American Legion Post v. City of Durham

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
AMERICAN LEGION POST 7 OF 
DURHAM, NORTH CAROLINA,
Plaintiff-Appellant,
v.  No. 00-1500
CITY OF DURHAM,
Defendant-Appellee.

Appeal from the United States District Court
for the Middle District of North Carolina, at Durham.
Paul Trevor Sharp, Magistrate Judge.
(CA-98-607-1)
Argued: November 1, 2000
Decided: February 5, 2001
Before WILKINSON, Chief Judge, WILLIAMS, Circuit Judge, and
Frank J. MAGILL, Senior Circuit Judge of the United States Court
of Appeals for the Eighth Circuit, sitting by designation.
Affirmed by published opinion. Judge Williams wrote the opinion, in
which Chief Judge Wilkinson and Senior Judge Magill joined.
COUNSEL
ARGUED: James B. Craven, III, Durham, North Carolina, for Appel-
lant. Karen Ann Sindelar, Assistant City Attorney for the City of Dur-
ham, Durham, North Carolina, for Appellee. ON BRIEF: Joseph H.
Craven, Durham, North Carolina, for Appellant.
2 AMERICAN LEGION POST 7 v. CITY OF DURHAM
OPINION
WILLIAMS, Circuit Judge:
Appellant, American Legion Post 7 of Durham, North Carolina,
challenges the constitutionality of the City of Durham’s zoning ordi-
nance restricting the size of publicly displayed flags, signs, banners,
and other visual displays.1 The district court granted summary judg-
ment to the City. Because we find that the City’s flag size restrictions
reasonably limit the time, place, and manner of speech in a fashion
that preserves ample alternative avenues for communication and is
supported by the City’s substantial aesthetic interests, we affirm.
I.
In 1988, the Durham City Council adopted a comprehensive sign
ordinance ("the 1988 ordinance"), codified as Durham, N.C. City
Zoning Ordinance § 12 (1994), which regulated the display of signs,
banners, flags and other visual displays.2 The 1988 ordinance
restricted the size of publicly displayed national and state flags to 60
square feet in area and provided that such flags must be flown from
a pole not more than 40 feet high. Durham, N.C. City Zoning Ordi-
nance § 12.3 ¶ 10 (1994). The 1988 ordinance specifically provided
for differential treatment for "[f]lags of this nation, state or other
political subdivisions," which were regulated as "flags," as opposed
to flags not meeting these content or political derivation criteria,
which were regulated more stringently as "banners." See id. at ¶ 22
(providing a regime of more stingent regulation for "banners," and
providing that "banners" containing a message or logo are regulated
as "signs" and subjected to a number of additional siting, size, and
display restrictions). A "substitution provision" in the 1988 ordinance,
as interpreted by the City, eliminated this content-based distinction
for noncommercial flags, because any display carrying a noncommer-
cial message could be "substituted" for any permitted display, so that
1
The Legion’s challenge is limited to the ordinance as applied to the
display of the American flag.
2
We cite to the copy of the 1988 ordinance provided by the parties,
which incorporates all changes to the City’s zoning ordinances through
January, 1994. (J.A. at 104-25.)
AMERICAN LEGION POST 7 v. CITY OF DURHAM 3
a noncommercial flag not meeting the ordinance’s content criteria
could nonetheless qualify for treatment as a "flag" rather than a "ban-
ner."3 Durham, N.C. City Zoning Ordinance § 12.8.5 (1994). The
City’s stated purposes in enacting the 1988 ordinance included traffic
safety, protection of the aesthetic environment, and promotion of eco-
nomic development.4
Sometime in 1997, the City, enforcing its flag ordinance for the
first time, cited a Bob Evans restaurant for flying a large American
flag in violation of the 1988 ordinance. On June 26, 1998, the Legion
held a ceremony honoring the American flag; the ceremony included
representatives of the Veterans of Foreign Wars, the Marine Corps
League, and the Military Order of the Purple Heart. As part of this
ceremony, the Legion raised a 14 x 17 foot (238 square foot) Ameri-
can flag to the top of the flagpole and saluted it. On June 30, 1998,
the City served upon the Legion a Notice of Violation alleging that
the Legion had violated the 1988 ordinance by displaying an over-
sized flag, demanding that the Legion correct this violation within
two days, and threatening financial penalties and possible criminal
prosecution in the event of noncompliance.
