The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
So the Eighth Circuit held yesterday—correctly, I think—in Willson v. City of Bel-Nor:
[The ordinance] is content-based because whether a fabric is a sign or a flag—and whether it is prohibited by the Ordinance—depends on the "the topic discussed or the idea or message expressed."
And the court also concluded that, even setting aside the content-based exception, the ordinance would likely be unconstitutional even under the more relaxed scrutiny applied to content-neutral restrictions:
The Ordinance's expansive definition of a sign, combined with its strict sign restrictions, applies to a substantial amount of expressive conduct. Willson offers examples of expressive conduct that are prohibited by the Ordinance:
– "tacking up a 'Welcome Home' banner on the garage" ("No sign shall be affixed to any … garage … ; [t]he following … types of signs are prohibited … any material that flutters");
– "sticking an ADT Security window cling to the front window" ("[n]o sign shall be displayed from the interior of any window");
– "displaying Christmas lights" (Ordinance 983 prohibits any "object … . used
to attract attention to an … event … by any means, including … colors," and
"[i]llumination in any manner is prohibited");
– tying a "Happy Birthday" balloon to a front door on the day of a birthday party ("The following materials … are prohibited … [t]he use of balloons")….
Bel-Nor's interests in traffic safety and aesthetic do not justify such a broad restriction of residents' constitutionally-protected conduct. Ordinance 983 is overbroad and facially invalid because "the impermissible applications of the law are substantial when judged in relation to the statute's plainly legitimate sweep." …
Lastly, Ordinance 983's severe restrictions do not "leave open ample alternative channels for communication of the information." "While the First Amendment does not guarantee the right to employ every conceivable method of communication at all times and in all places, a restriction on expressive activity may be invalid if the remaining modes of communication are inadequate."
"[R]esidential signs have long been an important and distinct medium of expression." … Due to the special significance of the right to speak from one's own home, severe restrictions of this right do not afford adequate alternatives.
Thanks to Gene Summerlin for the pointer.