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IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW JERSEY


______________________________
:
ANDREW GAUSE, :
:
Plaintiff, :
:
v. :
:
BOROUGH OF HAWTHORNE, :
PATRICK BOTBYL individually : CIVIL ACTION No. _______
and in his official capacity, :
ROBERT SCULLY individually :
and in his official capacity, and :
DONALD TURNER individually : MOTION DATE:
and in his official capacity, : JULY 21, 2008
:
Defendants. :
______________________________ :

BRIEF IN SUPPORT OF PLAINTIFF’S


MOTION FOR A PRELIMINARY INJUNCTION

Edward L. Barocas
Jeanne LoCicero
AMERICAN CIVIL LIBERTIES UNION
OF NEW JERSEY FOUNDATION
PO Box 32159
Newark, New Jersey 07102
973-642-2086
ebarocas@aclu-nj.org
jlocicero@aclu-nj.org

Attorneys for Plaintiff


TABLE OF CONTENTS

TABLE OF AUTHORITIES .......................................................................................... iii

PRELIMINARY STATEMENT ..................................................................................... 1

STATEMENT OF FACTS............................................................................................... 1

LEGAL ARGUMENT...................................................................................................... 5

PLAINTIFF IS ENTITLED TO PRELIMINARY RELIEF ON HIS FIRST


AMENDMENT CLAIM AND HIS NEW JERSEY CONSTITUTIONAL CLAIM.
......................................................................................................................................... 5
A. Plaintiff is Likely to Prevail on the Merits of his Claims. ............................. 5

1. The Ordinance is Unconstitutional under Intermediate Scrutiny Because


it Forecloses a Protected Form of Communication without Leaving Ample
Alternative Channels of Communication. .......................................................... 7

2. The Ordinance is Unconstitutional Because it is a Content-Based


Regulation that Prefers Commercial Speech and Penalizes Political Speech.
............................................................................................................................... 12

B. Without an injunction, Plaintiff will be irreparably harmed. ...................... 16

C. If the Injunction is Granted, Defendants Will Suffer No Irreparable Harm.


........................................................................................................................... 17

D. Granting the Injunction Will Serve the Public Interest. ............................... 18

CONCLUSION ............................................................................................................... 19

ii
TABLE OF AUTHORITIES

CASES

Boehm v. Borough of Franklin Lakes,


2001 WL 1704817 (D.N.J.) ...................................................................... 5, 13

City Council of Los Angeles v. Taxpayers for Vincent,


466 U.S. 789 (1984)........................................................................................ 7

City of Antioch v. Candidates’ Outdoor Graphic Serv.,


557 F. Supp. 52 (N.D. Cal. 1982)........................................................... 15, 16

City of Ladue v. Gilleo,


512 U.S. 43, 45 n.1 (1994)..................................................................... passim

City of Ladue,
512 U.S. at 51................................................................................................ 12

Cleveland Area Bd. of Realtors v. City of Euclid,


88 F.3d 382 (6th Cir. 1996) ............................................................................. 8

Consolidated Edison Co. of N.Y. v. Public. Serv. Comm’n of N.Y.,


447 U.S. 530 (1980)...................................................................................... 13

Dimas v. City of Warren,


939 F. Supp. 554 (E.D. Mich. 1996) ...................................................... 11, 14

Elrod v. Burns,
427 U.S. 347 (1976)...................................................................................... 16

Fehribach v. City of Troy,


341 F. Supp. 2d 727 (E.D. Mich. 2004) ................................................... 6, 14

First Nat. Bank of Boston v. Bellotti,


435 U.S. 765 (1978)...................................................................................... 13

Knoeffler v. Town of Mamakating,

iii
87 F. Supp. 2d 322 (S.D.N.Y. 2000) ............................................................ 14

Loftus v. Township of Lawrence Park,


764 F. Supp. 354 (W.D. Pa. 1994)............................................................ 7, 13

McCormack v. Township of Clinton,


872 F. Supp. 1320 (D.N.J. 1994)............................................................ 13, 15

McNeil Nutritionals, LLC v. Heartland Sweeteners, LLC,


511 F.3d 350 (3d Cir. 2007) ........................................................................... 5

Murdock v. Pennsylvania,
319 U.S. 105 (1943)...................................................................................... 17

