Brazos Valley Coalition for Life, Inc. v. City of Bryan

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
August 15, 2005
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk

No. 04-20201

BRAZOS VALLEY COALITION FOR
LIFE INC., a Texas not-for-profit
corporation; DONALD PARSONS;
ISMAEL ESCOBAR; JANICE EOFF;
RENEE LINDER; ROSALINDA MALDONADO;
JIM DONAHUE,

Plaintiffs-Appellants,

versus

THE CITY OF BRYAN TEXAS, a public
body municipal corporation of the
State of Texas,

Defendant-Appellee.

Appeals from the United States District Court
for the Southern District of Texas

Before GARWOOD, GARZA, and BENAVIDES, Circuit Judges.

GARWOOD, Circuit Judge:

Appellants Brazos Valley Coalition for Life, Incorporated,

Donald Parsons, Janice Eoff, Jim Donahue, Ismael Escobar, Renee

Linder, and Rosalinda Maldonado brought suit against appellee City

of Bryan, Texas seeking preliminary and permanent injunctive
relief, a declaratory judgment, and damages on their allegations

that the City’s Sign Code is, inter alia, unconstitutional under

the First Amendment. The district court granted summary judgment

to the City and we affirm.

Facts and Proceedings Below

Brazos Valley Coalition for Life, Incorporated (Coalition

for Life) is a Texas not-for-profit corporation formed in 1998

that is dedicated to advancing its members’ belief that life is

sacred from conception forward. The individual appellants also

share this belief. They express their conviction that abortion

is murder by participating in organized protests at Planned

Parenthood in Bryan, Texas where abortions are regularly

performed. These protests have in the past consisted of, among

other things, picketing with handheld signs and placing signs and

flags in the “grassy strip” between the street and the sidewalk

in front of Planned Parenthood.

The City has a comprehensive Sign Code to regulate where and

how signs are displayed in Bryan, including public rights-of-way.

The first version of the Sign Code relevant to this case is

Ordinance 999, which was enacted on May 1, 1996. Among its many

rules, Ordinance 999 declared it “unlawful for any person to

erect, place, or maintain a sign in the City of Bryan” within a

public right-of-way. Ordinance 999 § 22-3 & 4. A sign is

defined as:

2
 “any device, structure, fixture, or placard
using graphics, symbols, and/or written copy
designed specifically for the purpose of
advertising or identifying any person,
persons, political party, event,
establishment, product, goods, or services.”1

Though contentious discussions with the City over the scope

of protests at Planned Parenthood began at least as early as

2000, it is enough for our purposes to begin with July 2002 when

City police officers told protesters that they could not place

signs in the public right-of-way.2 The City, in correspondence

1
Ordinance 999 defines public right-of-way as
“that land dedicated for public use commonly as a
street, roadway, alley, bridge, or thoroughfare, and
most often extends the entire width between property
lines of any roadway, street, alley, bridge, or other
similar thoroughfare, not privately owned or
controlled, when any part thereof is open to the public
for vehicular traffic, is the responsibility of the
City or other similar public agency to maintain, and
over which the City has legislative jurisdiction under
its police power.” Id. at § 22-2.

Similarly, Ordinance 1443, the final version of the relevant City
ordinance in effect when the City’s motion for summary judgment
was filed, provides that “Public right of way shall mean the
entire width of the area between private property lines,
dedicated for public use as a street, roadway, alley, bridge,
thoroughfare, improved or unimproved pedestrian way or sidewalk.”
Id. at § 24-56. We reject appellant’s unsupported argument that
the “grassy strip” is (or was) not part of the public right-of-
way.
2
Appellant Escobar, for example, states in his affidavit
that he was told on July 16, 2002, by a City police officer that
he could not allow his sign to touch the ground. Appellant
Parsons states in his affidavit that he was forbidden on
September 3, 2002, from hammering a sign with the words “Vote
Pro-Life” into the grassy strip. All of the individual
appellants have a similar story. Appellant Eoff claims in her
affidavit that on October 2, 2002, she was told by Sergeant

3
between it and certain appellants in August 2002, took the

position that the Sign Code forbade any sign that touched the

ground, even a sign that was resting on the ground but being

propped up by a protestor.3 This position eventually was that

even resting a handheld sign on the ground was prohibited.

