Professional Documents
Culture Documents
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
STATEMENT OF FACTS............................................................................................... 1
LEGAL ARGUMENT...................................................................................................... 5
CONCLUSION ............................................................................................................... 19
ii
TABLE OF AUTHORITIES
CASES
City of Ladue,
512 U.S. at 51................................................................................................ 12
Elrod v. Burns,
427 U.S. 347 (1976)...................................................................................... 16
iii
87 F. Supp. 2d 322 (S.D.N.Y. 2000) ............................................................ 14
Murdock v. Pennsylvania,
319 U.S. 105 (1943)...................................................................................... 17
State v. Miller,
83 N.J. 402 (1980) .................................................................................... 6, 16
Thomas v. Collins,
323 U.S. 516 (1945)........................................................................................ 6
iv
ORDINANCES
RULES
v
PRELIMINARY STATEMENT
and campaign signs for a minimum of nine and a half months out of the year
requirements that are not applied to other signs, including ones that convey a
commercial message.
and cited Mr. Gause for displaying campaign signs. Mr. Gause has since
Complaint.
STATEMENT OF FACTS
Gause displayed two campaign signs for the candidacy of Ron Paul on his
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,
Mr. Gause wishes to place political signs on his property for the
displaying political signs because he fears that he will again be cited and
fined.
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
3
§ 225-89. The effect of this permitting scheme is that political signs are
displaying his signs except for the time period surrounding the federal
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
Mr. Gause continued to display his signs beyond seven days after
Ron Paul as the primary season continued throughout the nation. Though
the primary season is over, he seeks to express his views during the
4
LEGAL ARGUMENT
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
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.
display of political signs to no more than two weeks prior and two days after
5
341 F. Supp. 2d 727, 732-33 (E.D. Mich. 2004) (limiting display of political
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
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
6
512 U.S. at 59 (concurring opinion of O’Connor, J.); Whitton, 54 F3d at
1403.
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
City of Ladue, 512 U.S. at 53 (conducting its legal analysis with the
viewpoint).
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
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
Euclid, 88 F.3d 382, 388 (6th Cir. 1996) (citing Supreme Court precedents).
his support for the political views of Ron Paul. This type of political speech
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
The City asserted that the ordinance’s prohibition was necessary to serve its
8
noted that, because of the restriction, residents of Ladue were forbidden to
9
advertisements, bumper stickers, speeches and neighborhood or community
10
Hawthorne’s ordinance suffers from similar flaws as Ladue’s
ordinance.4 While it allows political signs during some periods (40 days
the year – and perhaps all year long. For example, Defendants applied the
years when there are no federal elections scheduled. Courts have viewed
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
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
Based on Supreme Court precedent, and the other cases that follow, Plaintiff
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
impermissible and the presumption is a very strong one. In order for the
Court precedents).
limitations on other types of signs, this circuit’s courts have held those
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.
political signs, while allowing “for sale” and “garage sale” signs). Similarly,
13
courts in other jurisdictions have uniformly held unconstitutional content-
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.
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
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,
$1000 per day – than those for any other provision of the ordinance.
(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
15
that aesthetics or residential quietude is sufficiently compelling to ever
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
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
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)
He does not want to risk penalty and be chilled in the exercise of his First
his First Amendment rights and he will never be able to recapture the time
constitutes the irreparable harm required for this court to issue a preliminary
injunction.
protected by the First Amendment, and this case does not concern the
17
Defendants. Certainly, the balance of harms favors granting Plaintiff’s
to subvert this exchange and enjoining its enforcement protects the public
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)
more to disserve the public interest than would granting the requested relief.
CONCLUSION
For the foregoing reasons, Plaintiff requests that the Court grant the
Respectfully submitted,
19