N. Olmsted Chamber of Commerce v. City of N. Olmsted,


86 F. Supp. 2d 755 (N.D. Ohio 2000) .......................................................... 14

Orazio v. Town of North Hempstead,


426 F. Supp. 114 (E.D.N.Y. 1977) ............................................................... 15

Outdoor Sys., Inc. v. City of Merriam, Kansas,


67 F. Supp. 2d 1258 (D. Kan. 1999)....................................................... 14, 16

Riel v. City of Bradford,


485 F.3d 736 (3d Cir. 2007) ......................................................................... 12

State v. Miller,
83 N.J. 402 (1980) .................................................................................... 6, 16

Sugarman v. Village of Chester,


192 F. Supp. 2d 282 (S.D.N.Y. 2002) .......................................................... 14

Tenafly Eruv Ass'n, Inc. v. Borough of Tenafly,


309 F.3d 144 (3d Cir. 2002) ........................................................................... 5

Thomas v. Collins,
323 U.S. 516 (1945)........................................................................................ 6

Whitton v. City of Gladstone,


54 F.3d 1400 (8th Cir. 1995) .......................................................... 5, 7, 13, 14

iv
ORDINANCES

Borough of Hawthorne Zoning Ordinances


Ch. 225, Art. XIII, § 225-84 ........................................................................... 3
Ch. 225, Art. XIII, § 225-89 ................................................................. 3, 4, 15
Ch. 225, Art. XIII, § 225-91 ........................................................................... 3

RULES

Fed. R. Civ. P. 65............................................................................................ 5

v
PRELIMINARY STATEMENT

Plaintiff Andrew Gause, a property owner in the Borough of

Hawthorne, challenges the Borough’s sign ordinance, which bans political

and campaign signs for a minimum of nine and a half months out of the year

and otherwise subjects the signs to content-based temporal and licensing

requirements that are not applied to other signs, including ones that convey a

commercial message.

The individual Defendants are responsible for enforcing the ordinance

and cited Mr. Gause for displaying campaign signs. Mr. Gause has since

desisted from exercising his free-speech rights on his property. He seeks an

immediate order enjoining Defendants from enforcing the sign regulation so

that he can display political signs on his property.

Plaintiff incorporates by reference the facts alleged in the Verified

Complaint.

STATEMENT OF FACTS

Plaintiff Andrew Gause challenges as unconstitutional, facially and as

applied, Hawthorne Zoning Ordinance Chapter 225, Article XIII, regarding

the display of political signs.


From on or about December 15, 2007, until late February 2008, Mr.

Gause displayed two campaign signs for the candidacy of Ron Paul on his

property1, located on a thoroughfare that runs through Hawthorne. He was

forced to remove the signs after he received several visits from Defendants

who then issued him a citation for violating the Borough’s sign ordinance,

Chapter 225, Article XIII.

Mr. Gause wishes to place political signs on his property for the

duration of the presidential election season. Plaintiff has not resumed

displaying political signs because he fears that he will again be cited and

fined.

The Borough’s Ordinance

With some exceptions, including political signs, Article XIII of

Hawthorne’s Zoning Ordinance makes it unlawful to erect a sign without

1
Mr. Gause’s property has a building that includes a unit for his business
and a residential rental unit.

2
obtaining a permit from the Zoning Administrator. 2 Ch. 225, Art. XIII, §

225-84.3

Certain signs are exempted from the permitting process based on their

content. § 225-89. The exempted signs fall into categories based upon the

content of the signs. The time, place, and manner that these exempted signs

may be displayed varies based upon their content. The exempted signs

include the following, subject to the indicated time restrictions:

• Professional Nameplates: no time restriction


• Building Memorial (name and date of construction): no time
restriction
• Service Station signs: no time restriction
• Residential Real Estate offering sale or lease: no time restriction
• Non-residential Real Estate offering sale or lease: no time restriction
• Residential Real Estate indicating property was sold or leased: two
weeks
• Non-residential Real Estate indicating property was sold or leased:
two weeks
• Construction projects: until completion of construction
• Temporary signs for public or charitable purposes (includes holiday
displays: 30 days.
• Political signs: 32 days before an election / 7 days after an election
[violators subjected to additional penalties (fines ranging from $50 -
$1000)]
2
The permit process is complex and burdensome, requiring, among other
information, (1) forms to be filled out in triplicate; (2) the position of the
sign, indicating its relation to the premises and adjoining premises; (3)
blueprints or ink drawings or a photograph of the sign with information
indicating the work performed and showing full compliance with the
ordinance; and (4) personal identifying information. § 225-91(A).
3
The text of the ordinances is attached to the Complaint as Exhibits A and B.

