Berg. v. Village of Scarsdale
20-4130-cv (L)
2d Cir.Dec 3, 2021Background
- Plaintiff Robert J. Berg placed political lawn signs in the Village of Scarsdale right-of-way and challenged Village sign and obstruction ordinances after enforcement actions.
- Village Code sections at issue broadly prohibit posting signs on public places/right-of-way and require permits to obstruct streets, sidewalks, or other public places.
- Berg sued alleging (1) the ordinances were unconstitutionally vague (Due Process), (2) the ordinances violated the First Amendment (facial time/place/manner challenge), and (3) the Village selectively enforced the Code (as-applied/viewpoint-discrimination/selective-enforcement claim) favoring commercial signs over political signs.
- The district court granted Berg summary judgment on his as-applied selective-enforcement claim but denied other parts of his motion; the Village appealed and cross-appealed.
- The Second Circuit reviewed de novo and concluded the Village Code is not unconstitutionally vague, is a permissible content-neutral time/place/manner restriction, but reversed the district court’s judgment for Berg on the as-applied claim and directed entry of judgment for the Village.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Vagueness (Due Process) | Berg: terms like “obstruct” and right-of-way are vague and fail to give fair notice. | Village: provisions and related permit/enforcement standards give ordinary persons notice and limit discretion. | Court: Ordinances are not unconstitutionally vague; language and enforcement standards provide adequate notice and limit arbitrary enforcement. |
| Facial First Amendment (time/place/manner) | Berg: blanket prohibition on signs on public property unduly restricts speech. | Village: ban is content-neutral, serves aesthetics and safety, is narrowly tailored and leaves alternatives (private property). | Court: Regulation is content-neutral and a permissible time/place/manner restriction. |
| As-applied / Viewpoint discrimination | Berg: Village selectively enforced against political signs while tolerating commercial signs, showing unlawful favoritism. | Village: Enforcement records show police predominantly enforced against commercial signs (2006–2016) and later responded to complaints regardless of content; no pattern of unlawful favoritism against political signs. | Court: No triable evidence of a pattern of unlawful favoritism favoring commercial signs; summary judgment for Berg on as-applied claim reversed. |
| Standing to assert others’ harms (related to as-applied claim) | Berg pursued claim alleging favoritism toward commercial sign-holders. | Village: Berg lacks standing to assert rights of commercial sign owners because his signs were political. | Court: Berg lacked standing to press a claim on behalf of commercial-sign holders; judgment for Village directed. |
Key Cases Cited
- Grayned v. City of Rockford, 408 U.S. 104 (1972) (vagueness review and notice principle)
- Hill v. Colorado, 530 U.S. 703 (2000) (vagueness doctrine where statute reaches protected expression)
- Cunney v. Bd. of Trustees, 660 F.3d 612 (2d Cir.) (standards for vagueness and arbitrary enforcement)
- Thomas v. Chicago Park Dist., 534 U.S. 316 (2002) (requirement to show a pattern of unlawful favoritism for viewpoint-discrimination claim)
- Members of City Council v. Taxpayers for Vincent, 466 U.S. 789 (1984) (aesthetic government interest supports sign restrictions)
- Betancourt v. Bloomberg, 448 F.3d 547 (2d Cir.) (definition and interpretation of "obstruct" in municipal code context)
- Clear Channel Outdoor, Inc. v. City of New York, 594 F.3d 94 (2d Cir.) (aesthetic and traffic-safety interests as substantial governmental goals)
- Warth v. Seldin, 422 U.S. 490 (1975) (standing limits to assert third-party rights)
- Hobbs v. County of Westchester, 397 F.3d 133 (2d Cir.) (time/place/manner restriction analysis)