United States Court of Appeals
For the First Circuit
No. 07-2098
NASER JEWELERS, INC.,
Plaintiff, Appellant,
v.
CITY OF CONCORD, NEW HAMPSHIRE,
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
[Hon. Steven J. McAuliffe, U.S. District Judge]
Before
Lynch, Lipez, and Howard, Circuit Judges.
John F. Winston with whom Stephen H. Roberts, McNeill,
Taylor & Gallo, and Winston & Bragg were on brief for appellant.
Lisa M. Lee with whom Charles P. Bauer, John T.
Alexander, and Ransmeier & Spellman were on brief for appellee.
John M. Baker, Robin M. Wolpert, Kathryn M.N. Hibbard,
and Green Espel, P.L.L.P. were on brief for American Planning
Association, Northern New England Chapter of the American Planning
Association, International Municipal Lawyers Association, New
Hampshire Municipal Lawyers Association, and New Hampshire Planners
Association, amici curiae.
William D. Brinton and Rogers Towers were on brief for
Scenic America, Inc., amicus curiae.
January 18, 2008
LYNCH, Circuit Judge. The city of Concord, New
Hampshire, enacted an ordinance prohibiting all Electronic
Messaging Centers ("EMCs"), which the city found were detrimental
to traffic safety and community aesthetics. EMCs are signs which
display electronically changeable messages (as opposed to signs
with static or manually changeable messages) and so display
illuminated text that can change frequently, for instance by
scrolling or flashing. Naser Jewelers, Inc. ("NJI"), a Concord
business, sought and was denied a preliminary injunction against
the enforcement of the ordinance on grounds of facial
unconstitutionality under the First Amendment.
Concord's ban on all EMCs is content-neutral. Globe
Newspaper Co. v. Beacon Hill Architectural Comm'n, 100 F.3d 175,
183 (1st Cir. 1996). As a result, the ordinance is permissible if
it is narrowly tailored to serve a significant governmental
interest and leaves open alternative channels of communication. An
ordinance is narrowly tailored if it does not burden substantially
more speech than necessary to further the government's legitimate
interests. Ward v. Rock Against Racism, 491 U.S. 781, 799 (1989).
The ordinance need not be the least restrictive means to serve
those interests. Id. at 798; Hill v. Colorado, 530 U.S. 703, 726
(2000); Globe Newspaper, 100 F.3d at 188. Concord's ordinance
meets these criteria and we affirm.
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I.
Concord has enacted sign ordinances as part of its
municipal code. The stated purposes of these ordinances are, among
other things, to "[m]aintain and enhance the appearance and
aesthetic environment of the City" and to "[i]mprove pedestrian and
traffic safety." Concord, N.H., Code of Ordinances § 28-6-1(b) &
(d) (2007).
Before 2006, Concord's sign ordinances contained
prohibitions on EMCs, but provided exceptions for EMCs which
displayed solely time, date, and temperature indicators. In 2005,
a New Hampshire Superior Court judge ruled that the regulations
violated the First Amendment because they favored signs that
displayed time, date, or temperature. That erroneous ruling has
since been overruled by the New Hampshire Supreme Court. Carlson's
Chrysler v. City of Concord, 2007 WL 3306945, at *1 (N.H. Nov. 8,
2007).
In light of the interim Superior Court ruling, Concord
amended its ordinances in August 2006 to prohibit all EMCs,
including ones indicating only time, date, or temperature. The
city's current ordinance, challenged here, prohibits all signs that
"appear animated or projected" or "are intermittently or intensely
illuminated or of a traveling, tracing, scrolling, or sequential
light type" or "contain or are illuminated by animated or flashing
light." Concord, N.H., Code of Ordinances § 28-6-7(h) (2007).
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On October 3, 2006, NJI sought permission to construct
and operate an EMC on the premises of its retail store in Concord.
The sign would be located on Loudon Road, a high-traffic corridor
that includes a mix of retail and residential development and a
large public park and fire station. The location is in close
proximity to an elementary school and more residential
neighborhoods. The store's current sign is a freestanding sign six
feet off the ground that features a model of a large gold ring with
a polished diamond and text reading "Joseph Michaels Diamonds."