In 1997, following the issuance of the Bob Evans restaurant cita-
tion, the City began to consider possible revisions to the 1988 ordi-
nance. This process culminated with the enactment on August 3,
1998, slightly more than one month after issuance of the Legion’s
citation, of a revised flag ordinance ("the 1998 ordinance"), codified
as Durham, N.C. City Zoning Ordinance § 8.1.27. The 1998 ordi-
nance replaced the fixed 60-square-foot flag size limit with a flexible
3
The substitution provision, which is still in effect, provides that
"[n]oncommercial signs are allowed in all districts and may be substi-
tuted for any sign expressly allowed under this ordinance." Durham,
N.C. City Zoning Ordinance § 12.8.5 (1994).
4
The City has produced an affadavit indicating that the ordinance
serves these purposes. The Legion has produced affidavits tending to cast
doubt on the rational connection between the ordinance and these goals.
An affidavit from a registered land surveyor states that the Legion’s flag
could not pose a traffic safety hazard, and an affidavit from a realtor
states that the Legion’s flag "will have only a positive effect on . . . prop-
erty values" in the area. (J.A. at 37-40).
4 AMERICAN LEGION POST 7 v. CITY OF DURHAM
limit based upon flagpole height, which in turn was limited based
upon the area’s zoning designation. See id. at ¶¶ 2, 3. In nonresiden-
tial districts, a flagpole with a maximum height of 70 feet bearing a
flag or flags of up to 216 square feet is permitted. In a residential dis-
trict, such as the one in which the Legion’s property is located, flag-
pole height is limited to 25 feet and thus, flag size is limited to 40
square feet. See id. at ¶¶ 2 3. The 1998 ordinance also requires flags
to be displayed on flagpoles; prohibits the construction of more than
three flag poles on a given property; prohibits the display of more
than two flags on a flagpole; establishes a setback requirement for
flagpoles, and further restricts flags containing commercial messages
by rendering the separate provisions of the City’s sign ordinance
applicable to such flags. See id. at ¶¶ 2-7. The 1998 ordinance also
replaced the content-based distinctions of the 1988 ordinance with a
definition of a "flag" as "a piece of fabric or other flexible material
solely containing distinctive colors, patterns, standards, words or
emblems used as a symbol of an organization or entity, including but
not limited to political jurisdictions . . . ." Id. at ¶ 1.
On July 14, 1998, the Legion filed a complaint against the City,
alleging that the 1988 ordinance violated the First Amendment insofar
as it regulated the display of American flags. The suit sought injunc-
tive relief, a declaratory judgment that the ordinance was unconstitu-
tional, damages, and costs. After the City amended the ordinance on
August 3, 1998, the Legion amended its complaint to include claims
similar to those raised in the original complaint regarding the new
ordinance. Both sides consented to determination of the case before
a United States magistrate judge and filed motions for summary judg-
ment and supporting affidavits.5 On March 21, 2000, the district court
denied the Legion’s summary judgment motion, granted summary
judgment for the City, and entered final judgment for the City. The
Legion filed its notice of appeal on April 17, 2000.
In this appeal, the Legion argues that the district court erred in
holding that its challenge to the City’s now-superseded 1988 ordi-
5
28 U.S.C.A. § 636 (West 2000), provides that with the consent of the
parties and the approval of the district court, a United States Magistrate
Judge may "conduct any or all proceedings . . . and order the entry of
judgment in the case." 28 U.S.C.A. § 636(c)(1) (West 2000).
