United States District Court, E.D. Pennsylvania
April 26, 2004.
NORTHAMPTON COUNTY DEMOCRATIC PARTY, Individually and on Behalf of All Its Candidates for Public Office and the Citizen Electors of Northampton County; and JOE LONG, Individually and as Chairman of the Northampton County Democratic Party, Plaintiffs
HANOVER TOWNSHIP; ALLEN TOWNSHIP; BOROUGH OF GLENDON; TOWNSHIP OF BETHLEHEM; BOROUGH OF HELLERTOWN; BOROUGH OF BATH; TOWNSHIP OF PALMER; ROSETO BOROUGH; BOROUGH OF WALNUTPORT WASHINGTON TOWNSHIP; PLAINFIELD TOWNSHIP; BOROUGH OF BANGOR; BUSHKILL TOWNSHIP; EAST ALLEN TOWNSHIP; LEHIGH TOWNSHIP; BOROUGH OF NAZARETH; BOROUGH OF NORTH CATASAUQUA; WILLIAMS TOWNSHIP; and CITY OF EASTON
The opinion of the court was delivered by: JAMES KNOLL GARDNER, District Judge
This matter is before the Court on the Motion for Preliminary
Injunction filed February 17, 2004 on behalf of plaintiffs.*fn1 By Order
of the undersigned dated March 2, 2004 we scheduled a hearing on plaintiffs' motion for preliminary injunction.
A hearing on plaintiffs' motion was conducted before the undersigned on
March 8, 2004.
By Order of the undersigned dated March 8, 2004 we granted plaintiffs'
Motion for Preliminary Injunction against defendant Township of
Palmer.*fn2 For the reasons expressed below, we deny plaintiffs' Motion for Preliminary Injunction in all
Jurisdiction is based upon federal question jurisdiction pursuant to
28 U.S.C. ___ 1331. Supplemental jurisdiction is proper over plaintiffs'
state law claims pursuant to 28 U.S.C. ___ 1367(a). Venue is appropriate
pursuant to 28 U.S.C. ___ 1391(b)(1), (b)(2) and (c) because the events
giving rise to plaintiffs' claims allegedly occurred in this judicial
district, namely, Northampton County, Pennsylvania.
Plaintiffs are the Northampton County Democratic Party ("Party") and
Joe Long. Plaintiff Party brings this suit "Individually and on behalf of
all its candidates for public office and the citizen electors of
Northampton County". Plaintiff Joe Long brings this suit "individually
and as Chairman of the Northampton County Democratic Party".
Plaintiffs filed their Complaint in this court on February 17, 2004.
The Complaint alleges that one city, ten townships and eight boroughs in
Northampton County, Pennsylvania*fn3 have political sign ordinances which plaintiffs
allege directly effect them. Plaintiffs also allege that these ordinances
interfere with plaintiffs' rights to free speech under the First
Amendment of the United States Constitution, as made applicable to the
states under the Fourteenth Amendment of the United States Constitution,
and under the First Amendment of the Constitution of the Commonwealth of
Specifically, plaintiffs allege that the various political sign
ordinances infringe their rights to conduct political campaigns for
various public offices using political yard signs on private property and the public right-of-way. More
specifically, plaintiffs allege that the various ordinances require:
(a) permits and/or licenses;
(b) fees and/or deposits;
(c) pre-election time limits for posting signs;
(d) post-election time limits for removing signs;
(e) size limitations on signs;
(f) numerosity limitations on signs per residential
(g) numerosity limitations on off-premises signs;
(h) bans on posting signs within the public
Plaintiffs contend that they are actively involved in every election
within the 19 local municipalities in Northampton County by nominating
and campaigning for the candidates for various public offices. The public
offices on the ballot this election year include President of the United
States, a United States Senator, a United States Congressman and various
Commonwealth of Pennsylvania offices including Attorney General,
Treasurer and Auditor General.
