Whitton v. City of Gladstone, Mo.

Decision Date15 May 1995
Docket NumberNos. 94-1286,94-1287,s. 94-1286
Citation54 F.3d 1400
Parties, 23 Media L. Rep. 1910 Larry WHITTON, Appellee/Cross-Appellant, v. CITY OF GLADSTONE, MISSOURI, Appellant/Cross-Appellee.
CourtU.S. Court of Appeals — Eighth Circuit

Linda J. Salfrank, Kansas City, MO, argued for appellant (Richard N. Bien, on brief).

William J. Hatley, Overland Park, KS, argued for appellee.

Before FAGG, WOLLMAN, and HANSEN, Circuit Judges.

HANSEN, Circuit Judge.

The City of Gladstone, Missouri, appeals from the district court's order holding that several provisions of its sign code are impermissible restraints on free speech and therefore unconstitutional. Larry Whitton cross-appeals from the district court's order holding that other related provisions of the sign code are constitutional. We affirm in part and reverse in part.

I.

Whitton owns residential and commercial property in Gladstone, Missouri. While running for sheriff of Clay County (within which Gladstone is a city) in 1992, he filed a complaint under 42 U.S.C. Sec. 1983 challenging the constitutional validity of several sections of the Gladstone Sign Code that regulate the use of political signs. Whitton contended that these provisions of the sign code violated his First Amendment right of free speech because they hindered his ability to use his residential and commercial property to run for political office. After Whitton filed his complaint, Gladstone repealed its existing sign code and enacted a new one in its place. 1 Whitton then filed an amended complaint challenging the constitutionality of the following provisions of the newly enacted sign code regulating political signs: (1) section 25-45, which limits the placement or erection of political signs to 30 days prior to the election to which the sign pertains and requires the removal of those signs within 7 days after the election ("durational limitations"); 2 (2) section 25-46, which prohibits the external illumination of political signs ("external illumination prohibition"); 3 and (3) section 25-47(B), which holds the candidate, on whose behalf a political sign is displayed, prima facie responsible for the placement, erection, and removal of those signs ("vicarious liability provision"). 4 Gladstone answered by denying the allegations of Whitton's complaint.

The parties made cross-motions for summary judgment. The district court granted, in part, Whitton's motion for summary judgment, holding that the durational limitations in Sec. 25-45 and the portion of the external illumination prohibition in Sec. 25-46 that applied to commercial property are unconstitutional because they are content-based restrictions that do not survive strict scrutiny. Whitton v. City of Gladstone, Mo., 832 F.Supp. 1329, 1335-37 (W.D.Mo.1993). However, the district court also granted, in part, the City's motion for summary judgment, ruling that the portion of the external illumination prohibition in Sec. 25-46 that applies to residential property does not regulate on the basis of the content of the speech and is a constitutionally permissible time, place, and manner restriction. Id. at 1337-38. In a later order in response to Whitton's motion to alter or amend the judgment, the court held that the vicarious liability provision in Sec. 25-47(B) is also content-neutral and a constitutional time, place, and manner regulation. Gladstone appeals from that portion of the district court's judgment striking down provisions of the sign code as unconstitutional. Whitton cross-appeals the district court's order to the extent that it holds that the remaining challenged provisions of the sign code are constitutional. 5

II.

The First Amendment's Free Speech Clause states that "Congress shall make no law ... abridging the freedom of speech...." U.S. Const. amend. I. The First Amendment is applicable to the political subdivisions of the states. See Lovell v. Griffin, 303 U.S. 444, 450, 58 S.Ct. 666, 668, 82 L.Ed. 949 (1938). "[S]igns are a form of expression protected by the Free Speech Clause...." City of Ladue v. Gilleo, --- U.S. ----, ----, 114 S.Ct. 2038, 2041, 129 L.Ed.2d 36 (1994). However, the Supreme Court recently stated that signs "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." Id. On the other hand, the Supreme Court has long recognized "that the First Amendment has its fullest and most urgent application to speech uttered during a campaign for political office," Burson v. Freeman, 504 U.S. 191, 196-97, 112 S.Ct. 1846, 1850, 119 L.Ed.2d 5 (1992) (internal citations and quotations omitted), and further that "[a] special respect for individual liberty in the home has long been part of our culture and our law; that principle has special resonance when the government seeks to constrain a person's ability to speak there." City of Ladue, --- U.S. at ----, 114 S.Ct. at 2047. See also McIntyre v. Ohio Elections Comm., --- U.S. ----, ----, 115 S.Ct. 1511, 1516-18, 131 L.Ed.2d 426 (1984) (political speech "occupies the core of the protection afforded by the First Amendment").

