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.
22
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.
24
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.
26