August 22, 2008
The second sign regulation question you have is: your City wants to continue to allow banners for certain events: the Navy's/City's July 4th celebration, Goat Days, Easter Sunrise Services, something at the auto race track, etc., but otherwise wants to prohibit them ... Is that legal?
Putting aside for the moment the question of whether sign regulations that would prohibit banners and other signs in the exercise of First Amendment-protected activities, such as in demonstrations, generally a sign regulation that would allow banners about Easter Sunrise services and the auto race track, but would otherwise prohibit them except for city-sponsored events, would seem to clearly violate the content neutral requirement. An ordinance that allowed government and corporate flags, but prohibited others held not to be content neutral in Village of Schaumburg v. Jeep Eagle Sales Corporation, 676 N.E.2d 200 (1st Dist. 1996) (an automobile dealer displayed 13 American flags). In Lamar Advertising Co. v. City of Douglasville, 254 F Supp.2d 1321 (N.D. Ga. 2003), a sign regulation provided that, in the City's historic district, A[b]anners, pennants and streamers along or across road rights-of-way are prohibited; however, an exception is made for " flags or banners of the United States or other political subdivisions thereof." That regulation was held not to be content neutral, the Court saying that:
Under this provision, the display of the American flag or the flag of the State of Georgia would be allowed in the City's historic district, while a flag displaying a Greenpeace or a union affiliation would be prohibited. See Dimmitt, 985 F.2d at 1569. On its face, this provision, like the provision in Dimmitt, draws a content-based distinction between different types of banners, flags and pennants. Accordingly, it is unconstitutional. Id at 1569-70 [At 1331]
It is difficult to escape the conclusion that the result would be the same under your question.
There is also another First Amendment side to the banner, flag, pennant, and even balloon, display: the right to use such devices in free speech exercises of various kinds. That issue has come up in the balloon context at least twice, once in the Sixth Circuit. But the law governing balloons undoubtedly applies to banners, pennants, flags, etc.
Tethered advertising balloon signs are a common sight in various places. Some contain messages, others are simply designed to draw attention to the area over which the tethered balloon flies. But as far as I can determine, only two cases have arisen in the United States over the display of such balloons, and those two cases involve " rat" balloons being used by unions in disputes with businesses. The rat, says those two cases is a common symbol of union disputes. However, those cases are pertinent to this question. Both cases involved, among other claims, a violation of the First Amendment prohibiting restrictions on free speech.
The U.S. Sixth Circuit Court of Appeals is Tucker v. City of Fairfield, Ohio, 398 F.3d 457 (6th Cir. 2005). There a labor union held signs and displayed an inflatable rat balloon approximately 12 feet high and eight feet in diameter. Section 905.03(c) of the city's municipal code provided that " [n]o person, firm or corporation shall construct or place or cause the construction or placement of any ... structure or improvement ... on any street, alley, public right-of way, easement or public grounds without the written permission of the Public Works Director." [At 460] At the time the offenses of displaying the balloon to which this case applies occurred, the ordinance defined " structure" as "a nything constructed, the use of which requires permanent location on the ground or attachment to something having permanent location on the ground, and also included anything constructed which is not enclosed within another structure and is placed in a stationary location." [At 460]
The question in this case was whether the district court erred in granting a preliminary injunction prohibiting the city from restraining Tucker from using the rat balloon during the union's labor protests. That brought up the question of whether the city would prevail on the merits of the case, which in turn brought up the questions of whether the balloon was protected by the First Amendment, and if the answer was yes, whether the city's regulations met the tests for validity under that Amendment.
The court declared that the structure was in the public right of way, which made the forum a traditional public forum. The Court pointed out that the courts had generally been reluctant to give First Amendment protection to the placement of permanent objects, or objects not easily moved, on public rights of way. But that was not necessarily true of small easily moved structures, including the balloon at issue.