(Joseph Michaels Diamonds is a trade name used by NJI.) The
proposed EMC would be located directly underneath the current sign
and would measure 2.7 feet by 5.3 feet.
NJI is eager to install an EMC at its store in Concord
because of its experience with an EMC at another retail location in
Dover, New Hampshire. NJI had earlier installed an EMC at its
Dover store. Originally, NJI changed the copy on its EMC only once
every ten minutes. Early in 2006, NJI began changing the text once
every four to five seconds. NJI claims to have experienced a
sizable increase in sales, some eighteen percent, as a result of
these more frequent copy changes.
On October 13, Concord's code administrator denied NJI's
application because the proposed EMC would violate Concord's
regulations. On October 25, NJI sought declaratory and injunctive
relief and damages in federal district court, claiming that
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Concord's regulations impermissibly infringed its First Amendment
rights. NJI also sought a preliminary injunction to allow it to
install an EMC in time for the holiday shopping season.
A magistrate judge denied NJI's request for a preliminary
injunction on November 22, 2006. The district court denied the
injunction on different analytical grounds on June 25, 2007. The
district court held inapplicable the commercial speech test in
Central Hudson Gas & Electric Corp. v. Public Service Commission,
447 U.S. 557 (1980), on which the magistrate judge had relied,
because the EMC ban is content-neutral and does not apply merely to
commercial entities.1 Rather, the district court upheld the
ordinance under the rule that content-neutral regulations are
constitutional provided that they are narrowly tailored to serve a
significant governmental interest and allow for reasonable
alternative channels of communication. See, e.g., Gun Owners'
Action League, Inc. v. Swift, 284 F.3d 198, 212 (1st Cir. 2002).
1
The commercial speech framework is "substantially
similar" to the test for time, place, and manner restrictions.
Lorillard Tobacco Co. v. Reilly, 533 U.S. 525, 554 (2001) (quoting
Bd. of Trs. of State Univ. of N.Y. v. Fox, 492 U.S. 469, 477
(1989)) (internal quotation marks omitted). Specifically, the
Central Hudson inquiry considers whether the asserted governmental
interest in the regulation is substantial, whether the regulation
directly advances that asserted interest, and whether the
regulation is not more extensive than necessary to serve that
interest. Central Hudson, 447 U.S. at 566.
Central Hudson, in turn, was narrowed in City of
Cincinnati v. Discovery Network, Inc., 507 U.S. 410, 416 (1993),
where the Court held that it was the city's burden to establish a
"reasonable fit" between its asserted interests and its regulation.
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The district court concluded that NJI had not shown that it was
likely to succeed on the merits and therefore was not entitled to
a preliminary injunction. This timely appeal followed.
II.
Appellate review of the denial of a preliminary
injunction is for abuse of discretion. Rio Grande Cmty. Health
Ctr., Inc. v. Rullan, 397 F.3d 56, 68 (1st Cir. 2005). The
district court correctly noted the four factors considered in
determining whether a preliminary injunction ought to issue: "1) a
likelihood of success on the merits, 2) irreparable harm to the
plaintiff should preliminary relief not be granted, 3) whether the
harm to the defendant from granting the preliminary relief exceeds
the harm to the plaintiff from denying it, and 4) the effect of the
preliminary injunction on the public interest." Id. at 75.
We consider whether NJI has demonstrated a probability of
success on the merits. When considering First Amendment claims, we
engage in de novo review of the district court's conclusions of law
and mixed questions of law and fact. Hurley v. Irish-Am. Gay,
Lesbian & Bisexual Group of Boston, 515 U.S. 557, 567 (1995);
Sullivan v. Town of Augusta, ___ F.3d ___, 2007 WL 4357565, at *5
(1st Cir. Dec. 14, 2007).
Billboards and other signs are protected by the First
Amendment, but courts have long approved subjecting them to the
police powers of local government. Prime Media, Inc. v. City of
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Brentwood, 398 F.3d 814, 818 (6th Cir. 2005). As the Supreme Court
has noted, "signs take up space and may obstruct views, distract
motorists, displace alternative uses for land, and pose other
problems that legitimately call for regulation. It is common
ground that governments may regulate the physical characteristics
of signs . . . ." City of Ladue v. Gilleo, 512 U.S. 43, 48 (1994).
