Willson v. City of Bel-Nor

• Decision Date: 20 May 2019
• Docket Number: No. 18-1753,18-1753
• Citation: 924 F.3d 995
• Parties: Lawrence WILLSON, Plaintiff-Appellant v. CITY OF BEL-NOR, MISSOURI, Defendant-Appellee
• Court: U.S. Court of Appeals — Eighth Circuit

924 F.3d 995

Lawrence WILLSON, Plaintiff-Appellant

v.CITY OF BEL-NOR, MISSOURI, Defendant-Appellee

No. 18-1753

United States Court of Appeals, Eighth Circuit.

Submitted: January 15, 2019

Filed: May 20, 2019

Counsel who presented argument on behalf of the appellant was Anthony E. Rothert, of Saint Louis, MO. The following attorney(s) also appeared on the appellant brief; Omri E. Praiss, of Saint Louis, MO., Gillian R. Wilcox, of Kansas City, MO., Jessie M. Steffan, of Saint Louis, MO.

Counsel who presented argument on behalf of the appellee was Jeffrey Joseph Brinker, of Saint Louis, MO. The following attorney(s) also appeared on the appellee brief; Aaron I. Mandel, of Maryland Heights, MO.

Before BENTON, MELLOY, and KELLY, Circuit Judges.

BENTON, Circuit Judge.

Lawrence Willson moved to preliminarily enjoin enforcement of a Bel-Nor ordinance restricting the number of signs displayed on private property. The district court denied the motion. Having jurisdiction under § 1292(a)(1), this court reverses and remands.

Willson has three stake-mounted, freestanding signs in the front yard of his residence in Bel-Nor, Missouri. He has displayed "Clinton Kaine" and "Jason Kander U.S. Senate" signs since 2016, and a "Black Lives Matter" sign since 2014. In December 2017, he received an information and summons charging him with violating Bel-Nor Ordinance 983.

Months earlier, the Bel-Nor Board of Alderman passed Ordinance 983, codified as Bel-Nor Municipal Code § 400.120(E). The Ordinance permits "each improved parcel" of private property "to post one stake-mounted and self-supporting freestanding sign" and "Not more than one (1) flag." It includes several requirements for the size, placement, and features of permissible signs and flags.

Willson sought preliminary injunctive relief, arguing Ordinance 983 is content-based, vague, and overbroad in violation of the First Amendment's Free Speech Clause. The district court denied the motion. "A district court considering injunctive relief evaluates the movant's likelihood of success on the merits, the threat of irreparable harm to the movant, the balance of the equities between the parties, and whether an injunction is in the public interest." Gresham v. Swanson , 866 F.3d 853, 854 (8th Cir. 2017). "When a plaintiff has shown a likely violation of his or her First Amendment rights, the other requirements for obtaining a preliminary injunction are generally deemed to have been satisfied." Minnesota Citizens Concerned for Life, Inc. v. Swanson , 692 F.3d 864, 870 (8th Cir. 2012) (en banc). The district court held that Willson was unlikely to succeed on the merits of his First Amendment challenge. It found Ordinance 983 content-neutral and narrowly-tailored to address Bel-Nor's significant interests in aesthetics and traffic safety. It rejected Willson's overbreadth challenge.

This court reviews the denial of a preliminary injunction for abuse of discretion. See Grand River Enter. Six Nations, Ltd. v. Beebe , 467 F.3d 698, 701 (8th Cir. 2006). This court reviews First Amendment claims de novo and "make[s] a fresh examination of crucial facts." Johnson v. Minneapolis Park & Recreation Bd. , 729 F.3d 1094, 1098, 1101–02 (8th Cir. 2013) (reversing denial of motion for preliminary injunction because plaintiff was likely to succeed on the merits of his First Amendment claim, and government regulation was not narrowly tailored).

I.

The First Amendment, applicable to the states through the Fourteenth Amendment, prohibits laws "abridging the freedom of speech." U.S. Const. amend. I.

"Under that Clause, a government, including a municipal government vested with state authority, has no power to restrict expression because of its message, its ideas, its subject matter, or its content." Reed v. Town of Gilbert , ––– U.S. ––––, 135 S. Ct. 2218, 2226, 192 L.Ed.2d 236 (2015). "Content-based laws—those that target speech based on its communicative content—are presumptively unconstitutional and may be justified only if the government proves that they are narrowly tailored to serve compelling state interests." Id.

