Federal Judge Upholds City’s Ban on Wind Signs, Including Balloons Used for Advertising

Missoula, Montana’s ban on wind signs is constitutional and does not violate the free-speech rights of a car lot owner who flew balloons affixed to cars to attract customers, a federal district court has ruled.

Jack Palmer owns Carwerks, a used auto dealership in Missoula.  Since 2000, he has tied helium balloons to vehicles on his car lot.  Most of the balloons contained either smiley faces or pictures of the American flag.

However, in 2009, the city passed an ordinance prohibiting “banners, flags, pennants, streamers, spinners, or other types of wind signs.”  The city’s code defines a wind sign as an “attention-getting device with or without copy … fastened in such a manner as to move in the wind.”

Palmer and Carwerks received many citations and eventually a criminal charge.  After the criminal charge, Palmer and his business sued in federal court, alleging a First Amendment violation.

U.S. District Court Judge Dana L. Christensen first determined that the balloons were wind signs within the meaning of the ordinance.  Then, the analysis focused on whether the ordinance discriminated against speech based on content or was content-neutral.

The judge ruled in Palmer v. City of Missoula that the ordinance was content-neutral, because it prohibited all wind signs, including these helium balloons,” regardless of what image or message was displayed on the balloons.

Palmer argued that under the ordinance was content-based, because it two other ordinances in the city code distinguished between commercial and non-commercial messages.  However, Judge Christensen reasoned that the appropriate inquiry focused only the specific ordinance that prohibited the use of balloons as wind signs.

Thus, the court evaluated the law under the Supreme Court’s analysis – called the Central Hudson test – for restrictions on commercial speech.  This test, developed by the Court in Central Hudson Gas & Elec. v. Public Serv. Comm’n (1980) provides:

  • The speech must be truthful and concern lawful activity;
  • The regulation must serve a substantial governmental interest;
  • The regulation must directly and materially advance the government’s interest;
  • The regulation must be narrowly tailored.

There was no question the speech was truthful.  The judge also found that the ordinance served the city’s substantial interests in traffic safety and aesthetic values by limiting attention-getting devices near roadways.

The judge also determined that the ordinance directly and materially advanced these interests in traffic safety and aesthetics.  Here, the court’s analysis seemed light.   The city apparently did not put forth significant evidence that the balloons caused problems.  However, the judge wrote that the city “need not provide detailed evidence proving a connection between wind signs and its stated purposes.”

The judge also said the ordinance was narrowly tailored because “it targets precisely those advertisements that are most likely to distract and annoy drivers and passerbys.”

The judge showed great deference to the city in its stated interests without requiring any evidence of harm.

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