The Court upheld the district court's finding that the city's ordinance was content neutral (that fining was not challenged). " Thus, for the purposes of this appeal," said the Sixth Circuit, " we assume that this finding was correct. Therefore, the ordinance is constitutional as applied if it is narrowly tailored to serve a significant government interest, leaving open other alternative channels of communication." [At 463]
The Court appears to have conceded that the substantial governmental interests served by the ordinance were " keeping the public right-of-way clear and preserving the aesthetics of the community." But it concluded that the application of the ordinance did not have any effect in serving those interests. For that reason, the ordinance did not meet the narrowly tailored test:
.... There is no objective evidence in the record before us suggesting that the temporary placement of the balloon in the public right-of-way has any adverse effects, such as obstruction of pedestrian or automobile traffic. By applying the ordinance to prohibit the temporary use of the balloon in this case, it therefore appears that the City has applied its ordinance in a manner that is " substantially broader than necessary" to achieve its interests. [Citations omitted by me.]
The second case involving a rat balloon is State v. DeAngelo, 930 A.2d 1236 (N.J. Super. A.D. 2007). There a union was flying a balloon at the site of a business with which the union had a dispute. The balloon was ten feet tall, was in the shape of a rat, but contained no words. The Lawrence Township municipal ordinance '535(L)(2) provided that:
L. Prohibited Signs. All signs not permitted by this Ordinance are hereby prohibited with the following signs specifically prohibited:
2. Banners, pennants, streamers, pinwheels, or similar devices; vehicle signs; portable signs, balloon signs or other inflated signs (excepting grand opening signs) and searchlights (excepting grand opening signs), displayed for the purpose of attracting the attention of pedestrians and motorists; unless otherwise excepted. [At 1239]
DeAngelo first argued that the rat balloon was not a sign because it contained no words. The ordinance did not define the term " sign" but it made it clear what kind of signs were prohibited, including " balloon signs or other inflated signs...." [At 1241] The Court also turned to Webster's New International Dictionary 2334 (2d ed. 1950) for the definition of a " sign" :
...as a symbol, " a conventional symbol or emblem which represents an idea, as a word, letter or mark.... In writing and printing, in ideographic mark, figure, or picture ... conventionally used to represent a term or conception, usually technical." [At 1241]
The rat sign was clearly a sign carrying a symbolic message of a labor protest, concluded the Court.
The Court turned to analyze the sign as First Amendment-protected expression, using the same tests applied in Tucker, above, and every other case involving First Amendment- protected speech. The ordinance was content neutral, said the Court; all inflatable signs, other than grand-opening signs were prohibited. The Court reasoned that it did not differentiate between speakers or messages. However, a dissent in this case urged that the ordinance was not content-neutral because of the grand opening exception, and for that reason the ordinance should be required to pass the strict scrutiny (compelling state interest) test rather than the intermediate scrutiny (significant state interest) test.
Section 535(A) of the sign ordinance itself stated the state interests it advanced:
[t]o encourage the effective use of signs as a means of communication, to maintain the aesthetic environment and the Township's ability to attract economic development and growth, to improve pedestrian and vehicular safety, to minimize the potential adverse affects of signs on nearby public and private property and to enable the fair and consistent application of the regulations contained herein. [At 1245] [The Court's emphasis]
The Court appears to have given short shrift to the narrow tailoring test, simply saying that the ordinance was narrowly tailored, simply concluding that " The purpose of the Ordinance is to enhance the aesthetics and protect public health and safety. Obviously an inflatable sign that attracts the attention of pedestrians and motorist [sic] also distracts them." [At 1245]
DeAngelo also argued that the ordinance was void for vagueness, and that it was selectively enforced. The Court rejected both arguments, declaring that the ordinance gave notice to people of ordinary intellect what conduct was prohibited, and that the record showed no evidence that the ordinance was selectively enforced against labor unions.
Tucker and DeAngelo obviously came to opposite conclusions. However, Tucker is a Sixth Circuit case that must be given infinitely more weight than DeAngelo.
But the dissent in Tucker also pointed out that the Sixth Circuit misapplied the narrow tailoring test. Among other ways the test had been misapplied, said the dissent, was that it applied the test to this case. The dissent thought that the ordinance should have met the narrowly tailoring test if it generally advanced those state interests in all cases; otherwise the city could never draft a regulation on balloons that would satisfy the courts. That dissent seems logical. Unfortunately, however, a dissent is just that: a dissent.
Sidney D. Hemsley
Senior Law Consultant