Despite several police visits to Planned Parenthood no citations

were ever issued, no one was ever arrested, there is no

allegation of police use or threatened use of force, and the only

signs the police ever took were those lying on the ground

unclaimed and thus deemed abandoned.

Unable to reach a compromise with the City, appellants filed

their original nine-count complaint on November 21, 2002, in

which they alleged violations of (1) First Amendment rights of

Gideon of the Bryan city police that she could not allow her
handheld sign to touch the ground. Eoff states that she was
instructed to rest the shaft of the sign on her foot.
3
It is clear from the record that the City has never taken
the position, formally or informally, that the Sign Code applied
to hand held placards or the like which do not touch the ground
(whether or not they contain verbal messages), and never sought
to enforce any such a construction of the Sign Code. “Hand held
signs” have always been specifically exempted from the sign
ordinance’s permit requirements, and in Ordinance 1428 (adopted
in August 2003) and Ordinance 1443 (adopted in October 2003
before filing of the City’s motion for summary judgment) such
signs are defined as those personally held so that neither the
sign nor an object supporting it touches the ground. And, in
Ordinance 1443 it is expressly provided that “nothing . . . shall
prohibit the display of hand held signs . . . when carried by
persons lawfully present on the unimproved portions of the public
right-of-way, public property, and on sidewalks.” Id. at § 24-
60(E).

4
speech and assembly; (2) First Amendment right of free exercise

of religion; (3) Fifth and Fourteenth Amendment rights of due

process; (4) Fourteenth Amendment right of equal protection of

the law; (5) the right under the Texas constitution to equality;

(6) the right under the Texas constitution to freedom of worship;

(7) the right under the Texas constitution to freedom of speech;

(8) the Texas Religious Freedom Act, TEX. CIV. PRAC. & REM. CODE ANN.

§§ 100.001-012; and (9) the City’s duty to supervise its

employees non-negligently. Appellants sought preliminary and

permanent injunctive relief, declaratory judgment, and damages.

As the lawsuit proceeded, appellants and the City continued

to discuss how to remedy the asserted defects in the Sign Code.

Appellants did not dispute that the City could constitutionally

ban the placement of signs in the public right-of-way. Rather,

they contended that exceptions to the Sign Code’s prohibition on

certain kinds of signs constituted impermissible viewpoint

discrimination, thus rendering the Sign Code unconstitutional as

a whole.

On August 12, 2003, the Bryan City Council gave a first

reading to Ordinance 1428 which, among other changes, would

revise the Sign Code such that the placement of all signs (other

than hand held signs) in the public right-of-way, regardless of

their content, would be prohibited. See Ordinance 1428 § 22-

4(8). This proposal, however, apparently caused some

5
consternation in the community because on its face it banned

placing even an American flag in the public right-of-way and,

were it to be enacted, would render unlawful a traditional Labor

Day fundraiser by local boy scouts in which they put up an

American flag in the public right-of-way in front of a donor’s

property.4

The City Council unanimously passed Ordinance 1428 on August

30, 2003, but at the same time also passed Ordinance 1431. This

second ordinance preserved 1428's prohibition on signs (other

than hand held) in the right-of-way, but carved out an exception

for “flags”:

“The owner of property abutting a public
right-of-way may place or consent to the
placement of not more than one flag, attached
to a single free-standing pole, in the public
right-of-way for each 10 linear feet of
frontage if placed and maintained in a manner
that does not endanger public safety.”

4
Appellant Parsons, in an apparent effort to get the City
to enact an unconstitutionally viewpoint-specific ordinance that
he and others could challenge in court, tried to increase
pressure on the City by writing letters to the City and to the
local newspaper under assumed names in which he demanded special
exceptions in the ordinance for the American flag.
Parsons took his pseudonymous correspondence to a new level
when he wrote a letter to the City Manager using the email
julieg@cityattorney.com. In this letter, which is signed
“Julie,” Parsons expresses disrespect for the American flag and
unabashed support for Planned Parenthood. He also refers in the
letter to a person named Michael. It appears obvious that
Parsons was impersonating Assistant City Attorney Julie Gannaway,
with whom Parsons had spoken and corresponded, and the Michael in
the email plainly refers to City Attorney Michael Cosentino.
When confronted with this email in his deposition, Parsons denied
(without explanation), that he intended this letter to be
understood as a letter from Gannaway.

