Palmer et al v. City of Missoula, Montana
ORDER granting 14 Motion for Summary Judgment; denying 23 Motion for Summary Judgment. This case is CLOSED. Signed by Judge Dana L. Christensen on 4/4/2017. (ASG)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
APR 04 2017
Clerk, U.S Courts
District Of Montana
JACK PALMER and CARWERKS,
LLC, a Montana limited liability
CITY OF MISSOULA, MONTANA, a
Before the Court are the parties' cross-motions for summary judgment in
this action. The Court agrees with the parties that no genuine issues of material
fact remain and that summary judgment is now appropriate. For the reasons
explained below, the Court determines that the Defendant, the City of Missoula, is
entitled to complete summary judgment.
Few facts are relevant to this dispute. 1 Plaintiff Jack Palmer owns and
The parties disagree as to some facts, none of which are essential to the resolution of
this matter on summary judgment. Plaintiffs argue that the Court should accept as true the facts
as they have relayed them because the City failed to file a statement of disputed facts in response
to Plaintiffs' motion for summary judgment. The Court will not do so. Plaintiffs never filed a
statement of undisputed facts, asking instead that the Court view their statement of disputed facts
as itself a statement of undisputed facts. In other words, Plaintiffs ask the Court to view facts
which are clearly in dispute as undisputed because the City did not meet the requirements of a
operates Plaintiff Carwerks, a used auto dealership in Missoula, Montana. Since
2000, Palmer has tied helium balloons to vehicles on the Carwerks lot. Most of
the balloons feature either an American flag or a smiley face. Carwerks wants to
continue this practice, seeing it as an inexpensive and effective advertisement for
In 2009, the City of Missoula enacted a new ordinance generally prohibiting
"banners, flags, pennants, streamers, spinners or other types of wind signs."
Missoula, Mont., City of Missoula Mun. Code§ 20.75.030(N) (through April 18,
2016), http://www.ci.missoula.mt.us/DocumentCenterNiew/30846. The City
Code defines a "wind sign" as an "attention-getting device with or without copy ..
. fastened in such a manner as to move in the wind." Id. § 20.100.010. Following
repeated citations, Palmer and Carwerks were charged with criminal violation of
the prohibition on wind signs. Plaintiffs Palmer and Carwerks now allege that the
City Code violates their free speech rights under both the U.S. and Montana
The City argues that Palmer lacks standing to sue under § 1983 because the
local rule which was not even in play.
balloons were placed not on his behalf but for the business purposes of Carwerks,
an independent legal entity owned solely by Palmer's father. Palmer asserts that
his constitutional rights are at issue because both he and Carwerks have been cited
for violating the city code.
The requirements for standing are met when a plaintiff shows injury in fact,
causation, and redressability. Bennett v. Spear, 520 U.S. 154, 167 (1997). That
standard is met here. Palmer has demonstrated injury, directing the Court's
attention to a letter from the City describing citations it issued to Palmer and
warning that a warrant would issue if Palmer failed to appear in municipal court.
(Doc. 24-1 at 5.) Palmer contests the constitutionality of the sign ordinance, his
violation of which caused the City to issue the citations. And if Palmer were
granted the relief he seeks, the citations would disappear, and he would be
compensated for his injuries. Palmer has clearly established standing/ and the
Court will proceed to the merits of Plaintiffs' First Amendment claims.
Applicability of the Ordinance
The Court notes that the only mandatory authority cited by the City to support its
argument is not binding and does not, in fact, support the City's argument. Retail Digital
Network, LLC v. Appelsmith, 810 F.3d 638 (9th Cir. 2016), has been vacated and is nonprecedential. Retail Digital Network, LLC v. Gorsuch, 842 F.3d 1092 (9th Cir. 2016).
Moreover, in that case, the Ninth Circuit panel held that the individual analogous to Palmer did,
in fact, have standing. Retail Digital, 810 F.3d at 647. Plaintiffs, too, cite the vacated panel
decision in Retail Digital to support its First Amendment analysis. What is more, Plaintiffs fail
to properly identify the panel decision as vacated pending en bane rehearing.
As a threshold matter, the Court must determine whether the balloons are
"wind signs" and therefore prohibited by the ordinance. Plaintiffs argue that
because the balloons are filled with helium and will float without wind, they
cannot be wind signs. Their argument is unavailing. Even if a balloon does not
require wind to float, it is a "wind sign" because it is an "attention-getting device
with or without copy ... fastened in such a manner as to move in the wind."
