7th Circuit Upholds Town's Ban on Highway Overpass Signs
The Seventh Circuit Court of Appeals
recently considered the validity of a municipality’s ban on signs, flags, and
banners on highway overpasses in Luce v.Town of Campbell. In that case, several local activists began placing political
signs and banners on highway overpasses and pedestrian bridges, with some of
the messages encouraging passing drivers to honk if they supported the activists
views. In response, the town enacted a content-neutral ordinance forbidding all
signs, flags, and banners on any overpass within the town, and also within 100
feet of the end of any overpass. In
passing this ordinance, the town relied on information presented by the town’s
police chief regarding the traffic problems created by these signs and banners.
Upset with the town’s removal of their
banners, the activists posted videos online showing the town’s police officers
removing individuals who were unfurling a large American flag on an
overpass. In a somewhat bizarre twist, the
town’s police chief decided to retaliate against the activists himself by
posting allegedly false and defamatory comments online.
When the police chief’s misconduct was discovered, the activists sued
both the police chief and the town for violations of the First Amendment, among
other claims.
First, the court found that the police chief
was not acting under color of state law when he defamed the activists, as these
actions were clearly not related to the police chief’s official duties. As such, the court held that the First
Amendment did not apply to the police chief’s actions. However, the court stated that, due to his
misconduct, the police chief’s credibility had been undermined.
Next, the court then turned to the activists’
claims that the overpass sign ban violated the First Amendment. The court noted
that the information the town relied on in passing the ordinance came from
the town’s police chief, and that the police chief’s statements could no longer
be accepted as truthful. The activists argued that all time, place, and manner
restrictions on speech require empirical support. The activists claimed that,
with the evidence provided by the police chief discredited, the town’s time,
place, and manner regulation prohibiting overpass signs had no empirical
support and was therefore invalid.
Nevertheless, the court acknowledged that the Supreme Court
has never required empirical evidence for all time, place, and manner
restrictions. The court reasoned that, while every time, place, and manner
regulation must serve a significant governmental interest, empirical support is
not necessary when the governmental interest is obvious. The court found that
the town’s ban on signs and banners on overpasses themselves was valid. The court
held that the town’s attempt to reduce the incidence of sudden braking on
highways due to distracting signs and banners was not irrational or an attempt
to suppress speech, even despite the lack empirical data. The court stated that it “did not take an
empirical study” to know that an overhead sign is bound to cause some drivers
to slow down to read it, thereby increasing the risk of accidents. So, the 7th Circuit found the town's ban on signs on overpasses constitutional.
However, the court came to a different
conclusion on the town’s ban on signs within 100 feet of an overpass. The court
cited the fact that this ban prohibited homeowners within 100 feet of an
overpass from putting up a small “For Sale” sign or a “Merry Christmas” banner
in their front yards. The court did not see any reason why signs that are off
the highway and too small to cause drivers to react should be banned. Because the town had not even attempted to justify
this 100 foot rule at all, the court found the 100 foot ban invalid.
This case should serve as a reminder to all municipalities that time,
place, and manner restrictions on speech need to be carefully considered before
they are enacted, and always in consultation with the municipality’s attorney.
Post Authored by Kurt Asprooth, Ancel Glink
0 comments:
Post a Comment