6
Ordinance 1431 § 22-4(8)(a). Ordinance 1431 also included the

following definition of “flag”: “[a] piece of fabric that

contains colors, patterns, symbols, or words that convey a non-

commercial message.” Id. at § 22-2. By enacting Ordinances 1428

and 1431 simultaneously, the City hoped it had satisfactorily

balanced its constitutional obligation to preserve content

neutrality with the public’s desire to be able to freely display

the American flag over Labor Day in the public rights-of-way.

Appellants, however, were not satisfied. On September 18,

2003, they filed an amended complaint which, in addition to

restating the causes of action in the original complaint

verbatim, recited in its statement of facts that Ordinances 1428

and 1431 allow a property owner to decide whether a flag will be

permitted in the public right-of-way abutting his or her

property. The amended complaint also stated that the City

implicitly retained the authority under the Sign Code to

determine at its own discretion whether a flag is “commercial”

and therefore prohibited.

On October 14, 2003, appellants filed a motion for summary

judgment on all claims. However, before the district court ruled

on this motion, the City comprehensively revised its Sign Code on

October 30, 2003, by enacting Ordinance 1443. Whereas the public

right-of-way had only been a peripheral detail in the preceding

version of the Sign Code, Ordinance 1443 dedicated several pages

7
solely to that matter. Ordinance 1443 preserved the general ban

on placing signs (other than hand held signs; see note 3, supra)

in the public right-of-way, but excepted therefrom government

signs, temporary safety signs, and:

“One (1) flag attached to a single free-
standing pole, may be placed in the
unimproved portion [i.e. “grassy strip”] of
the public right of way for every 10 linear
feet of frontage, if placed by the owner of
the property abutting the public right of way
or with the consent of said owner.”

Ordinance 1443 § 24-60(B)(1)-(3). The definition of flag also

remained the same.

Ordinance 1443 also introduced a detailed procedure for

determining whether a flag placed in the public right-of-way

pursuant to section 24-60(B)(3) is commercial or non-commercial.

Under Ordinance 1443, a flag is presumptively non-commercial and

the burden, both in terms of proof and expense, is entirely on

the City to establish otherwise. See generally id. at § 22-62.5

On November 10, 2003, the City filed its own motion for

summary judgment, arguing, inter alia, that Ordinance 1443 mooted

appellants’ prospective claims. The City also sought, and in

December 2003 was granted, a protective order barring further

5
Ordinance 1443 repeals all conflicting provisions of prior
ordinances. All of the ordinances in question provide that
violations are misdemeanors, the penalty on conviction being a
fine (not to exceed $500) only. All the ordinances also contain
(or amend other provisions of ordinances which contain) full
severability clauses.

8
discovery. Following a hearing on the cross-motions for summary

judgment, the district court, on January 30, 2004, granted

summary judgment to the City. The district court also eventually

awarded costs in the amount of $5,600.40, but denied attorney’s

fees.

Appellants appeal both the judgment, the discovery ruling,

and the award of costs.

Discussion

1. Summary Judgment

a. Standard of Review

A grant of summary judgment is reviewed de novo under the

same standard applied by the district court. Terrebonne Parish

Sch. Bd. v. Mobil Oil Corp., 310 F.3d 870, 877 (5th Cir. 2002).

b. Damages

Though it did not specifically address the issue of damages

in its summary judgment order, the district court implicitly

found appellants’ claims for damages to be without merit. We

concur. As noted above, the record contains no evidence that any

of appellants (or their members) were ever cited, arrested, or

subjected to actual or threatened physical force. To the extent

that appellants pleaded damages on account of sign confiscation,

there is no summary judgment evidence of any confiscation.6

6
The summary judgment evidence establishes that only
abandoned signs laying on the ground in the “grassy strip” were
collected by the police and that the police took these abandoned

9
 c. Prospective Claims

We confine our consideration to those specific

challenges to the Sign Code which appellants raise in the

argument section of their brief. FED. R. APP. P. 28(a)(9)(A)

(stating that the argument section of the brief must contain

“appellant’s contentions and the reasons for them, with citations

to the authorities and parts of the record on which the appellant

relies.”). Broadly speaking, appellants contend that the Sign

Code is unconstitutional for three distinct reasons: (1) the

process for issuing permits is inadequate; (2) the distinction

between on- and off-premises signs warrants strict scrutiny; and

(3) it is impermissible to allow abutting private property owners

to disallow a flag in the public right-of-way on the basis of the

flag’s content.

