Cleveland Area Board of Realtors v. The City of Euclid

KENNEDY, Circuit Judge,

concurring in part and dissenting in part.

I concur in parts A, B and C of the panel’s opinion.

I concur in the court’s holding that the ordinance violates the First Amendment. However, I do so because I do not believe the City of Euclid's ordinance is content neutral. While prohibiting free standing “for sale” signs, the ordinance permits free standing security signs. I am unable to find a countervailing government interest to justify the distinction between the contents of security signs and “for sale” signs. The purpose of security signs is to convey to would-be burglars that the house has an alarm system. That message can be conveyed to burglars, who presumably look around the premises before attempting to enter, by window signs in the same manner “for sale” messages are conveyed. Because, as the Supreme Court noted in City of Ladue v. Gilleo, — U.S. -, 114 S.Ct. 2038 , 129 L.Ed.2d 36 (1994), this exception could easily be removed, I have discussed my disagreement with the panel on the other issues raised.

First, I do not agree that the City of Euclid’s ordinance banning lawn signs is not sufficiently narrowly tailored. The majority suggests that the ordinance is not narrowly tailored because it almost entirely bans yard signs, which is unnecessary to further the government’s interest. While I agree with the panel that the restrictions on speech should not “burden substantially more speech than is necessary to further the government’s legitimate interests,” Maj. Op. at 388 (quoting Board of Trustees of State Univ. of New York v. Fox, 492 U.S. 469, 478 , 109 S.Ct. 3028, 3034 , 106 L.Ed.2d 388 (1989)), Euclid’s ordinance does not burden speech more than necessary to further the City’s legitimate interest in maintaining lawns in single family residential areas free of signs for aesthetic purposes.

So long as the means chosen are not substantially broader than necessary to achieve the government’s interest ... the regulation will not be invalid simply because a court concludes that the government’s interest could be adequately served by some less-speech-restrictive alternative. “The validity of [time, place, or manner] regulations does not turn on a judge’s agreement with the responsible decision-maker concerning the most appropriate method for promoting significant government interests” or the degree to which those interests should be promoted.

Ward v. Rock Against Racism, 491 U.S. 781, 800 , 109 S.Ct. 2746, 2758 , 105 L.Ed.2d 661 (1989) (emphasis added) (quoting United States v. Albertini 472 U.S. 675, 689 , 105 S.Ct. 2897, 2907 , 86 L.Ed.2d 536 (1985)). The aesthetic objective of front lawns free of signs cannot be achieved other than by a complete ban on such signs, for lawn signs are the very visual pollutant that the City wishes to prevent. Therefore, I conclude that the ordinance’s virtually complete ban on yard signs is not broader than is necessary to achieve the government’s interest.

Nor can I agree with the panel that the ordinance fails to “leave open ample alternative channels for communication of the information.” Clark v. Community for Creative Non-Violence, 468 U.S. 288, 293 , 104 S.Ct. 3065, 3069 , 82 L.Ed.2d 221 (1984). The panel does not discuss other alternative methods of communication but instead relies on the District Court’s finding that window signs are an inadequate alternative. However, whether there are ample alternative methods of communication is, I believe, a constitutional fact subject to independent appellate review. See Bose Corp. v. Consumers Union of United States, Inc., 466 U.S. 485, 499 , 104 S.Ct. 1949, 1958-59 , 80 L.Ed.2d 502 (1983).

The ordinance does not ban all signs on the premises. It expressly permits window signs, which are valid methods of communication. The evidence was undisputed that signs of the size permitted could be read even in low luminous conditions at 185 feet if letters four inches in height were used. The window signs would be no more than 75 feet from the street. (If farther, or if the terrain would obscure a window sign, a lawn sign was permitted.) Admittedly, lawn signs are more visible than window signs. Indeed, the very fact that lawn signs attract one’s atten *392 tion is the reason they cause visual clutter and detract from the aesthetics of the residential area.

Nonetheless, window signs are an effective alternative channel for communication. The evidence presented by the City established that, in communities adjacent to Euclid that have limited signs in residential areas to window signs for some time, persons were able to sell their homes. Moreover, those people selling their homes may pursue other effective channels of communication such as listing their homes in newspapers and with real estate brokers. Although window signs require prospective buyers to pay closer attention to determine whether a house is for sale, buying a house is not ordinarily impulse driven. Therefore, the prohibition of yard signs leaves open ample alternative channels to communicate' that property is for sale or that a homeowner supports a particular candidate or issue.

The final question is whether lawn signs have become such a traditional means of communication by homeowners that they must be permitted under the teaching of Ladue. In Ladue, the city permitted no signs except for “for sale,” residence identification, and warning signs. Plaintiff Gilleo wished to display political signs opposing the Gulf War. After discussing why the ordinance was not content neutral, but concluding that the City of Ladue could easily eliminate those exceptions and if it did so Gilleo would be without a remedy, the Court went on to hold that the complete prohibition of all residential signs would be a violation of the First Amendment. The Court noted that measures more temperate than prohibiting all residential signs could in large part satisfy Ladue’s stated state regulatory needs without harm to the First Amendment rights of its citizens. In a footnote, the Court pointed out that it was “not confronted here with mere regulations short of a ban.” City of Ladue , — U.S. at - n. 17, 114 S.Ct. at 2047 n. 17. Here, the City of Euclid has not banned all residential signs. Homeowners are not prevented from displaying their messages. Euclid has instead regulated their placement to on the residence when they are visible from the street or sidewalk rather than in the yard. The ordinance here is a regulation, not a ban. Thus, I do not believe Ladue mandates that yard signs must also be allowed.