09-10-07 Item 7D, Clear Channel - Laserfiche WebLink

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September 6, 2007 Page 2 achieving the government's objective). If the ordinance proposes to regulate the content of a sign, then a court would apply a strict scrutiny analysis, that is, the court would determine whether the governmental regulation of speech is narrowly tailored to serve a compelling governmental interest, and is the least restrictive means for the government to serve that interest. On the other hand, if an ordinance does not propose to regulate the content of speech, then it would be subject to intermediate scrutiny, which involves a determination of whether the regulation is substantially related to a significant government interest. It is generally accepted that a city may treat on-premise signs and off-premise signs (like billboards) differently, even in the face of strict scrutiny for content-based regulation. The Arden Hills Code includes several such provisions (e.g., in its definitions of "billboard," "Sign, Off-premise," and "Sign, On-premise" 9 91210.01, subds. 1,20,21; restrictions on signs according to sign districts, 9 1240.02; Table 1; etc.). B. Equal Protection. In Mr. Liszt's letter, although he does not use the exact words, it appears that he is asserting an equal protection claim, based on what he calls disparate treatment. There are other "dynamic" signs that have been approved in the City of Arden Hills. Again, this is a complex claim and without a clearer idea of just what Mr. Liszt is asserting, it is difficult to address directly. As I understand the situation, the other signs that have been allowed in Arden Hills are on-premise signs or are otherwise permitted by the Code. Any determination of a disparate treatment claim would necessarily involve looking how the approved signs compare in size, location and other characteristics to Clear Channel's sign; per John Baker, it would also involve an analysis of whether the City's regulation burdens an off-premise sign more than an on-premise sign. Conclusion One recent case is worth noting on the content issue, and, to a lesser degree, the equal protection issue. In LaTour v. City of Fayetteville, 442 F.3d 1094 (8th Cir. 2006), reh. and reh. en banc denied (8th Cir. June 21, 2006), the Court upheld the ordinance of the City of Fayetteville, Arkansas, which prohibited any "sign which flashes, blinks, or is animated." Id. at 1095. The ordinance allowed an exception for time and temperature displays. Id. Even with this exception that arguably is content-based, the Court held that the ordinance was content-neutral, applied intermediate scrutiny, and ultimately upheld the ordinance. Id. at 1097. In