Litigation Backgrounder

The Issue in a Nutshell:

In March 2007, Jim Roos created the perfect protest to the city of St. Louis’ threat to use eminent domain to take his property and the entire surrounding neighborhood and turn it over to private developers.  He had a large mural painted on the side of his building protesting the city’s abuse and promoting a coalition of Missouri citizens who back statewide eminent domain reform.  The sign, on a building visible from the highway and in a “redevelopment zone” threatened with eminent domain, delivers a powerful and unique message to a wide audience.

But, in a double blow to free speech and property rights, the same city government that wants to take Jim’s property also wants to shut down his protest of such abuse:  The city of St. Louis is determined to destroy the mural.  First it required Jim to apply for a permit for a mural painted on his own building, then it denied his application.  Now it wants the mural taken down.

The city’s actions are a case study in how so-called “sign codes” and other speech regulations run amok.  St. Louis’ sign code forces citizens to ask the government for permission to speak, and when the government has the ability to regulate speech, it also has the power to censor speech it does not like.

For Jim, the ability to protect his property is directly linked to his freedom to speak.  Even before the U.S. Supreme Court in Kelo v. City of New London gave the green light to eminent domain for private development, Missouri was one of the worst states for eminent domain abuse.  Indeed, this is the third time property Jim owns or manages has faced the wrecking ball for private development.  Relatively toothless reform after Kelo has left Missouri property owners without much protection from the courts or the Legislature.

The best avenue left for property owners to protect what is rightfully theirs is political activism.  If the First Amendment means anything, it must mean that citizens like Jim Roos have the right to protest government abuse and build support for meaningful reform—without having to get government approval.

To vindicate his rights, Jim has taken the city to court, and the Institute for Justice has taken up his cause.  On November 14, 2007, IJ asked the U.S. District Court for the Eastern District of Missouri to hear a renewed challenge to St. Louis’ sign code and its refusal to let Jim’s mural stay.

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“If this sign is allowed to remain then anyone with property along any thoroughfare can paint signs indicating the opinion or current matter relevant to the owner to influence passersby with no control by any City agency.  The precedent should not be allowed.”

Alderman Phyllis Young, 7th Ward, City of St. Louis

June 25, 2007, letter to Rodney Crim, executive director, Saint Louis Development Corporation, regarding Jim Roos’ sign protesting eminent domain abuse

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Introduction

Giving government bureaucrats the power to decide which speech is acceptable turns the First Amendment on its head.  It puts citizens in the position of having to justify their speech to the authorities and can lead to abuse, with the government suppressing speech it does not like.  Unfortunately, that is exactly what can happen under local government “sign codes”—regulations restricting or eliminating outdoor communications.  And it is happening in St. Louis, where the city government is trying to censor a sign protesting the abuse of eminent domain by—who else?—the city of St. Louis.

Fed up with seeing the affordable housing he owns and manages be condemned by St. Louis municipal governments to make way for private development, Jim Roos decided to fight back.  He had a large mural painted on the side of one of his buildings targeted for seizure in the Bohemian Hill neighborhood.  The mural calls for the city to “End Eminent Domain Abuse” and promotes the Missouri Eminent Domain Abuse Coalition, which Jim helped found to advocate for reform of Missouri’s eminent domain laws.  The sign’s location—on the side of a building slated for condemnation and visible from heavily traveled Interstate 44—is ideal for raising awareness about and protesting eminent domain abuse. 

But, adding insult to injury, not only does St. Louis want to seize Jim’s property, it also wants to ban his protest of such abuse.  After Jim raised $1,000 to paint the sign on his own building with the consent of his tenants, the city told him the mural required a permit.  Then it denied his request for one.  Now the city is demanding he take the sign down.

So Jim is fighting the city’s petty censorship in court, seeking to vindicate his First Amendment right to free speech.  This past summer, Jim challenged the city’s attempt to suppress his speech in state court.  The case, Neighborhood Enterprises, Inc. v. City of St. Louis, was then moved to federal court. 

