Riel v. Bradford ( 2007 )

Opinions of the United
2007 Decisions States Court of Appeals
for the Third Circuit
5-3-2007
Riel v. Bradford
Precedential or Non-Precedential: Precedential
Docket No. 05-4425
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2007
Recommended Citation
"Riel v. Bradford" (2007). 2007 Decisions. Paper 1046.
http://digitalcommons.law.villanova.edu/thirdcircuit_2007/1046
This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 2007 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 05-4425
THOMAS RIEL; DIANE THOMPSON;
FRED PYSHER,
Appellants
v.
CITY OF BRADFORD
On Appeal from the United States District Court
for the Western District of Pennsylvania
(D.C. No. 04-cv-00090)
District Judge: Honorable Sean J. McLaughlin
Argued December 12, 2006
Before: FISHER and CHAGARES, Circuit Judges,
and BUCKWALTER,* District Judge.
*
The Honorable Ronald L. Buckwalter, United States
District Judge for the Eastern District of Pennsylvania, sitting by
designation.
(Filed: May 3, 2007)
Philip B. Friedman
Ambrose, Friedman & Weichler
319 West 8th Street
Erie, PA 16502-1495
Witold J. Walczak (Argued)
American Civil Liberties Union
313 Atwood Street
Pittsburgh, PA 15213
Attorneys for Appellants
Richard A. Lanzillo (Argued)
Knox, McLaughlin, Gornall & Sennett
120 West Tenth Street
Erie, PA 16501
Attorney for Appellee
OPINION OF THE COURT
FISHER, Circuit Judge.
The Appellants are home and business owners who were
issued criminal citations by the City of Bradford, Pennsylvania
(“City” or “Bradford”) for displaying commercial and
noncommercial signs on their private property without first
obtaining a permit. They argue that the City’s sign ordinances,
2
which have now been amended, violate the First Amendment
because they are impermissibly content-based, overbroad,
vague, and allow too much time to process permit requests. The
United States District Court for the Western District of
Pennsylvania held that the ordinances, as amended, are in fact
content-neutral and permissible under the First Amendment
based in part on our holding in Rappa v. New Castle County, 18
F.3d 1043 (3d Cir. 1994). For the reasons that follow, we will
affirm the holding of the District Court.
I.
Appellants Thomas Riel, Diane Thompson, and Fred
Pysher are residents of the City of Bradford. The properties at
issue are Riel’s residence, and Thompson’s and Pysher’s
commercial establishments in downtown Bradford. In March
2004, the City issued more than ten citations to the Appellants
for displaying signs on their private property without first
receiving approval and a permit from the Historical Architecture
Review Board (“HARB”), as required by section 125-15(E) of
the Bradford Code. Riel’s and Thompson’s signs were hand-
made cardboard and plywood signs containing criticisms of City
officials. Some of the signs included: “How unethical is Mayor
Henry?”, “Can CEO Corignani work an honest 8 hours?”, “Stop
the City Hall Puppet Show, Mayor Henry”, and “Fire Chief
Wild Bill McCormack, Resign!”. Pysher, on the other hand,
was cited for a commercial sign advertising his realty business.
On March 24, 2004, the Appellants filed this action
challenging the constitutionality of Bradford Code Chapter 125,
section 125-15(E), which regulates signs in Bradford’s historic
3
district, and Chapter 178, which regulates signs in all of
Bradford. Consent orders entered on March 24, 2004, and
June 9, 2004, stayed enforcement of the challenged provisions.
On May 14, 2004, and July 13, 2004, the City amended the two
ordinances. The parties then filed cross-motions for summary
judgment disputing the facial validity of the new laws.
A. Chapter 178
The first provision that the Appellants challenge is
Chapter 178 of the City of Bradford Code, which applies to any
outdoor sign or display within the City that can be seen by the
general public. It makes it illegal for “any person to erect,
repair, alter, relocate or maintain within the City of Bradford
any sign” without first obtaining a permit from the Building
Inspector, paying a $20 annual permit fee, and filing with the
Building Inspector a $10,000 bond or liability insurance policy.
Bradford, Pa., Code § 178-3 (2003). In order to obtain a permit,
an applicant must disclose personal information, and provide
descriptions of the location where the sign will be displayed and
of the sign itself, including drawings and specification plans. Id.
§ 178-4.
The standard governing approval is contained in section
178-6, which directs the Building Inspector to
examine such plans and specifications and other
data and the premises upon which it is proposed
to erect the sign or other advertising structure, and
if it shall appear that the proposed structure is in
compliance with all the requirements of this
4
chapter and all other laws and ordinances of the
City of Bradford, he shall then issue the erection
permit.
Id. § 178-6. Although the original ordinance did not limit the
amount of time in which such decisions could be made, the
amended rule requires the Building Inspector to act within thirty
days of receiving the application. See id.
The ordinance also contains many provisions regulating
a sign’s appearance and placement. For example, there are size
limits that vary depending on location of the sign. There is no
size limit for ground signs, which are defined as “any sign
supported by uprights or braces placed upon the ground and not
attached to any building.” Id. § 178-2. Wall signs may be up to
500 square feet in area, roof signs 300 square feet, and
temporary signs 100 square feet. Id. §§ 178-24(B), 178-25(B),
178-27(A).
In addition, the ordinance requires that signs comply with
Bradford’s electrical code. Id. § 178-5. It also prohibits signs
that are unsafe, id. § 178-10, that obstruct doors, windows, or
fire escapes, id. § 178-17, or that pose a traffic hazard, id. § 178-
18. And it regulates the construction, placement, and erection
of different types of signs. Id. §§ 178-23 – 178-30.1 All
approved signs must “have painted in a conspicuous place
thereon, in letters not less than one inch in height, the date of
erection [and] the permit number.” Id. § 178-11. The ordinance
1
The Appellants view these requirements as content-
neutral and thus do not challenge them in this lawsuit.
5
characterizes permits as “mere licenses revocable at any time by
the Building Officer.” Id. § 178-9.
Finally, Chapter 178 provides a series of exemptions
from the permit, fee, and bond requirements. Id. § 178-15.
They include temporary signs, identification signs, signs related
to the activities being conducted on the property where they are
located, traffic and municipal signs, and noncommercial signs
placed on private property by the owner or occupant.2 Id. These
exemptions are the main focus of the Appellants’ constitutional
attack on the ordinance.
Each violation of Chapter 178 is punishable by a fine not
exceeding $300 and a prison sentence not exceeding ninety
days. Each day the sign is displayed constitutes a separate
violation. Id. § 178-34.
