Naser Jewelers v . Concord, NH 06-CV-400-SM 06/25/07 UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

Naser Jewelers, Inc., Plaintiff

v. Civil N o . 06-cv-400-SM Opinion N o .

City of Concord, New Hampshire, Defendant

O R D E R

Plaintiff Naser Jewelers, Inc. (“NJI”) challenges the City

of Concord’s ordinance banning Electronic Message Center (“EMC”)

signs. In a Report and Recommendation dated November 2 2 , 2006

(document n o . 1 7 ) , the Magistrate Judge recommended that

plaintiff’s request for preliminary injunctive relief be denied

(document n o . 4 ) .

Before the court is plaintiff’s objection to the Magistrate

Judge’s Report and Recommendation (document n o . 1 9 ) . After due

consideration of the objection, the Magistrate Judge’s Report and

Recommendation is approved and his recommendation adopted, but on

somewhat different grounds. Accordingly, plaintiff’s motion for

a preliminary injunction is denied. Standard of Review

A Magistrate Judge’s Report and Recommendation on a motion

for injunctive relief is reviewed de novo. 28 U . S . C . §

636(b)(1). This court “may accept, reject, or modify, in whole

or in part, the findings or recommendations made by the

magistrate . . . or recommit the matter to the magistrate with

instructions.” Id.; see also F E D . R . C I V . P . 72(b).

Background

The factual background of this case is set forth in detail

in the Magistrate Judge’s Report and Recommendation. In brief,

the dispute involves a City regulation, Ordinance 2653 (the

“Ordinance”), that, inter alia, prohibits signs that move or

create the illusion of movement, signs which are or appear to be

animated or projected, signs that affect or look similar to

traffic signs or signals, and “electronic message center type

signs.”1

1 The version of the revised ordinance provided to the Magistrate Judge at the hearing was apparently filed in error. That version additionally prohibited “manually changeable copy type signs, except for the placement of a temporary manually changeable copy sign as allowed under [a separate ordinance].” Concord subsequently filed a corrected copy of Ordinance 2653, which does not prohibit “manually changeable copy type signs.” See Pl.’s Am. Answer, Ex. A (document n o . 2 6 ) .

2 The current Ordinance was enacted in response to a lawsuit

that challenged a prior version - one that prohibited all EMCs

except those that displayed current time, date, and temperature

(“TDT”). In that suit, Carlson Chrysler v . City of Concord, N o .

05-E-412 (New Hampshire Superior Court, Merrimack County), the

trial court found the ordinance allowing only TDT EMCs

unconstitutional, as an unlawful content-based regulation of

commercial speech. Concord has appealed that decision to the New

Hampshire Supreme Court.

In response to the Superior Court ruling, Concord revised

its ordinance to eliminate any suggestion of content-based

regulation, choosing to instead prohibit all EMCs, without regard

to message content. NJI challenges the new ordinance under

, claiming it also unconstitutionally burdens the

right to free speech. NJI seeks to enjoin Concord from enforcing

the Ordinance and, as noted, after a hearing on the matter, the

Magistrate Judge recommended that the court deny the motion.

Discussion

NJI posits fourteen separate objections to the Magistrate

Judge’s recommendation. Essentially, it says the Magistrate

Judge applied the wrong legal standard of review (objections 1

3 and 5 ) , erroneously characterized NJI’s speech as merely

commercial (objection 2 ) , misapplied the test described in

Central Hudson Gas & Elec. v . Pub. Serv. Comm’n,

(1980) to the facts (objections 3 , 4 , 6, 7 , 8 , 9, 1 0 , and 1 1 ) , 2

and drew a number of incorrect conclusions (objections 1 2 , 1 3 ,

and 1 4 ) .

Although the parties and the Magistrate Judge provide

extensive and informative analyses of issues arising under the

Central Hudson framework, I find that the issues before the court

are subject to more direct resolution. Because, as discussed

more fully below, the City’s current EMC ban is content neutral,

the court need not apply the commercial speech test set forth in

Central Hudson, but should instead resolve the matter under the

time, place, and manner test described in Ward v . Rock Against

Racism,

8 1 , 791 (1989). See Gun Owners’ Action League,

Inc. v . Swift,

9 8 , 212 (1st Cir. 2002).

2 Those objections each address various aspects of the relevant inquiries necessary to properly resolve this case. Objection 4 asserts that the Magistrate Judge erred in not applying the test set forth in City of Ladue v . Gilleo,

(1994). Objections 3 and 8 contend that the Magistrate Judge erred in applying the Central Hudson test, while objections 6, 7 , 9, 1 0 , and 11 all relate to specific elements of the Central Hudson test.