AMERICAN LEGION POST 7 v. CITY OF DURHAM 5
nance is moot. The Legion further argues that the 1998 ordinance is
content-based and is thus subject to heightened First Amendment
scrutiny. In response, the City argues first that its 1998 ordinance
does not burden speech to any significant degree, so that the district
court erred in applying the time, place, and manner analysis eluci-
dated by the Supreme Court in Clark v. Cmty. for Creative Non-
Violence, 468 U.S. 288, 293 (1984). The City argues second that if
the 1998 ordinance does burden speech, the ordinance is content-
neutral and therefore should be evaluated under Clark; the City con-
tends that the ordinance meets this standard. We understand the
Legion to counter that, assuming the ordinance is analyzed under the
less onerous Clark test, it fails to meet those standards because it is
not narrowly tailored and the record does not support a finding that,
as applied to the Legion, the ordinance furthers any significant gov-
ernment interest. We address each argument in turn, reviewing the
district court’s grant of summary judgment de novo. See Providence
Square Assoc., L.L.C. v. G.D.F., Inc., 211 F.3d 846, 850 (4th Cir.
2000) (reviewing a grant of summary judgment de novo). Summary
judgment is appropriate only "if the pleadings, depositions, answers
to interrogatories, and admissions on file, together with the affidavits,
if any, show that there is no genuine issue as to any material fact."
Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322
(1986). In deciding whether there is a genuine issue of material fact,
the evidence of the nonmoving party is to be believed and all justifi-
able inferences must be drawn in its favor. See Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 255 (1986).
II.
The Legion has attacked both the 1988 ordinance, under which it
was cited in the incident giving rise to this action, and the 1998 ordi-
nance. The district court found that the claim that the 1988 ordinance
was unconstitutional was mooted by the City’s subsequent amend-
ment of that ordinance because "there is no real or imminent threat
. . . that Defendant will reenact the [1988] ordinance at any time in
the future." (J.A. at 248.)
The Legion argues that the district court erred in finding that the
claims as to the 1988 ordinance were moot. The Legion argues that
without a definitive ruling as to the 1988 ordinance’s constitutional-
6 AMERICAN LEGION POST 7 v. CITY OF DURHAM
ity, the City remains free to re-enact that ordinance at any time.
(Appellant’s Br. at 13-15.) See also National Advertising v. City of
Fort Lauderdale, 934 F.2d 283, 285-86 (11th Cir. 1991) (holding that
because "[i]t remains uncertain whether the City would return the sign
code to its original form if it managed to defeat jurisdiction in this
case," a live case or controversy exists and the district court erred in
mooting claim based on amended ordinance).
Mootness is primarily a function of the Article III "case or contro-
versy" limitation on the jurisdiction of the Federal courts.6 See id. at
286 (noting that moot cases cannot meet the Article III standard). The
Legion observes, correctly, that the mere amendment or repeal of a
challenged ordinance does not automatically moot a challenge to that
ordinance. See City of Mesquite v. Aladdin’s Castle, Inc., 455 U.S.
283, 289 (1982) (stating that "a defendant’s voluntary cessation of a
challenged practice does not deprive a federal court of its power to
determine the legality of the practice," and holding that since nothing
prevents a municipality from reenacting challenged provisions, a
challenge to these provisions is not moot); see also United States v.
W.T. Grant Co., 345 U.S. 629, 632 (1953) (observing that "mere vol-
untary cessation of illegal conduct does not moot a case . . . .").
Aladdin’s Castle, however, is distinguishable because in that case,
the city had repeatedly amended the ordinance at issue in response to
court rulings and had announced its intention to re-enact the chal-
lenged provision if the judgment in question was vacated on mootness
grounds. See Aladdin’s Castle, 455 U.S. at 289 n.11. The City argues
that it has demonstrated that it will not re-enact the challenged 1988
ordinance, because the process which led to the enactment of the 1998
ordinance began seven months before this case was filed in the dis-
trict court and the ordinance was revised long before the district court
ruled in this case. (Appellee’s Brief at 32.)
The Supreme Court has held that in some circumstances, the repeal
or amendment of a statute moots a challenge even where re-enactment
of the statute at issue is within the power of the legislature. See Mas-
6
But see Honig v. Doe, 484 U.S. 305, 330 (1994) (Rehnquist, C.J., con-
curring) (arguing that the mootness doctrine should be viewed as pruden-
tial and not based on the Constitution).
