Larry Whitton, Appellee/cross-Appellant v. City of Gladstone, Missouri, Appellant/cross-Appellee

54 F.3d 1400, 23 Media L. Rep. (BNA) 1910, 1995 U.S. App. LEXIS 10720, 1995 WL 286840
CourtCourt of Appeals for the Eighth Circuit
DecidedMay 15, 1995
Docket94-1286, 94-1287
StatusPublished
Cited by66 cases

This text of 54 F.3d 1400 (Larry Whitton, Appellee/cross-Appellant v. City of Gladstone, Missouri, Appellant/cross-Appellee) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eighth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Larry Whitton, Appellee/cross-Appellant v. City of Gladstone, Missouri, Appellant/cross-Appellee, 54 F.3d 1400, 23 Media L. Rep. (BNA) 1910, 1995 U.S. App. LEXIS 10720, 1995 WL 286840 (8th Cir. 1995).

Opinions

HANSEN, Circuit Judge.

The City of Gladstone, Missouri, appeals from the district court’s order holding that several provisions of its sign code are impermissible restraints on free speech and therefore unconstitutional. Larry Whitton cross-appeals from the district court’s order holding that other related provisions of the sign code are constitutional. We affirm in part and reverse in part.

I.

Whitton owns residential and commercial property in Gladstone, Missouri. While running for sheriff of Clay County (within which Gladstone is a city) in 1992, he filed a complaint under 42 U.S.C. § 1983 challenging the constitutional validity of several sections of the Gladstone Sign Code that regulate the use of political signs. Whitton contended that these provisions of the sign code violated his First Amendment right of free speech because they hindered his ability to use his residential and commercial property to run for political office. After Whitton filed his complaint, Gladstone repealed its existing sign code and enacted a new one in its place.1 Whitton then filed an amended complaint challenging the constitutionality of the following provisions of the newly enacted sign code regulating political signs: (1) section 25-45, which limits the placement or erection of political signs to 30 days prior to the election to which the sign pertains and re[1402]*1402quires the removal of those signs within 7 days after the election (“durational limitations”);2 (2) section 25-46, which prohibits the external illumination of political signs (“external illumination prohibition”);3 and (3) section 25-47(B), which holds the candidate, on whose behalf a political sign is displayed, prima, facie responsible for the placement, erection, and removal of those signs (“vicarious liability provision”).4 Gladstone answered by denying the allegations of Whit-ton’s complaint.

The parties made cross-motions for summary judgment. The district court granted, in part, Whitton’s motion for summary judgment, holding that the durational limitations in § 25-45 and the portion of the external illumination prohibition in § 25-46 that applied to commercial property are unconstitutional because they are content-based restrictions that do not survive strict scrutiny. Whitton v. City of Gladstone, Mo., 832 F.Supp. 1329, 1335-37 (W.D.Mo.1993). However, the district court also granted, in part, the City’s motion for summary judgment, ruling that the portion of the external illumination prohibition in § 25-46 that applies to residential property does not regulate on the basis of the content of the speech and is a constitutionally permissible time, place, and manner restriction. Id. at 1337-38. In a later order in response to Whitton’s motion to alter or amend the judgment, the court held that the vicarious liability provision in § 25-47(B) is also content-neutral and a constitutional time, place, and manner regulation. Gladstone appeals from that portion of the district court’s judgment striking down provisions of the sign code as unconstitutional. Whitton cross-appeals the district court’s order to the extent that it holds that the remaining challenged provisions of the sign code are constitutional.5

II.

The First Amendment’s Free Speech Clause states that “Congress shall make no law ... abridging the freedom of speech-” U.S. Const. amend. I. The First Amendment is applicable to the political subdivisions of the states. See Lovell v. Griffin, 303 U.S. 444, 450, 58 S.Ct. 666, 668, 82 L.Ed. 949 (1938). “[Sjigns are a form of expression protected by the Free Speech Clause_” City of Ladue v. Gilleo, — U.S. —, —, 114 S.Ct. 2038, 2041, 129 L.Ed.2d 36 (1994). However, the Supreme Court recently stated that signs “pose distinctive problems that are subject to municipalities’ police powers. Unlike oral speech, signs take up space and may obstruct views, distract motorists, displace alternative uses [1403]*1403for land, and pose other problems that legitimately call for regulation.” Id. On the other hand, the Supreme Court has long recognized “that the First Amendment has its fullest and most urgent application to speech uttered during a campaign for political office,” Burson v. Freeman, 504 U.S. 191, 196-97, 112 S.Ct. 1846, 1850, 119 L.Ed.2d 5 (1992) (internal citations and quotations omitted), and further that “[a] special respect for individual liberty in the home has long been part of our culture and our law; that principle has special resonance when the government seeks to constrain a person’s ability to speak there.” City of Ladue, — U.S. at —, 114 S.Ct. at 2047. See also McIntyre v. Ohio Elections Comm., — U.S. —, —, 115 S.Ct. 1511, 1516-18, 131 L.Ed.2d 426 (1984) (political speech “occupies the core of the protection afforded by the First Amendment”).

Therefore, we apply the familiar framework for evaluating the constitutionality of a restriction upon speech, like the sign code provisions at issue here. We first “determine whether [the] regulation is content-based or content-neutral, and then, based on the answer to that question, ... apply the proper level of scrutiny.” City of Ladue, — U.S. at —, 114 S.Ct. at 2047 (O’Connor, J., concurring). See also Rappa v. New Castle County, 18 F.3d 1043, 1053 (3d Cir.1994) (“the first step in First Amendment analysis [is] to determine whether a statute is content-neutral or content-based”). Gladstone contends that each challenged provision is a constitutionally permissible time, place, and manner restriction. A purported time, place, and manner restriction is constitutionally permissible so long as it is “justified without reference to the content of the regulated speech_” Clark v. Community for Creative Non-Violence, 468 U.S. 288, 293, 104 5.Ct. 3065, 3069, 82 L.Ed.2d 221 (1984). Therefore, our threshold inquiry for each challenged provision of the sign code necessarily focuses upon whether the provision at issue is a content-based restriction and then, based upon the resolution of that question, we will apply the appropriate level of scrutiny.

A. Durational Limitations (§ 25-4.5)

Section 25-45 of the sign code prohibits a commercial or residential landowner from placing a political sign on his property more than 30 days prior to the election to which the sign pertains and requires the sign to be removed within 7 days of the election. Gladstone contends that § 25-45 does not regulate speech on the basis of its content and is a reasonable time, place, and manner restriction because it has significant interests in maintaining the City’s aesthetic beauty and promoting traffic safety, and political signs significantly detract from these interests.

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Bluebook (online)
54 F.3d 1400, 23 Media L. Rep. (BNA) 1910, 1995 U.S. App. LEXIS 10720, 1995 WL 286840, Counsel Stack Legal Research, https://law.counselstack.com/opinion/larry-whitton-appelleecross-appellant-v-city-of-gladstone-missouri-ca8-1995.