Compliance Issues: The Supreme Court's Confusing Messages to Municipalities: Willson v. City of Bel-Nor, Missouri.

• Author: Greene, Abigail

1. INTRODUCTION

   Local municipalities are vested with the power to enact zoning ordinances that prohibit signs and flags in residential areas for aesthetic purposes. (1) This power directly competes with an individual's constitutional right to use private property to express their views. The United States Supreme Court recently struck a balance for this conflict in Reed v. Town of Gilbert (2)- The United States Court of Appeals for the Eighth Circuit applied this test in Willson v. City of Bel-Nor, Missouri (3) and demonstrated the impracticability of the approach the Supreme Court created for municipalities when drafting ordinances.

   This Note argues that the Eighth Circuit's decision illustrates the unreasonably nuanced approach required by the Supreme Court's new test. To a constitutional specialist, Reed makes sense. However, while attractive at first glance, it expects too much of local municipalities by requiring them to undertake an extensive analysis to pass a constitutionally sound ordinance. Willson is a good example of how careful municipalities must be to ensure they are drafting facially content-neutral ordinances. This facial distinction is often the difference between an enforceable and unenforceable ordinance.

   A more detailed ordinance, however, does not equate with the ordinance being enforceable. In fact, more detailed and comprehensive ordinances--often invoking definitions and exemptions--are more likely to be struck down as unconstitutional. Small changes in drafting can be the difference between withstanding or failing a First Amendment challenge, and this is the essence of the practical problem municipalities face in the wake of Reed. Municipalities must include enough detail to protect the interests at issue, while excluding any details that reference the content of the speech sought to be regulated.

   Part II of this Note provides the facts and holding of Willson. Then, part III examines the development of First Amendment law, including the recent developments of Reed and subsequent cases. Part IV discusses the instant decision of the Eighth Circuit in Willson, and Part V describes why Willson illustrates the challenging precedent created by Reed. Finally, Part VI evaluates the continuing challenges municipalities will face when attempting to draft constitutional speech restrictions.

2. FACTS AND HOLDING

   In September 2017, the city of Bel-Nor passed Ordinance 983 ("the Ordinance"), codified as Bel-Nor Municipal Code Section 400.120(E). (4) Bel-Nor is a northwestern suburban city located in St. Louis County, Missouri,-and as of the 2010 census, it had a population of 1499. (6) Under the Ordinance, "each improved parcel may have up to one stake-mounted, freestanding sign" (7) and "[n]ot more than one (1) flag." (8) A sign is defined as:

   Any poster, object, devise [sic], or display, situated outdoors, which is used to advertise, identify, display, direct or attract attention to an object, person, institution, organization, business, product, service, event, idea, belief or location by any means, including but not limited to words, letters, figures, designs, symbols, colors, logos, fixtures, cartoons or images. (9) A flag is defined as "any fabric or bunting containing distinctive colors, patterns or symbols used as a symbol of a government or institution." (10) Additionally, the Ordinance explicitly states that "'flags' shall not be considered 'signs.'" (11)

   At the time of the proceedings, Lawrence Willson was a resident of Bel-Nor. (12) In December 2017, Willson was charged with violating the Ordinance because he had three "stake-mounted, freestanding signs" in the front yard of his home. (13) Since 2016, he had displayed "Clinton Kaine" and "Jason Kander U.S. Senate" signs, and since 2014, he had displayed a "Black Lives Matter" sign. (14) Willson sought a preliminary injunction on the grounds that the Ordinance was in violation of the First Amendment's Free Speech Clause, as it was content-based because "its flag exemption imposes different restrictions on signs depending on their content." (15) The City of Bel-Nor asserted the Ordinance was not content-based. (16) According to Bel-Nor, the Ordinance included an "exceptionally broad definition of institution, encompassing any significant practice, relationship or organization in a society or culture." (17) Additionally, the City argued there was no risk of infringing on First Amendment rights because there were three different surfaces, specifically two different sides of a sign and one flag, on which to communicate thoughts and ideas. (18) Further, Bel-Nor asserted the Ordinance was justified by traffic safety as well as aesthetic concerns and was narrowly tailored to serve those interests. (19)

