Naser Jewelers, Inc. v. City of Concord, N.H.

513 F.3d 27

NASER JEWELERS, INC., Plaintiff, Appellant, v. CITY OF CONCORD, NEW HAMPSHIRE, Defendant, Appellee.

No. 07-2098.

United States Court of Appeals, First Circuit.

Heard December 7, 2007.

Decided January 18, 2008.

John F. Winston with whom Stephen H. Roberts, McNeill, Taylor & Gallo, and Winston & Bragg were on brief for appellant.

Lisa M. Lee with whom Charles P. Bauer, John T. Alexander, and Ransmeier & Spellman were on brief for appellee.

John M. Baker, Robin M. Wolpert, Kathryn M.N. Hibbard, and Green Espel, P.L.L.P. were on brief for American Planning Association, Northern New England Chapter of the American Planning Association, International Municipal Lawyers Association, New Hampshire Municipal Lawyers Association, and New Hampshire Planners Association, amici curiae.

William D. Brinton and Rogers Towers were on brief for Scenic America, Inc., amicus curiae.

Before LYNCH, LIPEZ, and HOWARD, Circuit Judges.

LYNCH, Circuit Judge.

The city of Concord. New Hampshire, enacted an ordinance prohibiting all Electronic Messaging Centers ("EMCs"), which the city found were detrimental to traffic safety and community aesthetics. EMCs are signs which display electronically changeable messages (as opposed to signs with static or manually changeable messages) and so display illuminated text that can change frequently, for instance by scrolling or flashing. Naser Jewelers, Inc. ("NJI"), a Concord business, sought and was denied a preliminary injunction against the enforcement of the ordinance on grounds of facial unconstitutionality under the First Amendment.

Concord's ban on all EMCs is content-neutral. Globe Newspaper Co. v. Beacon Hill Architectural Comm'n, 100 F.3d 175, 183 (1st Cir.1996). As a result, the ordinance is permissible if it is narrowly tailored to serve a significant governmental interest and leaves open alternative channels of communication. An ordinance is narrowly tailored if it does not burden substantially more speech than necessary to further the government's legitimate interests. Ward v. Rock Against Racism, 491 U.S. 781, 799, 109 S.Ct. 2746, 105 L.Ed.2d 661 (1989). The ordinance need not be the least restrictive means to serve those interests. Id. at 798, 109 S.Ct. 2746; Hill v. Colorado, 530 U.S. 703, 726, 120 S.Ct. 2480, 147 L.Ed.2d 597 (2000); Globe Newspaper, 100 F.3d at 188. Concord's ordinance meets these criteria and we affirm.

I.

Concord has enacted sign ordinances as part of its municipal code. The stated purposes of these ordinances are, among other things, to "[m]aintain and enhance the appearance and aesthetic environment of the City" and to "[i]mprove pedestrian and traffic safety." Concord, N.H., Code of Ordinances § 28-6-1(b) & (d) (2007).

Before 2006, Concord's sign ordinances contained prohibitions on EMCs, but provided exceptions for EMCs which displayed solely time, date, and temperature indicators. In 2005, a New Hampshire Superior Court judge ruled that the regulations violated the First Amendment because they favored signs that displayed time, date, or temperature. That erroneous ruling has since been overruled by the New Hampshire Supreme Court. Carlson's Chrysler v. City of Concord, 938 A.2d 69, 70-71 (N.H. 2007).

In light of the interim Superior Court ruling, Concord amended its ordinances in August 2006 to prohibit all EMCs, including ones indicating only time, date, or temperature. The city's current ordinance, challenged here, prohibits all signs that "appear animated or projected" or "are intermittently or intensely illuminated or of a traveling, tracing, scrolling, or sequential light type" or "contain or are illuminated by animated or flashing light." Concord, N.H., Code of Ordinances § 28-6-7(h) (2007).

On October 3, 2006, NJI sought permission to construct and operate an EMC on the premises of its retail store in Concord. The sign would be located on Loudon Road, a high-traffic corridor that includes a mix of retail and residential development and a large public park and fire station. The location is in close proximity to an elementary school and more residential neighborhoods. The store's current sign is a freestanding sign six feet off the ground that features a model of a large gold ring with a polished diamond and text reading "Joseph Michaels Diamonds." (Joseph Michaels Diamonds is a trade name used by NJI.) The proposed EMC would be located directly underneath the current sign and would measure 2.7 feet by 5.3 feet.

NJI is eager to install an EMC at its store in Concord because of its experience with an EMC at another retail location in Dover, New Hampshire. NJI had earlier installed an EMC at its Dover store. Originally, NJI changed the copy on its EMC only once every ten minutes. Early in 2006, NJI began changing the text once every four to five seconds. NJI claims to have experienced a sizable increase in sales, some eighteen percent, as a result of these more frequent copy changes.