Missoula, Mont., Mun. Code§ 20.100.010.
The parties agree that the issue is whether the wind sign ordinance
unconstitutionally infringes upon Plaintiffs' First Amendment rights-more
specifically, Plaintiffs' right to commercial speech. The dispute between the
parties centers on whether the ordinance is content-based or content-neutral.
Generally, commercial speech restrictions are analyzed under a four-part
intermediate scrutiny test set forth by the United States Supreme Court in Central
Hudson Gas & Electric Corp. v. Public Service Commission. 447 U.S. 557
(1980). However, where the restriction discriminates on the basis of content,
heightened scrutiny applies-even if the speech that is regulated is commercial
speech. Sorrell v. IMS Health Inc., 564 U.S. 552, 565-566 (2011). "The First
Amendment requires heightened scrutiny whenever the government creates 'a
regulation of speech because of disagreement with the message it conveys.'" Id. at
566 (citing Wardv. Rock Against Racism, 491 U.S. 781, 791 (1989)). A
regulation is content-based if it "applies to particular speech because of the topic
discussed or the idea or message expressed." Reed v. Town of Gilbert, 135 S. Ct.
2218, 2227 (2015).
Plaintiffs argue that§ 20.75.030(N) is content-based because two other
ordinances arguably draw distinctions between types of speech. First, Plaintiffs
point out that§ 20.75.020(B), distinguishes between commercial speech and
noncommercial speech, providing that "[a]ny sign allowed under this chapter, may
contain ... any lawful noncommercial message ...." Missoula, Mont., Mun.
Code§ 20.75.020(B) (emphasis added). Second, Plaintiffs point to the definition
of"sign," which exempts window displays and national flags. Id. § 20.100.010.
During discovery, the City informed Plaintiffs that it was considering whether the
Supreme Court's decision in Reed mandated changes to the City's sign ordinances.
Unlike the ordinance in Reed,§ 20.75.030(N) is not content-based, and
Plaintiffs' citations to other City regulations do not make it so. In Reed, the city
regulations set forth a tiered approach to signs that depended on the content they
displayed. "Ideological Sign[ s]" could be as large as 20 square feet and placed in
any zoning district at any time. "Political Sign[ s]" could be up to 16 square feet
on residential property or 32 square feet in various other zoning districts, and they
could be displayed only during election and campaign periods. Finally,
"Temporary Directional Signs Relating to a Qualifying Event" (such as a church
service) could be no more than six square feet and placed in very limited areas for
a matter of hours. Reed, 135 S. Ct. at 2224-25. The complainants, a church and
its pastor, could not reasonably notify the public about the church's services
except through the use of "temporary directional signs relating to a qualifying
event." Id. at 2225-26.
Here, unlike the Town of Gilbert in Reed, the City does not make any
distinction based on the words or symbols printed on signs that could be remedied
by granting Plaintiffs' requested relief. Even if Plaintiffs were correct that the two
other ordinances are content-based restrictions on speech, those ordinances have
no relevance to whether the City can prohibit the use of balloons as "wind signs."
Section 20.75.020(B) is not at issue because it operations only when a sign is not
prohibited, and wind signs are prohibited. In other words, balloons with
noncommercial messages-such as balloons with smiley faces printed on them
flying above the Carwerks lot-are as restricted as balloons with the Carwerks
logo printed on them. Nor is the exemption of national flags relevant, as national
flags are allowed when they are affixed to poles-and thus when they are not signs
but flags-but prohibited when they are printed on wind signs, such as the
balloons at Carwerks. The City code does not restrict speech on the basis of
content, 3 and Central Hudson provides the appropriate framework.
Under Central Hudson, the Court must apply a four-part test to analyze
Plaintiffs' commercial speech claims:
(1) ifthe communication is neither misleading nor related to unlawful
activity, then it merits First Amendment scrutiny as a threshold
matter; in order for the restriction to withstand such scrutiny, (2) the
State must assert a substantial interest to be achieved by restriction on
commercial speech; (3) the restriction must directly advance the state
interest involved; and (4) it must not be more extensive than is
necessary to serve that interest.
Vanguard Outdoor, LLC v. City ofLos Angeles, 648 F.3d 737, 740 (9th Cir. 2011)
(citations omitted). The parties do not dispute that the first prong is met and that
the City regulations implicate the First Amendment.
