Agenda - Planning Commission - 04/03/2008

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". (...----..) :1 a !I II II il :1 Ii 1, 11 ii OJ Ii d ![ 11 j' Ij 1, 'I ji i! 'I Ii ii ,I Ii I' II II ,I II ( ..~-_/' March 10, 20081 Volume 21 No.5 First Amendment. N]I also sought a preliminary injunction to allow it to install the EMC prior to the holiday shopping season. A magistrate judge denied the preliminary injunction request. The district court said the ban on EMCs did not violate the First Amend- . ment. The district court also denied the preliminary injunction request, finding NJI had not shown that it was likely to succeed on the merits. NJI appealed. DECISION: Affirmed. ..,-",- \ ! The First Circuit panel first looked at whether the ordinance was content-neutral. The standard under which the court analyzed the or- , dinance depended on content-neutrality. The court found that the ordinance was content-neutral. The court said that it determined whether an ordinance was content-neutral by looking at why the government adopted the ordinance. If the govern- ment adopted the regulation of speech because of -disagreement with the message it conveyed, then the ordinance was not content-neutral. The court noted that EMCs might communicate any number of mes- sages-"from a business advertising a sale to a high school congratu- lating its victorious teams." The court noted that all EMCs were simi- larly prohibited by the city's ordinance. Thus, the court concluded, the city's prohibition on EMCs did not discriminate based on cop.tent. The court stated that if an ordinance that restricts speech is con- tent-neutral then it is permissible if it: (1) is narrowly tailored to serve a significant government interest; and (2) leaves open alternative chan- nels of communication. The court next concluded that the ordinance served substantial gov- ernment interests. The court pointed to the plain language of the city's ordinance. In that language, the city stated that the goals of the pro- hibition on EMCs included promoting traffic safety and community aesthetics. The court noted that both of these goals had long been.rec- ognized as significant governmental interests. , The court also concluded that the ordinance was narrowly tailored. An ordinance was narrowly tailored if the substantial government in- terest would be achieved less effectively without the regulation, the court said. N]I had argued that the ordinance was not narrowly tai- lored because it burdened more speech than necessary. NJI argued there was a less restrictive approach of allowing. EMCs but impos- ing certain conditions on them, such as limiting the number of times per day a message could change. The court rejected N]I's argument. A government, the court. emphasized, was not required to choose the least restrictive approach in content-neutral regulation if such an ap- proach would serve its interests less effectively. The court further not- 3 127