The Institute for Justice, a public interest law firm that defends property rights and First Amendment freedoms nationwide, took up Jim’s case and on November 14 filed an amended complaint with the U.S. District Court for the Eastern District of Missouri.  IJ represented Susette Kelo and other homeowners in Kelo v. City of New London¸[1] the now-infamous U.S. Supreme Court case that gave the green light to eminent domain for private development under the federal Constitution.  It has also successfully fought eminent domain abuse and First Amendment violations across the country.

Jim’s ordeal shows that when the government has the ability to regulate speech, it also has the power to censor speech it finds inconvenient or disagreeable.  It also demonstrates how fundamental constitutional rights are linked:  Without the First Amendment right to free speech, Jim cannot effectively protest the government’s violation of his property rights.  Likewise, the government claims the power to censor his speech in part because it has claimed the right to take his property.  In effect, the city says that by declaring Bohemian Hill a “redevelopment area,” it can exert even greater control speech within the area. 

In this case, IJ argues that redevelopment areas do not become “constitution-free” zones.  The First Amendment freedom to protest government actions is a fundamental right that deserves full protection—regardless of whether the government likes the message.

 

Protesting Eminent Domain Abuse

To Jim Roos and his wife Judy, bringing decent housing to St. Louis’s poor is a ministry, a way to provide for the community. 

After graduating from Concordia Seminary, Jim started an inner-city property management company called Neighborhood Enterprises, Inc.  Since the 1970s, NEI has provided low-income residents of St. Louis with decent affordable housing, managing more than 200 rental units in 60-plus buildings for many different owners.  One of those owners is Jim’s own non-profit housing and community development corporation, Sanctuary In The Ordinary, formed in 1990.  The idea behind SITO is to provide a “sanctuary”— a safe place for people of modest means to call home.  SITO currently owns 11 buildings.

Instead of support from the city for their efforts, multiple properties owned by SITO or managed by NEI have been targeted for eminent domain abuse.  In the 1990s, the city declared a neighborhood in the Gate District, including a property managed by NEI, “blighted.”  In 2003, the city, through its Land Clearing for Redevelopment Authority, took the land and razed it to make way for a private development of single-family homes.[2]  Then, in 2003 and 2004, the Garden District Commission, created by the Missouri Botanical Garden, condemned 23 buildings containing 57 apartments owned by SITO and managed by NEI, again for a residential development, Botanical Heights.[3] 

Another SITO property had been under the threat of eminent domain since 1999, when the St. Louis Board of Aldermen declared a 219-acre area, including the Bohemian Hill neighborhood, “blighted.”  The ordinance authorized the LCRA to use eminent domain to condemn property for “redevelopment.”  Eight years later, in January 2007, property owners in the area received letters from the LCRA saying that it was interested in acquiring their property—including SITO’s building at 1806-08 S. 13^th Street.[4]

Jim had had enough.  He raised money and, with his tenants’ consent, had a mural painted on the building at 1806-08 S. 13^th Street.  Completed in March 2007, the mural cost approximately $1,000 and is painted red, white and black and with a slash through the words “End Eminent Domain Abuse.”  The mural also promotes the websites for two anti-eminent domain abuse groups, including the Missouri Eminent Domain Abuse Coalition, which Jim helped found.

People traveling on Interstates 44 and 55 can see the mural from the highway, as can residents of the nearby neighborhood of Soulard.  It declares to the world that the people affected by eminent domain abuse in the city of St. Louis have had enough.

On April 10, 2007, the city’s Department of Public Safety, Division of Building and Inspection cited Jim and SITO, claiming the mural was an “illegal sign” and demanding he obtain a permit for it.  Jim then applied for a permit.

Oddly, on May 17, 2007, the LCRA—not Building and Inspection, which is responsible for regulating signs and to which Jim applied—wrote to the city and said the mural did not have its approval because it ran afoul of the blight ordinance passed in 1999.  Two weeks later, Building and Inspection denied Jim’s permit application.  Somehow, the redevelopment agency with power over Jim’s property had injected itself into the permit process:  not only did it claim the power to take Jim’s property, it also claimed the power to stop his protest of the seizure.

