New Hampshire Municipal Association
New Hampshire Municipal Association

Court Update

Zoning Ban on Electronic Messaging Centers Held Not a Violation of Constitutional Right to Freedom of Speech—Again

Naser Jewelers, Inc. v. City of Concord
U.S. Court of Appeals, 1st Circuit, No. 07-2098, 1/18/2008

For the second time in ten weeks the City of Concord’s complete ban on electronic changeable copy signs was upheld against a claim that it violates the guarantee of freedom of speech under the First Amendment of the United States Constitution. In Carlson’s Chrysler v. City of Concord (No. 2006-367, November 8, 2007) (see New Hampshire Town and City, January, 2008, page 38), the New Hampshire Supreme Court held that the ordinance was a valid restriction on commercial speech. In this case, however, the Court held that the ordinance satisfies the general constitutional test for “content-neutral” restrictions on speech.

The Concord zoning ordinance was amended in 2006 to prohibit all electronic messaging centers (EMCs). The stated purposes of the sign ordinance include promoting traffic safety and aesthetics. Claiming that an EMC had boosted sales by 18 percent at its Dover store, Naser Jewelers, Inc. (Naser) sought and was denied permission to erect an EMC at its Concord store. Naser then filed suit in the United States District Court for the District of New Hampshire, claiming a violation of its First Amendment rights. The trial court rejected a request for an injunction against enforcement of the ordinance, and Naser appealed to the First Circuit (the federal appellate court for this region).

In its decision, the First Circuit panel first observed that billboards and other signs are protected by the First Amendment but also subject to regulation under the police power. A “threshold” question in challenges to government restrictions on speech is whether the restriction is “content-neutral” or “content-based”; that is, whether the regulation discriminates based on the message. Where a sign ordinance regulates on the basis of whether the message is commercial or non-commercial, a special analysis is required to determine if the discrimination is justified. The Concord ordinance, however, is “content-neutral” because it bans all EMCs, not just commercial EMCs.

“Content-neutral regulations are permissible so long as they are narrowly tailored to serve a significant governmental interest and allow for reasonable alternative channels of communication.” The Court stated that “both traffic safety and community aesthetics have long been recognized to constitute significant governmental interests.” Turning to the question of how “narrowly tailored” the ordinance is, the Court held that the City was entitled to rely on its legislative judgments as to traffic safety and aesthetics, and the most direct and effective solution to the problem is a total ban on EMCs. Finally the Court stated that Naser has alternative means of communication through conventional signage and other modes of advertising. “The maximizing of profit is not the animating concern of the First Amendment.”

Please be advised that the foregoing case summary is based upon a Supreme Court slip opinion. Slip opinions are subject to change following motions for rehearing and/or motions for reconsideration. The Court may also modify the opinion without motion. The final version of the Court’s opinion is that which appears in the New Hampshire Reports.

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