AMERICAN LEGION POST 7 v. CITY OF DURHAM 7
sachusetts v. Oakes, 491 U.S. 576, 582 (1989) (holding that the
amendment of a law prohibiting nude photography of minors mooted
First Amendment overbreadth challenge to law); Kremens v. Bartley,
431 U.S. 119, 132 (1977) (holding that the repeal of a statute permit-
ting involuntary commitment of juveniles mooted challenge to stat-
ute). The practical likelihood of reenactment of the challenged law
appears to be the key to the Supreme Court’s mootness jurisprudence
in situations such as this one. See Erwin Chemerinsky, Federal Juris-
diction 139 (3d ed. 1999) (summarizing the Supreme Court’s jurispru-
dence by stating that "cases will not be dismissed as moot if the Court
believes there is a likelihood of reenactment of a substantially similar
law if the lawsuit is dismissed").
Here, we agree with the district court that there is little likelihood
of the City reenacting the 1988 ordinance if the district court’s finding
of mootness is affirmed. Thus, the district court was correct in its
mootness ruling. We do not, therefore, address the merits of the claim
that the 1988 ordinance is unconstitutional.
III.
In evaluating the 1998 ordinance, we first confront the threshold
issue of whether it burdens speech and thus is subject to First Amend-
ment scrutiny. The City argues that the Legion failed to provide any
evidence indicating that its ability to communicate its message was
impaired by the City’s flag size restriction, and thus the district court
erred in performing a First Amendment analysis because the 1998
ordinance does not burden speech at all. (Appellee’s Brief at 14, 16.)
We proceed in analyzing this issue by comparing the nature and mag-
nitude of the 1998 ordinance’s burden on speech with the burden
present in other cases in which courts have found a sufficient burden
on speech to render First Amendment scrutiny appropriate. We ulti-
mately conclude that the Legion produced adequate evidence that the
City’s 1998 ordinance burdens speech, because the display of a flag
of a given size is communicative activity and the Legion demon-
strated that the ordinance directly restricts the Legion’s communica-
tive activity.
While the 1998 ordinance burdens speech to a lesser degree than
the regulations at issue in various cases cited by the City, see, e.g.,
8 AMERICAN LEGION POST 7 v. CITY OF DURHAM
Arlington County Republican Comm. v. Arlington County, 983 F.2d
587, 594 (4th Cir. 1993) (invalidating, under the First Amendment, a
municipal ordinance imposing a two-sign limit in residential zones),
the City cites no authority for its proposition that an "entire medium
of communication or a portion of such medium," must be foreclosed
in order for a regulation to burden speech. (Appellee’s Brief at 16.)
Indeed, while we did not perform an extensive "burdening speech"
analysis in Arlington County, we suggested that even a minor burden
on speech is sufficient to trigger a First Amendment analysis. In
approaching a First Amendment challenge to the two-sign limit at
issue in Arlington County, we stated that "we first question whether
the two-sign limit burdens any speech. If we find any burden, we
must then determine whether the two-sign limit imposes content neu-
tral or content based restrictions." Arlington County, 983 F.2d at 593(emphasis added). We reasoned that the two-sign limit "affects speech
rather than conduct," because "‘[c]ommunication by signs and posters
is virtually pure speech.’" Id. (quoting Baldwin v. Redwood City, 540
F.2d 1360, 1366 (9th Cir. 1976)). We further noted that the two-sign
limit prevented homeowners from expressing support for more than
two candidates, a concern of particular significance "if two voters liv-
ing within the same household support opposing candidates." Id. at
594. We did not ask, as part of the threshold "burdening speech" anal-
ysis, whether the two-sign limit imposes a great burden on speech,
but rather, formulated the test as whether "any" burden exists, and
relied principally on the proposition that a direct limitation on the
"pure speech" at issue constituted a burden on speech. Id. at 593-94.
It is clear that the 1998 ordinance burdens speech. The Legion was
cited by the City for flying an oversized and well recognized symbol
of political speech. Flags, especially flags of a political sort, enjoy an
honored position in the First Amendment hierarchy. One may engage
in protected speech by burning a flag, see Texas v. Johnson, 491 U.S.
