United States District Court, N.D. New York
January 5, 2005.
CLEAR CHANNEL OUTDOOR, INC. and WILLIAM HERBERT, Plaintiffs,
THE TOWN BOARD OF THE TOWN OF WINDHAM and HON. DOMINCK CAROPRESSO, Town of Windham Code Enforcement Officer, Defendants.
The opinion of the court was delivered by: DAVID HURD, District Judge
MEMORANDUM-DECISION and ORDER
Clear Channel Outdoor, Inc. and William Herbert ("plaintiffs")
commenced the instant action pursuant to 42 U.S.C. § 1983 arising
out of defendants' alleged violation of plaintiffs' First
Amendment rights. Plaintiffs moved for summary judgment pursuant
to Fed.R.Civ.P. 56(a). Defendants, the Town Board of the Town
of Windham (the "Town") and the Honorable Dominick Caropresso,
Town of Windham Code Enforcement Officer, cross-moved pursuant to Fed.R.Civ.P. 56(b) or in the alternative, pursuant
to Fed.R.Civ.P. 12(b) for failure to state a claim upon which
relief may be granted. Oral argument was heard on March 26, 2004
in Albany, New York. Decision was reserved.
In the 1960s plaintiff Clear Channel Outdoor, Inc. erected four
billboards on the plaintiff William Herbert's property by lease
agreement. The property is in the Town of Windham, Greene County,
and also within the Catskill State Park. Despite the passage of
time and some litigation concerning the signs, they were still
standing when the Town adopted a new sign ordinance in 1988, and
a new site plan review law in 1989. Any changes in the signs, or
the erecting of new signs, were subject to ordinance provisions.
Plaintiffs changed the signs, or erected new signs, without
complying with the provisions of the ordinance.
In December of 2002, defendants commenced an action against
plaintiffs in Justice Court for violation of the sign ordinance
and the site plan. Plaintiffs then filed a state Supreme Court
action seeking declaratory and injunctive relief from the Town's
enforcement action. In a ruling from the bench on the combined
actions, the Honorable Thomas Spargo clearly delineated the
questions before him. Plaintiffs' state action did not address
any substantive aspects of the ordinance, but rather; (1) whether
plaintiffs' signs were subject to the ordinance; (2) whether
plaintiffs were subject to the Town's site plan review law
despite alleged procedural defects; and (3) whether the Town's
adoption of the ordinance was procedurally improper. (Doc. No.
14, Transcript of October 27, 2003, Honorable Thomas Spargo,
Greene County Courthouse). Justice Spargo held that the laws in
question could not be challenged on procedural grounds, the
billboards at issue were new, and therefore the ordinance and the law in question applied to plaintiffs. The
court also found that the ordinance and law were violated, and
imposed a $500 fine. That decision was affirmed at Clear Channel
Outdoor, Inc. v. Town Bd. of Windam, 9 A.D.3d 802 (N.Y.App.
The instant action brought pursuant to § 1983 presents a
substantive challenge to the Town's sign ordinance. More
specifically, plaintiffs bring a First Amendment based facial
challenge claiming that the sign ordinance is over broad, vague,
an impermissible prior restraint, and that it improperly favors
some speech over others.
As with most legislation, the ordinance states its purpose,
defines its terms, lists the regulations and requisite
procedures, and finally relates the legal consequences of
violating its provisions. According to the ordinance preamble,
the health, safety morals and general welfare of the Town's
residents will be promoted through the regulating and restricting
of signs of all types.
It is intended to protect the property values, create
a more attractive economic and business climate,
enhance and protect the physical appearance of the
community, preserve scenic and natural beauty, and
provide a more enjoyable and pleasing community. It
is further intended to reduce sign distractions and
obstructions that may contribute to traffic
accidents, reduce hazards that may be caused by signs
overhanging or projecting over public rights of way,
provide more open space, and curb the deterioration
of natural beauty and community environment.
Permits are required for new signs and for alterations of
existing ones. In Article II the ordinance defines "sign" as:
any structure or part thereof, or any devise attached
to, painted on, or represented on the exterior of a
building or other structure or an outdoor free
standing devise, upon which is depicted any letter,
word, model, banner, flag, pennant, insignia,
decoration, devise, or representation used as, or
which is in the nature of, an announcement,
direction, advertisement, or other attention
directing devise. A sign does not include the flag, pennant or insignia
of any nation or association of nations or of any
state, city or other political unit, or of any
political, charitable, educational, philanthropic,
civic, professional, or like campaign, drive,
movement or event.
