783 F. 2d 1535 - Harnish v. Manatee County Florida

We are content to quote with full approval Judge Wisdom's language for the court in Fidelity & Deposit Co. v. USAFORM Hail Pool, Inc., 523 F.2d 744, 751 (5th Cir.1975):

In these circumstances, more is involved than the mere failure of the clerk to discharge his duty under F.R.Civ.P. 77(d). There was no prejudice to either side, because neither side knew of the entry of judgment. Counsel promptly filed notice of appeal after the action of the district court vacating and reentering its judgment. Indeed, counsel at all times acted diligently, and relied upon an express assurance from the district court that they need not continue their inquiries. The case had been fought long and hard, and an appeal by one side or the other was virtually certain. We hold that the trial court acted properly in vacating and reentering its judgment under F.R.Civ.P. 60(b).

The ineluctable conclusion is that we have jurisdiction of appeal Number 84-3872 and thus turn to the merits.

In the court below plaintiffs, an individual engaged in the business of leasing or renting portable and temporary signs, and merchants who used such signs to promote their products for sale or to advertise their businesses, leveled their attack primarily upon Section B3d of Manatee County Sign Ordinance 81-23, as amended by Ordinance 82-24, on constitutional grounds. The defendant insisted that the total prohibition of such signs was a proper exercise of its police power to further its interests in aesthetics and traffic safety and was not violative of the First Amendment.

Manatee County is located on the West coast of Florida, South of Tampa, between the Manatee River and the Gulf of Mexico. Its unincorporated area, governed by a Board of County Commissioners, is essentially a rapidly growing retirement and tourist oriented community, characterized by an aesthetically appealing and fragile environment.

Sign Ordinance 81-23, November 17, 1981, was enacted following a series of public hearings and workshops sponsored by the commissioners in which members of the public as well as representatives of the sign industry were participants. One of the key issues dealt with in these hearings was whether portable signs should be banned. As was recognized by the district court the primary complaint of the local residents was that portable signs are inherently ugly.4 The board responded by providing in Section B3d of Ordinance 81-23, which was unaffected by amendatory Ordinance 82-24, that "[N]o portable sign or changeable-copy temporary sign shall be erected or displayed in Manatee County."5

The district court subjected the total ban of such signs, in the context of the protection of commercial speech afforded by the First Amendment, to the analysis required by the Supreme Court in Central Hudson Gas & Electric Corp. v. Public Service Comm'n, 447 U.S. 557, 100 S.Ct. 2343, 65 L.Ed.2d 341 (1980), summarized by the plurality in Metromedia, Inc. v. San Diego, 453 U.S. 490, 507, 101 S.Ct. 2882, 2892, 69 L.Ed.2d 800 (1981) in the form of a four part test:

(1) The First Amendment protects commercial speech only if that speech concerns lawful activity and is not misleading. A restriction on otherwise protected commercial speech is valid only if it (2) seeks to implement a substantial governmental interest, (3) directly advances that interest, and (4) reaches no further than necessary to accomplish the given objective.

We agree that the record supports its conclusion that Section B3d of the Ordinance successfully passes tests (1), (2), and (3).

Turning to the holding of the lower court that it failed test (4), we are guided by significant developments in First Amendment jurisprudence that have occurred within this decade, dealing with speech communicated by signs.6 The polestar case Metromedia, supra, and its progeny, Members of the City Council v. Taxpayers for Vincent, 466 U.S. 789, 104 S.Ct. 2118, 80 L.Ed.2d 772 (1984), and Clark v. Community for Creative Non-Violence, 468 U.S. 288, 104 S.Ct. 3065, 82 L.Ed.2d 221 (1984), control our disposition of this appeal. We note that the opinions in the latter two cases came down two and three months, respectively, after the district court entered its judgment.

In our view, these three cases stand for three clear principles:

1. Aesthetics is a substantial governmental goal which is entitled to and should be accorded weighty respect;

2. The governmental entity charged with the responsibility of protecting the environment must be given discretion in determining how much protection is necessary and the best method of achieving that protection; and

3. Although any regulation of speech is capable of being narrowed to some extent, the Constitution does not mandate speculation as to how restrictions could be redrafted as long as the restriction is narrowly tailored to achieve the aesthetic goal7 and alternative means of communication remain available.

Guided by the teachings of Vincent and Community for Creative Non-Violence, we hold that in analyzing the constitutionality of a restriction on commercial speech it should first be determined whether the governmental goal is an appropriate and substantial one. Having determined that it is, the next step is scrutiny of the regulation to see whether the means chosen advance the goal. If the means reasonably advance the goal and there is no evidence in support of a finding that less restrictive means are available, the court should not attempt to speculate as to whether less restrictive means exist. Rather, analysis should be limited to whether the means are reasonably and narrowly drawn to further the objective.

Having determined that the total ban of portable signs reasonably advanced the governmental goal of protecting the aesthetic environment of Manatee County, and the record being bare of evidence from which it might be inferred that less restrictive means existed to accomplish the objective, the district court erred in speculating that they were accessible. In Community for Creative Non-Violence, the Supreme Court admonished:

We do not believe, however, that either United States v. O'Brien [391 U.S. 367, 376, 88 S.Ct. 1673, 1678, 20 L.Ed.2d 672 (1968) ] or the time, place and manner decisions assign to the judiciary the authority to the Park Service as the manager of the nation's parks or endow the judiciary with the competence to judge how much protection of park lands is wise and how that level of conservation is to be attained.

104 S.Ct. at 3072.

Since we hold that on this record the prohibition of portable signs to eliminate the aesthetic blight passed muster under the First Amendment, we have no occasion to address the holding of the district court that less restrictive means would accomplish the safety objective. We, therefore, reverse, direct the district court to vacate its judgment and injunction of March 30, 1984, and remand for further proceedings not inconsistent with this opinion.

REVERSED and REMANDED with directions.