397, 406 (1989), or by affixing a peace symbol to a flag and flying
it upside down, see Spence v. Washington, 418 U.S. 405, 409-10
(1970). It, therefore, is clear that the Legion’s avowed attempt to
demonstrate intensity of patriotic feeling by flying a very large flag
implicates First Amendment interests, at least to a sufficient degree
to cause the City’s ordinance to burden speech. The City’s limit on
the size of flags directly limits speech and seems closely analogous
to the New York City restriction on rock concert volume in Central
AMERICAN LEGION POST 7 v. CITY OF DURHAM 9
Park that was the subject of Ward v. Rock Against Racism, 491 U.S.
781 (1989). In Ward, the Supreme Court upheld as a valid time, place,
and manner restriction a scheme designed to limit the volume of
musical performances in Central Park. The Court’s use of a time,
place, and manner analysis implicitly recognized a threshold burden
on speech. See id. at 803. The major distinction between Ward and
this case, that Ward involved music rather than the display of political
flags (which are if anything even closer to the core of expression pro-
tected by the First Amendment),7 favors the Legion’s position. Cf.
Clark v. Cmty. for Creative Non-Violence, 468 U.S. 288, 293 (1984)
(suggesting that sleeping overnight in a tent city erected on the Wash-
ington Mall was "expressive conduct protected to some extent by the
First Amendment," sufficient to trigger the application of time, place,
and manner analysis). If regulation of the volume of music at a rock
concert or regulation of one’s ability to sleep in a mock tent city con-
stitutes a burden on speech, surely a limit on the size of a publicly-
displayed political symbol burdens speech. The decisions of the
Supreme Court and this Court indicate that the amount of burden on
speech needed to trigger First Amendment scrutiny as a threshold
matter is minimal.
IV.
The Legion contends that the 1998 ordinance is content-based and
thus should be subject to heightened First Amendment scrutiny. The
City responds that its 1998 ordinance is content-neutral because it
does not facially distinguish between flags based on the messages that
they convey and because there is no evidence that, in enacting the
ordinance, the City was motivated by a content-based purpose. See
Turner Broadcasting System, Inc. v. FCC, 512 U.S. 622, 643 (1994)
(indicating that, in most cases, whether a law benefits or burdens
speech by referring to content on its face is determinative of the law’s
7
See, e.g., Texas v. Johnson, 491 U.S. 397, 404-05 (1989) (noting that
attaching a peace sign to the American flag, refusing to salute the flag,
and flying a red flag "all may find shelter under the First Amendment");
West Virginia Bd. of Education v. Barnette, 319 U.S. 624, 632 (1943)
("Symbolism is a primitive but effective way of communicating ideas.
The use of an emblem or flag to symbolize some system, idea, institution
or personality, is a short cut from mind to mind.").
10 AMERICAN LEGION POST 7 v. CITY OF DURHAM
content-based or content-neutral character). The Legion notes that a
content-based purpose can be used to show that a regulation which is
facially content-neutral is in fact content-based. See id. at 642. The
Legion does not, however, suggest that the City had any content-
based purpose in enacting the 1998 ordinance, nor does it provide any
evidence of such a purpose. Ultimately, the Legion’s argument
reduces to a claim that the 1998 ordinance is not content-neutral on
its face because the ordinance regulates flag size. Size, however, is
not a content criterion. See Foti v. City of Menlo Park, 146 F.3d 629,
640-41 (9th Cir. 1998) (holding that a regulation of the size and num-
ber of signs used in picketing was content-neutral).
The Legion alludes to the "commercial/noncommercial difference"
as one possible basis for a finding that the 1998 ordinance is content-
based, without explaining the nature of the commercial/
noncommercial difference to which it alludes and without presenting
a developed argument as to how this difference renders the ordinance
content-based. (Appellant’s Br. at 18.) That some differential treat-
ment is permitted on the basis of speech’s commercial or noncommer-
cial character would seem to be a necessary implication of the
Supreme Court’s use of different constitutional tests for regulations
of commercial versus noncommercial speech. Compare Central Hud-
son Gas & Electric Corp. v. Public Service Commission, 447 U.S.