B. Chapter 125
The other ordinance challenged by the Appellants is
Chapter 125 of the Bradford Code, which delineates the City’s
historic districts and sets rules and procedures to “protect the
distinctive historical character of these districts.” Bradford, Pa.,
Code § 125-1 (2001). Specifically, the Appellants challenge the
2
These exemptions were also amended after the
Appellants filed this lawsuit. The net effect of the changes was
to eliminate an exemption for real estate and
architect/engineer/contractor signs and replace it with an
exemption for temporary signs up to twelve square feet in area
that can be displayed for up to sixty days.
6
constitutionality of section 125-15(E), which regulates signs and
awnings within historic districts.
When this case was filed, section 125-15(E) prohibited
all signs in the historic districts “except for advertising
informing the public of a service, business, occupation or
profession[] carried on, in or about the property on which such
sign or permanent external advertising is displayed.” Id. § 125-
15(E). Such signs could only be displayed after obtaining a
permit from the HARB. Id. The Board’s decisions were based
on whether the sign was in “conformity [with] exterior material
composition, exterior structural design, external appearance and
size with similar advertising or information media used in the
architectural period of the district.” Id.
On May 14, 2004, Bradford amended section 125-15(E)
in response to the filing of the Appellants’ lawsuit. Now,
“noncommercial” and “temporary” (those displayed less than
sixty days) signs smaller than twelve square feet are allowed
without a permit. Bradford, Pa., Code §§ 125-15(E)(3) & (E)(4)
(2004). Residents wishing to display noncommercial signs
larger than that must obtain a permit from the HARB. Id. § 125-
15(E)(2). All non-temporary commercial signs, regardless of
size, must have a permit. Id. § 125-15(E)(1).
The May 14 amendments also imposed time limits on the
permit application process. Section 125-10(D) requires the
HARB to issue a recommendation to the City Council on a
permit application “no later than 30 days after [its next]
meeting.” Id. § 125-10(D). The City Council must then act on
the application “at the council meeting immediately succeeding
7
the receipt of the recommendation from HARB.” Id. If the City
Council fails to act within this time period, the HARB
recommendation is “deemed approved by the council.” Id.
A subsequent amendment to Chapter 125, passed on
July 13, 2004, slightly altered the standards governing the
HARB’s decisions. It provided that the review must be “[i]n
accordance with the Resource Inventory of building
architectural styles of the Bradford Historic District.” Id. § 125-
15(E)(2). This Inventory lists buildings in the historic district by
address, and gives their architectural style, construction
material, roof type, building height, and construction date, as
well as a brief narrative description of the building. In addition
to consulting this Inventory, the HARB’s decision about
whether or not to issue a permit must be based on “conformity
in exterior material composition, exterior structural design,
external appearance and size of similar advertising or
information media used in the architectural period of the
district.” Id.
The penalties for violating section 125-15 were
untouched by the amendments. The first violation is punished
by a fine between $25 and $1000, and possible imprisonment for
up to ninety days. Id. § 125-18. The second violation carries a
minimum $100 penalty, and subsequent violations carry a
minimum $500 penalty, all with the same maximum fines and
prison sentence as the first violation. Id. Each day that a sign
is displayed after a violation notice is issued is considered a
separate offense. Id.
C. District Court Decision
8
On August 31, 2005, the District Court entered an order
denying the Appellants’ motion for summary judgment, and
granting the City’s motion. Riel v. City of Bradford, No. Civ. A.
04-90, 2005 WL 2106554, *1 (W.D. Pa. Aug. 31, 2005). The
Court determined that the challenged ordinances were not
content-based and thus not subject to strict scrutiny. Id. at *20.
It also believed that they were not overbroad because they did
not ban signs, but merely required permits. Id. at *9. Finally,
the District Court determined that the standards governing
permit approval were not unduly vague, and that the review
period was not too great because of the many factors City
officials had to consider. Id. at *23.
This appeal followed. The District Court had jurisdiction
pursuant to 28 U.S.C. §§ 1331 and 1343. We exercise
jurisdiction pursuant to 28 U.S.C. § 1291.
II.
A. Content Neutrality
As we explained in Rappa v. New Castle County, “[e]ver
since the Supreme Court invalidated an ordinance that
prohibited all picketing near a school except for peaceful labor
picketing on the basis that ‘the ordinance . . . describe[d]
impermissible picketing not in terms of time, place, and manner,
but in terms of subject matter,’ the first step in First Amendment
analysis has been to determine whether a statute is
content-neutral or content-based.” 18 F.3d at 1053 (quoting
Police Dep’t of Chi. v. Mosley, 408 U.S. 92, 99 (1972)). This
determination is vital because it dictates how we will analyze
9
the ordinance at issue. If the ordinance is content-based, “then
the [government] is required ‘to show that the regulation is
necessary to serve a compelling state interest and that it is
narrowly drawn to achieve that end.’” Id. (quoting Boos v.
Barry, 485 U.S. 312, 321 (1988)). If, on the other hand, we
determine that the statute is content-neutral in that it “merely
restricts the total quantity of speech by regulating the time, the
place or the manner in which one can speak, a very different test
applies.” Id. In such cases, “the government may impose
reasonable restrictions on the time, place, or manner of protected
speech, provided [1] the restrictions ‘are justified without
reference to the content of the regulated speech, [2] that they are
narrowly tailored to serve a significant governmental interest,
and [3] that they leave open ample alternative channels for
communication of the information.’” Ward v. Rock Against
Racism, 491 U.S. 781, 791 (1989) (quoting Clark v. Cmty. for
Creative Non-Violence, 468 U.S. 288, 293 (1984)).
Here, the parties disagree over which framework we
should use to analyze the exceptions embodied in the sign
ordinances, which the Appellants challenge as impermissibly
content-based.3 The Appellants argue that because some of the
exceptions distinguish between speech on the basis of its
3
Both parties in this case correctly recognize that, for the
purpose of our First Amendment analysis, there is no distinction
between a law that bans speech and one that burdens it, as do the
ordinances here by requiring a permit. See U.S. v. Playboy
Entm’t Group, Inc., 529 U.S. 803, 812 (2000) (“The
Government’s content-based burdens must satisfy the same
rigorous scrutiny as its content-based bans.”).
10
content, we should employ the strict scrutiny test for content-
based regulations. The City, on the other hand, contends that
under our decision in Rappa the proper framework is that of a
content-neutral time, place, and manner restriction.