i. Mootness

The district court denied summary judgment to appellants and

granted the same to the City largely on the ground that Ordinance

1443, which was enacted about two weeks after appellants filed

their motion for summary judgment (but before the City filed its

summary judgment motion), mooted appellants’ prospective claims

signs only after asking those in the vicinity whether they
belonged to anyone and receiving negative responses.
Furthermore, quite apart from the lack of evidence on this
score, appellants, although they argue damage claims could not be
mooted, did not preserve their damages claims on appeal because
they failed to argue that the summary judgment record contains
evidence which would support an award of damages.

10
because they were based on Ordinances 999, 1428, and 1431.

Appellants, citing City of Mesquite v. Alladin’s Castle, Inc.,

102 S. Ct. 1070 (1982), contend that their prospective claims

were not mooted by Ordinance 1443 because there is no reason to

believe that the City will not reenact the offending ordinances

once this litigation is concluded. Appellants do not contend

that their claims are not mooted because Ordinance 1443 is itself

unconstitutional, just that the City cannot be trusted not to

repeal Ordinance 1443.7

We disagree. Mesquite is distinguishable on its facts. In

Mesquite, the challenged ordinance was repealed while the case

was pending on appeal after an adverse final judgment had been

entered by the district court and mootness was raised for the

first time before the Supreme Court. Id. at 1074. Indeed, the

City of Mesquite openly conceded at oral argument that it

intended to reenact the disputed ordinance as soon as the Supreme

7
Appellants do not challenge 1443 in their main brief,
doing so instead only in their reply brief. It is well settled
in this circuit, however, that the court does not consider issues
raised for the first time in the reply brief. Price v. Roark,
256 F.3d 364, 369 n. 2 (5th Cir. 2001). Even if this were not
the case, appellants’ memorandum in response to the City’s motion
for summary judgment did not, other than scattered conclusory
statements, actually argue that Ordinance 1443 is
unconstitutional in its own right. As such, appellants have not
preserved the issue of the constitutionality of Ordinance 1443 in
any sense. Therefore, where Ordinance 1443 has mooted a claim,
we will not independently consider whether Ordinance 1443 is
constitutional in that context because appellants themselves do
not make such arguments in their main brief.

11
Court vacated the judgment for mootness. Id. at 1075 n. 11. In

this case, on the other hand, the City of Bryan enacted Ordinance

1443 prior to the underlying district court judgment and the City

sought summary judgment on the basis, inter alia, of that

ordinance.8 Furthermore, there is nothing whatever to suggest

that the City intends to repeal Ordinance 1443 when this case is

over. Therefore, to the extent that Ordinance 1443 addresses and

resolves a claim directed at prior versions of the Sign Code,

such claim is moot. See, e.g., Diffenderfer v. Cent. Baptist

Church, Inc., 92 S. Ct. 574, 576 (1972) (stating that review is

of the current version of a challenged law, not its repealed

predecessor); Lewis v. Cont’l Bank Corp., 110 S. Ct. 1249, 1253-

55 (1990) (an ostensibly mooted case will go forward only if,

inter alia, “there was a reasonable expectation that the same

complaining party would be subjected to the same action again.”)

(internal quotation marks and citation omitted).

ii. The Permit Process

8
The fact that a statute is repealed after judgment is
entered does not necessarily affect the mootness of injunctive or
declaratory relief granted by the judgment. In certain
instances, however, a repeal following judgment may entitle the
plaintiff to remand for consideration of whether the newly
enacted law poses problems that were never considered in the
trial court. Lewis, 110 S. Ct. at 1256 (citing Defenderfer, 94
S. Ct. at 576). This concern is not present in the instant case
because appellants had an opportunity to challenge Ordinance 1443
in their memorandum in opposition to the City’s motion for
summary judgment but did not do so, thereby abandoning any such
argument.