Plaintiff Party and its candidates allege that they customarily
purchase political signs for public display. The signs are then distributed throughout
Northampton County and within the 19 defendant municipalities to enable
the candidates and their supporters to post the signs in a public forum
so that the signs can be read by other citizen electors on private
property (including residential property) within sight of a public road,
locations along public roads, and in the rights-of-way of public roads.
Plaintiffs further contend that there is no other reasonable, effective
or affordable alternative to political signs in conducting a campaign for
public office within the defendant municipalities. Finally, plaintiffs
assert that defendants' various political sign ordinances are
unconstitutional; and that the ordinances will disrupt free and fair
elections in 2004 and beyond by threatening governmental action against
plaintiffs, its candidates and supporters, and the citizens of the
On February 17, 2004 plaintiffs filed their Complaint together with a
Motion for Preliminary Injunction against the various municipalities. On
February 18, 2004 plaintiffs served all defendants except defendant
Roseto Borough with the Complaint and Motion for Preliminary Injunction.
On February 19, 2004 plaintiffs served defendant Roseto Borough.
On March 2, 2004 plaintiffs' Notice of Voluntary Dismissal of defendant
Township of Bethlehem was filed. Moreover, by Order dated March 2, 2004,
we scheduled plaintiffs' Motion for Preliminary Injunction for hearing on
March 8, 2004.
On March 8, 2004 plaintiffs filed a Notice of Voluntary Dismissal
regarding defendants Borough of Glendon, Borough of Hellertown, Borough
of North Catasauqua, Borough of Walnutport, City of Easton, Lehigh
Township, Plainfield Township, Allen Township and the Borough of Bath. In
addition, as noted above, by separate Order dated March 8, 2004, by
agreement of counsel, we dismissed defendant Williams Township from this
Thus, at the commencement of the March 8, 2000 hearing on plaintiffs'
Motion for Preliminary Injunction the only parties which remained were
Roseto Borough, Washington Township, the Borough of Bangor, Bushkill
Township, East Allen Township, the Borough of Nazareth and the Township
FINDINGS OF FACT
Based upon the pleadings, record papers, exhibits, stipulations of
counsel and the evidence presented at the hearing held March 8, 2004, the
pertinent facts are as follows.
Plaintiff Joseph Long is the Chairman of the Northampton County
Democratic Party. Furthermore, Mr. Long is on the April 27, 2004 primary
election ballot as a delegate for United States presidential candidate
John Kerry in the 15th Congressional District. The 15th Congressional
District is comprised of all of Lehigh County and Northampton County,
Pennsylvania, and portions of Montgomery County and Berks County,
Pennsylvania. Mr. Long is authorized to bring this action by the members
of the Northampton County Democratic Committee.
Mr. Long has a long history of participation in political campaigns
beginning in the early 1960's through the present, volunteering his time
to local, state and federal candidates. Through the years, Mr. Long has
participated in setting up phone banks, putting up political signs,
operating "get-out-the-vote" campaigns and coordinating radio and
television advertising on behalf of various political candidates.
Plaintiff Northampton County Democratic Party is a political party as
defined by Pennsylvania law.*fn4 The Party will endorse a slate of candidates in the 2004 election cycle, including
the primary and general elections for various local, state and federal
Political signs are used by almost every candidate for political office
at the local, state and federal level as a means of obtaining name
recognition for the particular candidate. Political signs are an
effective and more economically viable means for many candidates to get
their names, and sometimes a message, out to potential voters. Moreover,
political signs are less costly than other traditional methods of
advertising such as radio, television and print media.
Political signs are dropped off by candidates for public office with
the local party committees and distributed to committee members and to
the individual supporters of particular candidates. The signs are placed
in the yards of committee members, campaign supporters, and along the
rights-of-way of public streets and thoroughfares.
