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Willson v. City of Bel-Nor

United States Court of Appeals, Eighth Circuit

May 20, 2019

Lawrence Willson Plaintiff - Appellant
v.
City of Bel-Nor, Missouri Defendant-Appellee

          Submitted: January 15, 2019

          Appeal from United States District Court for the Eastern District of Missouri - St. Louis

          Before BENTON, MELLOY, and KELLY, Circuit Judges.

          BENTON, CIRCUIT JUDGE.

         Lawrence 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.

         Willson 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.

         Months 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.

         Willson 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.

         This 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 narrowly tailored).

         I.

         The 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 interests." Id.

         Willson 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.

         "Government 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, ...

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