12
 Before we reach the substance of appellants’ challenge to

the Sign Code’s permit process, we note that the summary judgment

evidence on this issue indicates that on July 25, 2002, the

Coalition for Life applied for a sign permit under the Ordinance

999 version of the Sign Code to assemble a 37 square foot sign in

the public right-of-way in front of Planned Parenthood. The

City’s Building Official denied the application on the ground

that the sign was a prohibited “portable sign” under Ordinance

999 § 22-4(7). Nowhere in their brief do appellants argue that

this denial violated their rights under the First Amendment.9

Nor do they argue that the Sign Code is likely to be

unconstitutionally applied to them. Thus we can only conclude

that appellants’ challenge to the Sign Code’s permit requirement

is wholly facial.

An ordinance may be facially unconstitutional in either of

two respects: “either...it is unconstitutional in every

conceivable application, or...it seeks to prohibit such a broad

range of protected conduct that it is constitutionally

‘overbroad.’” Members of City Council v. Taxpayers for Vincent,

104 S. Ct. 2118, 2124 (1984). Appellants do not distinguish

9
On page 38 of their brief, appellants state in a purely
conclusory, and at bottom incoherent, way that the permit
requirement unconstitutionally delays free speech by citing the
fact that their permit application was denied. This sort of
conclusory statement does not constitute a cognizable legal
argument.

13
between these types of facial challenges, but they appear to

contend, at least implicitly, that the permit requirement of the

Sign Code is unconstitutional in toto because it makes content-

based distinctions in exempting certain categories of signs from

the general permit requirement.

Appellants cite, among others, Foti v. City of Menlo Park,

146 F.3d 629 (9th Cir. 1998), and Metromedia, Inc. et al. v. City

of San Diego, et al., 101 S. Ct. 2882 (1981), for the apparent

proposition that content-based distinctions in a sign ordinance

are categorically fatal to the whole. Both of these cases are

inapposite, however, because they involved outright prohibitions

on signs with certain content. Here, on the other hand, the

exceptions appellants challenge are not to a blanket prohibition

on expressing certain ideas, but simply exceptions to the Sign

Code’s general permit requirement. Nothing in any version of the

City’s Sign Code, much less Ordinance 1443, purports to foreclose

the expression of any particular idea.

In any case, Ordinance 1443 essentially mooted all of

appellants’ specific challenges to the prior version of the Sign

Code’s permit requirement and off-premises prohibitions.

Appellants argue that the Sign Code’s permit provisions

violate the First Amendment by privileging certain topics or

viewpoints over others. They point in this respect to two

provisions of Ordinance 999. First, they complain of its

14
exception, to the general prohibition of off-premises signs, for

signs, approved by the Sign Board, which “promote[s] a positive

image of the city of Bryan for the attraction of business or

tourism” or “depicts an accomplishment of an individual or

group.” This provision was eliminated in Ordinance 1443.

Second, they complain of Ordinance 999's provision for an

exception, to the general permit requirement applicable to on-

premises signs, for “political signs” defined as those “used in

connection with a local, state, or national election or

referendum.” Id. at § 22-2, 22-6(j). See also id. at § 22-12(d)

(requiring removal of sign within ten days following election).

It is claimed that this narrow definition of “political” excludes

from the permit exemption anti-abortion signs not within 10 days

of an election or, even during that time, not expressly related

to a particular candidate. However, these provisions were

eliminated by Ordinance 1443, which exempts from Sign Code permit

requirements and regulation all signs on private property which

are not “used for advertising” and states that “advertising”

“Means to attract, or to attempt to attract, the
attention of any person to any business,
accommodations, goods, services, property, or
commercial activity. The following is not advertising
for the purposes of this chapter: (1) signs protesting
against any person, business, organization, property or
commercial activity, and (2) signs promoting or
denouncing political, ideological, social or religious
issues or beliefs of any person or group.”

All these specific complaints of appellants as to the prior

15
ordinances have been rendered moot by Ordinance 1443 (as has also

any complaint that prior ordinances precluded or required a

permit for the display of hand held signs in the “grassy strip;”

see note 3 supra).

To the extent that appellants assert on appeal that

Ordinance 1443 is defective in severable respects that are

unrelated and do not apply (and have not been applied) to

activities in which appellants have alleged below that they

engaged in (or desire or desired or plan or planned to engage

in), such arguments are not properly before us and appellants

lack at least prudential standing to raise them. We detect no

overbreadth in Ordinance 1443 which is both real and substantial

in relation to the ordinance’s plainly legitimate sweep so as to

justify a facial challenge. See Broadrick v. Oklahoma, 93 S.Ct.