SIGN, TEMPORARY A sign, not exceeding eight (8)
square feet in area, intended to advertise or
publicize an event of a public nature such as
religious, civic, governmental, or fraternal
organization meetings, fund rasing drives, social
events, etc., such event to occur within the
immediate future (within thirty (30) days), at the
close of which such signs will be [of no] further
value and are to be removed by the organization
responsible for their erection, within two (2) weeks
after the event. Also, the decoration of premises
during religious patriotic, or holiday seasons.
The regulations listed in Article III, which apply to all
signs, consist of size, lighting and placement limitations. A few
of the sign regulations are involved in the constitutional
B. A business shall be allowed no more than three (3)
advertising signs and three (3) business signs.
. . .
D. Free Standing signs and signs attached to
buildings shall be of no more than eighteen (18)
square feet in the hamlets, and an additional amount
not to exceed thirty-two feet (32) square feet
outside the Hamlets.
E. The use of portable signs is prohibited except
for: temporary construction, "For Sale" and "For
. . .
J. Business dealing with products having national
emblems, insignias or franchise signs shall comply
with all provisions of this Ordinance, excepting
where specified in writing, the use of a certain sign
by a franchise.
Article IV explains the permit application requirements, and
that the Town Board, or its designee, will grant permits in
accordance with the ordinance. After the payment of a nominal
$3.00 fee, [i]f it shall appear that the proposed sign meets all
requirements of this Ordinance and all of the other
laws an ordinances of the Town of Windham [the Board
or its designee] shall, within twenty (20) days issue
a permit for the erection of the proposed sign.
Permits expire in six months if the proposed sign is not
completed. Following the procedures set forth in Criminal
Procedure Law, violators
shall be guilty of an offense, conviction of which
shall be punishable by a monetary fine not to exceed
Two Hundred and Fifty and 00/100 Dollars and/or a
jail sentence not exceeding fifteen (15) days or
both. Each day that a violation continues shall
constitute a separate offense.
A. Summary Judgment Standard
Summary judgment is granted only if there is no genuine issue
of material fact, and the moving party is entitled to judgment as
a matter of law. Fed.R.Civ.P. 56(c); see Celotex Corp. v.
Catrett, 477 U.S. 317, 322-23, 106 S. Ct. 2548 (1986); Silver
v. City Univ., 947 F.2d 1021, 1022 (2d Cir. 1991). If there is
no genuine issue about any material fact, summary judgment is
proper because it avoids needless and costly litigation and
promotes judicial efficiency. Roberts v. Browning,
610 F.2d 528, 531 (8th Cir. 1979); United States v. Porter,
581 F.2d 698, 703 (8th Cir. 1978). The summary judgment procedure is not a
"disfavored procedural shortcut." Rather, it is "an integral part
of the Federal Rules as a whole." Celotex Corp.,
477 U.S. at 327, 106 S. Ct. at 2555. There are no disputed facts for
consideration in this action; accordingly, all parties believe
that summary judgment is a proper vehicle to resolve their
At the threshold, defendants argue that plaintiffs lack
standing to challenge the constitutionality of the sign ordinance
because "a person to whom a statute may constitutionally be applied will not be heard to challenge that
statute on the ground that it may conceivably be applied
unconstitutionally to others, in other situations not before the
Court." Parker v. Levy, 417 U.S. 733, 759, 94 S. Ct. 2547
(1974) (quoting Broadrick v. Oklahoma, 413 U.S. 601, 610,
93 S. Ct. 2908 (1973)). Defendants recite the standard for challenges
to vagueness in the context of an "as-applied" challenge to a
statute. See Village of Hoffman Estates, 455 U.S. at 495 n.
7, 102 S. Ct. at 1191; Parker, 417 U.S. at 756,
94 S. Ct. at 2561 (". . . because the statute is judged on an as applied
basis, one whose conduct is clearly proscribed by the statute
cannot successfully challenge it for vagueness").
Here, plaintiffs do not bring an as applied challenge but a
facial challenge to the ordinance, and argue that the defendants'
legislation effects the First Amendment rights of, not only
themselves, "but all the residents of the Town of Windham, now
and in the future." Facial challenges to statutes still must meet
the constitutional case and controversy requirement and
accordingly, denial of third-party standing is the norm.
Exceptions to this rule in the First Amendment context allow a
plaintiff to challenge a law on its face on the grounds that it
is content-based, that it might chill the First Amendment rights
not only of the plaintiff, but of others not before the court.
