The Bradford business people who sued over the constitutionality
of the city’s ordinances governing signs have appealed a federal
judge’s ruling in the city’s favor.
Tom Riel, Dianne Thompson and Fred Pysher have appealed an
August ruling that upheld Bradford City’s Historic Preservation and
Sign ordinances. The appeal was filed in the U.S. Third Circuit
Court of Appeals in Philadelphia.
The three are represented by the American Civil Liberties Union
attorney Witold “Vic” Walczak and Philip Friedman of Erie.
A notice of appeal was filed Sept. 28; on April 5, a brief for
the appellants was filed.
In a summary of the argument presented in the lengthy legal
brief, the attorneys explain they believe the ordinances remain
unconstitutional.
“Laws that apply different standards and burdens to expression
based on the message are content-based regulations subject to
strict scrutiny and are presumptively unconstitutional,” the brief
reads.
The signs in question were on private property, “where federal
courts have shown a ‘special respect for individual liberty,’ and
should result in a finding that Bradford’s laws are
unconstitutional.
While the ordinances impose permit, fee and bond requirements on
all signs, various signs are exempted when denoting the owner’s
name and profession; advertising a service or business; featuring
traffic or municipal messages or other non-advertising signs as
approved by City Council, the suit reads.
“This a content-based ordinance by any commonsense understanding
of that term,” it reads. However, U.S. District Judge Sean
McLaughlin ruled the laws were not content-based, following the
guidelines established in a 1994 Supreme Court case.
In the brief, Walczak and Friedman argue the case does not apply
in this matter, as it cannot be applied to private property. In a
subsequent Supreme Court case, the Court ruled that “even if
content neutral, a law banning political signs on private property
violated home owners’ First Amendment rights,” the brief reads.
The argument continues that the Supreme Court has favored
constitutional protection for signs on private property more than
for signs on public property.
In an explanation of the requirements of Bradford’s permit
system for the Sign Ordinance, the brief reads that “one must know
what message the sign conveys in order to know whether a permit is
required.”
Examples given of signs that are exempt from permits include
signs of a certain size denoting only the name and profession of an
owner or occupant; and bulletin boards of a certain size informing
of a service or business.
City Council can also vote to exempt any “emergency and
non-advertising signs” regardless of size, the brief continues.
“That is the essence of a content-based distinction,” the brief
reads. Most laws with such distinctions have been ruled
unconstitutional after strict scrutiny.
Also, any distinction between commercial and noncommercial signs
has been regarded as content-based and subject to strict scrutiny.
Bradford’s Historic Preservation ordinance contains that
distinction, the brief reads.
Even if the two ordinances are content-neutral – “which they are
not” – they are overbroad and therefore in violation of the First
Amendment, Walczak and Friedman argue.
Calling permit systems a form of prior restraint, the attorneys
argue that “prior restraints on speech and publication are the most
serious and the least tolerable infringements on First Amendment
rights.”
The city is attempting to use the ordinances to govern
appearance and safety, but both can be regulated in other manners,
the brief reads. The regulations should be objective and
precise.
The city’s goals of appearance and safety are in no way promoted
by the permit system’s requirement for “personal identifying
information, drawings and specific plans,” a $20 fee and a $10,000
bond, the brief reads.
And the requirements of the Historic Preservation ordinance are
overbroad and vague, the attorneys argue. The ordinance “contains a
vague and entirely meaningless standard,” the brief reads. The
Historic Architectural Review Board must determine whether the sign
is in conformity “with similar advertising or information media
used in the architectural period of the district.”
“This so-called standard gives HARB complete discretion to
approve and disapprove signs,” the attorneys argue. “…there is
absolutely no way for the applicant to challenge that conclusion.
It is, ultimately, a subjective judgment.”
The attorneys also take issue with the length of time the
building inspector is given to approve a permit.
“Requiring a property owner to ask the government for permission
to put up a sign on her own property and then to wait 30 days or
more for permission is highly offensive,” the attorneys wrote in
the brief. “Bradford must advance a compelling reason to justify
the delay, something it cannot do.”
The brief concludes with Walczak and Friedman asking the Third
Circuit Court to reverse McLaughlin’s decision and find the
ordinances unconstitutional.