A threshold question in cases involving challenges to
government restrictions on speech is whether the restriction at
issue is content-neutral or, to the contrary, is content-based.
See, e.g., Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622, 642
(1994); Nat'l Amusements, Inc. v. Town of Dedham, 43 F.3d 731, 736
(1st Cir. 1995); see also K. Sullivan & G. Gunther, First Amendment
Law 193 (1999). In Globe Newspaper, this court held that the
"principal inquiry in determining content neutrality . . . is
whether the government has adopted a regulation of speech because
of disagreement with the message it conveys." 100 F.3d at 183
(quoting Nat'l Amusements, 43 F.3d at 737) (internal quotation
marks omitted). Furthermore, "[a] regulation that serves purposes
unrelated to the content of expression is deemed neutral, even if
it has an incidental effect on some speakers or messages but not
others." Id. (quoting Ward, 491 U.S. at 791) (internal quotation
marks omitted).
As the district court correctly noted, Concord's
prohibition on EMCs does not discriminate based on content. EMCs
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might communicate any number of messages -- from a business
advertising a sale to a high school congratulating its victorious
teams -- and all EMCs are similarly prohibited.
NJI insists that Concord's regulation is content-based
because city officials gave preference to time, date, and
temperature messages in its prior ordinance. They assert Concord
is using the current regulation as a stopgap measure, with plans to
reinstate the original prohibition -- with exceptions for time,
date, and temperature displays -- following the state Supreme
Court's decision. This argument goes nowhere. The regulation
currently in place, which is the only one before us, contains no
exceptions. Concord's regulation is properly analyzed as a
content-neutral restriction on speech.
NJI argues that the city bears the burden of proof on all
issues. The district court accepted this argument, at least on the
ultimate question of the statute's constitutionality, citing to
Ashcroft v. American Civil Liberties Union, 542 U.S. 656, 666
(2004). Ashcroft, however, involved a challenge to a content-based
speech restriction. See id. at 665. Content-based regulations are
presumed to be unconstitutional and the government bears a heavy
burden of justification. R.A.V. v. City of St. Paul, 505 U.S. 377,
382 (1992); McGuire v. Reilly, 260 F.3d 36, 43 (1st Cir. 2001).
Here, plaintiff has brought a facial attack on a content-
neutral ordinance. In a facial attack case, it is plaintiff's
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burden to show that the law has no constitutional application.
See, e.g., Gonzales v. Carhart, ___ U.S. ___, 127 S. Ct. 1610, 1639
(2007); N.Y. State Club Ass'n v. City of New York, 487 U.S. 1, 11
(1988); McGuire, 260 F.3d at 47.
The Supreme Court has said that when the government
"seeks to restrict speech based on its content" that "the usual
presumption of constitutionality afforded [legislative] enactments
is reversed." United States v. Playboy Entm't Group, 529 U.S. 803,
817 (2000). The implication is that content-neutral statutes
continue to enjoy a presumption of constitutionality.
The Supreme Court's most recent case on content-neutral
regulations is Hill v. Colorado. Neither Hill nor Ward v. Rock
Against Racism explicitly speaks to burdens of proof on the
different portions of the test used to assess content-neutral
regulations. But there is other law saying, in content-neutral
regulation cases, but often citing to content-based cases, that the
government must show that it has met the element, within the larger
test, that the regulation is narrowly tailored. See, e.g., Turner
Broad., 512 U.S. at 665; Casey v. City of Newport, 308 F.3d 106,
111 (1st Cir. 2002).
We need not resolve here the intricacies of burdens of
proof and production. For our purposes, and indeed in many First
Amendment cases of content-neutral regulations, the issue of who
has the burden of proof will not be important. After all, the
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government's purpose for the regulation is often expressly stated,
as are the reasons for that choice and not others, thus removing
those issues from having to be proven. In this case, no matter who
has the burden as to which elements of the test, plaintiff's claim
fails.