Each defendant municipality has political-sign ordinances that attempt
to restrict different aspects of placing political signs within the
municipality. We address the particular ordinances in each specific
municipality as follows. Roseto Borough
The Borough of Roseto is a bedroom community of approximately 1400
residents, just over a square mile in size, located north of the Borough
of Bangor, along Blue Mountain, in what is referred as the slate-belt
region of Northampton County, Pennsylvania.
Section 185-34 of the Roseto Code restricts the use of political signs
by establishing a three-week pre-election time restriction for displaying
political signs, and a ten-day post-election deadline for removal of
political signs. In addition, the ordinance limits the size of any
political sign to a maximum of six square feet. An individual may place
only one sign per candidate on his or her property. There is a fee for
displaying signs which exceed the limitations of the ordinance, but that
fee is waived for political signs. No permit is required to post a
Roseto Borough has never enforced its political sign ordinance except
where the placement of a particular sign has created a safety hazard.
However, Roseto Borough has not specifically agreed to refrain from
enforcing its political sign ordinance.
Washington Township*fn5 Defendant Washington Township has a "temporary" sign ordinance 6.5(3)
that limits the display of political signs to a total period not to
exceed thirty days in any calendar year. The ordinance requires political
signs to be removed within seven days after an election. There is no size
or number limit for political signs. No permits or fees are required.
Washington Township did not appear at the March 8, 2004 hearing.
However, at the hearing plaintiffs introduced a letter dated March 3,
2004 from the Township Solicitor, David J. Ceraul, Esquire.*fn6 The
letter states that Washington Township (1) has never enforced the
provisions in its political sign ordinance; (2) will not enforce the
provisions of its political sign ordinance until the within litigation
has been completed; (3) is exploring amending its political sign
ordinance to conform with plaintiffs' demands; and (4) does not oppose
plaintiffs' Motion for Preliminary Injunction.
Borough of Bangor
The Borough of Bangor has a political sign ordinance (Subsection J of
Section 743 of the Zoning Ordinance of the Borough of Bangor) that
restricts the pre-election display of signs to a period thirty days prior to an election. There is a
requirement to remove political signs within ten days after an election.
In addition, the Borough of Bangor ordinance bans any political signs in
the public right-of-way, restricts a property owner to no more than two
on-premises signs per candidate. No political sign may be larger than
four square feet. No permits or fees are required.
By Order of the undersigned dated March 18, 2004, we approved the
Stipulation to Amend Record Regarding Plaintiffs' Motion for Preliminary
Injunction, which stipulation was presented March 17, 2004. The
stipulation establishes that on March 8, 2004 the Borough Council for the
Borough of Bangor unanimously decided not to enforce its political sign
ordinance while the within matter was pending. Moreover, the Borough of
Bangor's political sign ordinance was enacted in 1967 and has never been
Bushkill Township is a bedroom community of approximately 7500
residents. The Township is 25.7 square miles in size and has over 3000
individual properties, but very few commercial properties. Bushkill
Township has a political sign ordinance which limits the size of any political sign to a
maximum of four square feet. There is no limitation on when political
signs may be displayed, nor any deadline for removing them. There is no
limit to the number of signs which may be displayed. Nor is any fee or
On March 4, 2004 the Board of Supervisors of Bushkill Township enacted
Resolution 2004-03 which states that the Township "has not in the past,
will not now, and does not intend to in the future enforce the size
regulation of a political sign erected within the township."*fn8
East Allen Township
East Allen Township has a sign ordinance, 250-60, enacted December 15,
2003, which regulates political signs as "temporary" signs. Specifically,
political signs smaller than eight square feet do not require a permit. A
sign larger than eight square feet requires a permit. The East Allen
Township ordinance also limits the display of political signs to a total
period not to exceed thirty days in any calendar year. A sign must be
removed within seven days after an election. There is no fee required.
East Allen Township has never enforced its sign ordinance as it relates
to political signs. On one occasion in 1992 approximately thirty days after an election and after numerous
public complaints, the Township Zoning Code Compliance Officer called
numerous political committees and requested that they remove their
signs. East Allen Township has agreed not to enforce its sign ordinance
as it relates to political signs while this litigation is pending.