This disagreement reflects the fact that determining
whether a statute is content-based or content-neutral has not
been entirely straightforward. On their face, Chapters 178 and
125 of the Bradford Code seem to distinguish between certain
speech on the basis of its content. Chapter 178, for example,
exempts from its permitting requirement signs that identify the
name and profession of an owner or occupant of a building,
signs that are cut into the masonry and contain identifying
information about the building or its date of construction, and
noncommercial signs not exceeding twelve square feet.
Bradford, Pa., Code § 178-15 (2004). As we explained in
Rappa, this law “indisputably distinguishes between, and allows
the posting of certain signs based on the subject matter the sign
conveys . . . . Under a literal understanding of ‘content-based,’
that fact makes the statute content-based.” 18 F.3d at 1054. But
we went on in Rappa to set forth a more nuanced understanding
of what makes a statute content-based for the purpose of First
Amendment analysis.
Rappa involved a First Amendment challenge to a set of
sign ordinances similar to the ones in the present case. It is
important not just because of this similarity, but because it is the
only case in which we have spoken on the issue since the
Supreme Court’s major ruling on point in Metromedia, Inc. v.
City of San Diego, 453 U.S. 490 (1981). In Rappa, a politician
who had lost his party’s primary for Delaware’s seat in the
11
House of Representatives brought suit challenging the statutes
and ordinances that had prevented him from advertising his
candidacy. Specifically, the challenge involved two provisions:
Subchapters I and II of Delaware Code Chapter 11. Subchapter
I prohibited all signs in the right-of-way and within twenty-five
feet of the right-of-way of any state highway. However, just as
with the permitting scheme in the instant case, this general
provision was limited by several exceptions. These exceptions
included “direction or warning signs and official signs or
notices,” “signs advertising the sale or lease of the real property
on which they are located,” “signs advertising activities
conducted on the real property” on which they are located,
“beautification/landscape planting sponsorship signs,” “danger
and precautionary signs that relate to the premises,” and “signs
announcing a town, village, or city and advertising itself or its
local industries.” Id. at 1051-52. Subchapter II was Delaware’s
response to the federal Highway Beautification Act and applied
to advertising within 660 feet of a right-of-way. Like
Subchapter I, it contained a general prohibition on outdoor
advertising in the regulated area along with a series of
exceptions. Among other things, it excepted “direction and
other official signs and notices,” “signs, displays and devices
advertising the sale or lease of the real property on which they
are located,” and “signs, displays and devices advertising
activities conducted on the real property upon which they are
located.” Id. at 1052-53.
In reviewing the constitutionality of Delaware’s statutory
scheme, we first turned to the Supreme Court’s splintered
decision in Metromedia. There, the Court addressed an
ordinance that generally prohibited “outdoor advertising display
12
signs,” but provided exceptions for on-site signs and signs
falling within twelve specified categories, including those
identifying the premises and those advertising goods or services
provided on the premises. 453 U.S. at 493 (plurality opinion).
Justice White delivered the opinion for a plurality of four
justices. He analyzed the constitutionality of the ordinance
through the lens of its exceptions. First, the plurality held that
the exception for on-site commercial speech coupled with a
general ban on commercial advertising was not constitutionally
suspect because commercial speech enjoys less protection than
noncommercial speech. Id. at 503-12. However, it went on to
invalidate the ordinance because it afforded more protection to
commercial speech than to noncommercial speech in other
ways, such as its allowance for on-site commercial advertising,
but not for the posting of on-site noncommercial messages. Id.
at 512-17.
Writing for himself and Justice Blackmun, Justice
Brennan concurred in the judgment. Unlike the plurality, he
viewed the ordinance as essentially eliminating the billboard as
an effective medium of communication for many types of
noncommercial messages. Id. at 525-26 (Brennan, J.,
concurring in the judgment). Consequently, he would have
employed “the tests [the Supreme] Court has developed to
analyze content-neutral prohibitions of particular media of
communication.” Id. at 526-27. Under those tests, he would
have struck down the ordinance because the city “failed to
provide adequate justification for its substantial restriction on
protected activity.” Id. at 528.
13
Because of this split result with very different reasoning,
we were unable to glean any governing standard from
Metromedia: “Simply stated, the plurality and the concurrence
[in Metromedia] took such markedly different approaches to the
San Diego ordinance that there is no common denominator
between them.” Rappa, 18 F.3d at 1058. Instead, we proposed
a “new test” for sorting content-neutral and content-based
restrictions on speech in situations like the one we now face. Id.
at 1062. As we explained:
The Metromedia concurrence . . . is correct that
when government has a significant interest in
limiting speech that is unrelated to the content of
that speech, government should not be left with a
choice of enacting a regulation banning all signs
in a particular geographic area or none. Some
signs are more important than others not because
of a determination that they are generally more
important than other signs, but because they are
more related to the particular location than are
other signs. Allowing such “context-sensitive”
signs while banning others is not discriminating in
favor of the content of these signs; rather, it is
accommodating the special nature of such signs
so that the messages they contain have an equal
chance to be communicated.
Id. at 1064. On this reasoning, we announced the following test:
[W]hen there is a significant relationship between
the content of particular speech and a specific
14
location or its use, the state can exempt from a
general ban speech having that content so long as
the state did not make the distinction in an attempt
to censor certain viewpoints or to control what
issues are appropriate for public debate and so
long as the exception also survives the test
proposed by the Metromedia concurrence: i.e. the
state must show that the exception is substantially
related to advancing an important state interest
that is at least as important as the interests
advanced by the underlying regulation, that the
exception is no broader than necessary to advance
the special goal, and that the exception is
narrowly drawn so as to impinge as little as
possible on the overall goal.
Id. at 1065 (internal footnotes omitted). We further explained
that “[t]he requirement that a sign be significantly related to the
property can be met in either of two ways. First, the state can
show that a sign is particularly important to travellers on the
nearby road – for example, a directional sign, or a sign
conveying the nearest location of food. Second, the state can
show that a sign better conveys its information in its particular
location than it could anywhere else – for example, an address
sign . . . .” Id.
Applying this test, we found that most of the exceptions
in the laws at issue in Rappa were constitutional, although we
concluded that the statute must be struck down as facially
unconstitutional based on our refusal to sever the provisions we
did find to violate the First Amendment. The particular holdings
15
are discussed below in relation to the specific exceptions in the
ordinances at issue here. But we note at the outset that the
important aspect of this holding is that exceptions like the ones
at issue in the instant case were not analyzed as content-based
restrictions under a strict scrutiny framework even though they
appeared to distinguish between certain types of speech based
on its content. Rather, we employed a more flexible, context-
specific approach.