Unclear as to which city agency actually denied his permit, Jim filed two appeals, one to the city’s Board of Adjustment regarding Building and Inspection’s action and one to the LCRA Board regarding LCRA staff actions.  In both, Jim argued that denying his permit application violated his free speech rights under the U.S. and Missouri constitutions.  Both agencies denied the appeals, prompting Jim’s lawsuit to vindicate his First Amendment rights.

 

St. Louis’ Sign Codes and Redevelopment Ordinance:  Suppressing Free Speech

St. Louis’ sign codes are, unfortunately, representative of the trend by municipal governments to regulate and manage many aspects of daily life—from where you can live to what messages you can post or receive.  Most sign codes restrict communications based on content or location and often create a restrictive or confusing set of criteria that effectively limits citizens’ ability to communicate using outdoor signs or renders efforts to communicate using outdoor signs utterly ineffectual.

The St. Louis ordinance regulating outdoor signs effectively bans all signs unless they fall within certain parameters.  If so, a person wishing to speak must apply for a permit from the city to erect or post a sign.[5]  Under the city’s general sign ordinance, a “sign” includes “any object or device or part thereof situated outdoors which is used to advertise, identify, display, direct or attract attention to an object, person, institution, organization, business product, service, event, or location by any means.”[6]  The ordinance exempts several categories of “signs” from regulation, including:

 

a.     Flags of nations, states and cities, fraternal, religious and civic organizations;

b.     Merchandise, pictures of models of products or services incorporated in a window display;

c.     Time and temperature devices;

d.     National, state, religious, fraternal, professional and civic symbols or crests, or on site ground based measure display device used to show time and subject matter of religious services;

e.     Works of art which in no way identify a product.[7]

 

If a speaker cannot determine whether an object is a sign, “the Community Development Commission shall make such determination,” but the law provides no standards by which this Commission is to make such a determination.[8]  This is dangerous because it gives a government agency broad discretion to regulate speech, potentially leading to arbitrary censorship.

Under the city’s code, signs in the zoning area in which Jim’s property is located must be “incidental, customary as commonly associated with the operation of the conforming use” located on the property.[9]  The permissible content of such signs is “[i]dentification by letter, numeral, symbol or design of the conforming use by name, use, hours of operation, services offered and events.”[10]  Under the sign code, only these signs may obtain permits.  All other signs are banned.

In addition to the general sign code for the whole city, the blight and redevelopment ordinance St. Louis passed in 1999 has even more severe restrictions for Bohemian Hill.  The ordinance bans all painted wall signs and all new signs except those “identifying the names and/or business of the person or firm occupying the premises.”[11]

In short, under St. Louis’ sign code, citizens must seek government permission before they may communicate with one another using signs; they must justify their speech, rather than the government justifying its restrictions on speech.  Speakers must comply with severe restrictions on the subject matter, size and placing of the sign, and bureaucrats have considerable latitude to decide whether the speaker has met the government’s criteria.  And under the redevelopment ordinance, signs are even more restricted.

These restrictions make it impossible for Jim to effectively convey his message protesting eminent domain abuse.  Assuming that his mural constitutes a “sign” and the city has any jurisdiction over it at all (a notion not supported by the city’s own definition), the city’s Zoning Code and its denial of a permit essentially stops Jim’s protest, a result of considerable benefit to the city.

 

Signs and the Free Flow of Information

Signs are likely the oldest form of mass communication, with evidence of advertising dating back to the ancient Egyptian city of Thebes.[12]  Guttenberg himself made advertising posters.[13]  Signs along the roadside can be entertaining and enlightening, challenging and off-putting.  As scholar Jane Jacobs has noted, signs can reduce social isolation between the motorist and the towns through which she travels and ameliorate the monotony of driving.[14]

The use of inexpensive means to communicate to fellow citizens is both a fundamental right under the U.S. Constitution and part of a grand tradition tracing back to the founding of our country.[15]   As the U.S. Supreme Court has stated, “Residential signs are an unusually cheap and convenient form of communication.  Especially for persons of modest means or limited mobility, a yard or window sign may have no practical substitute…  [A] person who puts up a sign at her residence often intends to reach neighbors, an audience that could not be reached nearly as well by other means.”[16]

Nonetheless, government regulators, reflecting elite opinion about how cities and the landscape are supposed to look, vigorously oppose the ability of Americans to use outdoor signs to communicate with one another. 

