UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA
September 3, 1982
Marshall FRUMER, Joyce Caplan and Joan Johnston
CHELTENHAM TOWNSHIP, Board of Commissioners of Cheltenham Township, c/o Robert J. Hannum, President and Nicholas D. Melair, Jr.
The opinion of the court was delivered by: DITTER
MEMORANDUM AND ORDER
DITTER, District Judge.
This case comes before the court on a motion for a preliminary injunction to have a local municipality's sign ordinance declared unconstitutional as an invalid restriction on free speech. Ordinance 1536, amending section 25 of the Cheltenham Township, Pennsylvania, Sign Code,
states in pertinent part: "No temporary sign shall be affixed to utility poles, street signs or any other structures within the rights-of-way of public streets or highways within the Township of Cheltenham." Plaintiffs assert that because they are prohibited from posting political campaign signs within the rights-of-way in Cheltenham, ordinance 1536 violates their right to freedom of speech under the First and Fourteenth Amendments to the United States Constitution. For the reasons that follow, the motion for preliminary injunction will be refused.
Plaintiffs Marshall Frumer, Joyce Caplan, and Joan Johnston are property owners, residents, and registered voters of Cheltenham Township, Pennsylvania. Additionally, Marshall Frumer is the Democratic candidate for the 154th Pennsylvania legislative district which encompasses, inter alia, Cheltenham Township; Joyce Caplan is a member of the Cheltenham Democratic Committee and co-chairman of the "Frumer for Legislative Campaign Committee;" and Joan Johnston is co-chairperson of the Cheltenham Democratic Party. Plaintiffs contend they have supported political candidates by posting signs on utility polls in the past, and desire to do so in the future.
Because section 30 of the Cheltenham Sign Code imposes penalties for violation of the code,
plaintiffs refrained from posting political signs on utility poles during the spring, 1982, primary election campaign, and unless the court declares the ordinance unconstitutional, plaintiffs will refrain from similarly posting signs during the campaign preceding the November 2, 1982, election. Defendants are Cheltenham Township, the township board of commissioners (board), Robert J. Hannum, president of the board, and Nicholas J. Melair, Jr., township manager. Ordinance 1536 was duly enacted by the board on March 16, 1982.
Because a request for a preliminary injunction appeals to the equitable side of the court's power, a strong showing is necessary to warrant relief.
The prerequisites for granting a preliminary injunction are that the plaintiff[s] . . . [have] no adequate remedy at law and will suffer immediate, irreparable harm if relief is not granted, plaintiff[s] . . . [have] a reasonable probability of success on the merits, the harm inflicted on the defendant[s] if the injunction is granted does not outweigh the harm to the plaintiff[s] if relief is denied, and the injunction does not do disservice to the public.
Florida Coin Exchange v. Film Corporation of America, 530 F. Supp. 50, 51 (E.D.Pa. 1981), aff'd mem. 688 F.2d 820 (3rd Cir. 1982), citing Eli Lilly and Co. v. Premo Pharmaceutical Laboratories, Inc., 630 F.2d 120, 136 (3d Cir. 1980); Continental Group, Inc. v. AMOCO Chemicals Corp., 614 F.2d 351, 356-57 (3d Cir. 1980). Plaintiffs contend ordinance 1536 is unconstitutional. Therefore, my inquiry necessarily must concentrate on whether plaintiffs have a reasonable likelihood of success on the merits.
It is undisputed that even pure political speech, which is entitled to the highest First Amendment protection, "may be subject to reasonable time, place, and manner regulations that are content-neutral, serve a significant governmental interest, and that leave open ample alternative channels for communication of the information."
American Future Systems, Inc. v. The Pennsylvania State University, 688 F.2d 907, 915 (3d Cir. 1982). See Consolidated Edison Co. of New York, Inc. v. Public Service Commission of New York, 447 U.S. 530, 100 S. Ct. 2326, 2332, 65 L. Ed. 2d 319 (1980); Erznoznik v. City of Jacksonville, 422 U.S. 205, 209, 95 S. Ct. 2268, 2272, 45 L. Ed. 2d 125 (1975); Baldwin v. Redwood City, 540 F.2d 1360, 1365 (9th Cir. 1976). Regulations infringing on a private person's First Amendment rights, however, are subject to a heavy presumption against constitutional validity. Rosen v. Port of Portland, 641 F.2d 1243, 1247 (9th Cir. 1981). Moreover, it is the government's burden to prove the constitutionality of the regulation. Consolidated Edison, supra, 100 S. Ct. at 2334.