B. Rappa’s Reach
The Appellants forcefully argue that the context-specific
view we adopted in Rappa only applies to ordinances regulating
signs on public property. They support this argument in two
ways. First, they discuss the four primary Supreme Court “sign”
cases and attempt to create a split between those involving bans
on private and public property. Second, they contend that
Rappa’s reasoning applies only to ordinances regulating public
property.
Turning to the Supreme Court cases on point, the
Appellants first address City of Ladue v. Gilleo, 512 U.S. 43
(1994), in which the Supreme Court struck down as overbroad
“Ladue’s near-total prohibition of residential signs.” Id. at 53.
While this was a prohibition that applied to residential signs and
was struck down, it was not analyzed under a content-based
framework, as the Appellants would like us to do here. Rather,
the Gilleo Court explicitly elected to “assume, arguendo, the
validity of the City’s submission that the various exemptions are
free of impermissible content or viewpoint discrimination.” Id.
at 53. In other words, the Supreme Court in Gilleo did not find,
16
as the Appellants urge us to do here, that the regulation was
impermissibly content-based because it applied to private
property. Rather, viewing it under a content-neutral framework,
the Court found that it swept in too much protected speech, such
as the war protest sign at issue. The only discussion of the
public-private property distinction was in balancing the interests
– a step that comes after determining under which framework
the statute will be viewed.4
Similarly, the Appellants urge us to find support for their
view in Linmark Associates, Inc. v. Township of Willingboro,
431 U.S. 85 (1977), which they describe simply as a case
refusing to allow commercial speech to be banned on private
property. There, the Supreme Court struck down a municipal
ordinance banning real estate signs, which the Township had
enacted to promote “stable, racially integrated housing.” Id. at
94. In doing so, the Court did not apply a different framework
because the ordinance applied to private property. Rather, the
Supreme Court analyzed the law under the general framework
applicable to commercial speech and simply found “that
respondents failed to establish that this ordinance is needed to
assure that Willingboro remains an integrated community.” Id.
at 95. Thus, we do not read Linmark as suggesting that a
4
For example, in Gilleo, the Court discussed the
importance of residential signs when considering whether there
was any adequate substitute for the prohibited communication,
not in determining the applicable framework. Specifically, the
Court noted that “[r]esidential signs are an unusually cheap and
convenient form of communication” that “may have no practical
substitute.” 512 U.S. at 57.
17
different framework is required when considering the
constitutionality of an ordinance that applies to private, rather
than public, property.
Next, the Appellants turn to Members of the City Council
of the City of Los Angeles v. Taxpayers for Vincent, 466 U.S.
789 (1984), where the Supreme Court upheld a content-neutral
ordinance that banned the posting of all signs on public
property. Id. at 817. Like Gilleo and Linmark, the Court in
Vincent touched on the distinction between ordinances that
apply only to public property and those that reach private
property as well. But also like those cases, this discussion was
not in relation to selecting a framework. Rather, it was in
applying the chosen framework. Specifically, in discussing the
tailoring of the ordinance at issue, the Vincent Court observed
that “the validity of the esthetic interest in the elimination of
signs on public property is not compromised by failing to extend
the ban to private property. The private citizen’s interest in
controlling the use of his own property justifies the disparate
treatment.” Id. at 811.
Finally, the Appellants look to Metromedia, the final of
the four Supreme Court cases on point, and to our analysis in
Rappa to support their public-private distinction. The
immediately troubling aspect of this argument is that neither the
scheme in Metromedia nor the scheme in Rappa applied
exclusively to public or private property. Both, for example,
contained exceptions for signs advertising the goods or services
offered on the property where the sign is displayed. Rappa, 18
F.3d at 1051; Metromedia, 453 U.S. at 510-11. Certainly this is
not referring to public property. Indeed, we specifically noted
18
in Rappa that “the statutes regulate a private party’s speech on
his or her own property.” 18 F.3d at 1071. In addition, nowhere
in our discussion of the context-specific framework laid out in
Rappa do we mention any distinction between public and
private property. As in all of the discussed cases, any mention
of the special nature of private property comes when weighing
the interests at stake, not when selecting an analytical
framework.
In sum, while several of these cases may mention the
important interests at stake when regulating signs on private
property, none of them suggest that regulations that apply to
private versus public property should be subjected to a different
standard. To the extent that the issue of private property came
into play, it was during the balancing of interests. Thus, there
is no basis for limiting Rappa’s context-specific framework to
ordinances regulating signs on public property, and we will
apply our rule from that case where it is relevant here.
C. Application of Law to Bradford Ordinances
Having established the relevant precedent, we turn to the
provisions that the Appellants challenge as impermissibly
content-based. They claim that the exceptions embodied in
sections 178-15 and 125-15(E) are invalid under the First
Amendment because they distinguish between speech on the
basis of its content. Section 178-15 instructs that the following
signs are not required to comply with the permitting rules found
in Chapter 178:
19
A. Temporary signs not exceeding twelve
(12) square feet, provided each such sign
is removed within sixty (60) days of its
erection.
B. Identification signs not exceeding three (3)
square feet denoting only the name and
profession of an owner or occupant.
C. Signs painted on the exterior surface of a
building structure.
D. Bulletin boards not exceeding eight (8)
square feet in area advertising or
informing of a service, business,
occupation or profession carried on, in or
about the property in which such bulletin
board is displayed.
E. Signs cut into any masonry surface or []
construct[ed] of bronze or other
incombustible materials denoting the name
or other identifying information
concerning a building or its date of
construction.
F. Traffic or other municipal signs, legal
notices, railroad crossing signs, danger and
such emergency or nonadvertising signs as
may be approved by City Council.
20
G. Noncommercial signs not exceeding
twelve (12) square feet in area placed upon
private property by the owner or occupant
of said property.
Bradford, Pa., Code § 178-15 (2004).
Similarly, section 125-15(E) contains the following
exceptions from the general requirements of Chapter 125:
(1) No commercial sign or permanent external
advertising display of any kind shall be
erected, altered or used in the historic
district except for advertising informing
the public of a service, business,
occupation or profession carried on, in or
about the property on which such sign or
permanent external advertising is
displayed.
....
(3) Noncommercial signs not exceeding
twelve (12) square feet in area placed upon
private property by the owner or occupant
of said property are exempt from the
permitting requirement of this ordinance.
(4) Temporary signs not exceeding twelve
(12) square feet are exempt from the
permitting requirement of this ordinance,
21
provided that each such sign is removed
within sixty (60) days of its erection.