4 Initially, NJI objects to the preliminary injunction

standard applied by the Magistrate Judge,3 arguing that, because

this case involves a constitutional challenge to an ordinance,

NJI is entitled to a presumption of success on the merits. NJI

relies on Ashcroft v . ACLU,

(2004) which

explained that in cases in which the government “bears the burden

of proof on the ultimate question of [a regulation’s]

constitutionality,” the party seeking a preliminary injunction

“must be deemed likely to prevail” unless the government can

demonstrate that the challenged statute is constitutional. As

described below, however, the City made such a showing in this

case. The record, albeit relatively undeveloped at this early

3 As the Magistrate Judge explained, a preliminary injunction is appropriate only when the moving party satisfies a four-factor test. See Esso Std. Oil C o . v . Monroig-Zayas,

3 , 17-18 (1st Cir. 2006); see also Ross-Simons of Warwick, Inc. v . Baccarat, Inc.,

2 , 18 (1st Cir. 1996) (explaining that the burden is on the moving party). The moving party must establish: “(1) the likelihood of success on the merits; (2) the potential for irreparable harm [to the movant] if the injunction is denied; (3) the balance of relevant impositions, i.e., the hardship to the nonmovant if enjoined as contrasted with the hardship to the movant if no injunction issues; and (4) the effect (if any) of the court’s ruling on the public interest.” Esso Std. Oil Co., 445 F.3d at 1 8 . Although each factor is important, the Court of Appeals has noted that the likelihood of success on the merits is the “‘sine qua non’ of a preliminary injunction analysis . . .” SEC v . Fife,

, 8 (1st Cir. 2002) (quoting Weaver v . Henderson,

1 , 12 (1st Cir. 1993)).

5 stage of the litigation, amply supports the conclusion that the

Ordinance is likely constitutional.

It is undisputed that the EMC signs at issue fall within the

concept of “speech” protected by the First Amendment. See City

of Ladue v . Gilleo,

3 , 48 (1994). It is also

undisputed that the City may regulate the display of signs to the

extent necessary to serve legitimate governmental purposes, so

long as its regulation does not unduly impose upon protected

constitutional rights. Id. And, it is apparent that the

Ordinance does not aim to advance or suppress any particular

viewpoint or message conveyed by the type of signs it prohibits.

In other words, the ordinance banning EMC-type signs is properly

characterized as a “content-neutral” regulation in that it does

not seek to regulate based on the nature of the message sought to

be communicated. See Simon & Schuster, Inc. v . Members of the

N.Y. State Crime Victims Bd.,

, 122 n . * (1991); Ward

v . Rock Against Racism,

8 1 , 791 (1989); see also

Asociacion de Educacion Privada de P.R., Inc. v . Garcia-Padilla,

--- F.3d. ---,

(1st Cir. Apr.

1 1 , 2007).

6 To survive a constitutional challenge, content-neutral

regulations must meet an “intermediate scrutiny” test, that i s ,

they must be “narrowly tailored to serve a significant

governmental interest, and allow[] for reasonable alternative

channels of communication.” Gun Owners’ Action League, Inc. v .

Swift,

9 8 , 212 (1st Cir. 2002) (internal quotation

marks and citations omitted); see Ward, 491 U.S. at 791. “Under

intermediate scrutiny, restrictions imposed by a statute need not

be the least restrictive or least intrusive means of

accomplishing the statute’s legitimate governmental interest.”

Garcia-Padilla,

(citing Ward, 491

U.S. at 798-99). “Rather, narrow tailoring is satisfied so long

as the regulation promotes a substantial government interest that

would be achieved less effectively without i t , or if ‘the means

chosen are not substantially broader than necessary to achieve

the government’s interest.’” Id. (citing Ward, 491 U.S. at 799-

800) (internal citation omitted).

Concord asserts that its outright ban on EMCs advances both

important traffic safety and community aesthetics interests, each

of which constitutes a substantial governmental interest. See

7 Metromedia v . City of San Diego,

9 0 , 507-08 (1981); 4

see also Lorillard Tobacco C o . v . Reilly,

(2001); Riel v . City of Bradford, --- F.3d ---,

(3d Cir. May 3 , 2007); La Tour v . City of

Fayetteville,

(8th Cir. 2006); Ballen v . City

of Redmond,

(9th Cir. 2006).

NJI disagrees, arguing that Concord’s total ban on EMCs is

not narrowly tailored to serve purported governmental interests

because the City has no basis upon which to think that EMCs

adversely affect traffic safety.5 But the City “need not provide

detailed proof that the regulation advances its purported

4 Although Metromedia was a plurality opinion, seven justices agreed that traffic safety and aesthetics are substantial governmental interests. See Metromedia, 453 U.S. at 510 (plurality); id. at 549-53 (Stevens, J., dissenting in part); id. at 560-61 (Burger, C.J., dissenting); id. at 570 (Rehnquist, J., dissenting). 5 NJI also claims that aesthetics alone does not constitute a substantial governmental interest sufficient to warrant a total ban on EMCs. The court disagrees. See Members of City Council v . Taxpayers for Vincent,

(1984) (citing cases that “indicate that municipalities have a weighty, essentially esthetic interest in proscribing intrusive and unpleasant formats for expression”); Am. Legion Post 7 v . City of Durham,

(4th Cir. 2001) (explaining that while aesthetics do not constitute a compelling governmental interest sufficient to justify a content-based regulation, they constitute a substantial governmental interest sufficient to warrant a content-neutral restriction).