The City has "assert[ed] a substantial interest to be achieved" by the
As a last-ditch effort, Plaintiffs also argue that whether the signs distinguish speech on
the basis of content is a question of fact, and that the City has waived its right to say that the
speech is not content-based by failing to file a statement of disputed facts. This argument fails
for two reasons. First, it is not a question of fact. See, e.g., Reed, 135 S. Ct. 2218. Second, the
City did not fail to comply with the Local Rules by not filing a statement of disputed facts. See
supra, note 1.
ordinance. According to the City, the ordinance promotes traffic safety and
preserves aesthetic values by limiting attention-getting devices near the roadway.
Missoula, Mont., Mun. Code§ 20.75.010. "[T]here can be [no] substantial doubt
that ... traffic safety and the appearance of the city ... are substantial
governmental goals." Metromedia, Inc. v. City ofSan Diego, 453 U.S. 490,
507-08 (1981). The City has shown that two substantial interests are to be served
by the ordinance.
Direct Advancement of Government Interests
The City has also met its burden of demonstrating that the ordinance
directly advances the interests of traffic safety and aesthetics. The City need not
provide detailed evidence proving a connection between wind signs and its stated
purposes. See Metromedia, 453 U.S. at 509-10. Generally, whether a regulation
serves a government's stated lawful purpose is left to "the judgment of the local
authorities" unless the complaining party demonstrates that the stated purpose is
"palpably false" or that the government has "as an ulterior motive the suppression
of speech." Id. at 509-10 (citations and internal quotation marks omitted).
The City's explanation for the ordinance is reasonable, and it is bolstered by
Plaintiffs' claim that the balloons grab the attention of potential customers.
Plaintiffs claim that it is "obvious" that the true reason for the ordinance is to
"mak[e] sure signs constructed of wood, glass, metal, etc. are properly installed
an[ d] maintained and will not blow apart in a high wind, showering folks with sign
debris[.]" (Doc. 29 at 4.) Plaintiffs' speculative interpretation of the City's
purposes is neither logical nor supported by any facts in the record.
As discussed above, the ordinance is content-neutral, and Plaintiffs have not
shown that the City has an unstated, less compelling reason for enacting the
ordinance. The ordinance is sufficiently tailored to the government's interests.
The ordinance is also no more extensive than is reasonably necessary. So
long as a regulation is content-neutral, it may be underinclusive, See Metromedia,
453 U.S. at 511-12, but it cannot "burden substantially more speech than is
necessary to further the government's legitimate interests," Bd. of Trustees of
State Univ. ofNY. v. Fox, 492 U.S. 469, 478 (citations and internal quotation
marks omitted). By applying the prohibition only to signs that wave in the wind,
the ordinance targets precisely those advertisements that are most likely to distract
and annoy drivers and passersby. Additionally, the City leaves a wealth of
alternative communication channels available to Plaintiffs. In fact, Plaintiffs'
argument that the ordinance is unconstitutional because it does not apply to all
advertisements (such as window displays) is actually an argument in favor of
constitutionality, as it demonstrates that the City is not attempting to foreclose all
avenues of communication. Deferring to the City's definition of the problems to
be addressed by the ordinance, as the Court must, it cannot determine that the
ordinance restricts "substantially more speech than is necessary to further" the
City's interests in public safety and city aesthetics. The City is entitled to
summary judgment on Plaintiffs' claims brought under the federal Constitution.
State Constitutional Claims
Plaintiffs have also alleged violation of their free speech rights under
Article II, section 7 of the Montana Constitution. Section 7 "provides no greater
protection for free expression than does the United States Constitution." City of
Helena v. Krautter, 852 P.2d 635, 638 (Mont. 1993). Plaintiffs have given the
Court no reason to strike the ordinance under the Montana Constitution; indeed,
they do not address the state constitutional issues in their briefs. Plaintiffs' state
law claims cannot survive.
Accordingly, IT IS ORDERED that:
Defendant's Motion for Summary Judgment (Doc. 14) is GRANTED.
Plaintiffs' Motion for Summary Judgment (Doc. 23) is DENIED.
The Clerk of Court shall enter judgment in favor of Defendants and
shall CLOSE this case.
_±__ day of April, 201 7.
Dana L. Christensen, Chief Judge
United States District Court
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