Id. § 125-15(E).
As an initial matter, several of these challenged
provisions are either nearly identical to provisions we found
permissible in Rappa or clearly permissible under the rule we
laid out in that case. Under that rule, “when there is a
significant relationship between the content of particular speech
and a specific location, the state can exempt speech having that
content from a general ban so long as the exemption is
substantially related to serving an interest that is at least as
important as that served by the ban,” “the exception is no
broader than necessary to advance the special goal, and . . . the
exception is narrowly drawn so as to impinge as little as possible
on the overall goal.”5 Rappa, 18 F.3d at 1065-66.
Section 178-15(F) exempts “[t]raffic or other municipal
signs, legal notices, railroad crossing signs, danger and such
emergency or nonadvertising signs as may be approved by City
5
As noted above, we also emphasized in Rappa that it
must also be clear that “the state did not make the distinction in
an attempt to censor certain viewpoints or to control what issues
are appropriate for public debate.” Rappa, 18 F.3d at 1065. The
Appellants do not argue that this component of the test is
implicated here.
22
Council.”6 Bradford, Pa., Code § 178-15(F) (2004). This
6
Although this issue was not directly raised by the
Appellants, we note that the portion of this provision that
exempts “such emergency or nonadvertising signs as may be
approved by City Council,” if interpreted without context, may
be unconstitutionally vague. “A government regulation that
allows arbitrary application is ‘inherently inconsistent with a
valid time, place, and manner regulation because such discretion
has the potential for becoming a means of suppressing a
particular point of view.’” Forsyth County, Ga. v. Nationalist
Movement, 505 U.S. 123, 130-31 (1992) (quoting Heffron v.
Intl. Soc’y for Krishna Consciousness, Inc., 452 U.S. 640, 649
(1981)). However, as we noted in Stretton v. Disciplinary
Board of Supreme Court of Pennsylvania, 944 F.2d 137 (3d Cir.
1991), “[t]he elementary rule is that every reasonable
construction must be resorted to, in order to save a statute from
unconstitutionality.” Id. at 144 (quoting Edward J. DeBartolo
Corp. v. Fla. Gulf Coast Bldg. & Constr. Trades Council, 485
U.S. 568, 575 (1988) (quoting Hooper v. California, 155 U.S.
648, 657 (1895))) (internal quotation marks omitted). Here, we
observe that section 178-15(F) is readily susceptible to a
construction that limits “such emergency or nonadvertising signs
as may be approved by the City Council” in light of the section
as a whole, which exempts “[t]raffic or other municipal signs,
legal notices, railroad crossing signs, [and] danger” signs. See
Bradford, Pa., Code § 178-15(F) (2004). That is, we read that
section as not endowing the City Council with standardless
discretion to exempt any sign it wishes from the regulations
embodied in Chapter 178. Rather, we interpret the language at
issue as applying only to those signs that are necessary for the
23
provision is strikingly similar to one we approved in Rappa.
There, the Delaware provision excepted “[d]irectional or
warning signs and official signs or notices, danger and
precautionary signs that relate to the premises, and signs or
notices of a railroad, other transportation, or communication
company that are necessary for direction, information or safety
of the public.” 18 F.3d at 1066 (internal citations omitted). In
that case, we determined that these exceptions were “all [for]
regulatory signs directly related to the functioning of the roads
and property on which they are located.”7 Id. In addition,
“these exceptions certainly survive the intermediate scrutiny
component of the test adopted [in Rappa] – the state’s interest
in these signs is greater than the state’s aesthetic and safety
interest in banning these signs, and the exemption is narrowly
tailored to serve the state interest.” Id. Section 178-15(F)
therefore survives constitutional scrutiny for these same reasons.
direction, information, or safety of the public. See Rappa, 18
F.3d at 1066. This provision is also subject to the limitation
discussed infra in footnote 7.
7
In Rappa, however, we noted that “[t]o be constitutional,
the exception for official signs and notices must be interpreted
as limited to signs relating to the property on which they stand,
such as directional signs.” 18 F.3d at 1066 n.41. The District
Court in this case similarly interpreted the language “as limiting
the exemption to signs relating to the property on which they
stand, such as ‘no trespassing’ signs, ‘DUI enforcement zone’
signs, or the like.” Riel, 2005 WL 2106554, at *12 n.13. We
continue here to emphasize such a limitation.
24
Similarly, sections 125-15(E)(1) and 178-15(D) are
functionally equivalent to a provision we found constitutionally
permissible in Rappa. Section 125-15(E)(1) provides an
exemption from the permitting scheme for “advertising
informing the public of a service, business, occupation or
profession carried on, in or about the property on which such
sign or permanent external advertising is displayed.” Bradford,
Pa., Code § 125-15(E)(1) (2004). Section 178-15(D) exempts
“[b]ulletin boards not exceeding eight (8) square feet in area
advertising or informing of a service, business, occupation or
profession carried on, in or about the property in which such
bulletin board is displayed.” Id. § 178-15(D). In considering a
similar provision in Rappa that allowed signs “advertising
activities conducted on the premises,” we noted that such a
provision “is not a content-based exception at all . . . ; it merely
establishes the appropriate relationship between the location and
the use of an outdoor sign to convey a particular message.” 18
F.3d at 1067. In addition, we are not concerned that these
provisions violate the Supreme Court’s holding in Metromedia,
which struck down an ordinance that preferred commercial
speech over noncommercial speech. See 453 U.S. at 512-17
(plurality opinion). Sections 125-15(E)(3) and 178-15(G)
exempt all noncommercial signs that do not exceed twelve
square feet that are placed on private property by the owner or
occupant. See Bradford, Pa., Code §§ 125-15(E)(3) & 178-
15(G) (2004). Thus, aside from the size restriction, which the
Appellants do not contend is unreasonable, there is no
commercial speech that is allowed where similar noncommercial
speech is not. Thus, sections 125-15(E)(1) and 178-15(D)
cannot be viewed as creating impermissible content-based
distinctions.
25
The next provision that directly implicates Rappa is
section 178-15(B), which exempts “[i]dentification signs not
exceeding three (3) square feet denoting only the name and
profession of an owner or occupant.” Id. § 178-15(B).