Borough of Nazareth
The Borough of Nazareth has a political sign ordinance, Section 505(6),
which limits the display of political signs to a period three weeks prior
to an election. There is a requirement that all political signs be
removed within ten days after an election. The Borough has never enforced
its political sign ordinance and has stated in its reply to plaintiffs'
motion for preliminary injunction) that it will not enforce its sign
ordinance during the pendency of this action. Moreover, the Borough of
Nazareth has agreed to amend its political sign ordinance to remove the
pre-and post-election time restrictions governing political signs.
Defendants Roseto Borough, Bushkill Township and East Allen Township
contend that plaintiffs do not have standing to bring the within action. Specifically, these defendants
contend that plaintiffs are attempting to assert the rights of third
parties who are not parties to this lawsuit. In addition, defendants
contend that plaintiffs cannot assert any injury-in-fact to support their
claims. For the following reasons we disagree with defendants and
conclude that plaintiffs do have standing to assert their claims.
Traditionally, in order for a party to assert the constitutional
minimum for standing, a party must plead three basic elements.
First, the plaintiff[s] must have suffered an "injury
in fact" an invasion of a legally protected interest
which is (a) concrete and particularized, and (b)
"actual or imminent, not `conjectural' or
`hypothetical.'" Second, there must be a causal
connection between the injury and the conduct
complained of the injury has to be "fairly . . .
traceable to the challenged action of the
defendant[s], and not . . . the result of the
independent action of some third party not before the
court. Third, it must be "likely," as opposed to
merely "speculative," that the injury will be
"redressed by a favorable decision."
Lujan v. Defenders of Wildlife, 504 U.S. 555
, 560-561, 112 S.Ct. 2130,
2136, 119 L.Ed.2d 351, 364 (1992) (citations omitted). The party invoking
federal jurisdiction bears the burden of establishing these elements.
See FW/PBS, Inc. v. Dallas, 493 U.S. 215
, 231, 110 S.Ct. 596, 608, 107 L.Ed.2d 603, 622 (1990).
The point in the proceedings when defendants raise their standing
objection controls how we analyze the issue of standing. The issue of
standing must be supported in the same manner as any other matter on
which plaintiffs bear the burden of proof with the manner and degree of
evidence required at successive stages of the litigation. Lujan, supra.
At the pleading or motion-to-dismiss stage, we must accept all
plaintiff's well-pled factual allegations as true and draw all reasonable
inferences therefrom in favor of plaintiffs. Graves v. Lowery,
117 F.3d 723, 726 (3d Cir. 1997).
Thereafter, at the summary-judgment stage, plaintiffs cannot avert
summary judgment with speculation or by resting on the allegations in
their pleadings, but rather must present competent evidence from which a
jury could reasonably find in their favor. Ridgewood Board of Education
v. N.E. for M.E., 172 F.3d 238, 252 (3d Cir. 1999).
"And at the final stage, those facts (if controverted) must be
`supported adequately by the evidence adduced at trial.'" Lujan, 504
U.S. at 561, 112 S.Ct. at 2137, 119 L.Ed.2d at 365 (quoting Gladstone,
Realtors v. Village of Bellwood, 441 U.S. 91, 116, 99 S.Ct. 1601, 1616, 60 L.Ed.2d 66, 86, n.31 (1979).
