United States District Court, D. Montana, Missoula Division
JACK PALMER and CARWERKS, LLC, a Montana limited liability company, Plaintiff,
CITY OF MISSOULA, MONTANA, a municipal corporation, Defendant.
L. Christensen, United States District Court Chief Judge
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.
facts are relevant to this dispute. Plaintiff Jack Palmer owns
and 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 the business.
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
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 Constitutions.
City argues that Palmer lacks standing to sue under §
1983 because the 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.
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
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 §
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
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