NJI also argues that it is does not matter whether
Concord's regulations are content-neutral or content-based because
"the targeted speech is primarily commercial" and Central Hudson
applies to all restrictions involving commercial speech. This is
simply incorrect. Central Hudson serves as an alternative to the
more exacting standards applied to content-based restrictions on
non-commercial speech. See Central Hudson, 447 U.S. at 562-63;
Sullivan & Gunther, supra, at 163, 177-78. The standards for
content-neutral restrictions do not vary by whether the plaintiff
is exercising commercial speech. The uniform case law on
restrictions on signs is clear on this point. See, e.g., Prime
Media, 398 F.3d at 819-22 (evaluating content-neutral restrictions
on billboards using narrow tailoring analysis); Messer v. City of
Douglasville, 975 F.2d 1505, 1509-11 (11th Cir. 1992) (same).
Content-neutral regulations are permissible so long as
they are narrowly tailored to serve a significant governmental
interest and allow for reasonable alternative channels of
communication. The narrow tailoring test is a form of intermediate
scrutiny. "[R]egulations that are unrelated to the content of
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speech are subject to an intermediate level of scrutiny . . . ."
Turner Broad., 512 U.S. at 642; see also Sullivan, 2007 WL 4357565,
at *12 (same); Sullivan & Gunther, supra, at 199 (same).
Concord's ordinance satisfies the requirements for
constitutionality. The ordinance is a content-neutral regulation,
it serves substantial governmental interests, it is narrowly
tailored, and it leaves open reasonable alternative channels of
communication.
A. Governmental Interests
From the face of Concord's sign regulations, the city's
stated goals include promoting both traffic safety and community
aesthetics. If a regulation is content-neutral on its face and
states its purposes, we look to the legislative body's statement of
intent. "We will not look behind th[e] express statement of intent
as to a law neutral on its face." Torres Rivera v. Calderón Serra,
412 F.3d 205, 211 (1st Cir. 2005). It is problematic to permit a
plaintiff, in a content-neutral case, to attempt to prove that
there is an intent apart from this express statement because "the
legislature's subjective intent is both unknown and unknowable."
McGuire, 260 F.3d at 47. Because Concord's regulations are
content-neutral on their face, it was an empty exercise for
plaintiff to have conducted examinations of Concord's mayor or code
enforcement officer in an effort to show the stated reasons for the
ordinance were not the real reasons. Legislative history is
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permissible for other purposes, but not this. See, e.g., McGuire,
260 F.3d at 48 (considering legislative history in determining
whether a statute was narrowly tailored).
Both traffic safety and community aesthetics have long
been recognized to constitute significant governmental interests.
Metromedia, Inc. v. City of San Diego, 453 U.S. 490, 507-08 (1981)
(plurality opinion) (collecting cases and concluding that there can
be no "substantial doubt that the twin goals that the ordinance
seeks to further -- traffic safety and the appearance of the city
-- are substantial governmental goals"); see also, e.g., City of
Cincinnati v. Discovery Network, Inc., 507 U.S. 410, 425 (1993)
(acknowledging city's legitimate interest in the aesthetics of its
sidewalks); Members of City Council of Los Angeles v. Taxpayers for
Vincent, 466 U.S. 789, 807 (1984) ("[T]he visual assault on the
citizens of Los Angeles . . . constitutes a significant substantive
evil within the City's power to prohibit."). Concord's stated
justifications plainly constitute significant governmental
interests.
B. Narrow Tailoring, but Not Least Restrictive Means
NJI argues that the ordinance is not narrowly tailored.
In determining whether a provision is narrowly tailored, courts
apply the test articulated in Ward v. Rock Against Racism and
reiterated by the Supreme Court in Hill v. Colorado. Under Ward,
"the requirement of narrow tailoring is satisfied 'so long as the
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. . . regulation promotes a substantial government interest that
would be achieved less effectively absent the regulation.'" 491
U.S. at 799 (quoting United States v. Albertini, 472 U.S. 675, 689
(1985)). "[T]his standard does not mean that a . . . regulation
may burden substantially more speech than is necessary to further
the government's legitimate interests." Id. Concord, however, is
not required to choose the least restrictive means possible: "[T]he
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." Id. at 800.
