977 F.3d 93
1st Cir.2020Background
- Pembroke, NH sign ordinance generally bans "electronic changing signs" outside the C1 commercial district and certain lots abutting Pembroke Street.
- Hillside Baptist Church (with Signs for Jesus) sought a permit in 2015 for an electronic sign on church property in a non-C1 (LO) zone; Code Enforcement Officer Hodge denied the permit.
- The Zoning Board of Adjustment denied the Church's administrative appeal and variance request after hearings; rehearing was denied.
- The Church sued under the First Amendment, RLUIPA, federal and state equal protection, and state zoning statutes; the district court granted summary judgment to the Town and declined supplemental jurisdiction over state claims.
- The First Circuit affirmed, holding the electronic-sign ban is a content-neutral time/place/manner restriction that survives intermediate scrutiny, rejecting RLUIPA and equal-protection challenges, and finding standing limits on broader facial attacks.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Standing to challenge PSO broadly | Church argued it could challenge other content-based exemptions and PSO "as a whole" | Town argued Church only had standing to challenge electronic-sign provision that caused its injury | Court limited standing: Church may challenge electronic-sign provision and any exemptions that actually exempt signs from it; no standing to invalidate unrelated PSO provisions because severability presumed |
| First Amendment — content-based vs. content-neutral | Church: exemptions and government-sign exception render ordinance content- or speaker-based, triggering strict scrutiny | Town: electronic-sign rule is facially content-neutral and exemptions reflect limits on Town's power (e.g., state-required signs), so intermediate scrutiny applies | Court: ordinance is content-neutral; government-required-sign exception does not reflect impermissible content preference; intermediate scrutiny applied |
| Time/place/manner tailoring and alternatives | Church: ban is underinclusive/overinclusive and burdens speech by denying more convenient electronic medium | Town: aesthetic interest in preserving rural character is significant; alternatives (manual/static signs) remain open | Court: ban is narrowly tailored to aesthetic interest, leaves open ample alternatives; survives intermediate scrutiny |
| Unbridled discretion / prior restraint | Church: "include but not limited to" language and application to Church's sign show unbridled discretion | Town: ordinance gives objective examples and criteria; Church's sign could change daily so fits definition | Court: language read in context is sufficiently definite; no unconstitutional unfettered discretion |
| RLUIPA — Equal Terms | Church: Pembroke Academy and NHDOT are better-treated comparators | Town: those comparators are governmental and not subject to Town zoning authority | Held: comparators not similarly situated because governmental entities are outside Town's zoning power; equal-terms claim fails |
| RLUIPA — Substantial Burden | Church: ban substantially burdens religious exercise by preventing electronic messaging | Town: requirement to use manual sign is not an oppressive or substantial burden; alternatives available | Court: did not find a substantial-burden violation; focused on lack of evidence of prejudgment and that burden was not sufficiently substantial |
| Equal Protection | Church: disparate treatment of its sign compared to Pembroke Academy/NHDOT violates Equal Protection | Town: government actors are not proper comparators and Town lacked authority to regulate them | Court: comparators not similarly situated; equal-protection claims fail |
| Supplemental jurisdiction over state claims | Church: district court should have kept state statutory claims | Town: dismissal of federal claims warranted dismissal of supplemental state claims | Court: district court did not abuse discretion in declining supplemental jurisdiction after disposing of federal claims |
Key Cases Cited
- Reed v. Town of Gilbert, 576 U.S. 155 (2015) (facial content-based sign restrictions trigger strict scrutiny)
- City of Lakewood v. Plain Dealer Publ’g Co., 486 U.S. 750 (1988) (unbridled discretion in licensing statutes can be a prior restraint)
- Ward v. Rock Against Racism, 491 U.S. 781 (1989) (intermediate scrutiny for valid time, place, and manner restrictions)
- Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) (standing requires concrete, traceable, redressable injury)
- Roman Catholic Bishop of Springfield v. City of Springfield, 724 F.3d 78 (1st Cir. 2013) (RLUIPA substantial-burden framework and indicators)
- City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432 (1985) (equal protection comparator and scrutiny analysis)
- Metromedia, Inc. v. City of San Diego, 453 U.S. 490 (1981) (aesthetic interests can justify sign regulation)
- Members of City Council v. Taxpayers for Vincent, 466 U.S. 789 (1984) (aesthetic regulation of signs on public property upheld)
- Van Wagner Bos., LLC v. Davey, 770 F.3d 33 (1st Cir. 2014) (facial challenges to sign codes and standing principles)
- McCullen v. Coakley, 573 U.S. 464 (2014) (narrow tailoring analysis and requirement to show serious mismatch between means and stated interest)