557, 564 (1980) (providing that for a content-based restriction on
commercial speech, the government must show that it has a substan-
tial interest, the regulation directly advances that interest, and the reg-
ulation is not more extensive than necessary to serve that interest),
with Perry Educ. Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37,
45 (1983) (holding that a content-based restriction on noncommercial
expression must be "necessary to serve a compelling state interest.").
See also Metromedia Inc. v. City of San Diego, 453 U.S. 490, 506
(1981) (stating that "we continue to observe the distinction between
commercial and noncommercial speech, indicating that the former
[can] be forbidden and regulated in situations where the latter [can-
not] be").
The 1998 ordinance restricts flags containing commercial messages
more stringently than flags containing noncommercial messages;
flags containing commercial messages must comply with the restric-
tions imposed by the sign ordinance, Durham, N.C. City Zoning Ordi-
AMERICAN LEGION POST 7 v. CITY OF DURHAM 11
nance § 12.1 et seq., which are more stringent than the restrictions
imposed by the flag ordinance. See Durham, N.C. City Zoning Ordi-
nance § 8.1.27 ¶ 6 (providing that "[f]lags displaying a logo, message,
statement, or expression relating to commercial interests . . . must also
conform with all sign regulations under Section 12" of the
City/County Zoning Ordinance). We do not take the Legion to argue
that the ordinance’s more stringent regulation of commercial mes-
sages constitutes a content-based restriction. To the contrary, the
Legion disclaims any attempt to assert that the regulation excessively
restricts commercial speech, stating that "this case is not about how
large a flag" businesses can fly. (Appellant’s Br. at 26.) The Legion
argues instead that the 1998 ordinance is overbroad because it
includes noncommercial as well as commercial displays of the Ameri-
can flag, while the Legion believes that the City’s concerns justify
mainly a restriction on the display of flags by businesses. (Appellant’s
Br. at 31.) Thus, the Legion does not argue that the rationale of City
of Cincinnati v. Discovery Network, 507 U.S. 410, 429 (1993), ren-
ders § 8.1.27 ¶ 6 of the 1998 ordinance content-based. See id. (hold-
ing that a regulation prohibiting the placement of public display boxes
for "commercial handbills," but which permitted the placement of
such boxes for "noncommercial" publications, drew a distinction that
was not justifiable in terms of the government’s proffered interests in
regulating and was sufficient to render the regulation content-based).8
We conclude that the 1998 ordinance is content-neutral because it
does not facially distinguish between noncommercial messages based
on content and because there is no evidence of a content-based pur-
pose. Thus, the three-part test for a content-neutral regulation of the
time, place, and manner of speech, as elucidated by the Supreme
8
The Supreme Court’s finding that the display box regulation was
content-based negated any claim that it was a permissible time, place,
and manner restriction. See City of Cincinnati v. Discovery Network, 507
U.S. 410, 429 (1993). Applying the Central Hudson Gas & Electric
Corp. v. Public Service Commission, 447 U.S. 557, 564 (1980), test for
content-based restrictions on commercial speech, the Court found that
Cincinnati’s commercial/noncommercial distinction bore "no relation-
ship whatsoever to the particular interests that the city has asserted. It is
therefore an impermissible means of responding to the city’s admittedly
legitimate interests." Id. at 424 (emphasis in original).
12 AMERICAN LEGION POST 7 v. CITY OF DURHAM
Court in Clark v. Cmty. for Creative Non-Violence, 468 U.S. 288, 293
(1984), provides the proper standard against which to determine the
1998 ordinance’s constitutionality.9
V.
Having concluded that we should apply the time, place, and man-
ner test because the 1998 ordinance is content-neutral, we next turn
to the question of whether the ordinance meets the standard for per-
missible time, place, and manner restrictions. A content-neutral regu-
lation of the time, place, and manner of speech is generally valid if
it furthers a substantial government interest, is narrowly tailored to
further that interest, and leaves open ample alternative channels of
communication. See Clark v. Cmty. for Creative Non-Violence, 468
U.S. 288, 293 (1984) (stating and applying this standard to a regula-
tion prohibiting protesters from sleeping overnight in a mock tent city
on the Washington Mall).
