Vosse v. City of New York , 666 F. App'x 11 ( 2016 )

15-4052-cv
Vosse v. City of New York
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED
BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1.
WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY
MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE
NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY
OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals for the Second Circuit, held
at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New
York, on the 14th day of October, two thousand sixteen.
PRESENT: GERARD E. LYNCH,
CHRISTOPHER F. DRONEY,
Circuit Judges,
CHRISTINA REISS,
Chief District Judge.
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BRIGITTE VOSSE,
Plaintiff-Appellant,
v. No. 15-4052-cv
THE CITY OF NEW YORK, COMMISSIONER ROBERT D.
LIMANDRI, of the New York City Department of
Buildings,
Defendants-Appellees.
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FOR PLAINTIFF-APPELLANT: TIMOTHY COLLINS, Collins, Dobkin &
Miller LLP, New York, New York
(Gideon Oliver, Of Counsel, on the
brief).

Chief Judge Christina Reiss, United States District Court for the District of Vermont, sitting by
designation.
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FOR DEFENDANTS-APPELLEES: ELIZABETH S. NATRELLA, Assistant
Corporation Counsel (Richard Dearing,
Pamela Seider Dolgow, Of Counsel, on
the brief), for Zachary W. Carter,
Corporation Counsel of the City of New
York, New York, New York.
Appeal from a November 19, 2015 judgment of the United States District Court
for the Southern District of New York (Rakoff, J.).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the judgment of the district court is AFFIRMED.
Plaintiff-Appellant Brigitte Vosse appeals from the judgment of the district court
dismissing her complaint and upholding New York City’s pertinent zoning regulations
regarding the placement of illuminated signs as a constitutional time, place, or manner
restriction on speech. We assume the parties’ familiarity with the underlying facts, the
procedural history of this case, and issues on appeal.
Vosse brought suit against the City of New York and the Commissioner of the
New York City Department of Buildings, alleging that her right to free speech was
violated when she was fined, pursuant to the City’s Zoning Resolution, for affixing an
illuminated peace symbol to the exterior frame of a seventeenth-floor window in her
condominium unit on the Upper West Side of Manhattan. Following adjudication of
cross-motions for summary judgment and dismissal by the district court, this court held
that Vosse lacks standing to challenge the relevant regulations as content-based, but
remanded to the district court to address whether the zoning regulations “constituted an
unduly restrictive time, place, [or] manner restriction on speech.” Vosse v. City of New
York, 594 F. App’x 52, 53 (2d Cir. 2015). On remand, the district court rejected
Vosse’s argument that, even if the regulations are considered content-neutral, they still do
not pass constitutional muster based on the manner of restriction. Vosse v. City of New
York, 144 F. Supp. 3d 627 (S.D.N.Y. 2015).
We review de novo the district court’s ruling in favor of defendants, as the
procedural posture of the case following remand remained at summary judgment. Clear
Channel Outdoor, Inc. v. City of New York, 594 F.3d 94, 103 (2d Cir. 2010). Because
this case raises a claim under the First Amendment, we have “an obligation to make an
independent examination of the whole record.” Id. (quoting Bose Corp. v. Consumers
Union, 466 U.S. 485, 499 (1984)) (internal quotation marks omitted). We affirm for
substantially the same reasons stated in the district court’s memorandum order.
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A content-neutral restriction on speech is consistent with the First Amendment if
it: (1) is narrowly tailored to serve a significant government interest, and (2) leaves open
ample alternative channels for communication. McCullen v. Coakley, 134 S. Ct. 2518,
2529 (2014) (citing Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989)). The
district court correctly concluded that the City’s regulations governing illuminated signs
satisfy both of these prongs.
