Second Circuit Upholds Regulation Prohibiting Illuminated Peace Sign in Upper West Side Window

Plaintiff was fined pursuant to a City of New York Zoning Resolution for affixing an illuminated peace symbol to the exterior frame of the window of her seventeenth-floor condominium unit on the Upper West Side of Manhattan.  Plaintiff sued the City, claiming the Zoning Resolution and fine thereunder violated her right to free speech.  In a previous decision, the Second Circuit held that Plaintiff lacked standing to challenge the regulations as content-based, but remanded the case to address whether the zoning regulations “constituted an unduly restrictive time, place, [or] manner restriction on speech.” See Vosse v. City of New York, 594 F. App'x 52, 53 (2d Cir. 2015)). On remand, the district court rejected Plaintiff’s argument that the regulations, even if content-neutral, still do not pass constitutional muster due to the manner of the restriction. See Vosse v. City of New York, 144 F. Supp. 3d 627 (S.D.N.Y. 2015).

In the instant case, the Second Circuit affirmed the lower court’s finding that the City Zoning Resolution was a content-neutral restriction on speech that was narrowly tailored to serve a significant government interest, namely the City’s interest in “maintaining an aesthetically pleasing cityscape and preserving neighborhood character.” The Court held that the Resolution left ample forms of communication available, as the height restriction in the Resolution does not prohibit non-illuminated, non-commercial signs.  Moreover, both sides agreed that the Plaintiff was free to display the same sign in her window so long as it was not illuminated.  Finally, while the Court acknowledged Plaintiff’s argument that an unilluminated sign would be harder for passers-by to see at night, it noted that “the First Amendment does not guarantee the right to communicate one's views at all times and places or in any manner that may be desired.” Heffron v. Int'l Soc'y for Krishna Consciousness, Inc., 452 U.S. 640, 647 (1981).

The case was Vosse v The City of New York, 2016 WL 6037372 (2d Cir. October 14, 2016)

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