3
§ 225-89. The effect of this permitting scheme is that political signs are

prohibited in residential signs except for the 40 days surrounding an

election. Defendants applied the statute so as to limit Plaintiff from

displaying his signs except for the time period surrounding the federal

presidential primary election held in New Jersey on February 5, 2008.

Given the Defendants’ application of the sign ordinance, the number

of days in a given year during which a person can display a political sign

will vary from zero (in years where a candidate or issue is not subject of an

election) to a maximum of eighty days (in years where candidates run in

primary and general elections). Political signs are effectively banned in

Hawthorne for a minimum of nine and a half months of the year.

Mr. Gause continued to display his signs beyond seven days after

New Jersey’s Republican Primary Election. He did so to show support for

Ron Paul as the primary season continued throughout the nation. Though

the primary season is over, he seeks to express his views during the

presidential general election season.

A single violation of 225-89(M) is punishable by a fine of up to one

thousand dollars per day.

4
LEGAL ARGUMENT

PLAINTIFF IS ENTITLED TO PRELIMINARY RELIEF ON HIS


FIRST AMENDMENT CLAIM AND HIS NEW JERSEY
CONSTITUTIONAL CLAIM.

Courts should grant a preliminary injunction where: 1) The movant

has shown a reasonable probability of success on the merits; 2) The movant

will be irreparably harmed absent the injunction; 3) The harm to the movant,

absent the injunction, will be greater than the harm to the non-moving party

if the injunction is granted; and 4) The injunction will serve the public

interest. McNeil Nutritionals, LLC v. Heartland Sweeteners, LLC, 511 F.3d

350, 356-57 (3d Cir. 2007); Tenafly Eruv Ass'n, Inc. v. Borough of Tenafly,

309 F.3d 144 (3d Cir. 2002); Fed. R. Civ. P. 65. Plaintiff easily meets each

of these criteria.

A. Plaintiff is Likely to Prevail on the Merits of his Claims.

Many courts, including one in this district, have struck down

durational limitations on political signs. See, e.g., Boehm v. Borough of

Franklin Lakes, 2001 WL 1704817 (D.N.J.) (Hayden, J.) (ordinance limiting

display of political signs to no more than two weeks prior and two days after

an election); Whitton v. City of Gladstone, 54 F.3d 1400, 1403-04 (8th Cir.

1995) (ordinance limiting display of political signs to no more than 30 days

before an election and 7 days after an election); Fehribach v. City of Troy,

5
341 F. Supp. 2d 727, 732-33 (E.D. Mich. 2004) (limiting display of political

signs to no more than 30 days before an election).

The First Amendment to the United States Constitution provides, in

part, “Congress shall make no law. . .abridging the freedom of speech.…”

U.S.Const., Amend. 1. Where that speech is political speech, our tradition

insists that government "allow the widest room for discussion, the narrowest

range for its restriction." State v. Miller, 83 N.J. 402, 412 (1980), citing

Thomas v. Collins, 323 U.S. 516, 530 (1945). Through the Fourteenth

Amendment, these limitations on regulating speech apply to states and their

political subdivisions, including the Defendants. City of Ladue v. Gilleo,

512 U.S. 43, 45 n.1 (1994). The Borough of Hawthorne’s restriction upon

political signs not only have infringed upon political speech but have singled

out political speech for overly burdensome regulation.

As an initial matter, this Court must first determine whether

Hawthorne’s sign ordinance, Article XIII, is a content-based or content-

neutral regulation. Then, depending on the answer to that question, the

appropriate level of scrutiny is applied — strict scrutiny with respect to

content-based regulations and intermediate scrutiny with respect to those

regulations which are found to be content-neutral. City of Ladue v. Gilleo,

6
512 U.S. at 59 (concurring opinion of O’Connor, J.); Whitton, 54 F3d at

1403.

