A New York federal district court recently dismissed a First Amendment challenge to a New York City sign ordinance. In Vosse v. City of New York, Plaintiff placed an illuminated peace sign in the window of her seventeenth floor condo in the Upper West Side of Manhattan. The City fined her $800 for violating a city ordinance that prohibits illuminated signs from “extend[ing] above curb level at a height greater than … 40 [feet]” in certain districts, including Plaintiff’s. However, the ordinance contained an exemption for “flags, banners or pennants . . . located on any zoning lot used primarily for community facility uses of a civic, philanthropic, educational or religious nature.” Plaintiff used the exemption system to argue that the City had violated her First Amendment rights by creating a content-based restriction of her speech.
In 2013, the court in the Southern District of New York granted summary judgment in favor of the City because it found that Plaintiff lacked standing to bring the content-based discrimination challenge. In that decision, the court reasoned that Plaintiff’s injury was not redressable by a favorable ruling nor fairly traceable to the alleged constitutional defects in the zoning ordinance. After losing on summary judgment, Plaintiff appealed to the Second Circuit Court of Appeals. The Second Circuit initially issued a summary order affirming the district court decision. Plaintiff then filed for and was granted a rehearing. The Second Circuit then affirmed the district court’s ruling on the standing issue and remanded the case for the district court to rule on Plaintiff’s alternative argument: that the sign ordinance was not a reasonable time, place, and manner restriction on First Amendment speech.
On remand, the court explained that time, place, and manner restrictions on speech are permissible so long as they are justified without reference to the content of the regulated speech, they are narrowly tailored to serve a significant governmental interest, and they leave open ample alternative channels for communication of the information. This test is often referred to as “intermediate scrutiny.”
Plaintiff first argued that the sign ordinance did not serve a significant government interest. The City responded and argued that the prohibition on illuminated signs more than 40 feet above curb level “further[s] the government’s legitimate interests in preserving neighborhood character and an aesthetically pleasing landscape,” staving off the specter of “mini-Times Squares.” This was not a close question, as it is well-established that preserving aesthetics of a city is a significant government interest. The court therefore found for the City on the first portion of the intermediate scrutiny test.
Plaintiff next argued that the sign ordinance was not narrowly tailored to the significant government interest because there were less restrictive means the City could have used to accomplish its goals. The court explained that under the intermediate scrutiny narrow tailoring test, the City is not required to show that its law was the least restrictive means possible of achieving its goal. Instead, the City was merely required to show that the regulation did not burden substantially more speech than was necessary to further the government’s legitimate interests. While there were hypothetical less restrictive solutions the City could have used, the court found the City’s solution to be reasonable under the circumstances. The City had thus satisfied the second prong of intermediate scrutiny.
Finally, Plaintiff argued that the City’s regulation left her with no ample alternative channels for her communication. She claimed that without illumination, her sign would be practically invisible. The court found that this was not true, as Plaintiff was free to use various different types of sign to communicate her message. Further, the court noted that Plaintiff was not entitled to an adequate alternative that provides the same audience or impact as would be ideal from her perspective. In other words, she was not entitled to the same type of reach and impact that her illuminated sign gave her. The City had therefore satisfied the final prong of intermediate scrutiny, and the court dismissed Plaintiff’s claims, closing the case.
It is worth noting that if Plaintiff had been able to show standing to bring a claim that the ordinance was content-based, she would have had a much higher chance of success under the Supreme Court’s recent decision in Reed v. Town of Gilbert. In that case, the Supreme Court made clear that a sign ordinance that distinguished based on content in any form would be subject to strict scrutiny under the First Amendment. Strict scrutiny is much harder for the government to satisfy than the more lenient intermediate scrutiny. It will be interesting to see if a plaintiff with proper standing brings a content-based First Amendment claim against New York’s sign ordinance in the future.
The attorneys at Dalton & Tomich are very experienced in First Amendment cases. We have litigated these claims in state and federal courts across the country. If you feel that your First Amendment rights are being violated, please do not hesitate to contact us. We would be happy to speak with you.
