Naser Jewelers, Inc. v. City of Concord, NH

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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