Because plaintiffs' Motion for Preliminary Injunction was filed
contemporaneously with their Complaint, we conclude that the proper
standard we must apply at this stage of the proceedings is the
motion-to-dismiss standard. Thus, we must accept as true all plaintiffs'
well-pled allegations, and the reasonable inferences which can be drawn
therefrom. Graves, supra. In addition, we consider the findings of fact
adduced from the testimony and exhibits presented at the March 8, 2004
hearing of this matter. To do otherwise would be fundamentally unfair and
heighten the burden on plaintiffs prior to any discovery being
In their Complaint, plaintiffs assert that defendants' political-sign
ordinances directly effect plaintiffs and interfere with their First and
Fourteenth Amendment rights under the United States Constitution and with
their First Amendment rights under the Constitution of the Commonwealth
of Pennsylvania. Specifically, plaintiffs assert that their political
speech is abridged by the requirements of the various municipal
ordinances. Plaintiffs assert that because the ordinances allegedly
restrict when, how, where it may be placed in support of a particular
candidate or candidates for political office, and what size a political sign may be, this disrupts their exercise of constitutionally protected
Defendants assert that because they have never attempted to enforce
their political sign ordinances and because all but Roseto Borough have
stated that they will not attempt to enforce their respective ordinances
during the pendency of this litigation, plaintiffs cannot show any
"injury in fact" or that any injury is more than speculative, conjectural
Specifically, defendants contend that no candidate has been deprived of
the right to post as many signs, in any place, for any period of time as
they may wish by any defendant municipality. For the following reasons,
we conclude that plaintiffs have standing to bring this action.
Plaintiff Joe Long is a party in his individual capacity and as
Chairman of the Northampton County Democratic Committee. Mr. Long is a
candidate on the primary election ballot as a delegate for United States
Presidential candidate John Kerry in the 15th Congressional district.
Mr. Long testified that he wants to put signs out on behalf of Senator
Kerry and other Democratic candidates within 60 days of an election.
Local county committees for a political party are authorized by Pennsylvania law.*fn9 As the Chairman of the Northampton
County Democratic Committee, Mr. Long has authority to bring this action
on behalf of the committee members and the Democratic candidates the
We conclude the various municipal ordinances in question potentially
chill political speech. "[W]hen state action affects political speech it
trenches upon an area in which the importance of First Amendment
protections is `at its zenith.'" Rappa v. New Castle County, 18 F.3d 1043,
1049 (3d Cir. 1994)(citation omitted).
In this case, defendants come to court contending that they have not
previously enforced, and will not enforce, their respective ordinances
until completion of this litigation. However, plaintiffs did not know
this when their lawsuit was filed. Thus, in the face of these respective
ordinances, plaintiffs would be in violation of law to conduct themselves
in a manner outside what the respective ordinances permit. "The courts
have repeatedly shown solicitude for First Amendment claims because of
concern that, even in the absence of a fully concrete dispute,
unconstitutional statutes or ordinances tend to chill protected
expression among those who forbear speaking because of the law's very
existence." Peachlum v. City of York, 333 F.3d 429, 434-435 (3d Cir. 2003).
Accordingly, based upon the allegations contained in plaintiffs'
Complaint and the evidence adduced at the hearing, we conclude that even
in the absence of any allegations of concrete injury, Joe Long,
individually, and as Chairman of the Northampton County Democratic
Committee has standing to bring this action because Mr. Long is a
candidate who wishes to place political signs in the defendant
municipalities. Moreover, as Chairman of the county Democratic
Committee, Mr. Long represents the members of the Committee who also want
to post political signs in their respective wards.
Our analysis of the third-party-standing issue is different from the
personal standing issue for Mr. Long. "Federal courts must hesitate before
resolving a controversy, even one within their constitutional power to
resolve, on the basis of the rights of third persons not parties to the
litigation." Singleton v. Wulff, 428 U.S. 106, 114, 96 S.Ct. 2868, 2874,
49 L.Ed.2d 826, 833 (1976). The general rule is that "[o]rdinarily, one
may not claim standing in this Court to vindicate the constitutional
rights of some third party." Barrows v. Jackson, 346 U.S. 249,
73 S.Ct. 1031, 1034, 97 L.Ed. 1586, 1594 (1953).
The reasons that a court should abstain from hearing claims on behalf of third persons include that the court should not
adjudicate the rights of third persons when it may be that the third
person either would not wish to assert their rights or are able to enjoy
their rights regardless of whether or not the current litigant is
successful. In addition, third parties are usually the best proponents of
their own rights, and the court should only construe the rights of third
parties when those parties are before the court.