Although this appears on its face to distinguish between speech
on the basis of its content, this is a classic application of
Rappa’s context-specific rule. As we emphasized in Rappa, the
state may exempt from a general prohibition certain types of
signs when it “can show that a sign better conveys its
information in its particular location than it could anywhere else
– for example, an address sign performs its function better when
it is actually on the property with that address than if it is
anywhere else.” 18 F.3d at 1065. Like an address sign, a sign
denoting the name and profession of a building’s owner or
occupant better conveys its information in that location than it
could anywhere else. As such, Rappa “allow[s] the state to
constitutionally exempt from a time, place, and manner
restriction signs for which there may be alternative channels of
communication, but for which the alternatives are inferior
because of the context specific nature of the signs.” Id. at 1065
n.36. In addition, this provision passes the intermediate scrutiny
portion of the Rappa test. As the District Court noted, “this
exemption serves important civic interests in promoting order
and apprising the public as to where particular professional
services may be obtained. Such information is best conveyed on
the property where the services are rendered.” Riel, 2005 WL
2106554, at *13. Because of the size limit, it is narrowly
tailored to meet this need without compromising the goals of
safety and aesthetics. Thus, section 178-15(B) is not
impermissibly content-based under Rappa.
26
A similar analysis applies to section 178-15(E), which
exempts “[s]igns cut into any masonry surface or []
construct[ed] of bronze or other incombustible materials
denoting the name or other identifying information concerning
a building or its date of construction.” Bradford, Pa., Code
§ 178-15(E) (2004). It is the last part of this exception, which
defines the excepted speech in terms of the information
conveyed on the sign, that raises questions as it is the only
arguably content-based element of the provision. Again,
however, this is precisely the type of context-specific exception
that we allowed in Rappa. Like section 178-15(B), such a sign
“better conveys its information in its particular location than it
could anywhere else,” and the “exemption is substantially
related to serving an interest that is at least as important as that
served by the ban.” Rappa, 18 F.3d at 1065-66. Such signs
promote public order by providing information about the
buildings and inform the public about historically significant
details. In addition, the size and composition restrictions
narrowly tailor this exception without compromising the overall
goals of the scheme. As such, we find that section 178-15(E) is
permissible under Rappa.
Next, there are several provisions of the ordinances that
the parties agree are facially content-neutral. Sections 125-
15(E)(4) and 178-15(A) both exempt “[t]emporary signs not
exceeding twelve (12) square feet, provided each such sign is
removed within sixty (60) days of its erection.” Bradford, Pa.,
Code §§ 125-15(E)(4) & 178-15(A) (2004). Because such an
exemption is not even arguably based on the content of the
speech, it is subject to the general test for time, place, and
manner restrictions. See Rappa, 18 F.3d at 1053. That is, such
27
restrictions are valid “provided [1] the restrictions ‘are justified
without reference to the content of the regulated speech, [2] that
they are narrowly tailored to serve a significant governmental
interest, and [3] that they leave open ample alternative channels
for communication of the information.’” Ward, 491 U.S. at 791
(quoting Clark, 468 U.S. at 293).
Here, the restriction is justified without reference to the
content of speech. The sign must simply be temporary; it does
not matter what it says. The government interests asserted to
justify the regulation are aesthetics and public safety. In Gilleo,
the Supreme Court emphasized that “[w]hile signs are a form of
expression protected by the Free Speech Clause, they pose
distinctive problems that are subject to municipalities’ police
powers. Unlike oral speech, signs take up space and may
obstruct views, distract motorists, displace alternative uses for
land, and pose other problems that legitimately call for
regulation.” 512 U.S. at 48. Further, the Supreme Court has
recognized that the goals of “traffic safety and the appearance of
the city[] are substantial governmental goals.” Metromedia, 453
U.S. at 507-08 (plurality opinion); see also Vincent, 466 U.S. at
805 (“It is well settled that the state may legitimately exercise its
police powers to advance esthetic values.”). The interest is even
stronger in an historic district. See Vincent, 466 U.S. at 805.
Finally, there are ample alternative channels of communication
for signs that do not fall within this exception. A resident or
business owner may simply apply for a permit to display the
sign longer, or may attempt to fall within one of the other
exceptions in the ordinances. Thus, sections 125-15(E)(4) and
178-15(A) are valid time, place, and manner restrictions.
28
Similarly, the Appellants do not challenge the fact that
section 178-15(C) is a content-neutral time, place, and manner
restriction. It exempts from the permitting scheme “[s]igns
painted on the exterior surface of a building structure.”
Bradford, Pa., Code § 178-15(C) (2004). As such, the same
analysis that applied to sections 125-15(E)(4) and 178-15(A)
applies here. See Ward, 491 U.S. at 791. The provision does
not relate to the content of the regulated speech. In addition, it
is narrowly tailored to meet the asserted goal of safety: such
signs are rightfully exempted from the general permitting
scheme because they carry a greatly reduced chance of harming
a pedestrian – they are literally attached to the building. Finally,
just as with section 178-15(A), there are ample alternative
channels of communication for those whose signs do not fall
within this provision. Thus, we conclude that section 178-15(C)
is a valid time, place, and manner regulation under the First
Amendment.
Finally, there are two challenged provisions that
distinguish between speech based on its content to the extent
that they distinguish between commercial and noncommercial
speech. Sections 125-15(E)(3) and 178-15(G) exempt from the
general permitting scheme “[n]oncommercial signs not
exceeding twelve (12) square feet in area placed upon private
property by the owner or occupant of said property.”8 Bradford,
8
While we are discussing these provisions, it is worth
pausing to note their impact on another argument that runs
throughout this case. The Appellants repeatedly argue that we
should strike down the ordinances here under the Supreme
Court’s Gilleo decision, which they contend is more applicable
29
Pa., Code §§ 125-15(E)(3) & 178-15(G) (2004). When viewed
in conjunction with sections 125-15(E)(1) and 178-15(D), which
allow the advertising of on-site goods and services, the effect of
these provisions is to draw a distinction between commercial
and noncommercial speech. That is, signs regarding off-site
commercial activities are burdened whereas those regarding off-
site noncommercial activities are not. Because this is properly
viewed as a burden on commercial speech, the Supreme Court’s
jurisprudence on that subject is the appropriate framework under
which to consider the constitutional validity of these provisions.
The Supreme Court has repeatedly emphasized that
“‘[c]ommercial speech [enjoys] a limited measure of protection,
commensurate with its subordinate position in the scale of First
Amendment values,’ and is subject to ‘modes of regulation that
might be impermissible in the realm of noncommercial
expression.’” Fla. Bar v. Went for It, Inc., 515 U.S. 618, 623
(1995) (quoting Bd. of Trustees of State Univ. of N.Y. v. Fox,
492 U.S. 469, 477 (1989)). The prevailing framework under
which restrictions on commercial speech are considered was laid
to the case before us than Rappa because it involved private
property. However, the Supreme Court’s decision to strike
down the ordinance at issue in Gilleo was premised on the fact
that it was “a near-total prohibition of residential signs” that did
not allow homeowners to post political signs on their own
property. See 512 U.S. at 45, 53. Here, the exceptions
embodied in sections 125-15(E)(3) and 178-15(G), which allow
a resident to freely place noncommercial signs on his or her
property, remove any concern that the ordinances at issue here
violate Gilleo for the reasons claimed by the Appellants.