Concord's interests in traffic safety and community
aesthetics would be achieved less effectively without the
ordinance's prohibition on EMCs. We give some respect to "the
accumulated, common-sense judgments of local lawmakers and of the
many reviewing courts that billboards are real and substantial
hazards to traffic safety." Metromedia, 453 U.S. at 509 (plurality
opinion). It is given that a billboard can constitute a traffic
hazard. It follows that EMCs, which provide more visual stimuli
than traditional signs, logically will be more distracting and more
hazardous. See Chapin Furniture Outlet, Inc. v. Town of Chapin,
2006 WL 2711851, at *4 (D.S.C. Sept. 20, 2006), vacated on other
grounds by Chapin Furniture Outlet, Inc. v. Town of Chapin, 2007 WL
3193854 (4th Cir. Oct. 30, 2007) (holding, in the context of EMC
regulations, that "the Town's judgment that flashing or scrolling
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signs constitute a traffic hazard . . . is not unreasonable").
Indeed, plaintiff's own witness stated that bypassers focus more on
rapidly blinking electronic signs than static signs. This
constitutes a greater hazard. Further, for drivers a flashing
light is often a signal of hazard on the roadway, a signal which
itself slows and disrupts the traffic flow.
NJI argues that Concord must perform studies to prove
that the ban on EMCs in fact supports its stated interests.
Concord was under no obligation to do such studies or put them into
evidence. Justice Brennan suggested the need for such evidence in
his concurring opinion in Metromedia, but seven justices rejected
his position. Metromedia, 453 U.S. at 521, 528 (Brennan, J.,
concurring); see also Outdoor Sys. Inc. v. City of Lexana, 67 F.
Supp. 2d 1231, 1238 (D. Kan. 1999) ("Relying on Justice Brennan's
concurring opinion in Metromedia, plaintiff claims that the City
has the burden to come forward with evidence which demonstrates
that billboards actually impair traffic safety and the beauty of
the environment. Plaintiff ignores the fact that seven Justices
rejected Justice Brennan's analysis in this regard.").
As noted in Ackerly Communications of the Northwest Inc.
v. Krochalis, 108 F.3d 1095, 1099-1100 (9th Cir. 1997), "[a]s a
matter of law Seattle's ordinance, enacted to further the city's
interests in esthetics and safety, is a constitutional restriction
on commercial speech without detailed proof that the billboard
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regulation will in fact advance the city's interests." Similarly,
the Sixth Circuit observed in rejecting the argument that a city
needed to produce evidence to justify its regulation on billboard
size: "To ask the City to justify a size restriction of 120 square
feet over, say, 200 square feet or 300 square feet would impose
great costs on local governments . . . ." Prime Media, 398 F.3d at
823-24.
Courts have "repeatedly deferred to the aesthetic
judgments of municipalities and other government bodies when
evaluating restrictions on protected expression." Globe Newspaper,
100 F.3d at 190 (quoting Gold Coast Pub'ns, Inc. v. Corrigan, 42
F.3d 1336, 1346 (11th Cir. 1994)) (internal quotation mark
omitted). Although courts do not wholly defer to legislative
judgments, see id., there is no basis to doubt that Concord's
aesthetic concern -- "not rendering [its] visual image and
community character to be that of a potential Times Square" --
would be achieved far less effectively absent a ban on EMCs.
Concord's ordinance also does not burden substantially
more speech than necessary. NJI argues that because Concord's City
Council considered but rejected alternatives to a complete ban on
EMCs, the ban necessarily burdens too much speech because there are
alternatives. However, the government is not required to choose
the least restrictive approach in content-neutral regulation. In
Globe Newspaper, this court held that a regulation banning
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newspaper distribution boxes from the public streets of Boston's
historic Beacon Hill district passed constitutional muster. 100
F.3d at 195. The opinion noted that although less restrictive
alternatives existed, the regulating commission was not required to
adopt them if they would serve its interests less effectively. Id.
at 189-90. NJI, to its credit, concedes this is the rule of Globe
Newspaper, but asks us to overrule the case. Not only do we, as a
panel, lack the power to do so, Irving v. United States, 162 F.3d
154, 160 (1st Cir. 1998), but we would not, even if we could, for
the rule is correct.
