Brazos Valley Coalition for Life, Inc. v. City of Bryan

Citations: 421 F.3d 314; 2005 U.S. App. LEXIS 17142; 2005 WL 1940100Docket: 04-20201

Court: Court of Appeals for the Fifth Circuit; August 15, 2005; Federal Appellate Court

Original Court Document: View Document

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Brazos Valley Coalition for Life, Inc. and individual appellants filed a lawsuit against the City of Bryan, Texas, seeking injunctive relief, a declaratory judgment, and damages, claiming the City’s Sign Code violates their First Amendment rights. The Coalition for Life, established in 1998, promotes the belief that life is sacred and conducts protests against abortion at Planned Parenthood in Bryan. The City’s Sign Code, particularly Ordinance 999 enacted in May 1996, prohibits the erection or maintenance of signs in public rights-of-way, defining a sign broadly as any device for advertising or identification.

Disputes arose in 2002 when police informed protesters they could not place signs in public rights-of-way, with the City asserting that even resting a sign on the ground was illegal. Despite multiple police visits, no citations or arrests occurred, and only abandoned signs were removed. After failing to negotiate with the City, the appellants filed a nine-count complaint in November 2002, alleging various constitutional violations, including First and Fourteenth Amendment rights, due process, equal protection, and specific Texas constitutional rights. The district court granted summary judgment in favor of the City, which was affirmed by the appellate court.

Appellants requested preliminary and permanent injunctions, a declaratory judgment, and damages regarding the Sign Code. Throughout the litigation, discussions between the appellants and the City focused on addressing perceived flaws in the Sign Code. Although the appellants acknowledged the City's constitutional right to ban signs in public rights-of-way, they argued that exceptions to the Sign Code's restrictions constituted unconstitutional viewpoint discrimination, invalidating the entire code. 

On August 12, 2003, the Bryan City Council introduced Ordinance 1428, which proposed an outright ban on all signs (except handheld ones) in public rights-of-way, raising community concerns due to its implications for displaying the American flag and traditional local events like Labor Day fundraisers involving flag displays. The City Council unanimously adopted Ordinance 1428 on August 30, 2003, alongside Ordinance 1431, which upheld the prohibition but allowed property owners to display one flag on a pole for every 10 linear feet of property frontage, provided it did not pose safety risks.

Appellant Parsons sought to pressure the City into enacting a viewpoint-specific ordinance by sending letters under assumed names, demanding flag exceptions. He escalated this tactic by impersonating Assistant City Attorney Julie Gannaway in an email to the City Manager, expressing contempt for the American flag while supporting Planned Parenthood. When questioned about the email during deposition, Parsons denied intending to impersonate Gannaway. Ordinance 1431 defined a "flag" as a fabric piece conveying a non-commercial message. Through the simultaneous enactment of both ordinances, the City aimed to maintain content neutrality while permitting flag displays. However, the appellants remained dissatisfied, filing an amended complaint on September 18, 2003, which reiterated earlier claims and highlighted the City's authority to determine the commercial nature of flags under the Sign Code.

On October 14, 2003, appellants filed a motion for summary judgment on all claims. Shortly thereafter, on October 30, 2003, the City enacted Ordinance 1443, which significantly revised its Sign Code, particularly regarding the public right-of-way. This ordinance maintained a general ban on signs (except hand-held ones) in the public right-of-way but allowed government signs, temporary safety signs, and one flag per 10 linear feet of frontage, provided it was placed by the property owner or with their consent. The ordinance defined flags consistently and established a process to determine if a flag is commercial or non-commercial, placing the burden of proof on the City to prove a flag's commercial intent.

On November 10, 2003, the City filed its own motion for summary judgment, claiming that Ordinance 1443 rendered appellants' claims moot. The City was also granted a protective order against further discovery in December 2003. After a hearing, the district court granted summary judgment to the City on January 30, 2004, also awarding costs of $5,600.40 but denying attorney's fees. Appellants appealed the judgment, the discovery ruling, and the costs awarded.

The summary judgment is reviewed de novo, with the district court implicitly finding appellants' claims for damages meritless due to a lack of evidence showing any citations or confiscations of their signs. The court noted only abandoned signs were collected by police after confirming ownership with nearby individuals. Appellants did not preserve their damages claims on appeal, failing to demonstrate evidence supporting them.

Regarding prospective claims, appellants argued that the Sign Code was unconstitutional for three reasons: inadequacies in the permit process, the need for strict scrutiny of on- versus off-premises sign distinctions, and the unconstitutionality of allowing property owners to prohibit flags based on content. The district court ruled that Ordinance 1443 mooted these claims, as it was enacted shortly after the appellants filed their motion. Appellants countered this by citing a precedent, arguing that the City might reenact the earlier ordinances post-litigation.

Appellants argue that their claims regarding Ordinance 1443 are not moot because they distrust the City’s intentions to repeal it, but the court disagrees. The case of Mesquite is distinguished; in that instance, the ordinance was repealed during an appeal after a final judgment, with the City intending to reenact the ordinance, whereas here, Ordinance 1443 was enacted before the district court's judgment and the City sought summary judgment based on it. There is no indication that the City plans to repeal Ordinance 1443 post-case. Consequently, claims related to prior versions of the Sign Code are deemed moot.