 

Sign Codes:  Restricting Speech by Regulating the Medium

Sign codes have proliferated with little backlash, thanks to a muddled U.S. Supreme Court ruling, Metromedia, Inc. v. City of San Diego.[17]  In that case, the Court struck down a San Diego ordinance that banned noncommercial signs while permitting some commercial signs.  But unfortunately, the Court also suggested that cities would be justified in banning most, if not all, billboards within a city.

The Court’s decision has caused far more problems than it has solved.  The decision generated five opinions, no majority, and the Court “failed to agree even on the framing of the issue, the standard of review, or the impact of the San Diego ordinance at issue.”[18]  As then-Justice Rehnquist noted, the case resulted in a “virtual Tower of Babel, from which no definitive principles can be clearly drawn.”[19]  As a result, courts have had a difficult time formulating a consistent set of rules to apply to regulations of outdoor signs.

Nonetheless, most courts have concluded that Metromedia does stand for one proposition:  Local governments can ban billboards and severely regulate other signs to promote “esthetics” and traffic safety.  In practice, this has meant that local governments can, and will, simply impose draconian restrictions on outdoor signs unless challenged in court.  Given the cost of such a challenge and the uncertainty created by Metromedia, this has meant that cities have had virtually no restrictions on their ability to regulate signs of all types for the last two decades.

It also means that regulators categorize outdoor signs as threats to community “esthetics” and safety.  However, what promotes esthetics is an inherently subjective standard.  Ultimately, what counts as “esthetics” can be better stated as “whatever the Mayor and City Council want.”  Moreover, sign codes are often completely unsupported by any empirical evidence that such restrictions actually enhance traffic safety. 

Indeed, the city of Glendale, Ohio, threatened Chris Pagan with fines and jail time for putting a “for sale” sign in the window of his car while it was parked on the street in front of his home.  Absurdly—and without a shred of evidence—the city claimed that people looking at the sign might walk into traffic and get run over.  Ordinarily, such paternalism is not a justification for banning speech, but a federal district court and a three-judge panel of the 6^th U.S. Circuit Court of Appeals sided with the city.  Fortunately, all 15 judges on the 6^th Circuit agreed to rehear the case and struck down Glendale’s “for sale” sign ban as a violation of Chris’ First Amendment rights.[20] 

Similarly, Redmond, Wash., clamped down on bagel shop owner Dennis Ballen because he hired someone to carry a sign pointing customers to his out-of-the way location.  The city claimed the sign was too “distracting” for drivers, but the sign ban, unsurprisingly, made special exceptions for politicians and influential industries like real estate—signs that are no more a threat to safety or esthetics than a sign advertising bagels.  Fortunately, that is just what the 9th U.S. Circuit Court of Appeals held when it struck down Redmond’s sign ordinance as unconstitutional.[21]

In short, sign codes that are supposed to regulate only the medium all-too-often wind up regulating the message itself, giving overreaching bureaucrats license to engage in petty censorship.

 

St. Louis’ Sign Code and Redevelopment Ordinance Unconstitutionally Suppress Speech

Unfortunately, the U.S. Supreme Court’s decision in Metromedia undermines the ability of Americans to communicate with one another through the use of outdoor signs.  But free speech and the free flow of information are supreme values under our Constitution.  The First Amendment guarantees not only that Americans may speak their minds free from government censorship, but also that they may freely send and receive information vital to their daily lives.

