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ABEL v. TOWN OF ORANGETOWN

March 25, 1991

STEVEN L. ABEL, PLAINTIFF,
v.
TOWN OF ORANGETOWN, DEFENDANT.



The opinion of the court was delivered by: Goettel, District Judge:

OPINION

Within the zoning code of the Town of Orangetown is a provision which reads as follows: "No sign other than signs placed by agencies of the government shall be placed on any public property unless written consent is first obtained from the Orangetown Town Board." Zoning Code of the Town of Orangetown, § 4.28(c).*fn1 Plaintiff Steven Abel was a candidate for the position of Town Justice in Orangetown in the November 7, 1989 election. Two months prior to the election, he began placing political signs alongside the public streets in the Town of Orangetown on the unpaved portion of the public right of way. These signs were similar to small billboards in that they were free-standing and not posted on trees or telephone poles. Some of these signs were removed pursuant to authority conferred on the. Town Highway Department by the zoning code.

After the signs were removed, Abel applied to the Orangetown Town Board for permission to post his signs. His request was denied without explanation on October 10, 1989.

Plaintiff then filed suit which, inter alia, challenged the constitutionality of § 4.28(c) of the Orangetown Zoning Code, alleging that this ordinance violated rights of free speech protected by the first amendment.*fn2 He subsequently moved to enjoin the defendants from removing his political signs. After a two day evidentiary hearing, a temporary restraining order against the Town was lifted by our decision denying the preliminary injunction on the grounds that the plaintiff had not demonstrated a likelihood of success on the merits. Abel v. Town of Orangetown, 724 F. Supp. 232, 234-35 (S.D.N.Y. 1989). In particular, this court found that plaintiff had failed to show that the ordinance had been administered in an arbitrary or partial fashion. Moreover, after hearing testimony which indicated that the ordinance had been designed to eliminate visual blight for aesthetic purposes, we held that in the absence of unconstitutional application, an ordinance restricting the posting of signs on the public ways to preserve the aesthetic appeal of the Town was within the bounds of the constitution.

Before us now are cross-motions for summary judgment by plaintiff and the defendant, both seeking declarations as to the constitutionality of § 4.28(c).*fn3

DISCUSSION

Political discourse is the foundation of our democracy. As a result, "[t]he First Amendment affords the broadest protection to . . . political expression in order `to assure [the] unfettered interchange of ideas for the bringing about of political and social changes desired by the people." Buckley v. Valeo, 424 U.S. 1, 14, 96 S.Ct. 612, 632, 46 L.Ed.2d 659 (1976) (quoting Roth v. United States, 354 U.S. 476, 484, 77 S.Ct. 1304, 1308-09, 1 L.Ed.2d 1498 (1957)). In bringing his candidacy for Town Justice to the attention of the residents of Orangetown by posting signs along the right of ways of the town streets, Steven Abel was engaging in an activity protected by the first amendment.

Streets and public ways have long been preserved as public fora for the purposes of public assembly and discourse. Hague v. Committee for Industrial Organization, 307 U.S. 496, 515-16, 59 S.Ct. 954, 963-64, 83 L.Ed. 1423 (1939). Any ordinance which restricts access to public wayfares for the purpose of political speech must be carefully scrutinized to ensure that the restriction is not directed at particular speech. If the ordinance is facially content-neutral as § 4.28(c) appears to be, then the court's task to determine whether the time, place or manner restriction is reasonable. Ward v. Rock Against Racism, 491 U.S. 781, 109 S.Ct. 2746, 105 L.Ed.2d 661 (1989). Furthermore, to be constitutional, the restriction must be narrowly tailored to serve a significant governmental interest. City Council v. Taxpayers for Vincent, 466 U.S. 789, 821, 104 S.Ct. 2118, 2137-38, 80 L.Ed.2d 772 (1984).

Plaintiff argues that the restriction imposed by the Orangetown ordinance is unreasonable in that it confers upon the Town Board the absolute power to prohibit speech by the simple denial of a request to post signs upon the public right of ways. In Shuttlesworth v. City of Birmingham, 394 U.S. 147, 89 S.Ct. 935, 22 L.Ed.2d 162 (1969), the Supreme Court held "that a law subjecting the exercise of First Amendment freedoms to the prior restraint of a license, without narrow, objective and definite standards to guide the licensing authority, is unconstitutional." Id. at 150-51, 89 S.Ct. at 938; accord Staub v. City of Baxley, 355 U.S. 313, 322, 78 S.Ct. 277, 282, 2 L.Ed.2d 302 (1958).