   The United States District Court for the Eastern District of Missouri denied Willson's motion for a preliminary injunction, holding he was unlikely to succeed on the merits of his First Amendment claim. (20) First, the district court determined that Willson lacked standing to challenge the flag exemption, as there was "no evidence that it affected" him. (21) The court further held that the Ordinance was content-neutral and narrowly-tailored to address the aesthetics and traffic safety concerns of Bel-Nor. (22)

   The United States Court of Appeals for the Eighth Circuit reversed and remanded the district court's decision. (23) First, the Eighth Circuit found that Willson had standing to challenge the "portions of the [Ordinance] which provide the basic definitional structure for the terms used in the violated sections and which more generally define the scope of signs allowed by the violated sections." (24) Next, the Eighth Circuit held that the Ordinance was content-based and therefore subject to strict scrutiny. (25) Further, the court stated it was not narrowly tailored to meet a compelling government interest and thus did not satisfy the strict scrutiny requirement. (26) The Eighth Circuit ultimately held that the preliminary injunction should be granted because Willson was likely to succeed on the merits of his First Amendment challenge. (27)

3. LEGAL BACKGROUND

   The First Amendment prohibits laws that restrict expression because of "its message, its ideas, its subject matter, or its content." (28) Both written and spoken word clearly fall within the parameters of First Amendment protection. (29) The First Amendment also protects particular actions that express ideas, in other words, "expressive conduct." (30) The Supreme Court has articulated a test to determine whether expressive conduct is protected under the First Amendment: "[A]n individual claiming an activity [is] protected... must show that the activity is intended to express a particularized message that would likely be understood by others." (31) For example, the Court has found that burning an American flag to protest government actions is protected. (32)

   Local municipalities are vested with the power to enact ordinances that restrict the permitted uses of property in a given area. (33) This power directly competes with individual rights and the desire to live without governmental interference. (34) An example of this tension is easily seen in municipal ordinances that "restrict or prohibit the flying of flags, pennants, or banners by individuals in a noncommercial setting" because these limitations can interfere with First Amendment rights. (35) Furthermore, the Supreme Court has noted the importance and uniqueness of residential signs as a mode of expression, as they are "unusually cheap and convenient" and "[d]isplaying a sign in one's own residence often carries a message quite distinct from placing the same sign someplace else, or conveying the same text or picture by other means." (36)

   1. Levels of Scrutiny

      Not all laws that restrict speech are analyzed under the same standard. The level of scrutiny a court applies to a constitutional challenge depends on whether the restriction is content-based or content-neutral. (37) Two different levels of scrutiny are applied based on the type of speech restriction: strict scrutiny and intermediate scrutiny. (38) This distinction is critical, as restrictions subject to intermediate scrutiny have a much higher chance at surviving a constitutional challenge, while strict scrutiny is generally fatal. (39)

      Content-based restrictions limit speech based on the message conveyed. (40) These restrictions are presumptively unconstitutional and subject to strict scrutiny, meaning they are only justified if the government shows they further a compelling interest and are "narrowly tailored to achieve that interest." (41) To satisfy the narrowly tailored requirement, the facts must demonstrate "a real need for the government to act to protect its interests." (42) The government must be able to prove that "no less restrictive alternative" would serve its purpose. (43) Some common examples of content-based restrictions are "laws that prohibit seditious libel, ban the publication of confidential information, forbid the hiring of teachers who advocate the violent overthrow of government, or outlaw the display of the swastika in certain neighborhoods." (44)

      Conversely, content-neutral restrictions limit speech regardless of the message conveyed. (45) These restrictions "do not pose the same inherent dangers to free expression" because the restriction is not related to the subject or topic of the speech. (46) They are subject to intermediate scrutiny, meaning the restriction will be constitutional "if it advances important governmental interests unrelated to the suppression of free speech and does not burden substantially more speech than necessary to further those interests." (47) Examples of this type of restriction are "laws that prohibit noisy speeches near a hospital, ban billboards in residential communities, impose license fees for parades and demonstration, or forbid the distribution of leaflets in public places." (48) Notably, laws that...