Therefore, we apply the familiar framework for evaluating the constitutionality of a restriction upon speech, like the sign code provisions at issue here. We first "determine whether [the] regulation is content-based or content-neutral, and then, based on the answer to that question, ... apply the proper level of scrutiny." City of Ladue, --- U.S. at ----, 114 S.Ct. at 2047 (O'Connor, J., concurring). See also Rappa v. New Castle County, 18 F.3d 1043, 1053 (3d Cir.1994) ("the first step in First Amendment analysis [is] to determine whether a statute is content-neutral or content-based"). Gladstone contends that each challenged provision is a constitutionally permissible time, place, and manner restriction. A purported time, place, and manner restriction is constitutionally permissible so long as it is "justified without reference to the content of the regulated speech...." Clark v. Community for Creative Non-Violence, 468 U.S. 288, 293, 104 S.Ct. 3065, 3069, 82 L.Ed.2d 221 (1984). Therefore, our threshold inquiry for each challenged provision of the sign code necessarily focuses upon whether the provision at issue is a content-based restriction and then, based upon the resolution of that question, we will apply the appropriate level of scrutiny.

A. Durational Limitations (Sec. 25-45)

Section 25-45 of the sign code prohibits a commercial or residential landowner from placing a political sign on his property more than 30 days prior to the election to which the sign pertains and requires the sign to be removed within 7 days of the election. Gladstone contends that Sec. 25-45 does not regulate speech on the basis of its content and is a reasonable time, place, and manner restriction because it has significant interests in maintaining the City's aesthetic beauty and promoting traffic safety, and political signs significantly detract from these interests. Whitton maintains that the restriction is content-based because it distinguishes among signs based upon their subject matter and it affords commercial speech a greater degree of protection than political speech and, further, that the regulation does not pass strict scrutiny because Gladstone's interests, while substantial, are not compelling, and less restrictive means exist for achieving Gladstone's concerns. The district court ruled that the durational limitations are content-based regulations because they "favor[ ] commercial speech over noncommercial speech" and "distinguish[ ] between permissible and impermissible signs on the basis of the signs' content." Whitton, 832 F.Supp. at 1333. The court further found that the provisions fail to survive strict scrutiny because Gladstone's stated interests are not compelling and the restrictions are not narrowly tailored to enhance traffic safety and preserve the City's aesthetics. Id. at 1335.

We agree with the district court that Sec. 25-45, containing the durational limitations which are applicable only to political signs, is a content-based restriction. 6 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. See City of Cincinnati v. Discovery Network, Inc., --- U.S. ----, ---- - ----, 113 S.Ct. 1505, 1516-17, 123 L.Ed.2d 99 (1993). In Cincinnati, the Supreme Court evaluated the constitutionality of an ordinance which prohibited newsracks distributing commercial handbills but allowed newsracks selling newspapers. Id. at ----, 113 S.Ct. at 1516. The Supreme Court held that "[u]nder the city's newsrack policy, whether any particular newsrack falls within the ban is determined by the content of the publication resting inside that newsrack. Thus, by any commonsense understanding of the term, the ban in this case is 'content-based.' " Id. at ---- - ----, 113 S.Ct. at 1516-17. 7

Simply stated, Sec. 25-45 is content-based because it makes impermissible distinctions based solely on the content or message conveyed by the sign. The words on a sign define whether it is subject to the durational limitations in Sec. 25-45. For instance, in some residentially-zoned areas of Gladstone, see Sec. 25-28(B)(1), a permanent year around ground sign expressing support for a particular sports team would not be subjected to the durational limitations while an identical sign made of the same material, with the same dimensions and the same colors, and erected on the same spot advocating a particular candidate for political office would be. 8 In other residentially-zoned areas of Gladstone, see Sec. 25-28(A)(3), a church may erect a permanent ground sign indicating upcoming church activities and times of services for an unlimited...

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