 1095 (9th Cir. 1997).

[32] Globe Newspaper Co. v. Beacon Hill Architectural Comm’n., 100 F.3d 175 (1ST Cir. 1996).

[33] Note 28.

[34] Note 29.

[35] United States District Court for the Eastern District of Michigan, Southern Division, March 28, 2008, Civil No. 07-12562, 2008 U.S. Dist. Lexis 24812.

[36] King Enterprises, Inc. v. Thomas Twp., 215 F. Supp. 2d 891 (E.D. Mich. 2002).

[37] No sign oriented to the motorized traffic on a public street shall be erected . . . without first having been approved by the Director . . . The ordinance also listed types of exceptions including public signs, window signs, seasonal decorations and political signs.

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