2908, 2918 (1973); Virginia v. Hicks, 123 S.Ct. 2191, 2196

(2003); Granite State Outdoor v. City of Clearwater, 351 F.3d

1112, 1116-17 (11th Cir. 2003) (party harmed by one section of

ordinance but not by another, different section has no standing

to raise overbreadth challenge based on alleged invalidity in the

latter section); Gospel Missions v. City of Los Angeles, 328 F.3d

548, 553-55 (9th Cir. 2003) (“. . . the injury Gospel Missions

alleges is not traceable to the professional fundraiser

provisions . . . Gospel Missions lacks overbreadth standing to

challenge the professional fundraiser provisions because these

16
provisions do not apply to Gospel Missions, and it has not

indicated its intent to become a professional fundraiser”).

Accordingly, we reject such facial challenges to Ordinance 1443.

iii. Displaying Flags in the Right-of-Way

In an effort to devise an Ordinance that would permit the

Boy Scout flag project to go ahead without either generally

allowing all signs to be fixed in the right-of-way or

discriminating on the basis of the sign’s message, the City in

late August 2003 enacted Ordinance 1431, which defined “flag” as

“a piece of fabric that contains colors, patterns, symbols, or

words that convey a non-commercial message,” and amended the

ordinance section generally prohibiting signs placed in the

right-of-way by adding to it the following provision:

“The owner of property abutting a public right-of-way
may place or consent to the placement of not more than
one flag, attached to a single free-standing pole, in
the public right-of-way for each 10 linear feet of
frontage if placed and maintained in a manner that does
not endanger public safety.”

In the district court appellants objected to this provision on

essentially two bases (which appellants also urge on appeal):

first, that it did not define “non-commercial” and did not

provide adequate procedural due process to preclude the City from

removing signs it improperly deemed “commercial;” and, second,

that its limitation of permitted flags to those placed or

consented to by the adjacent property owner improperly permitted

the property owner to make viewpoint specific distinctions that

17
the City itself could not constitutionally make.

In response to these objections, the City, in late October

2003 before the filing of its summary judgment motion, enacted

Ordinance 1443 which carried forward the same above quoted

definition of “flag” as contained in Ordinance 1431 and (among

other things) added the following wholly new provisions

concerning the meaning and determination of “commercial” and

“non-commercial,” viz:

“COMMERCIAL MESSAGE. A message placed or caused to be
placed before the public by a person or business
enterprise directly involved in the manufacture or sale
of the products, property, accommodations, services,
attractions, or activities or possibly those things
which are the subject of the message and that:

(a) refers to the offer for sale or existence
for sale of products, property,
accommodations, services, attractions, or
activities; or
(b) attracts attention to a business or to
products, property, accommodations, services,
attractions, or activities that are offered
or exist for sale or for hire.

. . .

NON-COMMERCIAL MESSAGE. Any message that is not a
commercial message.

. . .

(a) Findings. The city council finds that it
may be necessary in the enforcement of
Section 24-60(B)(3), to determine whether the
message displayed upon a flag is a commercial
message or a noncommercial message.

(b) Hearing. If a person receives a notice
of violation or is cited for maintaining an
illegal commercial flag in the public-right-

18
 of-way, and the person notifies the city
attorney in writing within 10 calendar days
of receiving the notice or citation that he
believes the flag displays a non-commercial
message and is, therefore, not in violation
of this chapter, the city attorney shall
postpone the prosecution of the case and
shall have the matter placed on the agenda of
the board of sign control and appeals within
25 calendar days. The board shall determine
whether the flag conveys a commercial
message. The board shall make a
determination no later than the 46th calendar
day after the notice of violation or citation
was received by the person maintaining the
flag. The failure of the board to make a
determination within the time required shall
result in a deemed finding by the board that
the flag is non-commercial.

(c) Judicial Review. If the board determines
that the flag conveys a commercial message
and is illegally placed in the public right-
of-way, the person maintaining the sign may
within 10 days of the board’s decision file a
notice of non-acceptance of the decision with
the city attorney. Within twenty (20)
business days after receiving the notice of
non-acceptance, the city attorney may
initiate suit in the district court for
determination that the sign is commercial and
for an injunction to prohibit display of the
sign in violation of this Chapter. The city
shall bear the burden of showing that the
sign is commercial.”10

We hold that appellants’ first set of objections to the flag

provisions – that Ordinance 1431 did not adequately define

commercial (or non-commercial) and did not provide adequate

procedural due process respecting determinations in that respect

10
Ordinance 1431 contained no definition of “commercial” (or
“non-commercial”) and no provision relating to how or when a
determination in that respect is to be made or become effective.