Willson argues that Ordinance 983 is content-based because its flag exemption imposes different restrictions on signs depending on their content. The district court held that Willson lacks standing to challenge the flag exemption because there was no evidence that it affected Willson. This was error. Willson has standing to challenge the Ordinance's "definitional sections." Neighborhood Enter., Inc. v. City of St. Louis , 644 F.3d 728, 735 (8th Cir. 2011). In Neighborhood Enterprises , this court reversed a district court holding that plaintiffs denied an application to commission a mural "may only challenge those provisions of [a city Sign Code] which were actually applied to them." Neighborhood Enter., Inc. v. City of St. Louis , 718 F. Supp. 2d 1025, 1036 n.7 (E.D. Mo. 2010), rev'd, 644 F.3d at 735. "The City's designation of [the plaintiffs'] purported mural as a ‘sign’ essentially acknowledges that the alleged sign fits no content exemption under [those provisions of the code challenged by plaintiffs but not cited against them]." Neighborhood Enter. , 644 F.3d at 735. Like the Neighborhood Enterprises plaintiffs, Willson "has standing to challenge those portions of the Sign Code which provide the basic definitional structure for the terms used in the violated sections and which more generally define the scope of signs allowed by the violated sections." Id. When Bel-Nor charged Willson with violating Ordinance 983, it acknowledged that his signs did not fit the flag exemption. The court "may ‘tak[e] into account other provisions’ " of the Ordinance "that may affect the constitutionality of those provisions" applied to Willson. Id. , quoting Café Erotica of Fla., Inc. v. St. Johns Cnty. , 360 F.3d 1274, 1278–79 (11th Cir. 2004) (alterations in original). Willson has standing to argue that Ordinance 983 is content-based.

"Government regulation of speech is content based if a law applies to particular speech because of the topic discussed or the idea or message expressed." Reed , 135 S. Ct. at 2227. Ordinance 983 is content-based because it "defin[es] regulated speech by particular subject matter." Id. Under the Ordinance, each improved parcel may have up to one stake-mounted, freestanding sign. A sign is:

Any poster, object, devise [sic], or display, situated outdoors, which is used to advertise, identify, display, direct or attract attention to an object, person, institution, organization, business, product, service, event, idea, belief or location by any means, including but not limited to words, letters, figures, designs, symbols, colors, logos, fixtures, cartoons or images.

In addition to one sign, the Ordinance allows each improved parcel "[n]ot more than one (1) flag." A flag includes:

any fabric or bunting containing distinctive colors, patterns or symbols used as a symbol of a government or institution.

Under this section of the Ordinance, "flags shall not be considered ‘signs.’ "

These definitions show that the content of a flag or sign determines whether it is a flag or sign. For example, applying the ordinary meaning of "government or institution, " a fabric with a Cardinals logo is a "sign," while a fabric with an Army logo is a "flag." This inquiry is content-based because whether a fabric is a sign or a flag—and whether it is prohibited by the Ordinance—depends on the "the topic discussed or the idea or message expressed." Reed , 135 S. Ct. at 2227.

Bel-Nor denies that Ordinance 983's flag exemption is content-based. It advances an "exceptionally broad" definition of "institution," encompassing "[a]ny significant practice, relationship or organization in a society or culture." According to Bel-Nor, the Cardinals are an institution, marriage is an institution, and even a "Black Lives Matter" sign may be a "flag" under the Ordinance. Bel-Nor concludes: "Hence, it is difficult to imagine any flag that would not be permitted."

Contrary to Bel-Nor's suggestion, it is not "difficult to imagine" a message omitted by the Ordinance's definition of a flag as "a symbol of a government or institution." See United States v. Stevens , 559 U.S. 460, 474–75, 130 S.Ct. 1577, 176 L.Ed.2d 435 (2010) (applying "ordinary meaning" of words in statute instead of Government's strained reading). Even if Bel-Nor were to enforce the Ordinance without distinguishing between flags and signs based on content, this court will "not uphold an unconstitutional statute merely because the Government promise[s] to use it responsibly." Id. at 480, 130 S.Ct. 1577, citing Whitman v. American Trucking Ass'ns , 531 U.S. 457, 473, 121 S.Ct. 903, 149 L.Ed.2d 1 (2001). As written, Ordinance 983 "draws distinctions based on the message a speaker conveys." Josephine Havlak Photographer, Inc. v. Village of Twin Oaks , 864 F.3d 905, 914 (8th Cir. 2017), quoting Reed , 135 S.Ct. at 2227.

As a content-based restriction, Ordinance 983 must satisfy strict scrutiny. See Reed , 135 S.Ct. at 2227. Bel-Nor must show that the one-sign limit "furthers a compelling governmental interest and is narrowly tailored to that end." Id. at 2231. If the restriction is not narrowly tailored to achieve a compelling interest, it is an "unconstitutional restraint[ ] on free speech." Whitton v. City of Gladstone , 54 F.3d 1400, 1409 (8th Cir. 1995) (invalidating ordinance prohibiting political signs more than 30 days before election and requiring sign removal within 7 days of election, because content-based restriction not narrowly tailored to meet city's aesthetic and traffic safety concerns). Bel-Nor argues the Ordinance is justified by traffic safety and aesthetics. These interests here are not compelling. See Neighborhood Enter. , 644 F.3d at 737–38 (sign code fails strict scrutiny because "municipality's asserted interests in traffic safety and aesthetics, while significant, have never been held to be compelling"). Lacking a compelling interest,...