8 interests of safety and aesthetics.” Ctr. for Bio-Ethical

Reform, Inc. v . City & County of Honolulu,

1 0 , 922 (9th

Cir. 2006) (citing Ackerley Commc’ns of the Nw. v . Krochalis,

, 1099-100 (9th Cir. 1997)). Indeed, when considering

the constitutional viability of a regulation, the court need not

“determine whether the regulation is sound or appropriate; nor is

it [the court’s] function to pass judgment on [the regulation’s]

wisdom,” Ry. Express Agency, Inc. v . New York,

(1949), because doing so “would be trespassing on one of the most

intensely local and specialized of all municipal problems. . . .”

In short, it is within the City’s authority to determine for

itself that a particular ordinance will, in fact, advance its

substantial governmental interests, and such findings shall not

generally be disturbed by a court unless shown to be “palpably

false.”

Concord has plausibly determined that EMCs and similar types

of signs, as described in the Ordinance, are likely to prove

distracting to drivers to the extent the signs are visible from

roadways, thereby adversely affecting traffic safety. That

legislative conclusion is hardly unreasonable, and would appear

to be supported by common sense. See e.g., Chapin Furniture

Outlet v . Town of Chapin,

, *4 (D.S.C. Sept. 2 0 ,

9 2006) (town’s judgment that flashing or scrolling signs

constitute a traffic hazard not unreasonable). And, while taste

and aesthetic sensitivity are debatable topics, it would seem

well within the City’s legitimate discretion to conclude that

bright, colorful, electronic signs that change color and messages

— or signs similar to those, are inconsistent with the aesthetic

values the City seeks to promote.

The Ordinance is also sufficiently narrowly tailored. The

City has not prohibited all signs, or even all signs displaying

changed copy.6 The Ordinance prohibits only those signs the City

plausibly thinks will adversely affect traffic safety, or prove

detrimental to aesthetic values the City seeks to promote.

Similarly, the Ordinance leaves NJI with reasonable alternative

channels by which to communicate its messages. Although “other

types of signs may lack the flexibility or convenience of an

EMC,” NJI remains free to employ a variety of other communicative

6 The constitutionality of the originally-filed Ordinance, which purported to ban, inter alia, all “manually changeable copy type signs,” would pose a different question entirely. Such a broad ban might well extend beyond what is necessary to address the City’s interest in traffic safety or aesthetics. The City would have a difficult time supporting the notion that all manually changeable copy signs like those seen outside virtually every gas station, fast food restaurant, church, and movie theater pose a substantial threat to the safety or aesthetics of Concord’s commercial zones.

10 methods, including static signs or varying types of changeable

copy signs, and it remains free “to ‘speak’ on whatever issue it

pleases utilizing a medium not proscribed by [the Ordinance].”

Chapin Furniture Outlet, Inc.,

, * 4 . 7

In sum, Concord’s governmental interests in promoting

traffic safety and aesthetic values are substantial. The City’s

Ordinance banning EMCs and similar signs appears narrowly

tailored to enhance traffic safety and promote aesthetic values,

while still allowing for ample, reasonable alternative channels

of communication. On this preliminary record, it appears that

Ordinance 2653 passes constitutional muster, which in turn means

that NJI has failed to demonstrate that it is likely to succeed

7 NJI objects to the Magistrate Judge’s finding that Concord’s EMC ban still leaves ample alternative channels for NJI’s communications. NJI appears to miss the central point of the “alternative channels” inquiry, however, focusing not on whether NJI has alternative methods by which to disseminate its message, but instead, on whether the City’s total ban on EMCs was the least restrictive means available to achieve its governmental interests. See Pl.’s Supplemental Objections 3 . As discussed previously, whether a regulation is the least restrictive or least intrusive means of accomplishing the government’s objectives is not the relevant inquiry in determining whether a regulation is “narrowly tailored.” Garcia-Padilla,

(citing Ward, 491 U.S. at 798-99). Narrow tailoring is satisfied so long as the regulation promotes a substantial government interest that would be achieved less effectively without it.” Id. (citing Ward, 491 U.S. at 7 9 9 ) .

11 on the merits. Therefore, NJI is not entitled to a preliminary

injunction.

Conclusion

For the foregoing reasons, plaintiff’s motion for a

preliminary injunction (document n o . 4 ) is denied.

SO ORDERED.

Steven J./McAuliffe :hief Judge

June 2 5 , 2007

cc: Douglas M . Bragg, Esq. John F. Winston, Esq. Stephen H . Roberts, Esq. Charles P. Bauer, Esq. Lisa Lee, Esq.

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