The City argues that the 1998 ordinance furthers its substantial
interest in "maintaining and improving the community’s appearance,
eliminating visual clutter, ensuring traffic safety, preserving property
values, and attracting sources of economic development." (Appellee’s
Br. at 20.) The district court correctly found that under relevant
Supreme Court and Fourth Circuit precedent, a community’s interest
in preserving its aesthetic character is indeed a "substantial interest."
9
In addition to providing the Clark standard for time, place, and man-
ner regulations, the Supreme Court has stated that a regulation of expres-
sive conduct is valid if it furthers an important or substantial
governmental interest unrelated to the suppression of free expression and
if the incidental restriction on protected expression is no greater than is
essential to furtherance of that interest. United States v. O’Brien, 391
U.S. 367, 377 (1968). The Supreme Court has indicated, however, that
the O’Brien test is "little, if any, different from the standard applied to
time, place, or manner restrictions." Clark v. Cmty. for Creative Non-
Violence, 468 U.S. 288, 298 (1984). Because the display of a flag is "vir-
tually pure speech," Baldwin v. Redwood City, 540 F.2d 1360, 1366 (9th
Cir. 1976), we believe that, as a formal matter, this case fits more com-
fortably within the Clark time, place, and manner test than the O’Brien
expressive conduct test, and therefore we apply Clark. As Clark indi-
cates, however, little is likely to turn on the distinction.
AMERICAN LEGION POST 7 v. CITY OF DURHAM 13
See Members of the City Council of Los Angeles v. Taxpayers for Vin-
cent, 466 U.S. 789, 805 (1984) (stating that "[i]t is within the consti-
tutional power of the City to improve its appearance"); Arlington
County Republican Comm. v. Arlington County, 983 F.2d 587, 594
(4th Cir. 1993) (stating that traffic safety and aesthetics are "substan-
tial government goals"). Vincent clearly forecloses the argument that
the City’s interest is insubstantial; the Vincent Court stated that "mu-
nicipalities have a weighty, essentially esthetic interest in proscribing
intrusive and unpleasant formats for expression," sufficient to pass
muster under the time, place, and manner test. Taxpayers for Vincent,
466 U.S. at 806.
The Legion cites decisions holding that aesthetics do not constitute
a compelling governmental interest sufficient to justify a content-
based restriction. See, e.g., Dimmitt v. City of Clearwater, 985 F.2d
1565, 1572 (11th Cir. 1993) (holding, in the context of a facial over-
breadth challenge, that a regulation supported by aesthetic concerns
is not supported by sufficient government interests to validate
content-based regulation); Village of Schaumburg v. Jeep Eagle Sales
Corp., 676 N.E.2d 200, 204 (Ill. App. 1996) (finding that "[t]raffic
safety and visual aesthetics are not the sort of compelling state inter-
est required to justify a content-based restriction on expression).
These cases are inapposite because they do not address whether aes-
thetics constitute a substantial, as opposed to a compelling, govern-
ment interest. We find that the City’s asserted aesthetic interests are
indeed sufficient to satisfy the "substantial government interest"
prong of the Clark test for the validity of a content-neutral time,
place, and manner restriction.10
The Legion further argues that the 1998 ordinance is not narrowly
tailored and thus fails Clark’s second prong, because although the
ordinance primarily aims to eliminate commercial use of large flags,
it also applies to noncommercial entities. (Appellant’s Br. at 25.) We
note that the requirement that a statute be narrowly tailored under the
10
While some conflict in the evidence exists regarding the extent to
which the ordinance served the asserted traffic safety and property values
purposes, the Legion raised no issue of material fact regarding the City’s
aesthetic justifications, which are legally sufficient to meet the first
prong of the Clark test.
14 AMERICAN LEGION POST 7 v. CITY OF DURHAM
Clark time, place, and manner test is not a least intrusive means
requirement; this prong of the Clark test merely asks whether "‘the
. . . regulation promotes a substantial government interest that would
be achieved less effectively absent the regulation.’" Ward v. Rock
Against Racism, 491 U.S. 781, 798-99 (1989) (quoting United States
v. Albertini, 472 U.S. 675, 689 (1985)). A time, place, and manner
regulation is not narrowly tailored, however, if "a substantial portion
of [its] burden on speech does not serve to advance its goals." Ward,
491 U.S. at 799. Here, the City argues persuasively that the efficacy
of its overall scheme of sign and display regulation would be under-
mined either by exempting flags or by exempting noncommercial
entities from the strictures of the ordinance. (Appellee’s Br. at 28-30.)