1. The Ordinance is Unconstitutional under Intermediate


Scrutiny Because it Forecloses a Protected Form of
Communication without Leaving Ample Alternative Channels
of Communication.

As explained below, the Ordinance is a content-based regulation on

speech which would trigger the Court to apply strict scrutiny. However,

even assuming that the regulation is content neutral (which it is not), and the

Court conducts an intermediate scrutiny analysis, the ordinance fails because

it completely forecloses a traditional, protected form of communication.

City of Ladue, 512 U.S. at 53 (conducting its legal analysis with the

assumption that the ordinance did not discriminate based on content or

viewpoint).

For intermediate scrutiny, the state must demonstrate that the

regulation has been narrowly drawn to serve a significant government

interest and that it has left open “ample alternative channels of

communication.” City Council of Los Angeles v. Taxpayers for Vincent,

466 U.S. 789, 812 (1984); Loftus v. Township of Lawrence Park, 764 F.

Supp. 354, 360 (W.D. Pa. 1994). In order for a regulation to be “narrowly

tailored” the state does not have to have eliminated all less restrictive

7
alternatives. Nevertheless, the regulation must not “burden substantially

more speech than is necessary to further the government’s legitimate

interests.” Rather, what is required is a “fit” between the objective of the

regulation and the means chosen to accomplish that objective. The “fit” need

not be perfect, but it must be reasonable; that is to say, the objective and the

means must be “in proportion.” Cleveland Area Bd. of Realtors v. City of

Euclid, 88 F.3d 382, 388 (6th Cir. 1996) (citing Supreme Court precedents).

Plaintiff sought to display on his property a political sign that conveys

a message of importance to him about federal presidential politics, namely

his support for the political views of Ron Paul. This type of political speech

is deeply rooted in the history of American politics.

In City of Ladue v. Gilleo, supra, the United States Supreme Court

reviewed an ordinance that banned all residential signs but those falling

within one of ten exceptions. It concluded that such a ban was not narrowly

tailored and did not leave ample alternative channels of communication.

The City asserted that the ordinance’s prohibition was necessary to serve its

legitimate interest in minimizing visual clutter associated with signs.

Assuming that the City had not engaged in purposeful content-

discrimination, the Court used an intermediate scrutiny analysis. The Court

8
noted that, because of the restriction, residents of Ladue were forbidden to

display virtually any sign on their property. It said:

Ladue has almost completely foreclosed a


venerable means of communication that is most
unique and important. It has totally foreclosed that
medium to political, religious, or personal
messages. Signs that react to a local happening or
express a view on a controversial issue both reflect
and animate change in the life of a community.
Often placed on lawns or in windows, residential
signs play an important part in political campaigns,
during which they are displayed to signal the
resident’s support for particular candidates, parties
or causes. They may not afford the same
opportunities for conveying complex ideas as do
other media, but residential signs have long been
an important and distinct medium of expression.

Our prior decisions have voiced particular


concerns with laws that foreclose an entire
medium of expression. . .Although prohibitions
foreclosing entire media may be completely free of
content or viewpoint discrimination, the danger
they pose to the freedom of speech is readily
apparent — by eliminating a common means of
speaking, such measures can suppress too much
speech.

City of Ladue, 512 U.S. at 54-55 (footnotes omitted).

Ladue contended its ordinance merely regulated the “time, place or

manner” as residents remained free to convey their messages by other means

such as hand-held signs, letters, handbills, flyers, telephone calls, newspaper

9
advertisements, bumper stickers, speeches and neighborhood or community

meetings. The Court did not find this persuasive:

Displaying a sign from one’s own residence often


carries a message quite distinct from placing the
same sign someplace else, or conveying the same
text or picture by other means. Precisely because
of their location, such signs provide information
about the identity of the ‘speaker.’ . . . [T]he
identity of the speaker is an important component
of many attempts to persuade. A sign advocating
“Peace in the Gulf” on the front lawn of a retired
general or a decorated war veteran, may provoke a
different reaction than the same sign in a 10-year
old child’s bedroom window or the same message
on a bumper sticker of a passing automobile. . .

