Dimmitt v. City of Clearwater

• Decision Date: 23 March 1993
• Docket Number: No. 92-2060,92-2060
• Citation: 985 F.2d 1565
• Parties: Lawrence DIMMITT, III, Dimmitt Chevrolet, Plaintiffs-Counter-defendants-Appellees, v. CITY OF CLEARWATER, John D. Richter, individually and as Development Code Administrator, Defendants-Counterclaim Plaintiffs-Appellants, Rita Garvy, Mayor, Ron H. Rabun, City Manager, Defendants-Counterclaim Plaintiffs.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1565

985 F.2d 1565

Lawrence DIMMITT, III, Dimmitt Chevrolet, Plaintiffs-Counter-defendants-Appellees, v. CITY OF CLEARWATER, John D. Richter, individually and as

Development Code Administrator,

Defendants-Counterclaim Plaintiffs-Appellants,

Rita Garvy, Mayor, Ron H. Rabun, City Manager,

Defendants-Counterclaim Plaintiffs.

No. 92-2060.

United States Court of Appeals, Eleventh Circuit.

March 23, 1993.

Rehearing Denied May 4, 1993.

M.A. Galbraith, Jr, City Atty., Clearwater, FL, for appellants.

Joshua Magidson, Susan W. Fox, MacFarlane, Ferguson, Allison & Kelly, Tampa, FL, for appellees.

Appeal from the United States District Court for the Middle District of Florida.

Before HATCHETT, EDMONDSON and BIRCH, Circuit Judges.

BIRCH, Circuit Judge:

In this case, we must decide whether an ordinance adopted by the City of Clearwater, Florida ("the City") regulating the display of signs, flags, and other means of graphic communication violates the constitutional guarantee of free speech. Lawrence Dimmitt, III and Dimmitt Chevrolet, Inc. (collectively "Dimmitt") challenge the constitutionality of the Clearwater ordinance on face and as applied to prohibit the display of 23 American flags at the Dimmitt automobile dealership. Finding that the ordinance impermissibly restricted protected expression, the district court declared a portion of the Clearwater ordinance unconstitutional and enjoined the City from interfering with the flag display at the Dimmitt dealership. 782 F.Supp. 586. We AFFIRM the judgment of the district court on the ground that the Clearwater ordinance is an overbroad restriction of protected speech. Further, we hold that the City of Clearwater's counterclaim alleging violations of the United States Flag Code, 36 U.S.C. §§ 174-176, et seq. was properly dismissed.

I.

In 1985, the City adopted a comprehensive land development code. One chapter consists of a sign code. Section 134.013(a) requires a permit before any sign is erected or altered. Within the meaning of the ordinance, a sign includes "[a]ny writing, picture, symbol, banner or other graphic communication or device which is primarily used to convey information, attract attention, or advertise and is prominently visible from an outdoor location." Clearwater Code of Ordinances, § 134.006. Section 134.008 exempts certain types of signs from the permit requirement. ¹ In particular, section 134.008(18) exempts a limited number of flags:

One flag may be placed on any residentially zoned property and up to two (2) flags may be placed on any nonresidentially zoned property without a permit. Such flags shall represent a governmental unit or body and shall be positioned so that no part of the flag is able to encroach over a public right-of-way.

Clearwater Code of Ordinances, § 134.008(18).

Dimmitt operates an automobile sales and service facility in the City of Clearwater. In December 1987, Dimmitt installed 23 American flags on the property, each affixed to the top of a light pole along the highway boundary of the dealership. After the City notified Dimmitt that the flag display exceeded the two flags that may be displayed on nonresidential property, Dimmitt requested a permit to fly the additional 21 flags. After this request was denied by John D. Richter, the City's Development Code Administrator, Dimmitt applied for a variance to allow the display. The variance request was heard and denied by the City's Development Code Adjustment Board. Upon receiving notice that 21 of the flags must be removed in order to avoid enforcement proceedings, Dimmitt initiated this action challenging the constitutionality of the Clearwater ordinance on its face and as applied to restrict the Dimmitt flag display.

II.

A.

The City contends that the Dimmitt flag display should not be treated as expressive conduct under the test of Spence v. Washington, 418 U.S. 405, 410-11, 94 S.Ct. 2727, 2730, 41 L.Ed.2d 842 (1974). ² Further, the City argues that any expressive content of the flag display is merely commercial speech and should be treated under the less protective regime formulated in Metromedia, Inc. v. City of San Diego, 453 U.S. 490, 507, 101 S.Ct. 2882, 2892, 69 L.Ed.2d 800 (1981). ³ Dimmitt responds that the flag display is a protected act of political expression and that the City's asserted interests in aesthetics and traffic safety fail to justify the restrictions on free expression in the Clearwater ordinance.

