Texas City’s Banner Sign Limitation Found Content Based, But Survives First Amendment Challenge

By: Brian J. Connolly, Shareholder, Otten Johnson Robinson Neff + Ragonetti, P.C.

This article is reprinted with permission. The original appeared on Rocky Mountain Sign Law, www.rockymountainsignlaw.com.

It is a rare free speech case where a court finds a regulation content based, but still upholds the regulation. That very scenario played out in a federal district court in Texas, when it upheld the City of Shavano Park’s sign regulation prohibiting certain banner signs.

Shavano Park, a suburb of San Antonio, has a sign code that controls the placement of signs on private property. The code allows one temporary sign per residential lot, with some additional allowances when properties are for sale or during election seasons. The code also allows the placement of banner signs in residential zoning districts, with some limitations. These limitations include that such signs may be erected by a homeowners’ association, they may be placed at entrances to residential neighborhoods, no more than one banner sign is allowed per owner, and banner signs are only permitted in the week before the first Tuesday in October, which coincides with National Night Out. The sign code’s stated rationale for its restrictions focuses largely on aesthetics.

The plaintiff in the case, Etta Fanning, lives in a gated community called Bentley Manor. The neighborhood hosts a party over the July 4th holiday. The association uses signs to communicate information about the party. The 2018 rendition of the party was cancelled due to foul weather, and the association planned a party later in the month of July. To communicate information about the “raincheck” party, the association hung banner signs on trees near the entry gate of the community, and posted small signs on property that the association believed to be residents’ properties, with the permission of those residents.

A city police officer noticed the banner signs and yard signs, and removed them. He cited the city’s banner sign limitations, and removed the yard signs because he believed that they had been posted without property owner permission, and in any event, that they were located in public right-of-way.

The plaintiff filed suit in federal court in August 2018, challenging both the banner sign restrictions as well as the yard sign limitations.

On cross-motions for summary judgment, the court found for the city. Although the city tried to get the plaintiff’s claims dismissed for lack of standing, the court found that she had standing to challenge the banner sign limitation. Turning to the First Amendment analysis, the court concluded that the banner sign limitation was content based. In its analysis, the court determined that, although the banner sign limitation is not expressly content based on its face, the restriction was intended to allow only those banners related to National Night Out. The record before the court indicated that the city’s police force understood the banner sign limitation as prohibiting any banner unrelated to National Night Out. Because the restriction was so apparently related to National Night Out, the court found that the city’s intent in enacting and enforcing the banner sign limitation was to prefer messages relating to National Night Out.

Applying strict scrutiny, the court nonetheless found the sign code constitutional. The court concluded that the city’s regulatory interest in aesthetics was compelling, due to the small size of the city, its small population, and its focus on its “appearance, beauty, and charm.” Because banner signs would damage that aesthetic interest, the court found that its 51-week-per-year limitation was narrowly tailored to the interest. The court’s decision did not discuss the potential that the restriction might be underinclusive as a result of its preference for National Night Out banners.

Fanning v. City of Shavano Park, No. SA-18-CV-00803-XR, 2019 WL 7284945 (W.D. Tex. Dec. 19, 2019)

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