On October 13, Concord's code administrator denied NJI's application because the proposed EMC would violate Concord's regulations. On October 25, NJI sought declaratory and injunctive relief and damages in federal district court, claiming that Concord's regulations impermissibly infringed its First Amendment rights. NJI also sought a preliminary injunction to allow it to install an EMC in time for the holiday shopping season.

A magistrate judge denied NJI's request for a preliminary injunction on November 22, 2006. The district court denied the injunction on different analytical grounds on June 25, 2007, The district court held inapplicable the commercial speech test in Central Hudson Gas & Electric Corp. v. Public Service Commission, 447 U.S. 557, 100 S.Ct. 2343, 65 L.Ed.2d 341 (1980), on which the" magistrate judge had relied, because the EMC ban is content-neutral and does not apply merely to commercial entities.¹ Rather, the district court upheld the ordinance under the rule that content-neutral regulations are constitutional provided that they are narrowly tailored, to serve a significant governmental interest and allow for reasonable alternative channels of communication. See, e.g., Gun Owners' Action League, Inc. v. Swift, 284 F.3d 198, 212 (1st Cir.2002). The district court concluded that NJI had not shown that it was likely to succeed on the merits and therefore was not entitled to a preliminary injunction. This timely appeal followed.

II.

Appellate review of the denial of a preliminary injunction is for abuse of discretion. Rio Grande Cmty. Health Ctr., Inc. v. Rullan, 397 F.3d 56, 68 (1st Cir.2005). The district court correctly noted the four factors considered in determining whether a preliminary injunction ought to issue: "1) a likelihood of success on the merits, 2) irreparable harm to the plaintiff should preliminary relief not be granted, 3) whether the harm to the defendant from granting the preliminary relief exceeds the harm to the plaintiff from denying it, and 4) the effect of the preliminary injunction on the public interest." Id. at 75.

We consider whether NJI has demonstrated a probability of success on the merits: When considering First Amendment claims, we engage in de novo review of the district court's conclusions of law and mixed questions of law and fact. Hurley v. Irish-Am. Gay, Lesbian & Bisexual Group of Boston, 515 U.S. 557, 567, 115 S.Ct. 2338, 132 L.Ed.2d 487 (1995); Sullivan v. Town of Augusta, 511 F.3d 16, 24-25 (1st Cir.2007).

Billboards and other signs are protected by the First Amendment, but courts have long approved subjecting them to the police powers of local government. Prime Media, Inc. v. City Of Brentwood, 398 F.3d 814, 818 (6th Cir.2005). As the Supreme Court has noted, "signs take up space and may obstruct views, distract motorists, displace alternative uses for land, and pose other problems that legitimately call for regulation. It is common ground that governments may regulate the physical characteristics of signs. . . ." City of Ladue v. Gilleo, 512 U.S. 43, 48, 114 S.Ct. 2038, 129 L.Ed.2d 36 (1994).

A threshold question in cases involving challenges to government restrictions on speech is whether the restriction at issue is content-neutral or, to the contrary, is content-based. See, e.g., Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622, 642, 114 S.Ct. 2445, 129 L.Ed.2d 497 (1994); Nat'l Amusements, Inc. v. Town of Dedham, 43 F.3d 731, 736 (1st Cir.1995); see also K. Sullivan & G. Gunther, First Amendment Law 193 (1999). In Globe Newspaper, this court held that the "principal inquiry in determining content neutrality . . . is whether the government has adopted a regulation of speech because of disagreement with the message it conveys." 100 F.3d at 183 (quoting Nat'l Amusements, 43 F.3d at 737) (internal quotation marks omitted). Furthermore, "[a] regulation that serves purposes unrelated to the content of expression is deemed neutral, even if it has an incidental effect on some speakers or messages but not others." Id. (quoting Ward, 491 U.S. at 791, 109 S.Ct. 2746) (internal quotation marks omitted).

As the district court correctly noted, Concord's prohibition on EMCs does not discriminate based on content. EMCs might communicate any number of messages —from a business advertising a sale to a high school congratulating its victorious teams—and all EMCs are similarly prohibited.

NJI insists that Concord's regulation is content-based because city officials gave preference to time, date, and temperature messages in its prior ordinance. They assert Concord is using the current regulation as a stopgap measure, with plans to reinstate the original prohibition—with exceptions for time, date, and temperature displays—following the state Supreme Court's decision. This argument goes nowhere. The regulation currently in place, which is the only one before us, contains no exceptions. Concord's regulation is properly analyzed as a content-neutral restriction on speech.

NJI argues that the city...