30
down in Central Hudson Gas & Electric Corp. v. Public Service
Commission of New York, 447 U.S. 557 (1980). There, the
Supreme Court explained the framework as follows:
At the outset, we must determine whether the
expression is protected by the First Amendment.
For commercial speech to come within that
provision, it at least must concern lawful activity
and not be misleading. Next, we ask whether the
asserted governmental interest is substantial. If
both inquiries yield positive answers, we must
determine whether the regulation directly
advances the governmental interest asserted, and
whether it is not more extensive than is necessary
to serve that interest.
Id. at 566.
Applying this test to the provisions at issue here, the first
prong is satisfied in that at least some of the off-site commercial
advertising would concern lawful activity and not be misleading.
Under the second prong, as previously discussed, the
governmental interests here in aesthetics and safety are
substantial. See Metromedia, 453 U.S. at 507-08 (plurality
opinion) (“[T]raffic safety and the appearance of the city [] are
substantial governmental goals.”).
As to the third Central Hudson prong, the Appellants
attempt to rely on the Supreme Court’s decision in City of
Cincinnati v. Discovery Network, Inc., 507 U.S. 410 (1993).
There, the Court struck down an ordinance that prohibited
31
commercial news racks on public property but allowed
noncommercial news racks. It based its result on a finding that
the ordinance did not satisfy this third prong because only a
“paltry” 62 of the 1,500 ! 2,000 news racks within the city were
commercial and thus subject to the regulation. Id. at 417-18. As
such, the Court questioned the “‘fit’ between the city’s goal [of
dealing with the eyesore of news racks] and its method of
achieving it” that left 96% of the news racks in place. Id. at 418.
There is not a similar fit problem in the instant case. As the City
has explained, “the vast majority of signs within the City and the
Historic District are commercial signs, and such signs tend to be
erected for longer periods of time and tend to be larger and more
elaborate in design.” Thus, regulating those signs directly
advances the interests asserted by the City, and the provisions do
not fall because of the holding in Discovery Network. See, e.g.,
Globe Newspaper Co. v. Beacon Hill Architectural Comm’n,
100 F.3d 175, 190 (1st Cir. 1996) (upholding a regulation
prohibiting commercial news racks in an historic Boston
neighborhood because the benefit was not “minute” and “paltry”
as it was in Discovery Network); Infinity Outdoor, Inc. v. City of
New York, 165 F. Supp. 2d 403, 420 (E.D.N.Y. 2001) (holding
that a billboard regulation that distinguished between off-site
commercial signs and off-site noncommercial signs did not fall
under Discovery Network because the regulation had “more than
a minimal impact on the overall number of billboards”).
As to the fourth prong of the Central Hudson test, we
conclude that the burden on commercial signs is not more
extensive than necessary. The provisions in sections 125-15(E)
and 178-15 allow both temporary signs and on-site commercial
signs without a permit. The only type of commercial signs
32
burdened by the ordinances are those the City claims are most
likely to implicate the issues of safety, aesthetics, and historic
preservation. Thus, all that the City has burdened is the
category of signs that has enjoyed the least amount of First
Amendment protection: off-site commercial signs. See
Metromedia, 453 U.S. at 512 (plurality opinion); Rappa, 18 F.3d
at 1067.
Based on the foregoing analysis, we conclude that none
of the challenged provisions of Chapters 125 or 178 constitute
an impermissible content-based regulation under the First
Amendment. As we emphasized in Rappa, “when government
has a significant interest in limiting speech that is unrelated to
the content of that speech, government should not be left with a
choice of enacting a regulation banning [or burdening] all signs
in a particular geographic area or none.” 18 F.3d at 1064. The
City of Bradford has concluded that “[s]ome signs are more
important than others not because of a determination that they
are generally more important than other signs, but because they
are more related to the particular location than are other signs.”
Id. Because we conclude that the City has complied with the
First Amendment in making these determinations, the District
Court did not err by refusing to strike down the ordinances
because of their seemingly content-based distinctions.
III.
The Appellants next argue that, even if the Bradford
ordinances are content-neutral, they violate the First
Amendment because they are overbroad. The Supreme Court
has explained that legislation can be invalid under this theory if
33
“it sweeps protected activity within its proscription.” Thornhill
v. Alabama, 310 U.S. 88, 97 (1940). Specifically, the
Appellants here argue that the permitting system is overbroad
because it regulates expression on private property, rather than
just on public property.
As an initial observation, we implicitly determined that
this alone did not violate the First Amendment in Rappa when
we approved sections of a sign ordinance that applied to private
property. See 18 F.3d at 1071 (noting that “the statutes regulate
a private party’s speech on his or her own property” after
concluding that several of the statutes’ provisions were
permissible under the First Amendment). However, the
Appellants argue that Gilleo, which was decided by the Supreme
Court after Rappa, should change our view. But Gilleo did not
find that all restrictions that applied to private property were
invalid. Rather, it struck down a particular ordinance because
it constituted a “near-total prohibition of residential signs.” 512
U.S. at 53. The ordinances at issue here do not begin to
approach that level: they explicitly and clearly allow all
temporary signs and noncommercial signs smaller than twelve
square feet.
Notwithstanding these observations, the Appellants
attempt to rely on Watchtower Bible and Tract Society of New
York, Inc. v. Village of Stratton, 536 U.S. 150 (2002). There,
the Supreme Court struck down a law requiring a permit for
door-to-door canvassing in order to “protect[] [the city’s]
residents from fraud and undue annoyance” and “criminals
posing as canvassers.” Id. at 159. The Appellants argue that
Watchtower supports their view of regulations applying to
34
private property. But the decision in Watchtower was not based
on whether the law applied to public or private property.
