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Jack Palmer and Carwerks, LLC v. City of Missoula

United States District Court, D. Montana, Missoula Division

April 4, 2017

JACK PALMER and CARWERKS, LLC, a Montana limited liability company, Plaintiff,
v.
CITY OF MISSOULA, MONTANA, a municipal corporation, Defendant.

          ORDER

          Dana L. Christensen, United States District Court Chief Judge

         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.

         BACKGROUND

         Few facts are relevant to this dispute.[1] 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.

         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/DocumentCenter/View/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 Constitutions.

         Discussion

         I. Standing

         The 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.

         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, [2] and the Court will proceed to the merits of Plaintiffs' First Amendment claims.

         II. Applicability of the Ordinance

         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.

         III. Free Speech

         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 ...


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