19
– is rendered moot by Ordinance 1443. Moreover, appellants’

brief on appeal does not specifically address those provisions of

Ordinance 1443 or present any intelligible argument that they

themselves are independently improper, and, in any event we hold

that they are not constitutionally deficient. No permit is

required for a “flag” placed in the right-of-way as provided for

in Ordinance 1443, so there is no prior restraint. Further, and

in any event, an allegedly commercial flag in the right-of-way

may remain in place until the City procures a court injunction

(on which the City carries the burden of proof that the flag is

commercial). See, e.g., Friedman v. Md., 85 S.Ct. 734 (1965).

The definition of “non-commercial” is not unduly vague and does

not discriminate against (but rather favors) non-commercial

speech. See Metromedia, Inc. v. City of San Diego, 101 S.Ct.

2882 (1981). See also Children of the Rosary v. City of Phoenix,

154 F.3d 972 (9th Cir. 1998).

Turning to appellants’ second set of objections – relating

to the control by adjoining property owners over “flags” placed

in the public right-of-way in front of their property – Ordinance

1443 defines public right-of-way,11 and provides (largely

similarly to Ordinance 1431), as follows:

11
Ordinance 1443 states: “PUBLIC RIGHT OF WAY shall mean the
entire width of the area between private property lines,
dedicated for public use as a street, roadway, alley, bridge,
thoroughfare, improved or unimproved pedestrian way or sidewalk.”

20
 “Public Rights-of-Way. With the exception of State
Maintained Highways, it shall be unlawful to place a
sign in the public right-of-way, except as authorized
herein. The following signs may be placed in the
public rights-of-way.

1) Government Signs

2) Temporary emergency or safety pedestrian and
vehicular warning signs.

3) One (1) flag attached to a single free-standing
pole, may be placed in the unimproved portion of the
public right of way for every 10 linear feet of
frontage, if placed by the owner of the property
abutting the public right of way or with the consent of
said owner.”12

Appellants’ second challenge to the flag rule, though not

moot, fails on its merits. Appellants contend that it is

unconstitutional for the City to allow private property owners to

make viewpoint-specific distinctions that the City itself could

not make.13 Appellants argue that allowing private property

owners to reject a flag emplaced in the unimproved public right-

of-way in front of their property on the basis of its content

confers an unconstitutional “heckler’s veto.” While it is true

that (at least absent a clear and present danger) the government

12
Ordinance 1443 likewise provides “[n]othing in this
chapter shall prohibit the display of handheld signs, as that
term is defined in this chapter, when carried by persons lawfully
present on the unimproved portions of the public right-of-way,
public property, and on sidewalks.” It defines handheld sign as
a sign personally held “in such a manner that neither the sign
nor any object(s) that provide support of the sign touches the
ground.”
13
Appellants frame this as a First Amendment and equal
protection challenge.

21
cannot restrict speech out of a concern for the discomfort it

might elicit in listeners, see. e.g., Terminiello v. City of

Chicago, 69 S. Ct. 894, 895-96 (1949), and Cox v. Louisiana, 85

S. Ct. 453, 462-63 (1965), the central concern of the “heckler’s

veto” cases does not arise here. In the aforementioned cases,

the purpose of the content-based restriction on speech was to

protect listeners from a heterodox message.

