How Broadview Heights, Ohio Ignored Content Neutrality

In terms of ignoring “content neutrality,” call it “North Olmsted, Part II.”

The following article, written by FASI Executive Director Wade Swormstedt, originally appeared in the April 2004 issue of Signs of the Times magazine.

 

Broadview Heights, OH, is roughly 21 miles away from North Olmsted, OH. In terms of First Amendment ignorance (or perhaps blatant disregard) as it pertains to sign codes, it’s even closer.

North Olmsted Chamber of Cormmerce v. City of North Olmsted ranks as one of the sign industry’s most impressive legal victories in its incessant battle against content-driven sign codes (see ST, April 2000; page 304).

In his January 21, 2000 North Olmsted decision, District Judge Donald Nugent summated, “Because the City’s sign ordinance contains a thicket of content-based distinctions, an impermissible system of prior restraint, and violates equal protection, it fails constitutional scrutiny. . . Many of the city’s content-based regulations completely fail to contribute to safety and aesthetics and seem to be unrelated to these goals. The City’s sign ordinance as a whole lacks rationality.”

Many of Nugent’s conclusions echoed the previous, August 17, 1999, recommendations of Magistrate Judge Patricia Hemann.

Broadview Heights, OH, adopted its comprehensive sign code on November 5, 1990. And, of course, no sign code is unconstitutional until someone complains that it is, and a court agrees. At question was a retrofitted pole sign that identified the Tallyho Motel in Broadview Heights on State Route 82, approximately a tenth of a mile from 1-77. Subsequently, plaintiffs for the motel filed for a summary judgment on five counts that the sign code was unconstitutional.

Fortunately. the defendant’s counter arguments missed by several miles. Unfortunately, for the defendants, Magistrate Judge Patricia Hemann wrote a case report and recommendation.

Logically enough, government officials generally have “qualified immunity” with regard to civil suits when “their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” This holds true, if “their decision was reasonable, even if mistaken.”

Yet, even with these broad protections, Hemann concluded, “Any reasonable official in the position of members of Broadview Heights’ city council and the mayor should have understood that North Olmsted clearly established that an ordinance of the sort in effect in Broadview Heights violated rights under the First Amendment. For this reason, the magistrate judge recommends that the court find the defense of qualified immunity is not available to the mayor and members of the city council of Broadview Heights.”

Personal liability might get future city council members’ attention.

Read these other Hemann statements: “Defendants do not deny that attorneys for Broadview Heights drew defendants’ attention to the decision in North Olmsted and warned that the decision indicated that Broadview Heights’ sign code was problematic.”

“The ordinance at issue in North Olmsted was based on a classification by use types [i.e., content-based definitions of signs] which in many respects is identical to the classification by use types in the Broadview Heights ordinance.”

“Many of the impermissible, content-based regulations of speech in North Olmsted’s ordinance were strikingly similar to regulations in Broadview Heights’ ordinance.”

But here’s where it gets bizarre. Read District Court Judge Paul Matia’s reluctant upholding of the U.S. Constitution. Although he acknowledged Hemann’s “thorough and exhaustive review of the [applicable] law.” and agreed that the Broadview Heights sign code was unconstitutional, he wrote, “Moreover, this Court wishes to make it perfectly clear that it does not agree with the current state of the law with respect to First Amendment protection with commercial speech. . . However, the Court is bound to follow Supreme Court interpretations, no matter how mistaken they may be.”

So Matia refused to deny the council members their qualified immunity, and he also wrote that he “doesn’t think a judge should order a legislative body to alter an ordinance,” even though he acknowledged that it is indeed unconstitutional or impermissible in five ways.

So you want a sign permit in Broadview Heights these days? On March 3, Mark Wagner of Wagner Electric Sign Co. (Elyria, OH) applied for a sign permit for a Fifth Third Bank ground sign. The city solicitor told him he wasn’t allowed to put the bank’s website address on the sign. Mark countered that such a refusal violated the tenets of content neutrality. The solicitor said the existing sign code was still in force.

Meanwhile, it’s now up to Hemann to rule on damages, attorney’s fees and costs, perhaps $500,000. Possibly, the city’s insurance won’t cover this, because it’s a civil suit, I’m told. The citizens should love that.

 

Photo Credit: Mr. Matté

Posted in 1st Ammendment / Freedom of Speech, Blog: Rhetorical, Content Neutrality (Reed v. Gilbert), Sign Codes, Supreme Court.