Luce v. Town of Campbell, 872 F.3d 512

Town of Campbell, WI banned all signs, flags, and banners on three I‑90 overpasses and within 100 feet of their ends; ordinance is content‑neutral and characterized as a time, place, and manner restriction.
Local Tea Party members Luce and Newman placed political banners on a pedestrian overpass; Town enforced the ban and issued citations.
Former police chief Tim Kelemen retaliated against Luce offline by posting identifying information and defamatory comments; he resigned, was criminally prosecuted, and settled diversion, but the district court held his acts were not state action under § 1983.
Plaintiffs sued under 42 U.S.C. § 1983 claiming the ordinance violated the First Amendment; district court granted summary judgment for the Town except it dismissed the § 1983 claim against Kelemen.
On summary judgment record, most safety evidence came from Kelemen (whose credibility was undermined by misconduct); plaintiffs submitted an expert report questioning traffic‑jam predictions but not collision risk from speed differentials.
Seventh Circuit affirmed upholding the overpass ban as a valid time, place, and manner regulation based on common‑sense traffic‑safety rationale, but vacated and remanded as to the unexplained 100‑foot buffer zone around overpass ends.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the overpass ban violates the First Amendment	Luce/Newman: blanket prohibition on signs is unconstitutional; empirical support required for TPM restriction	Town: content‑neutral TPM restriction justified by traffic‑safety concerns from drivers slowing/photographing banners	Held: ban on signs on overpasses is valid TPM restriction (affirmed)
Whether enforcement evidence required on summary judgment	Plaintiffs: must produce non‑arbitrary empirical record (McCullen/Renton)	Town: common‑sense safety judgments suffice without elaborate empirical record	Held: empirical record not always required; common‑sense and traffic‑safety reasoning sufficient here
Whether Kelemen’s online retaliation was state action under § 1983	Luce: Kelemen acted as police chief to punish protected speech; thus state action	Kelemen/Town: acts were private, personal misconduct not within official duties	Held: Kelemen’s acts were not under color of state law; § 1983 claim against him fails (affirmed)
Whether the 100‑foot buffer zone is narrowly tailored	Luce/Newman: zone bans small, private signs on nearby lawns without safety justification	Town: asserted safety justification for buffer (but provided no evidence)	Held: 100‑foot buffer unexplained and overbroad; judgment vacated and remanded on this issue

Reed v. Gilbert, 576 U.S. 155 (2015) (content‑based regulation demands strict scrutiny)
McCullen v. Coakley, 573 U.S. 464 (2014) (heightened scrutiny for some TPM restrictions requiring strong justification)
Renton v. Playtime Theatres, Inc., 475 U.S. 41 (1986) (location‑based TPM restriction must be justified by secondary effects)
Ovadal v. Madison, 469 F.3d 625 (7th Cir. 2006) (upholding a similar overpass/sign ordinance under a non‑discriminatory system)
Kovacs v. Cooper, 336 U.S. 77 (1949) (upholding noise/sound amplification regulation as TPM)
Ward v. Rock Against Racism, 491 U.S. 781 (1989) (TPM restrictions on amplification upheld without detailed empirical record)
Clark v. Community for Creative Non‑Violence, 468 U.S. 288 (1984) (upholding content‑neutral restriction on conduct in parks based on common‑sense assessment)
Metromedia, Inc. v. San Diego, 453 U.S. 490 (1981) (recognizing local judgments about visual distraction and aesthetics may justify billboard limits)
Honaker v. Smith, 256 F.3d 477 (7th Cir. 2001) (official’s malicious private act—arson—was not state action under § 1983)