Submitted: January 15, 2019
from United States District Court for the Eastern District of
Missouri - St. Louis
BENTON, MELLOY, and KELLY, Circuit Judges.
BENTON, CIRCUIT JUDGE.
Willson moved to preliminarily enjoin enforcement of a
Bel-Nor ordinance restricting the number of signs displayed
on private property. The district court denied the motion.
Having jurisdiction under § 1292(a)(1), this court
reverses and remands.
has three stake-mounted, freestanding signs in the front yard
of his residence in Bel-Nor, Missouri. He has displayed
"Clinton Kaine" and "Jason Kander U.S.
Senate" signs since 2016, and a "Black Lives
Matter" sign since 2014. In December 2017, he received
an information and summons charging him with violating
Bel-Nor Ordinance 983.
earlier, the Bel-Nor Board of Alderman passed Ordinance 983,
codified as Bel-Nor Municipal Code § 400.120(E). The
Ordinance permits "each improved parcel" of private
property "to post one stake-mounted and self-supporting
freestanding sign" and "Not more than one (1)
flag." It includes several requirements for the size,
placement, and features of permissible signs and flags.
sought preliminary injunctive relief, arguing Ordinance 983
is content-based, vague, and overbroad in violation of the
First Amendment's Free Speech Clause. The district court
denied the motion. "A district court considering
injunctive relief evaluates the movant's likelihood of
success on the merits, the threat of irreparable harm to the
movant, the balance of the equities between the parties, and
whether an injunction is in the public interest."
Gresham v. Swanson, 866 F.3d 853, 854 (8th Cir.
2017). "When a plaintiff has shown a likely violation of
his or her First Amendment rights, the other requirements for
obtaining a preliminary injunction are generally deemed to
have been satisfied." Minnesota Citizens Concerned
for Life, Inc. v. Swanson, 692 F.3d 864, 870 (8th Cir.
2012) (en banc). The district court held that Willson was
unlikely to succeed on the merits of his First Amendment
challenge. It found Ordinance 983 content-neutral and
narrowly-tailored to address Bel-Nor's significant
interests in aesthetics and traffic safety. It rejected
Willson's overbreadth challenge.
court reviews the denial of a preliminary injunction for
abuse of discretion. See Grand River Enter. Six Nations,
Ltd. v. Beebe, 467 F.3d 698, 701 (8th Cir.
2006). This court reviews First Amendment claims de
novo and "make[s] a fresh examination of crucial
facts." Johnson v. Minneapolis Park & Recreation
Bd., 729 F.3d 1094, 1098, 1101-02 (8th Cir. 2013)
(reversing denial of motion for preliminary injunction
because plaintiff was likely to succeed on the merits of his
First Amendment claim, and government regulation was not
First Amendment, applicable to the states through the
Fourteenth Amendment, prohibits laws "abridging the
freedom of speech." U.S. Const. amend. I. "Under
that Clause, a government, including a municipal government
vested with state authority, has no power to restrict
expression because of its message, its ideas, its subject
matter, or its content." Reed v. Town of
Gilbert, 135 S.Ct. 2218, 2226 (2015).
"Content-based laws-those that target speech based on
its communicative content-are presumptively unconstitutional
and may be justified only if the government proves that they
are narrowly tailored to serve compelling state
argues that Ordinance 983 is content-based because its flag
exemption imposes different restrictions on signs depending
on their content. The district court held that Willson lacks
standing to challenge the flag exemption because there was no
evidence that it affected Willson. This was error. Willson
has standing to challenge the Ordinance's
"definitional sections." Neighborhood Enter.,
Inc. v. City of St. Louis, 644 F.3d 728, 735 (8th Cir.
2011). In Neighborhood Enterprises, this court
reversed a district court holding that plaintiffs denied an
application to commission a mural "may only challenge
those provisions of [a city Sign Code] which were actually
applied to them." Neighborhood Enter., Inc. v. City
of St. Louis, 718 F.Supp.2d 1025, 1036 n.7 (E.D. Mo.
2010), rev'd, 644 F.3d at 735. "The
City's designation of [the plaintiffs'] purported
mural as a 'sign' essentially acknowledges that the
alleged sign fits no content exemption under [those
provisions of the code challenged by plaintiffs but not cited
against them]." Neighborhood Enter., 644 F.3d
at 735. Like the Neighborhood Enterprises
plaintiffs, Willson "has standing to challenge those
portions of the Sign Code which provide the basic
definitional structure for the terms used in the violated
sections and which more generally define the scope of signs
allowed by the violated sections." Id. When
Bel-Nor charged Willson with violating Ordinance 983, it
acknowledged that his signs did not fit the flag exemption.
The court "may 'tak[e] into account other
provisions'" of the Ordinance "that may affect
the constitutionality of those provisions" applied to
Willson. Id., quoting Café Erotica of
Fla., Inc. v. St. Johns Cnty., 360 F.3d 1274, 1278-79
(11th Cir. 2004) (alterations in original). Willson has
standing to argue that Ordinance 983 is content-based.
regulation of speech is content based if a law applies to
particular speech because of the topic discussed or the idea
or message expressed." Reed, 135 S.Ct. at 2227.
Ordinance 983 is content-based because it "defin[es]
regulated speech by particular subject matter."
Id. Under the Ordinance, each improved parcel may
have up to one stake-mounted, freestanding sign. A sign is:
Any poster, object, devise [sic], or display, situated
outdoors, which is used to advertise, identify, display,
direct or attract attention to an object, person,
institution, organization, business, product, service, event,
idea, belief or location by any means, including but not
limited to words, ...