Last week, the U.S. District Court for the District of Montana issued an order granting the City of Missoula’s motion for summary judgment in a case challenging the constitutionality of its sign code. The court found that the city’s code was content neutral as applied to the plaintiff, and that the code satisfied the Central Hudson intermediate scrutiny test for commercial speech regulations.
Carwerks, a used car dealership in Missoula, challenged the city’s sign code after the city issued several citations to Carwerks for placing helium balloons on its vehicles in violation of a code provision that prohibited banners, flags, pennants, streamers, spinners, and “other types of wind signs.” Carwerks claimed that the sign code was content based and failed the Central Hudson test. Carwerks took issue with two aspects of the ordinance: first, that the code distinguished between commercial and noncommercial speech; and second, that the code’s definition of “sign” exempted window displays and national flags.
The court found that, even if the plaintiff was correct regarding the content based nature of other provisions of the sign code, the code was constitutional as applied to the plaintiff. In other words, even if Carwerks had prevailed in its challenge, the code’s prohibition on balloons would be upheld independent of whether the prohibition on flags was impermissibly content based due to the sign code’s exemption for national flags. The court noted that, if Carwerks’s requested relief were granted, Carwerks would still be in violation of the Missoula code. The judge went on to find that the regulation satisfied the four-part Central Hudson test because the code’s prohibition on wind signs directly advanced the city’s interests in traffic safety and aesthetics.
Two points are interesting regarding this decision. First, the judge applied an interesting formulation of the approach to determining the constitutionality of a commercial speech restriction. Relying on Sorrell v. IMS Health—a Supreme Court decision that has raised more questions than answers due to its novel application of the content neutrality doctrine to commercial speech (content neutrality has historically been required only of noncommercial speech regulations)—the Montana court noted that, if the Missoula code were found to be content based, it should be subjected to “heightened scrutiny.” Other lower courts have not applied such a framework in considering commercial speech regulations, and this approach raises new questions regarding the applicability of Sorrell in local sign regulation.
Second, the court afforded the city significant deference in determining that the prohibition on wind signs directly advanced the city’s interests in traffic safety and aesthetics. Unlike other recent cases that appear to have placed heightened evidentiary burdens on local governments to justify how their regulations advance their asserted interests, the Montana court expressly stated that “[t]he City need not provide detailed evidence proving a connection between wind signs and its stated purposes.” It appears that a split may be developing among the courts as to how much deference should be given to a local government’s factfinding in the tailoring prong of intermediate scrutiny.