However, like any general rule, there are exceptions. The exception in
the case of asserting claims on behalf of third parties contains two
factual elements. First, we must look at the relationship of the litigant
to the person whose right he seeks to assert, and whether the right is
inextricably bound up with the activity the litigant wishes to pursue.
Second, we must look at the ability of the third party to assert his own
right. Singleton, supra.
The issue of whether the Northampton County Democratic Party,
individually, and on behalf of its candidates for public office and the
electors of Northampton County have standing is substantially mooted by
our determination regarding Mr. Long. This action proceeds with Mr. Long
as an individual plaintiff and as Chairman of the Northampton County
Democratic Party. However, notwithstanding that fact, we conclude that the Party does have standing to bring
the claims in this case on behalf of itself, its candidates and the
electors of Northampton County.
As noted above, when government action potentially chills protected
First Amendment speech, the requirement for concrete harm is lessened.
Moreover, we conclude that the Northampton County Democratic Party is a
proper plaintiff because of the activities that it performs during an
Mr. Long testified that the individual candidates all provide the local
Democratic Party with signs to be dispersed throughout Northampton
County. This inextricably binds the individual candidates to the local
party. The candidates rely on the Party to get the signs put up throughout
the county. Moreover, the candidates themselves, as well as the Party
members and volunteers, are all part of the general electorate of the
Thus, we conclude that the rights of the Party, its candidates, and the
general electorate, are all inextricably bound together for purposes of
Next, we address the ability of the third-parties to bring this action on their own behalf. In this regard,
we conclude that because the rights of the plaintiffs and the
third-parties are inextricably bound together, and while the individual
candidates could bring this action either individually or collectively,
and because the contested ordinances affect the general electorate as a
whole, we do not need each individual candidate or each and every
registered voter before the court. That would burden the court with
needless parties and because plaintiffs do not seek to limit the
application of the result in this action to just members of the Democratic
Party, it is unnecessary.
Rather, all political parties, candidates and the electorate as a whole
are affected by this litigation. The potential chilling of political
speech by the government affects all the citizens of Northampton County
equally. It defies logic to deny standing to the Northampton County
Democratic Party to bring this action on behalf of its candidates and the
general electorate when the effect of our ultimate decision in this
matter will reverberate to the benefit or detriment of all citizens
notwithstanding whether the Northampton County Democratic Party is a
plaintiff in this matter, because Mr. Long has standing to challenge the
We will ultimately decide the same issues in this case (i.e. the
constitutionality of the individual ordinances) whether or not the local Party is present in this litigation.
Accordingly, we determine that it is unnecessary to have each
third-party before the court, and that the Northampton County Democratic
Party has standing to bring this action on behalf of the non-present
third-parties which it seeks to represent.
In considering a motion for preliminary injunction the court must to
look at four factors: (1) the likelihood of success on the merits; (2)
the extent of irreparable injury from the conduct complained of; (3) the
extent of irreparable harm to the defendants if a preliminary injunction
issues; and (4) the public interest. Clean Ocean Action v. York,
57 F.3d 328, 331 (3d Cir. 1995). A court may not grant injunctive relief
without satisfying requirements (1) and (2), regardless of what the
equities seem to require. Adams v. Freedom Forge Corporation, 204 F.3d 475,
484 (3d Cir. 2000).
The initial step the court must take in the analysis of any First
Amendment case is to determine whether a statute is content-neutral or
content-based. Rappa, 18 F.3d at 1053. If a statute is content-based,
then the defendants are required to show that the ordinances are necessary to serve a compelling
interest and that it is narrowly tailored to achieve that end. Boos v.