Because the City’s asserted reasons for enacting the 1998 ordinance
are not limited to controlling commercial flag displays but encompass
a more general set of aesthetic concerns, we find that the 1998 ordi-
nance is narrowly tailored to combat the aesthetic injury which the
City supposes would occur if large flag displays were permitted.
While the Legion produced affidavits in the district court proceedings
below tending to show that the 1998 ordinance is overbroad from a
traffic safety and property values standpoint, the Legion did not dem-
onstrate that the ordinance burdens more speech than necessary to
ensure that the City’s aesthetic interests are vindicated.
The final portion of the time, place, and manner inquiry asks
whether the challenged regulation leaves open "ample alternative
channels for communication." Clark, 468 U.S. at 293. The Supreme
Court’s invalidation of a municipal sign ordinance against proffered
aesthetic justifications in City of Ladue v. Gilleo, 512 U.S. 43, 59
(1994), rested on this portion of the time, place, and manner test. In
Ladue, a municipality prohibited all publicly-displayed signs on pri-
vate property, subject to a few narrow exceptions; its ordinance was
applied to prohibit an individual from displaying a small window sign
signaling opposition to the Persian Gulf War. Id. at 45-47. The
Supreme Court, noting that "[m]ost Americans would be understand-
ably dismayed . . . to learn that it was illegal to display from their
window an 8- by 11-inch sign expressing their political views," struck
down the city’s sign ordinance. Id. at 58. The Court reasoned that the
city’s ordinance "foreclose[d] an entire medium of expression" and
did not leave an adequate substitute. Id. at 56. Further, the Court
relied, in distinguishing the posting of signs on public property in
AMERICAN LEGION POST 7 v. CITY OF DURHAM 15
Taxpayers for Vincent, on the "special respect for individual liberty
in the home [that] has long been part of our culture and our law" and
which has "special resonance when the government seeks to constrain
a person’s ability to speak there." Id. at 58.
This case occupies ground between Taxpayers for Vincent and City
of Ladue with respect to the private property issue, in that the Legion
seeks to speak, through its flag, on private property but not in the
home. This case is not controlled by Ladue, however, because the
burden on speech is far more attenuated than the complete ban at
issue in that case. Indeed, the Ladue Court recognized that not every
kind of sign must be permitted in residential areas, noting, "[w]e also
are not confronted here with mere regulations short of a ban." Id. at
58 n.17. Because the 1998 ordinance merely establishes a relatively
liberal set of limits on flag size and provides a procedure for obtaining
temporary and permanent waivers by means of a "special use" permit,11
it is a "mere regulation[ ] short of a ban" under Ladue and does not
implicate First Amendment interests to a sufficient degree to fail this
portion of the time, place, and manner test. Id.We conclude that the City’s 1998 ordinance is valid under each
portion of the Clark time, place, and manner test because it advances
a substantial government interest in preservation of the aesthetic envi-
ronment, is reasonably well tailored to serve that goal, and leaves
open ample alternative avenues of expression.
VI.
In conclusion, the district court correctly found that the Legion’s
challenge to the 1988 ordinance was moot and correctly held that the
City of Durham’s 1998 ordinance effected a permissible time, place,
11
See Durham, N.C. City Zoning Ordinance § 8.1.27 ¶ 2 (providing for
a waiver of the flagpole size limits in residential districts via a special
use permit granted by the City Board of Adjustment). The Legion does
not argue that the "special use" permit procedure improperly vests unbri-
dled discretion in the City Board of Adjustment. Further, the 1998 ordi-
nance contains an automatic, blanket suspension of the flag size limits on
United States and North Carolina holidays. See Durham, N.C. City Zon-
ing Ordinance § 8.1.27 ¶ 9.
16 AMERICAN LEGION POST 7 v. CITY OF DURHAM
and manner regulation of speech. The judgment of the district court
is therefore affirmed.
AFFIRMED