Savago v. Village of New Paltz, 214 F. Supp. 2d 252, 254
(N.D.N.Y. 2002) (citations omitted). Moreover, the First
Amendment doctrine of "overbreadth" is an exception to the normal
rule regarding the standards for facial challenges. Virginia v.
Hicks, 539 U.S. 113, 118, 123 S. Ct. 2191, 2196 (2003); see
Members of City Council of Los Angeles v. Taxpayers for
Vincent, 466 U.S. 789, 796, 104 S. Ct. 2118 (1984). "Although a
statute or ordinance may be neither vague, over broad, nor
otherwise invalid as applied to the conduct charged against a
particular defendant, he is permitted by the court to raise its
unconstitutional vagueness or overbreadth as applied to other persons in situations not before
the court." Gooding v. Wilson 405 U.S. 518, 92 S. Ct. 1103
(1972); Grayned v. Rockford, 408 U.S. 104, 92 S. Ct. 2294
(1972); Broadrick v. Oklahoma 413 U.S. 601, 93 S. Ct. 2908
(1973); Plummer v. Columbus, 414 U.S. 2, 94 S. Ct. 17 (1973);
Doran v. Salem Inn, Inc., 422 U.S. 922, 95 S. Ct. 2561 (1975).
"The Supreme Court has recognized that parties, like plaintiffs,
with a commercial interest in speech may facially challenge an
ordinance, raising the noncommercial speech interests of third
parties." Metromedia, Inc. v. City of San Diego, 453 U.S. 490,
504 n. 11, 101 S. Ct. 2882 (1981).
This exception to ordinary standing requirements is justified
only by the recognition that free expression may be inhibited
almost as easily by the potential or threatened use of power as
by the actual exercise of that power. New York State Club Assoc.
v. New York, 487 U.S. 1, 108 S. Ct. 2225 (1988). Plaintiffs'
facial challenge brought pursuant to the First Amendment will not
be dismissed on standing grounds.
C. Facial Challenge
Plaintiffs argue that there are numerous constitutional
infirmities in the Town's sign ordinance that would justify a
finding of facial invalidity. In finding merit in three of
plaintiffs' arguments and that the Town must redraft its
ordinance because severing the offending provisions would not be
proper, it is not necessary to address each of plaintiffs
complaints. This is not to express any opinion as to merit or
lack thereof of those arguments. It is presumed that the Town
will engage in a thorough constitutional inquiry in redrafting
its sign ordinance.
The First Amendment provides: "Congress shall make no law . . .
abridging the freedom of speech. . . ." Under the Fourteenth
Amendment, city ordinances are within the scope of this limitation on governmental authority. Lovell v.
Griffin, 303 U.S. 444, 58 S. Ct. 666 (1938).
Plaintiffs usually contend that the application of a particular
statute in the context in which he has acted, or in which he
proposes to act, would be unconstitutional. This is an "as
applied" challenge. If successful, the plaintiff prevents the
future application of the statute in a similar context. "A facial
challenge, as distinguished from an as-applied challenge, seeks
to invalidate a statute or regulation itself." Horton v. City of
St. Augustine, 272 F.3d 1318, 1329 (11th Cir. 2001). The general
rule is that a facial challenge must be rejected unless there
exists no set of circumstances in which the statute can
constitutionally be applied. See, e.g., United States v.
Salerno, 481 U.S. 739, 745, 107 S. Ct. 2095 (1987) (Bail Reform
Act of 1984 not facially unconstitutional). But as the Supreme
Court noted, the exception to this general rule is the facial
challenge based upon First Amendment free-speech grounds. "We
have applied to statutes restricting speech a so-called
"overbreadth" doctrine, rendering such a statute invalid in all
its applications (i.e., facially invalid) if it is invalid in any
of them." Ada v. Guam Soc'y of Obstetricians & Gynecologists,
506 U.S. 1011 (1992) (citing Gooding v. Wilson, 405 U.S. 518,
520-523, 92 S. Ct. 1103 (1972) ("[T]he statute must be carefully
drawn or authoritatively construed to punish only unprotected
speech and not susceptible of application to protected
The first step in considering the constitutionality of
legislation effecting protected speech is to determine whether or
not it is content-neutral or content-based. The answer to that
question determines the level of scrutiny that applies. An
ordinance is content-based when the content of the speech
determines whether the ordinance applies. See Forsyth County
v. Nationalist Movement, 505 U.S. 123, 134, 112 S. Ct. 2395,
2403 (1992) (finding challenged ordinance to be content-based because the
administrator necessarily had to examine the content of the
speech to assess fees required by the ordinance); Metromedia,
Inc., 453 U.S. at 516, 101 S. Ct. at 2882 (finding challenged
ordinance to be content-based because it "distinguished in
several ways between permissible and impermissible signs at a
particular location by reference to their content").