In the instant case, on the other hand, the flag rule is

plainly not aimed at protecting property owners or the public at

large from unpopular speech. Rather, the rule reasonably

recognizes that emplacing a flag in the unimproved public right-

of-way in front of a person or entity’s private property will

almost certainly result in the expressive message of the flag

being attributed to the property owner instead of the flag’s

owner. Emplacing a flag in the unimproved public right-of-way in

front of another’s property is effectively analogous to sending a

letter to the newspaper under that person’s name. The flag rule

requires the consent of the abutting property owner to obviate

the obvious problems that would arise if, for example, a

political group hammered its flag into the lawn of someone who

did not agree with that group’s views.14 Further, an adjoining

property owner may withhold consent to a given “flag” for reasons

14
The public right-of-way includes a set-back from the curb
even if there is no sidewalk.

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wholly unrelated to the content or viewpoint expressed by any

“message” on it. But, if the adjoining owner’s decision is based

on his or her disagreement with the message, that does not make

the owner’s motive or purpose that of the City. See, e.g.,

Zelman v. Simmons-Harris, 122 S.Ct. 2460, 2465-67 (2002). The

regulation restricts where any “flag” may be placed, and the

restriction imposed does not to any extent turn or depend on the

content of what is displayed on the “flag.” It is hence deemed

“content neutral” for purpose of the rule that content neutral

reasonable time, place and manner requirements are valid

notwithstanding that their effect may in certain instances

effectively limit speech.15 For such purposes, a regulation is

generally “content neutral” if its restrictions on speech are not

based on disagreement with the message it conveys. See Ward v.

Rock Against Racism, 109 S.Ct. 2746, 2754 (1989); Hill v.

Colorado, 120 S.Ct. 2480, 2491 (2001).16 We reject this

15
Appellants do not challenge the reasonableness of the
“flag” rule or claim that it leaves them without adequate
alternatives to express their views. The “flag” rule does not
apply to hand held signs. See note 12, supra.
16
In Ward the Court stated:

“The principal inquiry in determining content
neutrality, in speech cases generally and in time,
place, or manner cases in particular, is whether the
government has adopted a regulation of speech because
of disagreement with the message it conveys. [citation]
The government’s purpose is the controlling
consideration. A regulation that serves purposes
unrelated to the content of expression is deemed

23
challenge to the “flag” rule.

2. The Motion to Stay Discovery

a. Standard of Review

We review a decision to stay discovery pending resolution of

a dispositive motion for an abuse of discretion. Corwin v.

Marney, Orton Inv., 843 F.2d 194, 2000 (1988).

b. Analysis

On December 2, 2003, the district court granted the City’s

motion to stay discovery pending resolution of the cross-motions

for summary judgment. Appellants contend that the district court

abused its discretion because appellants sought discovery related

to the City’s motion for summary judgment. To sustain this

contention, appellants must show why the discovery they obtained

between when they filed their initial complaint on November 21,

2002 and when the City’s motion to stay was granted over a year

later, left them unable to respond meaningfully to the City’s

motion for summary judgment. Appellants did not, however,

explain in their brief or at oral argument, despite specific

questions from the panel, what relevant evidence they thought

neutral, even if it has an incidental effect on some
speakers or messages but not others. . . . Government
regulation of expressive activity is content neutral so
long as it is justified without reference to the
content of the regulated speech.” Id. at 2754
(citations and internal quotation marks omitted).
In Hill the Court quotes with approval the first sentence in the
above quotation from Ward. Hill at 2491.

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further discovery likely would have revealed.

Appellants cannot plausibly argue that they needed

additional discovery on their damages claim because their own

motion for summary judgment on damages was already pending when

the City filed its motion and any information on their damages

would necessarily be within their own knowledge. With respect to

their prospective claims, the City’s motion for summary judgment

raised pure questions of law. Appellants do not even attempt to

show, nor can we readily imagine, how any additional discovery

would have been necessary to answer these purely legal questions.

Appellants have failed to establish that the district court

abused its discretion.

3. Costs

a. Standard of Review

“The district court has broad discretion in taxing costs,

and we will reverse only upon a clear showing of abuse of

discretion.” Migis v. Pearle Vision, 135 F.3d 1041, 1049 (5th

Cir. 1998).

b. Analysis

Appellants contend that the district court abused its

discretion in awarding costs under 28 U.S.C. § 1924 because the

City’s motion did not comply with the requirements of the statute

and local rules. Our review of the record shows an affidavit

from City Attorney Michael J. Cosentino affirming that the City

25
justifiably incurred $5,600.40 in court reporter fees. Each of

the three depositions that this sum represents were incorporated

as evidence into either the City’s memorandum in opposition to

appellants’ motion for summary judgment or the City’s own motion

for summary judgment. Accordingly, we find no abuse of

discretion in the award of costs.

Conclusion

For the foregoing reasons, the judgment of the district

court is

AFFIRMED.

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