Agenda - Planning Commission - 04/03/2008

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Zoning Bulletin ,. ed that the city's concerns about NJI's proposed alternatives, which in- - ' eluded concerns of steep monitoring costs, were legitimate. The court found that EMCs, which provide more visual stimuli than tradition- al signs, logically would be more distracting and more hazardous to traffic safety. In support of this conclusion, the court pointed to NJI's witness' statement that bypassers focus more on rapidly blinking elec- tronic signs. The court found that the city's interests in traffic safety and community aesthetics would be achieved less effectively without the ordinance's prohibition on EMCs. Finally, the court concluded that the city's ordinance left NJI with alternative channels of communication. The court noted that NJI could still use: static and manually changeable signs; advertisements in newspapers and magazines and on television and the Internet; fly- ers; direct mailings; and cross-promotions with other retailers. The, First Amendment does not guarantee a right to the most cost-effective means of speech, the court said. Since NJI was left with alternative channels of communication, the court rejected as irrelevant NJI's argu- mentthat it was losing profits because of its inability to place an EMC at its location in the city. Upon concluding that the city's prohibition of EMCs was a constitu- tionally permissible content-neutral regulation, the court concluded that NJI had no probability of success on the merits. The court affirmed the denial of NJI's request for a preliminary injunction. See also: Globe Newspaper Co. v. Beacon Hill Architectural Com'n, 100 E3d 175,24 Media L. Rep. (BNA) 2537 (1st Cir. 1996). " Case Note: NJI had argued that the ordinance should be analyzed under different standards because the restrictions were on com- mercial speech. The court rejected this argument. The court said that the standards for content-neutral restrictions do not vary by whether the plaintiff is exercising commercial speech. Also, in finding that the prohibition on EMCs served substantial govern- ment interests, the court rejected NJI's argument that the city had to perform studies to prove that the ban on EMCs in fact sup- ported its stated interests. Tpe court said the city had no such ob- ligation. The court said that to require such justification would impose great costs on local government. The court found there was no basis to doubt that the city's aesthetic concerns would be achieved less effectively without the ban on EMCs. 4 128