1. Narrowly Tailored to Serve Significant Interest
Vosse makes two principal arguments regarding the first prong of the time, place,
or manner analysis. First, she contends that the City’s interests in “maintaining an
aesthetically pleasing cityscape and preserving neighborhood character” are insufficient
and unsupported by the record. Appellant’s Br. 26. However, it is well settled that
these interests are legitimate government objectives. See Lusk v. Vill. of Cold Spring,
475 F.3d 480, 491 (2d Cir. 2007) (agreeing that “preservation of aesthetic values” is “a
legitimate government interest”). Moreover, Vosse herself has acknowledged that the
City may validly pursue these interests through its zoning regulations, see J.A. 74, and
she points to no material issues of disputed fact on this point.
Second, Vosse argues that the district court’s narrow tailoring analysis was flawed
because it misinterpreted the regulations as categorically prohibiting illuminated signs
more than 40 feet above curb level. Vosse contends that the exemption for flags,
banners, or pennants located on community-facility lots has the effect of allowing certain
illuminated signs above the 40-feet cut-off. Even accepting this interpretation, Vosse
has failed to show why the regulations fail the narrow tailoring test. Her arguments on
this point either re-litigate her content-based claim regarding differential treatment for
exempted speakers – which is explicitly not at issue in this appeal – or disregard clear
precedent that narrow tailoring in this context does not require a restriction on speech to
be the “least restrictive or least intrusive” means of advancing the government’s interests,
Ward, 491 U.S. at 798–800; see also McCullen, 134 S. Ct. at 2535.
Furthermore, a statute or ordinance “need not address all aspects of a problem in
one fell swoop; policymakers may focus on their most pressing concerns.” Williams
Yulee v. Florida Bar, 135 S. Ct. 1656, 1668 (2015). The Supreme Court has upheld
laws “that conceivably could have restricted even greater amounts of speech in service of
their stated interests.” Id. If Vosse is correct that the ordinance exempts civic
organizations from the general non-illumination requirement, that would show that the
city could regulate more speech to further its aesthetic goals, but not that the ordinance
was so underinclusive as to violate the First Amendment. The district court therefore
correctly decided that the relevant provisions of the Zoning Resolution are narrowly
tailored to serve a significant governmental interest.
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2. Ample Alternative Channels
As for the requirement that the regulations leave open ample alternative channels
for communication, Vosse primarily argues that the Zoning Resolution fails on this prong
under the reasoning of City of Ladue v. Gilleo, 512 U.S. 43 (1994). In City of Ladue,
the Supreme Court held unconstitutional an ordinance that prohibited all signs that did
not fall within a narrow list of exemptions, concluding that the ordinance “almost
completely foreclosed a venerable means of communication.” Id. at 46–47, 54.
Vosse’s reliance on this precedent is misplaced, however, as the restriction there
amounted to a “ban on almost all residential signs.” Id. at 58. Here, the height
restriction in the Zoning Resolution does not prohibit non-illuminated, non-commercial
signs with a total surface area of less than 12 square feet, even above 40 feet. The
parties therefore agree that Vosse is free to display the same sign in her window, as long
as it is not illuminated. Although Vosse argues that an unilluminated sign would be
harder for passers-by to see at night, the First Amendment “does not guarantee the right
to communicate one’s views at all times and places or in any manner that may be
desired.” Heffron v. Int’l Soc’y for Krishna Consciousness, Inc., 452 U.S. 640, 647
(1981); see also City of Ladue, 512 U.S. at 58 n.17 (“Nor do we hold that every kind of
sign must be permitted in residential areas.”); Ward, 491 U.S. at 802 (“That the
[restriction on speech] may reduce to some degree the potential audience for respondent’s
speech is of no consequence, for there has been no showing that the remaining avenues of
communication are inadequate.”). Thus, the district court correctly concluded that
restrictions on illuminated signs in the Zoning Resolution leave open ample alternative
channels for Vosse to communicate her message.
3. Conclusion
We have considered Vosse’s remaining arguments and conclude that they are
without merit. Accordingly, we AFFIRM the judgment of the district court.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk of Court
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