To determine whether ordinance 1536 is constitutional, I must analyze the facts on the basis of the test enunciated by the Supreme Court: content-neutrality; significant government interest; and availability of alternative channels of communication. Consolidated Edison, supra; American Future Systems, supra. Additionally, I must determine whether the regulation is narrowly drawn or subject to a narrowing construction. Erznoznik, supra, 422 U.S. at 216; 95 S. Ct. at 2276; Orazio v. Town of North Hempstead, 426 F. Supp. 1144, 1148 (E.D.N.Y.1977).
Content -- Neutral
On its face, ordinance 1536 is content-neutral because it neither differentiates among the various types of speech nor prohibits signs based on content. Ordinance 1536 applies to all temporary signs irrespective of content. Plaintiffs, however, contend that because the debate at pre-enactment public hearings concentrated primarily on political signs, the ordinance is directed towards such signs, and therefore, is not content-neutral. Additionally, plaintiffs argue the timing of enactment, six weeks prior to the primary election, supports an inference that the township intended to ban this method of political speech. Plaintiffs' position is without merit. Initially, it must be noted that most debate at the public hearings was initiated by plaintiff Frumer or others with political interests who questioned the constitutionality of the ordinance. Therefore, neither the board of commissioners nor the drafters of the ordinance were responsible for the content of the public debate. Second, Nicholas D. Melair, Jr., township manager, testified that prior to the public hearings, the board sent special notice of the proposed ordinance to some 50 civic organizations and non-profit groups because of the possible adverse effect the ordinance would have on them. Therefore, it is obvious the ordinance was not directed solely at political speech. Finally, the fact that the ordinance was enacted six weeks prior to a primary election is of no significance in view of the staff consideration, notices, and public debate that came after it was originally proposed in October, 1981. For these reasons, I conclude ordinance 1536 is content-neutral.
Significant Government Interests
Defendants assert the ordinance not only is a valid exercise of Cheltenham's municipal power, but is designed to promote traffic safety and community aesthetics. Specifically, defendants contend sign-lined streets detract from the appearance of the community,
divert the attentions of drivers, and obstruct the driver's view of traffic and pedestrians at intersections.
Contrariwise, plaintiffs maintain the prohibitions of the ordinance are not causally related to the significant state interests forwarded by defendants. John Donnelly & Sons v. Campbell, 639 F.2d 6, 11 (1st Cir. 1980), aff'd mem., 453 U.S. 916, 101 S. Ct. 3151, 69 L. Ed. 2d 999 (1981); Ross v. Goshi, 351 F. Supp. 949, 953 (D.Hawaii 1972); State v. Miller, 83 N.J. 402, 416 A.2d 821, 827-28 (1980). Accordingly, plaintiffs assert I must declare the ordinance unconstitutional and enjoin defendants from enforcing it. Because common sense dictates that the government interests are causally related to the prohibitions of the ordinance, I reject plaintiffs' position.
Traffic safety and community aesthetics have been held to be significant government interests which can justify reasonable time, place, and manner regulations of speech protected by the First Amendment. John Donnelly & Sons v. Campbell, supra, 639 F.2d at 10-12; Orazio, supra, 426 F. Supp. at 1148; State v. Lotze, supra, 593 P.2d at 813-15; Donnelly Advertising Corp. of Maryland v. Baltimore, 279 Md. 660, 370 A.2d 1127, 1132 (1977). It is suggested, however, that drivers can avoid visual distractions by merely turning away. Baldwin v. Redwood City, supra, 540 F.2d at 1367. That is not always true. Erznoznik, supra, 422 U.S. at 209, 95 S. Ct. at 2272-73; Lehman v. City of Shaker Heights, supra, 418 U.S. at 308, 94 S. Ct. at 2719 (Douglas, J., concurring). It cannot be disputed that signs are distracting. Their whole purpose is to call attention to themselves and to the extent that they are successful, a motorist's powers of observation are diverted from those things which he may injure or which may bring injury to him. A sign that is large enough to be seen at one glance may also be large enough to conceal a hazard. A small sign may get more than a glance just because it needs more attention to be understood. Usually, temporary signs rely on the impact of multiple exposures to convey their message, proliferating without seeming limit in the process. To suggest that one may simply turn away from the impact of temporary signs is to suggest that one may do that which the sign-placer has resolved one shall not do. Neither pedestrians nor drivers can turn away if there are three-four signs on every pole on both sides of the street. To argue that one need not look is to contend one would walk or drive carelessly. Furthermore, it cannot be disputed that temporary signs posted on traffic signs which either detract attention from them, or worse, conceal them, are hazardous both to drivers and pedestrians. Therefore, I find the ordinance promotes significant government interests which are causally related to achievement of stated goals.