The government may impose reasonable time, place and manner
restrictions on speech as long as they are content neutral,
narrowly tailored to serve a significant government interest and
leave open "ample channels for communication." Ward v. Rock
Against Racism, 491 U.S. 781, 791, 109 S. Ct. 2746 (1981).
Where a municipality enacts a content-based speech regulation,
strict scrutiny applies and the municipality must show that the
"regulation is necessary to serve a compelling state interest and
that it is narrowly drawn to achieve that end." Boos v. Barry,
485 U.S. 312, 321, 108 S. Ct. 1157 (1988). It is well settled
that "the First Amendment forbids the government to regulate
speech in ways that favor some viewpoints or ideas at the expense
of others." Members of City Council v. Taxpayers for Vincent,
466 U.S. 789, 804, 104 S. Ct. 2118, 2128 (1984). "First Amendment
protections, however, encompass not only content-based
prohibitions on speech, but also content-based restrictions on
speech." Savago, 214 F. Supp. 2d at 258.
If strict scrutiny is applied to a content-based regulation it
will likely fail. First, while aesthetics and traffic safety are
regularly found to be substantial enough government interests to
support a content-neutral regulation, those interests are rarely
compelling enough to support a content-based regulation. See
Savago, 214 F. Supp. 2d at 259; Knoeffler v. Town of Mamakating, 87 F.Supp. 2d 322, 327 (S.D.N.Y 2000)
(citing City of Ladue, 512 U.S. at 59); Dimmit v. City of
Clearwater, 985 F.2d 1565, 1572 (11th Cir. 1993).
Secondly, narrow tailoring is easier prescribed than done. A
statute is narrowly tailored if it "targets and eliminates no
more than the exact source of the `evil' it seeks to remedy."
Dae Woo Kim v. City of New York, 774 F. Supp. 164, 170
(S.D.N.Y. 1991) (quoting Frisby v. Schultz, 487 U.S. 474,
485, 108 S. Ct. 2495, 2503). Therefore, a statute is
unconstitutionally over broad, or overinclusive, if it includes
within its prohibitions constitutionally protected conduct.
Grayned v. City of Rockford, 408 U.S. 104, 114, 92 S. Ct. 2294,
2302 (1972). "Because First Amendment freedoms need breathing
space to survive, government may regulate in the area only with
narrow specificity." NAACP v. Button, 371 U.S. 415, 433,
83 S. Ct. 328, 338 (1963) (citing Cantwell v. Connecticut,
310 U.S. 296, 311, 60 S. Ct. 900, 906 (1940). But then there's the other,
opposite, constitutional tailoring defect underinclusivity.
Municipalities often attempt to balance the community interest
in limiting signs with its citizens First Amendment rights by
limiting sign use generally and then selectively exempting those
messages the municipality presumes are valuable enough to
outweigh the community interest that justified the sign
regulation in the first place. The Town attempted this approach.
Though this approach appeals to the common sense, it can lead to
an unconstitutional ordinance in restricting too little
speech.*fn1 While surprising at first glance, the notion that a
regulation of speech may be impermissibly
underinclusive is firmly grounded in basic First
Amendment principles. Thus, an exemption from an
otherwise permissible regulation of speech may
represent a governmental "attempt to give one side of
a debatable public question an advantage in
expressing its views to the people." Alternatively,
through the combined operation of a general speech
restriction and its exemptions, the government might
seek to select the "permissible subjects for public
debate" and thereby to "control . . . the search for
City of Ladue, 512 U.S. at 51, 114 S. Ct. at 2043 (citations
When scrutinizing any speech restriction, courts are careful to
note that each method of communicating ideas is "a law unto
itself," and that law must reflect the "differing natures,
values, abuses and dangers" of each method. Metromedia, Inc.,
453 U.S. at 501, 101 S. Ct. at 2889. "The uniqueness of each
medium of expression has been a frequent refrain." Id.