Regarding the permit process, the Coalition for Life applied for a sign permit under a previous ordinance, which was denied as the sign was classified as a prohibited "portable sign." Appellants do not claim that this denial violated their First Amendment rights or that the Sign Code would be unconstitutionally applied to them, leading to the conclusion that their challenge is purely facial. A facial challenge can assert that an ordinance is unconstitutional in all applications or is overly broad. Appellants suggest the Sign Code's permit requirement is unconstitutional due to content-based distinctions in exempting certain signs, referencing cases where outright prohibitions on specific content were found unconstitutional. However, the exceptions in the current case do not constitute a blanket prohibition on expression. Ordinance 1443 effectively moots the appellants’ challenges to previous permit requirements and off-premises sign prohibitions, as the specific provisions they cite from Ordinance 999 have been eliminated in Ordinance 1443.

Ordinance 999's exemption for "political signs," related to elections or referendums, is challenged for being too narrow, excluding anti-abortion signs outside of election periods or those not linked to specific candidates. However, these concerns are addressed by Ordinance 1443, which exempts non-advertising signs on private property from permit requirements. "Advertising" is defined as efforts to attract attention to commercial activities, while certain categories of signs, including those protesting or promoting political, ideological, social, or religious issues, are not considered advertising. Consequently, the appellants' complaints regarding previous ordinances are rendered moot. Additionally, any allegations that Ordinance 1443 is defective in unrelated aspects lack prudential standing for consideration. The ordinance is deemed not overbroad in relation to its legitimate purpose.

In response to the Boy Scout flag project, Ordinance 1431 was enacted, allowing property owners to place one flag per 10 linear feet of public right-of-way frontage, provided it conveys a non-commercial message and does not pose safety risks. Appellants contest this ordinance on two grounds: the lack of a definition for "non-commercial," which could lead to arbitrary enforcement by the City, and the provision allowing property owners to make viewpoint-specific distinctions in flag placement, potentially infringing on constitutional principles.

In late October 2003, the City enacted Ordinance 1443, which retained the definition of "flag" from Ordinance 1431 and introduced new provisions defining "commercial" and "non-commercial" messages. A "commercial message" is characterized as one placed by a person or business involved in selling products or services that refer to their sale or existence. A "non-commercial message" is any message that does not fit this definition. The city council recognized the need to distinguish between these message types for enforcement purposes.

If an individual receives a violation notice for an illegal commercial flag, they can contest this by notifying the city attorney within 10 days, prompting a review by the board of sign control and appeals within 25 days. The board must render its decision within 46 days, and if it fails to do so, the flag is deemed non-commercial. If the board finds the flag to be commercial, the individual can file a notice of non-acceptance within 10 days, after which the city attorney may initiate a lawsuit within 20 business days to seek an injunction against the flag, with the burden on the city to prove the flag's commercial nature.

The appellants' initial objections to the flag provisions are considered moot due to Ordinance 1443, and their appeal does not adequately challenge the provisions as constitutionally flawed. No permit is needed for flags in the right-of-way, avoiding prior restraint, and flags may remain until an injunction is obtained. The definition of "non-commercial" is deemed clear and does not discriminate against non-commercial speech. The ordinance also addresses the control of flags in public rights-of-way by adjacent property owners, maintaining definitions similar to those in Ordinance 1431.

PUBLIC RIGHT OF WAY refers to the full width between private property lines designated for public use, including streets, alleys, and sidewalks. Except for State Maintained Highways, placing signs in public right-of-way is prohibited unless authorized. Permitted signs include Government Signs, temporary emergency or safety warnings, and one flag per 10 linear feet of property frontage, provided it is placed by or with consent from the adjacent property owner. 

The appellants challenged the flag rule, claiming it is unconstitutional for the City to permit property owners to make content-based decisions about flags in front of their properties, which they argue amounts to a "heckler’s veto." However, the court determined that the flag rule does not aim to protect property owners from unpopular speech but rather acknowledges that flags placed in front of private properties could be misattributed to those owners. The requirement for property owner consent is designed to prevent conflicts arising from differing political views. Any refusal of consent may stem from reasons unrelated to the flag's message, and the regulation itself is deemed content neutral. 

The court rejected the challenge to the flag rule, asserting that content-neutral regulations are valid even if they restrict speech in certain situations. 

Regarding the motion to stay discovery, the court reviews such decisions for abuse of discretion. On December 2, 2003, the district court granted the City’s motion to stay discovery pending the resolution of summary judgment motions. The appellants argued that this stay was an abuse of discretion since they needed discovery for their response to the City’s motion. To support this claim, they must demonstrate how the discovery obtained prior to the stay left them unable to adequately respond to the City’s summary judgment motion.

Appellants failed to articulate in their brief or during oral argument the specific evidence that further discovery could have provided, despite inquiries from the panel. They cannot reasonably claim a need for additional discovery related to their damages, as they had already filed a motion for summary judgment on that issue, and pertinent information would be within their own knowledge. Regarding prospective claims, the City’s motion for summary judgment raised purely legal questions, and appellants did not demonstrate how further discovery would aid in addressing these issues. The court determined that appellants did not show an abuse of discretion by the district court.

In terms of costs, the district court possesses broad discretion in taxing costs, which will only be reversed upon clear evidence of abuse. Appellants argued that the district court erred in awarding costs under 28 U.S.C. § 1924 due to the City’s motion allegedly not meeting statutory and local rule requirements. However, an affidavit from City Attorney Michael J. Cosentino confirmed the City incurred $5,600.40 in court reporter fees, with the corresponding depositions being included as evidence in relevant motions. Therefore, the court found no abuse of discretion in the cost award. Consequently, the judgment of the district court is affirmed.