New Yorker Sues for Right to Post Peace Sign
A woman from the Upper West Side who wants to show her opposition to the U.S. wars in the Middle East by hanging a peace sign in her condo’s window is fighting New York City for the right to do so.
Brigitte Vosse was fined $800 for nailing the sign to her window frame because it violated a city zoning regulation, according to Reuters. She filed a lawsuit in federal court on Oct. 26 claiming the city violated her constitutional right to free speech.
Zoning Ordinance Has Exceptions
The zoning law at issue forbids signs more than 40 feet above street level but makes exceptions when signs are placed on buildings used for “civic, philanthropic, educational or religious” purposes.
Courts have interpreted the First Amendment to forbid “content-based” regulations that are based on what messages actually say, rather than simply where and when they can be distributed.
Vosse, who paid the fine but left the sign hanging, wants an injunction to prevent the city from enforcing the zoning law, a declaration that the law is unconstitutional, and damages.
Content-Based Regs Are Suspect
The ordinance seems like a content-based regulation, says Daniel Aaronson, a partner with Benjamin, Aaronson, Edinger & Patanzo in Fort Lauderdale, Fla., and the president of the First Amendment Lawyers Association.
When a court evaluates a law under the First Amendment, the test it uses depends on whether the law is content-neutral or content-based. Laws that don’t make distinctions about the content of the message at issue are judged using a lower standard; all the government has to show for such a law to stand is that it furthers a “substantial government interest,” Aaronson explains. For example, if the ordinance didn’t specify that there would be an exception made for signs that had a certain significance or purpose (i.e. religious or educational), the city would only have to show that it had a reason, such as public safety, to forbid the sign.
But if the law is content-based, then it must serve a “compelling government interest,” which amounts to proving the city had an imperative reason for requiring Vosse to remove the sign — a much more difficult standard to meet.
Vosse Likely to Prevail
Aaronson says that it’s hard to tell from the wording of the ordinance if it regulates signs based on their messages or the building’s use for civic, philanthropic, or religious purposes. “Under either scenario I am hard pressed to think of the compelling government interest in regulating the height and size of a sign based upon the message or the speaker,” he says.
“Even under the less restrictive content-neutral standard, does it further a substantial government interest?” he wonders, but adds, “I think the analysis is the same.”
That means New York City will likely have to let Vosse keep her peace sign. “If the law did not have the exception for civic, philanthropic, religious signs, her case would be much weaker,” Aaronson says. It would be fairly easy in that case for the city to show a substantial government interest in ensuring the safety of people walking under signs hung that high up.
But “the government can’t use that argument with the exception, since all types of signs regardless of the message or speaker will do the same damage if they land on a little kid,” he adds.
And because Vosse paid the fine, she has been clearly “damaged,” and her suit is even stronger, Aaronson points out. “Sign law case law is somewhat quirky,” he says. “Content-based exceptions such as directional signs and for sale signs are allowed, but this case is probably not one of the exceptions.”
If you’ve been fined by your city for expressing yourself, considering discussing your options with a civil rights lawyer; look one up on Lawyers.com.