(citing, e.g., Southeastern Promotions, Ltd. v. Conrad,
420 U.S. 546, 557, 95 S. Ct. 1239, 1246 (1975) ("Each medium of
expression . . . must be assessed for First Amendment purposes by
standards suited to it, for each may present its own problems."). The three sign provisions considered below are different
methods of communication; portable signs, conventional signs, and
Nonetheless, courts follow the guiding principles provided by
the Supreme Court in Metromedia in the context of billboard
regulation when reviewing sign ordinances generally. While that
decision contained five opinions, the Second Circuit has adopted
the plurality opinion which struck down the provisions of San
Diego's billboard ordinance that favored commercial speech over
non-commercial speech, and those provisions that favored some
forms of non-commercial speech over others. See National
Advertising Co. v. Town of Babylon, 900 F.2d 551, 556-557 (2d
Cir. 1989) (applying Metromedia, 453 U.S. at 493-521,
101 S. Ct. 2882 (1981) (plurality)), cert. denied, 498 U.S. 852,
111 S. Ct. 146 (1990). Accordingly, since Metromedia, those are the
two usual First Amendment challenges to sign ordinances.
Plaintiffs raise both in challenging the Town's sign ordinance.
1. Commercial Speech favored over Non-commercial Speech
Having determined that portable signs are not desirable, and
apparently not concerned that by banning this one manner of
communication it has not left ample open alternatives for
communication, the Town prohibited portable signs. The provision
prohibits the use of portable signs, and then provides three
exemptions to the ban, temporary construction signs, For Sale,
and For Rent signs. Plaintiffs complain that the exempted signs
are in the nature of commercial speech which means that the
ordinance has favored this particular commercial speech over the
non-commercial messages that may not be displayed on the
prohibited signs. Unfortunately, the ordinance does not define
portable signs the only type it bans. It also neglects to
define what is meant by temporary construction signs, though after consideration of other sign ordinances, it might be
presumed that this refers to the work of on-site contractors
engaged in building, remodeling, and landscaping work.
The other two exemptions are simply related as "For Sale" and
"For Rent" signs. The ordinance does not say real estate signs,
as ordinances often do, or note that the signs must refer to or
be placed at the premises offered. Thus, a "For Sale" sign may
refer to real property but also to many other items like campers,
cars, or boats. It may also refer to real or personal property
located miles from the sign. This is important because onsite
real estate signs have received special First Amendment
In National Advertising Co. v. Town of Babylon, 900 F.2d 551
(2d Cir. 1990), the Second Circuit reviewed a district court's
rulings regarding a sign ordinance that contained exceptions to a
ban on signs. One such exception was for "For Sale" signs
advertising real property. The plaintiffs' complaint in that case
was the same as here that by allowing these signs the
municipality had favored commercial speech over non-commercial
speech. After agreeing with the district court that other
exemption(s) were improper, the court ruled that
the town properly provided for an exemption from the
ban for signs indicating that real property is for
sale or lease. Rather than being an unconstitutional
content-based preference for commercial speech over
noncommercial speech, that exemption is appropriate
following the Supreme Court's decision in Linmark
Associates v. Township of Willingboro, 431 U.S. 85,
52 L. Ed. 2d 155, 97 S. Ct. 1614 (1977), which struck
down on First Amendment grounds content-based
restrictions upon the posting of "for sale" or "sold"
National Advertising Co., 900 F.2d at 557.
It is important to note that the Second Circuit cited Linmark
in allowing the exemption because that case focused on the
specific nature of real estate signs. In Linmark the Supreme
Court considered a New Jersey township's ordinance that banned
real estate signs in an effort to address the problem of white
flight. The Court noted the unique function that location plays in relation to the message conveyed in real
estate signs, and furthermore, that alternative channels for
communicating real estate offerings would likely be less
effective and more expensive. Signs advertising the sale or rent
of items other than residential real property lack this essential
factor. The instant ordinance has not narrowed its portable sign
provision to real estate signs to force consideration of the "For
Sale" sign exemption recognized in National Advertising
The instant ban on portable signs that effectively prohibits
non-commercial speech in places where it allows commercial speech
is akin to the ordinance found unconstitutional in Metromedia.
The Court considered San Diego's billboard regulation that
prohibited non-commercial speech in locations where it allowed
commercial speech. Plaintiffs there complained further that
ordinance only allowed advertisements of onsite goods and
services on its billboards, not off-site business offerings.
Similar to the legislation at hand, the regulation favored some
commercial speech over others. This was permissible, but the
The fact that the city may value commercial messages
relating to onsite goods and services more than it
values commercial communications relating to offsite
goods and services does not justify prohibiting an
occupant from displaying his own ideas or those of
453 U.S. at 512, 101 S. Ct. at 2895 (emphasis added).
The Town has prohibited non-commercial speech in all
locations where it allows for the display of commercial messages
offering sales, rental arrangements and presumably advertisements by construction contractors on portable signs.