Here, the city argues that NJI's proposed less
restrictive alternatives were problematic and it was not required
to accept them. Ironically, NJI argues less than a total ban would
be a less restrictive alternative. The city had tried such an
ordinance -- an EMC ban allowing only time, date, and temperature
displays -- before and was met with a lawsuit. The alternative of
allowing EMCs but imposing certain conditions on them, such as
limiting the number of times per day a message could change, would
have created steep monitoring costs and other complications for the
city. There is evidence in the record, permissible on this issue,
that the city explicitly considered and rejected alternatives, and
the reasons for its choice. See McGuire, 260 F.3d at 49.
Concord's concerns about the proposed alternatives to its present
EMC ordinance are legitimate.
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NJI makes a separate argument that Concord's ordinance is
forbidden because it is a ban of an entire medium of communication.
Factually the argument raises the issue of how one defines
"medium." Legally, the principle is untenable here.2 Billboards
and signs are not banned, nor is the use of signs with manually
changeable type. Even if EMCs are considered to be a particular
"medium," the fact that a regulation bans a particular medium does
not mean that the ordinance is not narrowly tailored. Globe
Newspaper, 100 F.3d at 191-92. When the medium itself is the "evil
the city [seeks] to address," then a ban of that entire medium is
narrowly tailored. Id. at 192 (citing Vincent, 466 U.S. at 810).
As the Supreme Court observed in Metromedia, "If the city
has a sufficient basis for believing that billboards are traffic
hazards and are unattractive, then obviously the most direct and
perhaps the only effective approach to solving the problems they
create is to prohibit them." 453 U.S. at 508 (plurality opinion).
C. Alternative Channels
Concord has not foreclosed NJI from using other means of
communication. As the district court pointed out, NJI can still
use static and manually changeable signs. It can also place
advertisements in newspapers and magazines and on television and
2
This case does not raise the concerns noted in Globe
Newspaper about entire medium bans involving the exercise of speech
by an individual or a medium that constitutes a "uniquely valuable
mode of expression." 100 F.3d at 192 (citing Ladue, 512 U.S. at
54-55).
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the Internet, distribute flyers, circulate direct mailings, and
engage in cross-promotions with other retailers. See, e.g.,
Sullivan, 2007 WL 4357565, at *22 (holding that the use of
sidewalks, gatherings on state land, hand-held banners, leafleting,
vehicular processions, and smaller-scale outdoor gatherings
constituted sufficient alternatives for people unable to afford a
city's parade permit); La Tour v. City of Fayetteville, 442 F.3d
1094, 1097 (8th Cir. 2006) (concluding that an ordinance
prohibiting flashing or blinking electronic signs left open
sufficient alternative channels of communication, including using
non-electronic signs); Globe Newspaper, 100 F.3d at 193 (concluding
that street vendors were an adequate alternative to on-street
newspaper boxes); Chapin Furniture Outlet, 2006 WL 2711851, at *4
(holding that an ordinance banning EMCs "does not prevent
[p]laintiff from displaying any message . . . on a sign not
prohibited" and noting that plaintiff could use banners, flags,
sandwich boards, and inflatable signs as alternatives to EMCs).
NJI argues that it is losing potential customers, and
therefore profit, because of its inability to place an EMC at its
Concord location. The maximizing of profit is not the animating
concern of the First Amendment. The fact that restrictions
prohibit a form of speech attractive to plaintiff does not mean
that no reasonable alternative channels of communication are
available. "The First Amendment does not guarantee a right to the
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most cost-effective means of [speech] . . . ." Globe Newspaper,
100 F.3d at 193. Indeed, we have "upheld . . . alternative means
of communication despite diminution in the quantity of speech, a
ban on a preferred method of communication, and a reduction in the
potential audience." Sullivan, 2007 WL 4357565, at *22.
Concord's prohibition of EMCs is a constitutionally
permissible content-neutral regulation. Since NJI has no
probability of success on the merits of its claim, we need not
address the other factors in the preliminary injunction
determination.
The judgment of the district court is affirmed. Costs
are awarded to defendants.
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