The ordinance at issue here states that no signs may be placed on public property unless written consent is obtained from the Orangetown Town Board. Nowhere within the ordinance, nor anywhere else in the Zoning Code, are contained standards by which the Town Board, in the exercise of its discretion, is to be guided.*fn4 Such discretion must therefore be characterized as unbridled. See 414 Theater Corp. v. Murphy, 499 F.2d 1155, 1159 (2d Cir. 1974) (total lack of standards governing the issuance, renewal, and revocation of licenses conferred virtually unbridled and absolute power on the licensing commission). On the basis of the holding in Shuttlesworth, § 4.28(c) necessarily would be deemed unconstitutional.

However, in contraposition to the analysis and logical outcome Shuttlesworth dictates, is the line of inquiry urged by the defendant which focuses on the actual application of the ordinance in question as, they argue, was engaged in by the Supreme Court in both Shuttlesworth and in City Council. Having determined that a municipality's interest in eliminating visual clutter was a sufficient interest to justify a content-neutral prohibition on posting signs on public property, the Supreme Court in City Council referred to the fact that the Los Angeles ordinance had been impartially administered. 466 U.S. at 817, 104 S.Ct. at 2135. Similarly, in Shuttlesworth, it was evident that the ordinance had been administered in such a way so as to unconstitutionally deny the right of assembly and opportunity for communication of thought. 394 U.S. at 159, 89 S.Ct. at 943. Applying this methodology to the facts in this case, the necessary outcome is that the statute is constitutional. The record indicates that Abel was the only person ever to apply to place signs on public property. The Town Board's denial, albeit without explanation, does not demonstrate bias in administration.*fn5 Indeed, there was testimony by the Orangetown highway superintendent that his staff removed all signs without regard to their content.

However, the proper approach is to consider both whether unbridled discretion was conferred upon the licensing body by the ordinance in issue and how this discretion was exercised by that same body. In Lakewood v. Plain Dealer Publishing Co., 486 U.S. 750, 108 S.Ct. 2138, 100 L.Ed.2d 771 (1988), the Supreme Court listed two characteristics in a licensing statute which would unacceptably implicate first amendment concerns: 1) the licensor's unfettered discretion, coupled with a power of prior restraint which could result in self-censorship, id. at 757, 108 S.Ct. at 2143-44, and 2) "the absence of express standards [which would] make[ ] it difficult to distinguish, `as applied,' between a licensor's legitimate denial of a permit and its illegitimate abuse of censorial power," id. at 758, 108 S.Ct. at 2144.*fn6 Unbridled discretion to permit speech vested in an official renders an ordinance suspect. Shuttlesworth, 394 U.S. at 150-51, 89 S.Ct. at 938-39; North Shore Right to Life v. Manhasset Am. Legion, 452 F. Supp. 834, 839 (E.D.N.Y. 1978) (declaring informal town practice of granting permission to participate in parades unconstitutional because town had discretion to choose participants on the ground of their political views). The court may go on to examine the application of the statute but without standards by which the licensing body is guided, its scrutiny is prolonged and difficult. Plain Dealer, 486 U.S. at 758, 108 S.Ct. at 2144. Thus, the Supreme Court has concluded that an ordinance which has both of the characteristics enumerated in Lakewood is an unacceptable prior restraint of speech simply because there is no standard by which to judge the fairness of the application of the ordinance.

Section 4.28(c) of the Orangetown Zoning Code carries both stigmas espoused in Plain Dealer. First, § 4.28(c) clearly gives the Town Board unbridled discretion as to whether to grant permission to post signs on public property. Second, no standards by which the Town Board is to guide its decision appear anywhere in the statute or in the Zoning Code. Under the rule of Plain Dealer, § 4.28(c) is an impermissible prior restraint on speech.

Defendant contends, nevertheless, that an ordinance administered in a constitutional manner should not be struck, pointing to cases in which the holding relies on the fact that the ordinance had been administered in a fair and impartial manner. See, e.g., City Council, 466 U.S. at 817, 104 S.Ct. at 2135; Lubavitch of Iowa, Inc. v. Walters, 873 F.2d 1161 (8th Cir. 1989). Those cases are easily distinguishable on the basis that the ordinances were not challenged on the grounds that unbridled authority was vested in the licensing officials. In City Council, the disputed ordinance contained an all-out ban on the posting of signs — with a flat bar, no standards to guide discretion are necessary. Lubavitch of Iowa addressed whether a license was revoked in a discriminatory manner; lack of guiding standards in the ...


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