Under the current ordinance, a Windham resident may use a
portable sign on his front lawn to advertise the sale of a boat
located at a distant lake, but not to protest or support the War
on Terror or abortion rights. As the Second Circuit explained in
adopting the plurality opinion of Metromedia, "[g]iven that
commercial speech is afforded less protection than other types of
protected speech . . . it [is] improper to prefer commercial
speech over noncommercial speech." National Advertising Co. v.
Niagara, 942 F.2d 145, 147 (2d Cir. 1991) (citing
Metromedia, 453 U.S. at 513); see e.g., Knoeffler,
87 F.Supp. 322, 326-327) (unconstitutional favoring of commercial
speech over non-commercial where some commercial signs could be
displayed permanently without a permit and non-commercial
messages required a permit and had to be temporary).
The Metromedia court continued,
[li]nsofar as the city tolerates billboards at all,
it cannot choose to limit their content to commercial
messages; the city may not conclude that the
communication of commercial information concerning
goods and services connected with a particular site
is of greater value than the communication of
Likewise, to the extent that the Town tolerates the use of
portable signs at all, it cannot limit the content to specific
commercial messages thereby favoring commercial speech over
non-commercial speech. See Mobile Sign, Inc. v. Town of
Brookhaven, 670 F. Supp. 68 (E.D.N.Y. 1987) (upholding
durational limitation on portable signs that applied only to
Furthermore, neither San Diego's ordinance in Metromedia nor
the Town's ordinance is narrowly tailored. In Metromedia, the
court noted that `[t]he city does not explain how or why
non-commercial billboards located in places where commercial
billboards are permitted would be more threatening to safe
driving or would detract more from the beauty of the city." Metromedia, Inc., 453 U.S. at 513,
101 S. Ct. at 2895. Defendants have not addressed how the particular
content-based exemptions of their ordinance directly and
materially contribute or detract from a municipality's goals of
safety and aesthetics. It is not clear, or likely demonstrable,
that Windham's allowance of a portable sign that reads, "Bob's
Construction" or "For Sale" is less harmful to the stated goals
of the statute, than a portable sign that reads "Vote for Bob" or
"Jesus Saves." Furthermore, these exemptions from the ban
"diminish the credibility of the government's rationale for
restricting speech in the first place." City Of Ladue v.
Gilleo, 512 U.S. 43, 52, 114 S. Ct. 2038, 2044 (1994).
The portable sign provision of Windham's sign ordinance is
unconstitutional in permitting the display of commercial messages
where it prohibited non-commercial messages.
2. Differential Treatment of Non-commercial Messages
Plaintiffs argue that the Town's sign ordinance impermissibly
discriminates between non-commercial messages in its treatment of
temporary signs, flags, pennants and insignias.
a. Temporary signs
Beginning with temporary signs, plaintiffs argue that the
ordinance is content-based in that only some temporary signs are
subject to additional size and durational requirements, and that
the application of the restriction is determined by reference to
the content of the sign. The ordinance provides that signs
advertising or publicizing "events of a public nature" are to be
placed no more than thirty days in advance of the event and
removed within fourteen days of its conclusion. Events of a
public nature are those "such as religious, civic, governmental,
or fraternal organization meetings, fund raising drives, social
events, etc. . . ." This restriction is applied to a narrow
portion of a broad category of signs that would naturally be considered temporary signs. Other temporary sign possibilities
are numerous but include those that react to a local happening or
express a view on a controversial issue that may be up for
legislative consideration. The provision includes its own size
limitation for these temporary signs eight square
Such a regulation is content based as one must read the sign to
determine whether the durational and size limits apply. The
durational limits have the effect of disfavoring messages
relating community events in relation to all other temporary
messages. The temporary signs the ordinance leaves out are simply
subject to the regular sign requirements which do not limit the
time they may be displayed. Furthermore, other temporary messages
may be displayed on signs of up to either eighteen or thirty-two
square feet depending on whether they are located within a hamlet
"The Second Circuit has interpreted Metromedia as requiring
strict content neutrality for all non-commercial speech."
Knoeffler, 87 F.Supp 2d at 331 (citing National Advertising
v. Babylon, 703 F.Supp. 228, 237 (E.D.N.Y. 1989) ("A sign
ordinance, to the extent that it regulates non-commercial speech
may . . . [not] demonstrate a preference for the subject matter
of certain non-commercial speech over other non-commercial
Even if it was intended to serve a compelling state interest,
the Town's ordinance is not narrowly tailored to serve the stated
purposes of the ordinance. It has singled out, and disfavored, a
particular type of temporary sign according to its content as
opposed to simply setting a number, size, or duration restriction for all temporary
signs. See Savago, 214 F. Supp. 2d at 258 n. 4 (recognizing a
similar improper durational limitation).