Barry, 485 U.S. 312, 108 S.Ct. 1157, 99 L.Ed.2d 333 (1988). If the
ordinance is content-neutral, and only restricts the quantity of speech
by regulating the time, place or manner of the speech, a different test
In Ward v. Rock Against Racism, 491 U.S. 781, 109 S.Ct. 2746,
105 L.Ed.2d 661 (1989) the United States Supreme Court explained:
[E]ven in a public forum the government may impose
reasonable restrictions on the time place, or manner
of protected speech, provided the restrictions "are
justified without reference to the content of the
regulated speech, that they are narrowly tailored to
serve a significant governmental interest, and that
they leave open ample alternative channels for
communication of the information."
491 U.S. at 79, 1109 S.Ct. at 2753, 105 L.Ed.2d at 675 (quoting Clark v.
Community for Creative Non-Violence, 468 U.S. 288
, 104 S.Ct. 3065,
82 L.Ed.2d 221 (1984)).
Likelihood of Success on the Merits
The remaining defendants in this matter all have ordinances which
relate to either time restrictions before and after an election, the size
of political signs, how many signs may be placed on a property or whether signs may be placed in a public
right-of-way. We conclude that the time restrictions for putting up or
removing political signs may be either a content-based or a
content-neutral restriction. O'Neill v. Township of Northampton, No.
Civ. A. 00-1559, 2001 U.S. Dist. LEXIS 22416 at *8 (E.D. Pa. Dec. 7,
2001). However, the size, number of signs and placement restrictions are
content-neutral. In either event, for the reasons expressed below, we
conclude that plaintiffs have shown a likelihood of success on the
In a content-neutral context, defendants have the burden of showing
their ordinances are narrowly tailored enough to comport with
constitutional requirements if they are going to limit the speech. In a
content-based context, defendants have to show the regulation is
necessary to serve a compelling state interest and that it is narrowly
drawn to achieve that end. Rappa, supra. We conclude that defendants fail
to do either.
In this case, defendants fail to provide the court any evidence to
indicate what are the bases of their ordinances. Defendants have inferred
that the ordinances are based upon aesthetics and safety, but fail to
show how and why they enacted the ordinances. However, the municipalities
do have an interest in maintaining the aesthetics and character of their
respective boroughs and townships by having political signs removed.
On the other hand, plaintiffs have demonstrated that the regulations
limit political speech based on their size, number of signs, where the
signs are placed and when they may be placed and removed. Accordingly,
because plaintiffs have shown that the various ordinances limit political
speech and the defendants fail to justify their ordinances at this stage
of the proceedings, we conclude that plaintiffs have shown a likelihood
of success on the merits.
Extent of Irreparable Injury
"[T]he judicial use of power to arrange relationships prior to a full
determination on the merits is a weighty matter, and the preliminary
injunction device should not be exercised unless the moving party shows
that it specifically and personally risks irreparable harm." Adams, 204
F.3d at 487. Moreover, a preliminary injunction should be reserved for
"extraordinary" situations. Sampson v. Murray, 415 U.S. 61, 94 S.Ct. 937,
39 L.Ed.2d 166 (1974).
"[T]he dramatic and drastic power of injunctive force may be unleashed
only against conditions generating a presently existing actual threat."
Holiday Inns of America v. B & B Corporation, 409 F.2d 614, 618 (3d Cir. 1969). Finally, the risk
of harm may not be speculative. Adams, 204 F.3d at 488.
Plaintiffs rely on the decision of the United States Supreme Court in
Elrod v. Burns, 427 U.S. 347, 96 S.Ct. 2673, 49 L.Ed.2d 547 (1976) for the
proposition that when First Amendment interests are either threatened, or
in fact being impaired at the time relief is sought, the loss of First
Amendment freedoms, for even a minimal period of time, unquestionably
constitutes irreparable injury. 427 U.S. at 373, 96 S.Ct. at 2690, 49
L.Ed.2d at 565. For the following reasons, we find Elrod distinguishable
from the instant matter and conclude that plaintiffs fail to show
In Elrod, plaintiffs' injuries were both threatened and were occurring
at the time of the filing of the motion. In this case, the evidence
before the court is one incident in 1992 in East Allen Township where the
Zoning Code Enforcement Officer, after receiving numerous public
complaints about political signs that remained up after the election,
called campaign committees thirty days after an election to request that
the signs be removed. In addition, the Roseto Borough Zoning Officer
testified that he might move a sign for safety reasons. Otherwise, there
is no evidence that there is any potential harm, let alone irreparable injury to plaintiffs.