Rather, the Supreme Court struck down the ordinance because,
although the governmental interests involved were important,
the ordinance was not likely to advance those interests. As the
Court explained, “it seems unlikely that the absence of a permit
would preclude criminals from knocking on doors and engaging
in conversations not covered by the ordinance.” Id. at 169. In
addition, in the process of attempting to deal with the harm of
criminal canvassers, the ordinance swept within its ambit a great
deal of ordinary and harmless speech, such as conversations
between neighbors. Id. at 165-66. In sum, Watchtower was a
very fact-specific decision that simply does not stand for the
broad proposition the Appellants urge. In the case before us, the
extensive exemptions allow the City to specifically target the
speech it wishes to regulate, while leaving private property
owners free to engage in activity at the core of the First
Amendment. Thus, the District Court did not err by failing to
strike down the ordinances on overbreadth grounds.9
IV.
9
The Appellants mention in passing a concern that the
Bradford ordinances could chill protected speech, even where
such speech is not actually burdened under the provisions.
Although the chilling effect of such ordinances is a valid
concern under the First Amendment, it does not appear to be a
problem here given the clear exceptions for temporary and
noncommercial signs.
35
The Appellants next argue that Chapter 125’s permit
standards endow government officials with too much discretion,
rendering the ordinance unconstitutionally vague. Even for
facially content-neutral provisions, the Supreme Court has
recognized that “[a] government regulation that allows arbitrary
application is ‘inherently inconsistent with a valid time, place,
and manner regulation because such discretion has the potential
for becoming a means of suppressing a particular point of
view.’” Forsyth County, Ga. v. Nationalist Movement, 505 U.S.
123, 130-31 (1992) (quoting Heffron v. Intl. Soc’y for Krishna
Consciousness, Inc., 452 U.S. 640, 649 (1981)). “To curtail that
risk, ‘a law subjecting the exercise of First Amendment
freedoms to the prior restraint of a license’ must contain
‘narrow, objective, and definite standards to guide the licensing
authority.’” Id. at 131 (quoting Shuttlesworth v. City of
Birmingham, Ala., 394 U.S. 147, 150-151 (1969)).
In Shuttlesworth, the Supreme Court invalidated a parade
permitting scheme that contained the following standard:
The commission shall grant a written permit for
such parade, procession or other public
demonstration, prescribing the streets or other
public ways which may be used therefor, unless in
its judgment the public welfare, peace, safety,
health, decency, good order, morals or
convenience require that it be refused.
394 U.S. at 149-50. As the Court explained, “[t]here can be no
doubt that the Birmingham ordinance, as it was written,
conferred upon the City Commission virtually unbridled and
36
absolute power to prohibit any ‘parade,’ ‘procession,’ or
‘demonstration’ on the city’s streets or public ways. For in
deciding whether or not to withhold a permit, the members of
the Commission were to be guided only by their own ideas of
‘public welfare, peace, safety, health, decency, good order,
morals or convenience.’” Id. at 150.
The standard in the instant case is very different. Under
Chapter 125, the HARB is charged in the following manner:
Except as provided in subsections (3) and (4) of
this Ordinance [which exempt noncommercial
signs not exceeding twelve square feet placed on
private property and temporary signs not
exceeding twelve square feet, respectively], no
sign or display of any kind or for any purpose
shall be erected or altered, notwithstanding zoning
sign approval, until an application for permit to
make such erection or alteration has been
reviewed by HARB for conformity in exterior
material composition, exterior structural design,
external appearance and size of similar
advertising or information media used in the
architectural period of the district in accordance
with the Resource Inventory of building
architectural styles of the Bradford Historic
District (which is available in the Office of the
City Clerk), and a permit granted thereon.
Bradford, Pa., Code § 125-15(E)(2) (2004) (emphasis added).
Thus, far from enjoying unbridled discretion, the HARB is
37
limited in its review to considering exterior material
composition, exterior structural design, and the appearance and
size of similar media used in the architectural period. To aid in
this undertaking, sections 125-15(E)(5), (E)(6), and (E)(7)
incorporate an Historic Color Chart and establish objective
material, border, and typeface standards. Furthermore, the fact
that the HARB is comprised of nine individuals, including at
least one real estate broker, one architect, the City Inspector, and
other individuals knowledgeable about historic preservation,
guards against applicants being subjected to the whim or caprice
of one single official.
Certainly, the Appellants are correct that the HARB is
left with some room for subjective judgment, which can be
dangerous to First Amendment interests. But the First
Amendment does not require the complete absence of such
judgment. In G.K. Ltd. Travel v. City of Lake Oswego, 436 F.3d
1064 (9th Cir. 2006), for instance, the United States Court of
Appeals for the Ninth Circuit considered the constitutionality of
a sign permit ordinance that allowed the City of Oswego to take
into account, among other criteria, whether or not a sign is
“compatible with the surrounding environment.” Id. at 1083.
The court concluded that the ordinance did not leave city
officials with an impermissible level of discretion, explaining
that “[a]lthough the design review criteria are somewhat elastic
and require reasonable discretion to be exercised by the
permitting authority, this alone does not make the Sign Code an
unconstitutional prior restraint.” Id. at 1084 (citing Ward, 491
U.S. at 794 (“While these standards are undoubtedly flexible,
and the officials implementing them will exercise considerable
discretion, perfect clarity and precise guidance have never been
38
required even of regulations that restrict expressive activity.”)).
Thus, we conclude that the discretion embodied in Chapter 125
is not constitutionally impermissible.
V.
Finally, the Appellants argue that the Bradford
ordinances fail to require sufficiently prompt decisions on
permit applications. As the Supreme Court has emphasized, “[a]
scheme that fails to set reasonable time limits on the decision
maker creates the risk of indefinitely suppressing permissible
speech.” FW/PBS, Inc. v. City of Dallas, 493 U.S. 215, 227
(1990). However, the concern has generally been with
prolonged or indefinite time periods. In FW/PBS, for instance,
the Supreme Court explained that “[w]here a licensor has
unlimited time within which to issue a license, the risk of
arbitrary suppression is as great as the provision of unbridled
discretion.” Id.
Here, under Chapter 178 the Building Inspector must act
on “any application within 30 days of receipt thereof.”
Bradford, Pa., Code § 178-6 (2004). Under Chapter 125, the
HARB must issue a recommendation to the City Council on a
permit application “no later than 30 days after [the next of their
monthly] meeting[s].” Id. § 125-10(D). The City Council must
then act on the application “at the council meeting immediately
succeeding the receipt of the recommendation from HARB.” Id.
If the Council fails to act in that time period, the HARB’s
recommendation is deemed adopted. Id.
39
In light of the detailed factors the review boards must
take into account and the alternative avenues for protected
expression – that is, the exemptions for temporary and
noncommercial signs – these time periods do not rise to the level
of those that offend the First Amendment.
VI.
For the foregoing reasons, we will affirm the ruling of the
District Court.
40