The St. Louis ordinances violate fundamental constitutional protections in a number of ways.  First, whether one’s outdoor communication is permitted depends on the content of that communication.  In other words, signs containing certain messages—works of art, a civic crest, etc.—are permitted, while signs containing other content—protesting eminent domain, for instance—are forbidden.  Such content-based distinctions are illegal under the First Amendment.[22]

Second, when a person wishing to display outdoor communications cannot determine whether their communication is allowed, needs a permit, or is forbidden, the discretion to make that determination is vested in city officials.  But the city’s Zoning Code does not give any guidance to these officials on how to exercise this discretion.  Laws that give government officials the ability to license speech cannot also give such officials unbridled discretion, as this power will likely be exercised against messages with which the government disagrees.[23]

Most significantly, however, Jim’s mural is a uniquely effective protest of eminent domain abuse.  Quite simply, there is no other medium available that conveys the threat of eminent domain abuse as powerfully as identifying a building with families living in it threatened with such abuse.  By shutting down this protest, the city is shutting down Jim’s ability to effectively protest what the city is doing.[24]

 

“Show Me” Eminent Domain Abuse:  Missouri’s Record Deserves Protest

When it comes to eminent domain abuse in Missouri, there is much to protest.  As documented by the Institute for Justice, prior to the U.S. Supreme Court’s decision in Kelo v. New London, “Missouri ha[d] one of the worst records on eminent domain abuse in the country.  Cities and towns across the state regularly use[d] eminent domain for the benefit of private parties.”[25]  This long history of abuse occurred with the acquiescence of the Missouri courts, even though the Missouri Constitution has one of the strongest provisions against eminent domain abuse in the nation.[26]  After Kelo, things did not improve.  The ruling only further opened the floodgates to eminent domain abuse by Missouri governments.[27]

In Kelo, the U.S. Supreme Court noted that the political process remained one avenue (perhaps the only one) for a property owner to combat eminent domain for economic development.[28]  Forty-two states responded by reforming their eminent domain laws, through the legislature or citizen initiative, to curb abuse.  Unfortunately, Missouri’s reform was relatively toothless.

After Kelo, Gov. Matt Blunt appointed a task force to study the use of eminent domain in Missouri and recommend changes to the General Assembly.[29]  However, the Task Force recommended weak reforms, further watered down by the Assembly when it acted on only some of the recommendations.  In the end, what emerged from the process, outside of some procedural improvements for property owners, was not much different than what was in place before Kelo.[30]  One of the few useful results, however, was the establishment of an Office of Ombudsman in the Office of Public Counsel within the Department of Economic Development to assist property owners threatened with eminent domain.[31]

Without real protection for the rights of home and small business owners from Missouri courts, the Missouri Legislature or the U.S. Constitution, property owners like Jim Roos have nowhere else to turn but to their fellow citizens.  To keep what is rightfully theirs, they must rally support to convince their local government to stop the abuse.  Or they must take the issue of eminent domain abuse directly to the voters, as Jim and MEDAC are doing by gathering signatures to put a constitutional amendment on the ballot that will provide real protection for home and small business owners.

In other words, the best avenue left for property owners like Jim is protest—and now the same government violating his property rights is trying to shut down the most effective method he has of protesting its actions and building support for real reform.

 

Conclusion

This case is about government abuse of power:  power to regulate and restrict freedom of speech and power to use eminent domain not for a public use, but to transfer property to private developers.  In both, the city of St. Louis has taken the wrong path.  It has abused eminent domain time and time again, and now it seeks to use its power to shut down the First Amendment right to protest that abuse.  It is now up to the courts to hold the city accountable.

 

Litigation Team

Bill Maurer, executive director of the Institute for Justice Washington Chapter, is the lead attorney in NEI v. City of St. Louis.  Maurer recently achieved a unanimous First Amendment victory in the Washington Supreme Court halting a government effort to treat radio commentary as a campaign contribution subject to regulation under state campaign finance laws.[32]  He was also the lead attorney in a successful challenge to the City of Redmond’s sign code.[33]  IJ Senior Attorney Steve Simpson and IJ Minnesota Chapter Staff Attorney Nick Dranias are also litigating the case.  Simpson is lead counsel in two challenges to Colorado’s campaign finance laws on behalf of the Independence Institute and citizens in Parker North, Colo.  Dranias recently achieved a free speech victory ending Minnesota’s restrictions on speech about the shipment of wine.  Assisting IJ’s team is local counsel John Randall of University Park, Mo.

 

For More Information:

Lisa Knepper, Director of Communications
Institute for Justice
901 N. Glebe Road, Suite 900
Arlington, VA  22203

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(703) 682-9320