We need not determine whether the Dimmitt display is itself expressive conduct or whether any expressive element should be classified as commercial or noncommercial. By its own terms, the Clearwater ordinance applies to virtually any form of graphic communication that is publicly displayed, and thus plainly reaches conduct that is both expressive and noncommercial. Code of Ordinances, § 134.006. Since, as explained below, Dimmitt has standing to assert the rights of third parties whose noncommercial speech is restricted by the Clearwater ordinance, the ordinance must ultimately pass scrutiny under the more rigorous test applicable to noncommercial speech.

The City contends that its interests in promoting aesthetics and in minimizing visual distractions to motorists justify the restrictions upon graphic communication. We have upheld a number of content neutral regulations of signs and other advertising media based upon similar government interests. ⁴ The Clearwater ordinance, however, cannot be treated as a content neutral regulation. Section 134.008(18) exempts two flags displayed on nonresidential property from the permit requirement imposed in section 134.013(a). This exemption only applies, however, if the flags "represent a governmental unit or body." Thus, the display of the American flag or that of the State of Florida would be exempted from the permit process while a flag displaying the Greenpeace logo or a union affiliation would require a permit.

The City's interests in aesthetics and traffic safety cannot justify limiting the permit exemption to government flags. The deleterious effect of graphic communication upon visual aesthetics and traffic safety, substantiated here only by meager evidence in the record, is not a compelling state interest of the sort required to justify content based regulation of noncommercial speech. See Texas v. Johnson, 491 U.S. 397, 412, 109 S.Ct. 2533, 2543-44, 105 L.Ed.2d 342 (1989) (where conduct is restricted because of the message expressed, the regulation must survive the most exacting scrutiny); Perry Education Ass'n v. Perry Local Educators' Ass'n, 460 U.S. 37, 45, 103 S.Ct. 948, 955, 74 L.Ed.2d 794 (1983) (content based restriction on noncommercial speech must be "necessary to serve a compelling state interest"). Moreover, these asserted interests clearly are not served by the distinction between government and other types of flags; therefore, the regulation is not "narrowly drawn" to achieve its asserted end. Perry Education Ass'n, 460 U.S. at 45, 103 S.Ct. at 955. As a practical matter, only the most extraordinary circumstances will justify regulation of protected expression based upon its content. See, e.g., Brandenburg v. Ohio, 395 U.S. 444, 446-48, 89 S.Ct. 1827, 1829-30, 23 L.Ed.2d 430 (1969) (government may not proscribe advocacy of violence "except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action"). Cf. New York Times Co. v. United States, 403 U.S. 713, 718-20, 91 S.Ct. 2140, 2143-44, 29 L.Ed.2d 822 (1971) (asserted government interests insufficient to justify prior restraint on publication of classified study regarding American policy-making during Vietnam War).

In Solomon v. City of Gainesville, 763 F.2d 1212, 1214 (11th Cir.1985) (per curiam), we held that an ordinance restricting any graphic communication of an "obscene, indecent or immoral nature" was unconstitutionally overbroad. Although the statute purported to implement the municipality's interests in safety and aesthetics, the statute could not constitutionally advance those interests by prohibiting only those signs considered to be of questionable moral content. See also Boos v. Barry, 485 U.S. 312, 321-29, 108 S.Ct. 1157, 1164-68, 99 L.Ed.2d 333 (1988) (statute prohibiting display of signs within 500 feet of foreign embassy if sign is critical of a foreign government was unconstitutional content-based regulation). In National Advertising Co. v. City of Orange, 861 F.2d 246, 248-49 (9th Cir.1988), the Ninth Circuit invalidated a municipal ordinance regulating billboards on the ground that the exemptions from the ordinance were not content neutral. One of the provisions exempted "[f]lags of the national or state government; or not more than three flags of nonprofit religious, charitable or fraternal organizations." 861 F.2d at 248 (quoting Orange Municipal Code § 17.78.050). Solomon and National Advertising illustrate that a municipality may not accomplish its purposes in promoting aesthetics and traffic safety by restricting speech depending upon the message expressed. We conclude that by limiting the permit exemption to government flags, the City has unconstitutionally differentiated between speech based upon its content.

B.

The City asserts that because Dimmitt displayed a government flag, Dimmitt lacks standing to attack the Clearwater ordinance on the ground that the ordinance places greater restrictions upon flags which do not represent a government body. Admittedly, the Dimmitt display violates the Clearwater ordinance because of the number, and not the type, of flags displayed. As explained below, however, the effect of the overbreadth doctrine is to allow Dimmitt to attack the Clearwater ordinance on face by alleging that the ordinance regulates content by limiting the exemption to government flags.

Ordinarily a litigant offering a facial constitutional challenge to a statute must establish that "no set of circumstances exist under...