Alternative Methods of Political Communication
Plaintiffs argue that by banning political signs within rights-of-way in Cheltenham, ordinance 1536 prohibits them from engaging in a unique method of political speech which is not fungible with other modes of communication. Schneider v. State of New Jersey, 308 U.S. 147, 60 S. Ct. 146, 152, 84 L. Ed. 155 (1939); Baldwin v. Redwood City, supra, 540 F.2d at 1368; State v. Miller, supra. Plaintiffs assert the availability of leaflets, direct mail, radio, television, newspapers, bumper stickers, door-to-door campaigning, support group meetings, or posters in public buildings, shopping centers, and on private property, cannot substitute for posting signs within the right-of-way. Although I agree with plaintiffs' contention that posting political signs in the rights-of-way is both an inexpensive and effective method of political speech, plaintiffs also may engage in some of the above activities within the rights-of-way. For example, plaintiffs may campaign, distribute leaflets, bumper stickers,
and other literature as they walk within the rights-of-way.
Furthermore, ordinance 1536 does not prohibit posting temporary signs in all places within the rights-of-way. Rather, ordinance 1536 prohibits within rights-of-way temporary signs which are "affixed to utility poles, street signs or any other structures." Section 2(9) of the Cheltenham Township Sign Code defines "structures" as follows:
"Structure" shall mean a combination of materials assembled at a fixed location to give support or shelter, such as a building, bridge, trestle, tower, framework, retaining wall, tank, swimming pool, tunnel, tent, stadium, reviewing stand, platform, bin, fence, sign, flagpole, or the like, including any construction of any kind affecting or endangering life or property.
Because of the definition given "structure," I construe the ordinance as at least permitting the posting of temporary political signs on trees, within the rights-of-way in Cheltenham. See Erznoznik, supra, 422 U.S. at 216, 95 S. Ct. at 2276 ("state statute should not be deemed facially invalid unless it is not readily subject to a narrowing construction"). In view of the fact that the ordinance permits posting within the rights-of-way except on utility poles, traffic signs, and other structures, both alternative and identical methods of communication are available to plaintiffs. Accordingly, I need not reach the question whether the alternative modes of communication offered by defendants are fungible with the methods at issue here.
Because ordinance 1536 is content-neutral, furthers significant government interests, and leaves untouched numerous methods of political communication, I find it to be a valid time, manner and place regulation.
a legislative judgment that . . . [temporary signs] are traffic hazards [and harm community aesthetics] is not manifestly unreasonable and should not be set aside. We likewise hesitate to disagree with the accumulated, common-sense judgments of local lawmakers . . . that . . . [temporary signs] are real and substantial hazards to traffic safety [and community aesthetics]. There is nothing here to suggest that these judgments are unreasonable . . . .
We would be trespassing on one of the most intensely local and specialized of all municipal problems if we held that this regulation had no relation to the traffic problem [or aesthetics] of . . . [Cheltenham Township]. It is the judgment of the local authorities that it does have such a relation. And nothing has been advanced which shows that to be palpably false. [ Railway Express Agency, Inc. v. People of New York, 336 U.S. 106, 109, 69 S. Ct. 463, 465, 93 L. Ed. 533 (1949)].
Metromedia, Inc. v. City of San Diego, 453 U.S. 490, 101 S. Ct. 2882, 2893, 69 L. Ed. 2d 800 (1981) (footnotes omitted).
Accordingly, ordinance 1576 is constitutional and a valid exercise of Cheltenham Township's municipal power.