All of the remaining defendants, have stated that they have never
enforced their respective ordinances. Moreover, all defendants except
Roseto Borough have either by board resolution, stipulation, by reference
in their answering papers, or in open court, provided that they will not
seek to enforce their political sign ordinances during the pendency of
this litigation. Thus, we conclude that plaintiffs fail to show any
actual existing threat and that any risk of irreparable injury is
speculative at best.
Accordingly, we conclude that plaintiffs fail to establish any risk of
irreparable injury that would warrant imposition of a preliminary
With regard to the final two elements of the test for a preliminary
injunction, we conclude that because defendants state that they are not going to enforce their
political-sign ordinances, they would not be harmed by issuance of a
preliminary injunction. Moreover, in the absence of any reasons for the
enactment of the various ordinances, we conclude that the public interest
in political free speech under the First Amendment outweighs any
aesthetic interests defendants have in enacting their ordinances. In
addition, defendants' public safety concerns are a non-issue because
plaintiffs' proposed preliminary injunction would not inhibit the
municipalities from moving or removing political signs that posed a
Accordingly, we conclude that plaintiffs prevail on the third and
fourth elements of the preliminary injunction test.
For all the foregoing reasons, we conclude that plaintiffs have
standing to assert the remaining claims contained in their Complaint.
Moreover, we conclude that plaintiffs have demonstrated a likelihood of
success on the merits, that defendants would not be harmed by the
issuance of a preliminary injunction, and that the public interest is
consistent with the granting of a preliminary injunction.
However, we conclude that plaintiffs fail to establish any risk of
irreparable injury that would warrant the issuance of a preliminary
injunction. Accordingly, we deny plaintiffs' Motion for Preliminary
NOW, this 26th day of April, 2004, upon consideration of the Motion
for Preliminary Injunction filed February 17, 2004 on behalf of
plaintiffs; upon consideration of the Answer of Bushkill Township to
Motion for Preliminary Injunction filed March 2, 2004; upon consideration
of Defendant Borough of Bangor's Response to Plaintiff' Motion for Preliminary Injunction
filed March 4, 2004; upon consideration of the Memorandum of Law on
Behalf of East Allen Township in Opposition to Motion for Preliminary
Injunction filed March 4, 2004; upon consideration of the Reply to Motion
for Preliminary Injunction on behalf of the Borough of Nazareth filed
March 4, 2004; upon consideration of the Answer to Motion for Preliminary
Injunction on behalf of Roseto Borough filed March 4, 2004; upon
consideration of the Reply to Motion for Preliminary Injunction on behalf
of Williams Township filed March 8, 2004; upon consideration of the
Notice of Voluntary Dismissal as to Defendant Townships Pursuant to FRCP
41 presented March 22, 2004 regarding defendant Township of Palmer; upon
consideration of the Preliminary Injunction entered by the undersigned
March 8, 2004 against the Township of Palmer; upon consideration of the
briefs of the parties; upon consideration of the pleadings, record
papers, exhibits; after hearing conducted before the undersigned March 8,
2004, and for the reasons articulated in the accompanying Opinion,
IT IS ORDERED that plaintiffs' Motion for Preliminary injunction is
IT IS FURTHER ORDERED that the Preliminary Injunction entered March 8,
2004 against the Township of Palmer is vacated.
IT IS FURTHER ORDERED that pursuant to Rule 41 of the Federal Rules of
Civil Procedure the Township of Palmer is dismissed.