Residential signs are an unusually cheap and


convenient form of communication. Especially for
persons of modest means or limited mobility, a
yard or window sign may have no practical
substitute. Even for the affluent, the added costs in
money or time of taking out a newspaper
advertisement, handing out leaflets on a street, or
standing in front of one’s house with a hand-held
sign may make the difference between
participating and not participating in some public
debate. Furthermore, a person who puts up a sign
at her residence often intends to reach neighbors,
an audience that could not be reached nearly as
well by other means.

Id. at 56-57 (footnote and citations omitted).

10
Hawthorne’s ordinance suffers from similar flaws as Ladue’s

ordinance.4 While it allows political signs during some periods (40 days

surrounding elections), it completely bans them for at least nine months of

the year – and perhaps all year long. For example, Defendants applied the

ordinance to prohibit signs supporting Ron Paul as it related to New Jersey’s

primary election held on February 5, 2008. Following that application, signs

regarding federal issues would be limited to a maximum of 80 days in a year

in which there is a federal election and presumably would be prohibited in

years when there are no federal elections scheduled. Courts have viewed

similar ordinances as a year-round ban that is temporarily suspended during

election period. See, e.g., Dimas, 939 F. Supp. at 556-57 (political sign

ordinance “in effect, imposes a year-round ban on political sign posting. The

ban is temporarily suspended for forty-five days prior to an election and is

reinstated one week after the election has taken place”).

Hawthorne’s ordinance would currently ban residents from displaying

McCain or Obama campaign signs from February 12 through early October,

despite the fact that the presidential campaigns are in full force. Indeed, all

4
The force of the reasoning in City of Ladue is not diminished because Mr.
Gause’s property is mixed use and not solely residential. Hawthorne’s
ordinance does not distinguish the placement of political signs on residential
and business property. Further, Mr. Gause seeks to put signs on his property
to express his political views, not to engage in commercial speech.

11
political signs are prohibited at present, including a sign identical to the one

at issue in City of Ladue. Mr. Gause should not be precluded from engaging

in protected political speech regarding his views on campaigns and issues.

Based on Supreme Court precedent, and the other cases that follow, Plaintiff

is likely to succeed on his First Amendment claim. 5

2. The Ordinance is Unconstitutional Because it is a


Content-Based Regulation that Prefers Commercial
Speech and Penalizes Political Speech.

Because the Hawthorne sign ordinance draws unconstitutional,

content-based distinctions, Plaintiff will likely succeed on this argument as

well, though it is not necessary that they do so.

Content-based regulations are particularly onerous because they may

represent a governmental “attempt to give one side of a debatable public

question an advantage in expressing its views to the people.” Further, they

enable government to select “permissible subjects for public debate” and

thereby to “control . . .the search for political truth.” City of Ladue, 512

U.S. at 51, citing First Nat. Bank of Boston v. Bellotti, 435 U.S. 765, 785-

5
The Third Circuit’s recent decision on a sign ordinance in Riel v. City of
Bradford, 485 F.3d 736, 741-42 (3d Cir. 2007), does not affect the analysis
of Hawthorne’s ordinance: the Bradford ordinance allowed for the display
on private property of noncommercial signs smaller than twelve square feet
and thus would not have prohibited Mr. Gause’s sign or other political signs.

12
786 (1978) and Consolidated Edison Co. of N.Y. v. Public. Serv. Comm’n

of N.Y., 447 U.S. 530, 538 (1980).

At the outset, the content-based restrictions are presumed to be

impermissible and the presumption is a very strong one. In order for the

state to enforce a content-based restriction, it must demonstrate that its

regulation is necessary to serve a compelling state interest and that it is

narrowly drawn to achieve that end. The requirement that a restriction on

speech be narrowly drawn requires the regulation to be the “least restrictive”

alternative available. See e.g., Whitton, 54 F3d at 1408 (citing Supreme

Court precedents).

In cases where municipalities have “specifically limit[ed] signs

advertising political events or viewpoints” while imposing less stringent

limitations on other types of signs, this circuit’s courts have held those

limitations to be impermissibly content-based. Boehm, 2001 WL 1704817

(D.N.J.); McCormack v. Township of Clinton, 872 F. Supp. 1320, 1323-24

(D.N.J. 1994) (limiting display of political signs to no more than 10 days

before an event while allowing yard sale signs within 30 days of an event);

see also, Loftus v. Twp. of Lawrence Park, 764 F. Supp. 354, 360-61 (W.D.