Content-based durational limits on signs are most often
considered in the context of political speech where they are
regularly declared unconstitutional. See Knoeffler,
87 F. Supp. 2d at 333; see also Whitton v. City of Gladstone,
54 F.3d 1400, 1405 (8th Cir. 1995) (declaring defendant's ordinance
unconstitutional because "the durational limitations which are
applicable only to political signs is a content-based
restriction"); Christensen v. City of Wheaton, No. 99 CV 8426,
2001 WL 214202 at 2 (N.D. Ill. Feb. 27, 2001); Curry v. Prince
George's County, Maryland, 33 F. Supp. 2d 447, 455 (D. Md.
Like the Hamptonburgh regulation struck down in Sugarman v.
Vill. of Chester, the Town's temporary sign provision restricts
the posting period of signs relating to certain events.
192 F. Supp. 2d 282 (S.D.N.Y. 2002). In Sugarman, the court noted that
while the 60-day posting limit on temporary signs would pass
constitutional scrutiny if it applied to all signs, the ordinance
permitted the posting of selected temporary signs for a longer
period of time than others. See Long Island Bd. of Realtors,
Inc. v. Incorporated Vill. of Massapequa, 277 F.3d 622, 628 (2d
Cir. 2002) ("Where a legislature's ends are aesthetics and
safety, permissible means have included the regulation of the
size, placement, and number of signs.") The Hamptonburgh
ordinance allowed up to two-years for displaying temporary
construction signs. The duration limitation was deemed
unconstitutional. Sugarman, 192 F.Supp.2d at 297-298. Here,
signs noting certain events are restricted to approximately
forty-five display days, depending on the length of the event,
and all other temporary signs may be displayed without any time
restrictions. The content-based differential treatment that places additional durational restrictions on only some temporary
signs renders that provision unconstitutional.
b. Flags, pennants and insignia
The Town's sign ordinance's treatment of flags, pennants, and
insignia suffers the same constitutional infirmity. Though the
ordinance does not specifically define the terms "flag,"
"pennant," or "insignia," the definition of sign encompasses
virtually any form of graphic communication, and is therefore
broad enough to cover their use. Flags and pennants are commonly
regulated under sign ordinances because they are easy sign
substitutes if neglected by regulation. They mar landscapes and
create visual clutter in the same manner as signs.
"Symbolism is a primitive but effective way of communicating
ideas. The use of an emblem or flag to symbolize some system,
idea, institution, or personality, is a short cut from mind to
mind. Causes and nations, political parties, lodges and
ecclesiastical groups seek to knit the loyalty of their
followings to a flag or banner, a color or design." Tex. v.
Johnson, 491 U.S. 397, 404-405 (1989) (quoting West Virginia
State Bd. of Educ. v. Barnette, 319 U.S. 624, 662,
63 S. Ct. 1178, 1196 (1943). In apparent deference to this use of symbolic
communication, the Town exempted certain flags, pennants and
insignia from its definition of sign and thus all the
restrictions contained within the ordinance. It states that a
"flag, pennant or insignia of any nation or association of
nations or of any state, city or other political unit, or of any political, charitable, educational,
philanthropic, civic, professional, or like campaign, drive,
movement or event" is not a sign.*fn4
It appears that the Town intended to exempt most forms of
non-commercial speech expressed through the use of a flag,
pennant, or insignia. Article III Regulation J states that
"business dealing with products having national emblems,
insignias or franchise signs shall comply with all provisions of
this ordinance." This is likely intended to encompass flags
corporate and others proposing a "business deal" and limit the
deference to noncommercial communication. The exempted flags
escape the official scrutiny of the permit process, the risk of
permit denial and all the other sign limitations. Non-commercial
speech is favored over commercial speech. As defendants point
out, this sort of preferential treatment is not constitutionally
problematic. See National Advertising Co. v. County of
Denver, 912 F.2d 405, 408-10 (10th Cir. 1990); Georgia
Outdoor Advertising, Inc. v. City of Waynesville, 833 F.2d. 43,
46 (4th Cir. 1987).