Pa. 1991) (completely banning display of all residential signs, including

political signs, while allowing “for sale” and “garage sale” signs). Similarly,

13
courts in other jurisdictions have uniformly held unconstitutional content-

based restrictions on residential, political signs. See e.g., Whitton, 54 F.3d at

1403-04 (limiting display of political signs to no more than 30 days before

an election and 7 days after an election was content-based); Fehribach, 341

F. Supp. 2d 727, at 732-33 (limiting display of political signs to no more

than 30 days before an election was content-based); Sugarman v. Village of

Chester, 192 F. Supp. 2d 282, 296, 298-300 (S.D.N.Y. 2002) (limiting

display of political signs to a certain number of days before an election was

content-based); Knoeffler v. Town of Mamakating, 87 F. Supp. 2d 322, 332

(S.D.N.Y. 2000) (limiting display of political signs to no more than 15 days

before and after an election was content-based); N. Olmsted Chamber of

Commerce v. City of N. Olmsted, 86 F. Supp. 2d 755, 767 (N.D. Ohio 2000)

(limiting display of political signs to no more than 10 days after an election

was content-based); Outdoor Sys., Inc. v. City of Merriam, Kansas, 67 F.

Supp. 2d 1258, 1262, 1264, 1267 (D. Kan. 1999) (limiting display of

political signs to no more than 25 days before and 5 days after an election

was content-based); Dimas v. City of Warren, 939 F. Supp. 554, 557 (E.D.

Mich. 1996) (limiting display of political signs to no more than 45 days

before and 1 week after an election was content-based); City of Antioch v.

Candidates’ Outdoor Graphic Serv., 557 F. Supp. 52, 55-61 (N.D. Cal.

14
1982) (limiting display of political signs to only 60 days per year was

content-based); Orazio v. Town of North Hempstead, 426 F. Supp. 114,

1148-49 (E.D.N.Y. 1977) (limiting display of political wall signs to no more

than 6 weeks before an election was content-based).

Just like the foregoing limitations on signs with political content,

Hawthorne’s limitations on political signs are unconstitutionally content-

based. For example, real estate sale signs may be displayed year round,

while temporary “political signs” are limited to thirty two days before and

seven days after an election. See Ch. 225, Art. XIII, § 225-89. Moreover,

the penalties for political sign violations are significantly harsher – up to

$1000 per day – than those for any other provision of the ordinance.

Compare § 225-89(M) with § 225-89(A)-(L) and § 225-96.

As discussed above, the ordinance is not narrowly tailored, but even if

it were, Hawthorne must come forward with a compelling state interest.

Municipalities who defend similar bans on signs cite to aesthetics

(unappealing clutter and its impact on property values) and safety concerns

(driver distraction). Courts in this circuit have repeatedly found that such

rationales are not “compelling” state interests. See, e.g., McCormack, 872

F. Supp. at at 1325 n. 2 (noting that no court has ever held aesthetics to be a

compelling government interest); Loftus, 764 F. Supp. at 361 (“[W]e doubt

15
that aesthetics or residential quietude is sufficiently compelling to ever

justify a content-based restriction . . . on freedom of expression”).6

At most, the proper method for towns to deal with those concerns is to

regulate the size of the signs (as Hawthorne has done) or create reasonable

set-back requirements. See State v. Miller, 83 N.J. 402 (1980). However,

durational bans are impermissible, as explained above.

Thus, section 225-89 is a broadly drawn, content-based regulation that

does not serve a compelling state interest. It runs afoul of the constitution by

effectively banning political signs for most of the year and penalizing

political sign violators more harshly.

B. Without an injunction, Plaintiff will be irreparably harmed.

It as long been established that “[t]he loss of First Amendment

freedoms, for even minimal periods of time, unquestionably constitutes

irreparable injury.” Elrod v. Burns, 427 U.S. 347, 373 (1976). When

6
Courts from other circuits have made the same determination. See, e.g.,
Whitton, 54 F.3d at 1409 (holding that temporal restriction on political signs
was unconstitutional and not justified by traffic safety or aesthetics); Orazio,
426 F. Supp. at 1148 (rejecting aesthetics as basis to limit political wall signs
to just 6 weeks before an election); City of Antioch, 557 F. Supp. at 59
(rejecting aesthetics as basis for ban on political signs for all but 60 days
prior to an election); Outdoor Systems, 67 F. Supp. 2d at 1267- 69 (holding
that there was no aesthetic or traffic safety difference between a “vote
for Joe” sign which was restricted to 30 days and “Joe’s Pizza” sign which
was permanent).

16
political speech is involved, government must allow the widest room for

discussion and the narrowest range for its restrictions. State v. Miller, 83

N.J. 402 (1980), citing Murdock v. Pennsylvania, 319 U.S. 105, 115 (1943)

and Thomas v. Collins, 323 U.S. 516, 530 (1945).

Mr. Gause wants to immediately place a political sign on his property.

He does not want to risk penalty and be chilled in the exercise of his First

Amendment rights by being subject to Defendants’ enforcement of the

current prohibition on such signs (because it is not currently 32 days before

an election). Mr. Gause is suffering a significant and immediate violation of

his First Amendment rights and he will never be able to recapture the time

lost expressing his views. This continuing constitutional violation

constitutes the irreparable harm required for this court to issue a preliminary

injunction.

C. If the Injunction is Granted, Defendants Will Suffer No


Irreparable Harm.

Hawthorne has no legally-cognizable interest in suppressing speech

protected by the First Amendment, and this case does not concern the

Borough’s authority to regulate signs that pose an imminent danger to public

safety, such as a sign that obstructs a driver’s line of sight. Granting

Plaintiff’s requested injunction will not cause any foreseeable harm to

17
Defendants. Certainly, the balance of harms favors granting Plaintiff’s

injunctive relief from Defendants restraint of his constitutional rights.7

D. Granting the Injunction Will Serve the Public Interest.

Our democracy depends upon the free exchange of political

viewpoints. Protecting this exchange is crucial to the public interest. The

Defendants’ enforcement of Hawthorne’s unconstitutional ordinance serves

to subvert this exchange and enjoining its enforcement protects the public

interest. Judge Sarokin’s words are apt in the present case:

The injunction will vindicate the constitutional


right of free expression, a right which is ‘powerful
medicine’ in our diverse and populous society.
Cohen v. California, 403 U.S. 15, 24 . . . (1971).
As the Supreme Court noted in Cohen, free
expression ‘is designed and intended to remove
governmental restraints from the arena of public
discussion, putting the decision as to what views
shall be voiced largely into the hands of each of us,
in the hope that use of such freedom will
ultimately produce a more capable citizenry and
more perfect policy and in the belief that no other
approach would comport with the premise of

7
Additionally, because equities weigh overwhelmingly in favor of Plaintiff
and no costs will be suffered by Littlestown in the event that the town has
been wrongfully enjoined, the Rule 65(c) bond requirement should be
waived. See, e.g., Elliot v. Kiesewetter, 98 F.3d 47, 59-60 (3d Cir. 1996)
(noting that district courts have discretion to waive the Rule 65(c) bond
requirement where “a balance of the equities of the potential hardships that
each party would suffer . . . weighs overwhelmingly in favor of the party
seeking the injunction”); Temple University v. White, 941 F.2d 201, 219-20
(3d Cir. 1991) (same).

18
individual dignity and choice upon which are
political system rests.

E-Bru, Inc. v. Graves, 566 F. Supp. 1476, 1480 (D. N.J. 1983). And see

Morscott, Inc. v. City of Cleveland, 781 F. Supp. 500, 506 (N.D. Ohio 1990)

(“it is beyond cavil that it is the public interest to uphold a constitutionally

protected right”). Denial of the requested preliminary injunction would do

more to disserve the public interest than would granting the requested relief.

CONCLUSION

For the foregoing reasons, Plaintiff requests that the Court grant the

requested preliminary injunction to enjoin Defendants from enforcing

Hawthorne’s near complete ban on political signs, including content-based

and temporal restrictions.

Respectfully submitted,

/s/ Jeanne LoCicero_________


Edward Barocas
Jeanne LoCicero
American Civil Liberties Union of
New Jersey Foundation
PO Box 32159
Newark, New Jersey 07102
(973) 642-2086
jlocicero@aclu-nj.org

Attorneys for Plaintiff Andrew Gause


Dated: June 27, 2008

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