The problem is that by so specifically listing the nature of
the content exempted and neglecting to exempt flags, pennants,
and insignia communicating religious symbols, the Town has placed
restrictions on religious speech when it completely exempted the
listed speech topics. A Windham resident may display an American
flag or one noting a Red Cross Blood Drive of any size without
seeking permission from the Town because those flags would not be considered signs under the ordinance. However, in
order to display a flag with a Christian symbol, the Islamic
crescent moon and star, or the Star of David, the same resident
would be required to obtain a permit and comply with the
regulations because those flags would be considered signs. Giving
the Town the benefit of the doubt, and assuming the exclusion of
religious speech from the list of exemptions was an oversight, it
still cannot be allowed to stand.
In Dimmit v. City of Clearwater, the Eleventh Circuit
addressed an ordinance that restricted all flags but government
flags. 985 F.2d 1565 (11th Cir. 1993). After noting that such
the distinction is content-based and that aesthetic interests are
not compelling enough to support such a distinction, the court
turned to the requirement of narrow tailoring. It found that the
distinction between the flag types did not serve the stated ends
of the legislation, aesthetics and traffic safety. Dimmit,
985 F.2d at 1570. The same is true here. It is not plausible that the
display of a thirty-square foot Christian flag displayed after
having passed government scrutiny during the permit process, is
any more harmful to aesthetics or traffic safety than an American
or Red Cross flag of unlimited proportion.
The Town's ordinance provision that exempts only certain flags,
pennants and insignia from all requirements under the sign
ordinance impermissibly favors some noncommercial messages over
others, and is therefore unconstitutional.
Because three provisions of the Town of Windham's sign
ordinance are unconstitutional, it must be decided whether to
invalidate the entire ordinance or whether the unconstitutional
provisions can simply be severed. Defendants argue that any
provisions found to be unconstitutional can be severed, leaving
the rest of the ordinance intact, valid and enforceable. Among other benefits, this would allow them to
proceed to collect the fine set against plaintiffs.
Severability is a question of state law. See Watson v.
Buck, 313 U.S. 387, 395-96, 61 S. Ct. 962 (1941). The ordinance
does not contain a severability clause which would create the
presumption that the Board intended it to be divisible. See
People v. Kearse, 289 N.Y.S. 2d. 346, 358 (Civ. Ct. 1968). New
York law provides that "[i]nvalid portions of a statute may be
severed if `the remaining portions are sufficient to effect the
legislative purpose deducible from the entire act' unless `the
valid and invalid portions are so interwoven that neither can
stand alone.'" Environmental Encapsulating Corp. v. New York,
855 F.2d 48, 60 (2d Cir. 1988). The question becomes: had the
Board foreseen that the three provisions above would be declared
unconstitutional, would it have intended that the ordinance be
enforced without the offending sections. See National
Advertising Co. v. Town of Niagara, 942 F.2d at 148 (citing
People ex.rel. Alpha Portland Cement Co. v. Knapp, 230 N.Y. 48,
60 (N.Y.Ct.App. 1920).
The offending provisions, though improper, reflect the Town's
attempt to balance its interests in limiting signs with its
citizens' First Amendment rights. With the offending portions
severed, the remaining ordinance would not reflect the regulatory
approach of the municipality, however flawed it may be under the
Under the flag, pennant, and insignia provision, the Town
clearly intended to allow non-commercial speech to override its
aesthetic and safety concerns. Elimination of this latter part of
the definition of "sign" would eliminate this deference. All
non-commercial flags, which very likely includes a number of U.S.
flags, would become subject to the permit process and sign
regulations. Furthermore, striking the portable and temporary
sign provisions leaves the ordinance bare of regulations regarding
non-permanent signs which the Town clearly intended to restrict.
Redrafting the sign regulations to comply with the First
Amendment is a task for the Town. See Savago,
214 F. Supp. 2d at 262; National Advertising Co. v. Town of Niagara,
942 F.2d at 151. Considering the total effect of removing three
significant provisions from a very general and brief ordinance,
the Town is required to redraft in total.
Three provisions of the Town's sign ordinance offend the First
Amendment. The portable sign provision impermissibly favors
commercial over non-commercial speech. The temporary sign and
flag, pennant, and insignia provisions impermissibly discriminate
between forms of non-commercial speech. These portions cannot be
severed, and thus the sign ordinance is unconstitutional.
Accordingly, it is
1. Plaintiffs' motion for summary judgment is
2. Defendants' motion for summary judgment, or in the
alternative to dismiss for failure to state a claim,
3. The Town of Windham's sign ordinance is declared
invalid and stricken in its entirety; and 4. The defendants are enjoined from enforcing the
The Clerk is directed to file a judgment accordingly and close
IT IS SO ORDERED.