JORDAN, Circuit Judge.
Kenyatta Johnson and Damon K. Roberts (collectively, "Appellants") appeal the District Court's grant of summary judgment for the City of Philadelphia (the "City"), contending the District Court erroneously concluded that a City ordinance prohibiting the posting of signs on street poles passes constitutional muster under the First, Fourteenth, and Twenty-Fourth Amendments of the United States Constitution. For the reasons that follow, we will affirm.
Appellants challenge the constitutionality of a City ordinance that prohibits the posting of signs on utility poles, street-lights, sign posts, and trees in a public right-of-way. Enacted after a similar ordinance was enjoined on First Amendment grounds,
Specifically, the present ordinance states that, except as provided in accordance with a program permitting banners under certain circumstances (the "Banner Program"),
At the time their actions were brought, Appellants were both candidates for political office in an area of the City that contains "a classic urban landscape of row house neighborhoods, where most homes have no front yard."
In support of their constitutional challenge, Appellants submitted affidavits from Johnson and his campaign manager, as well as a letter-report authored by Joe Long of the Northampton County Democratic Committee. Long's report is fashioned as an expert opinion regarding the ordinance's impact on Appellants' campaigns. It claims that the City's ordinance
After Johnson filed his initial complaint, he moved for a preliminary injunction. The District Court referred the motion to a Magistrate Judge, who held a hearing on the motion and denied it, observing that "[t]he content-neutrality of the challenged ordinance has been conceded" (App. at 47) and deciding that Johnson was unlikely to succeed on the merits. As noted supra note 3, Roberts was later added as a plaintiff and his own civil action was consolidated with Johnson's. The City then moved for summary judgment, which was granted. The District Court concluded that there was no genuine issue of material fact and that the City was entitled to judgment on Appellants' claims.
This timely appeal followed.
Appellants argue that the City's ordinance violates the First, Fourteenth, and Twenty-Fourth Amendments, and that the District Court erred by concluding otherwise and granting the City's motion for summary judgment. We address those contentions in turn.
Appellants allege that the City's ordinance violates the First Amendment because it is a restriction on political speech. See U.S. Const. amend. I ("Congress shall make no law ... abridging the freedom of speech...."); Members of City Council v. Taxpayers for Vincent, 466 U.S. 789, 792 n. 2, 104 S.Ct. 2118, 80 L.Ed.2d 772 (1984) ("Under the Fourteenth Amendment, city ordinances are within the scope of [the First Amendment's] limitation on governmental authority.").
The first step in assessing the First Amendment claims is to determine
Here, resolving the threshold question of content neutrality is straightforward. When asked at oral argument, Appellants' counsel acknowledged that the ordinance is content-neutral. Although their briefing periodically implies otherwise,
Appellants first argue that the City's ordinance does not serve a significant government interest. As a preliminary matter, it is clear from Supreme Court precedent that "the goals of `traffic safety and the appearance of the city[ ] are substantial governmental goals.'" Riel v. City of Bradford, 485 F.3d 736, 751 (3d Cir.2007) (quoting Metromedia, Inc. v. City of San Diego, 453 U.S. 490, 507-08, 101 S.Ct. 2882, 69 L.Ed.2d 800 (1981) (plurality opinion)); see Taxpayers for Vincent, 466 U.S. at 805, 104 S.Ct. 2118 ("It is well settled that the state may legitimately exercise its police powers to advance esthetic values"); Rappa, 18 F.3d at 1075 ("[T]he sufficiency of the government's interest in aesthetics and safety has, by this juncture, become unquestioned."). Here, as previously noted, the record indicates that the City's ordinance was intended to promote those legitimate and significant values. (See App. at 109 (referring to blight and to the safety of motorists).)
Nevertheless, citing our decision in Rappa v. New Castle County, in which we held that a regulation prohibiting campaign
Here, however, unlike the disputed ordinance in Rappa, the City's ordinance is content-neutral—a point which, as discussed earlier, Appellants have expressly acknowledged. In other words, the City's ordinance does not simply prohibit political speech; it prohibits all speech in the form of temporary signs on utility poles, streetlights, sign posts, and trees in the public right-of-way, and there is no evidence that it is selectively enforced or was crafted for the purpose of prohibiting political speech in particular. Instead, every indication in the record is that the ordinance was intended to promote public safety and reduce blight. (See App. at 109.) Under these circumstances, the City's judgment that such goals are advanced by the ordinance is accorded deference "unless [that judgment] is facially unreasonable." Frumer v. Cheltenham Twp., 709 F.2d 874, 877 (3d Cir.1983) (citing Metromedia, 453 U.S. at 507-08, 101 S.Ct. 2882). Because we cannot say the City's judgment fails that test, we are bound to recognize that the ordinance advances significant government interests. Id.
That does not end our inquiry, however, as the ordinance must be narrowly tailored to serve the City's interest in safety and aesthetics. Rappa, 18 F.3d at 1054. In order to be narrowly tailored, a regulation "need not be the least restrictive or least intrusive means of" furthering the identified interest. Ward, 491 U.S. at 798, 109 S.Ct. 2746. "Rather, the requirement of narrow tailoring is satisfied `so long as the ... regulation promotes a substantial government interest that would be achieved less effectively absent the regulation.'" Id. at 799, 109 S.Ct. 2746 (citation omitted).
Appellants argue that the City's ordinance is not narrowly tailored because it "chose to solve its sign problem ... by the use of an unconstitutional sledge hammer" that "banned all speech." (Appellants' Br. at 19.) The Supreme Court's decision in Members of City Council v. Taxpayers for Vincent is instructive in assessing that contention. There, the Court considered the constitutionality of an ordinance that was, in all material respects, similar to the
The City's ordinance in this case is, for all practical purposes, indistinguishable from the ordinance upheld in Taxpayers for Vincent as narrowly tailored to serve the same interests as are implicated here. Thus, the City's ordinance can be said to "curtail[] no more speech than is necessary to accomplish its purpose." Id. at 810, 104 S.Ct. 2118.
Appellants' argument to the contrary appears to depend on the belief that the City has "banned all speech."
Having determined that the City's content-neutral ordinance is narrowly tailored to serve a significant governmental interest, we next examine whether it leaves open ample alternative channels for communication. Rappa, 18 F.3d at 1054.
Appellants contend that the City's ordinance does not afford sufficient alternative channels because "political posters have
Instead, "[t]he Supreme Court has required that an alternative means of communication provide only a `reasonable opportunity' for communication of the speaker's message." Galena v. Leone, 638 F.3d 186, 203 (3d Cir.2011). Accordingly, a speaker is not entitled to his or her favored or most cost-effective mode of communication. See, e.g., Mastrovincenzo v. City of N.Y., 435 F.3d 78, 101 (2d Cir.2006) ("The requirement that `ample alternative channels' exist does not imply that alternative channels must be perfect substitutes for those channels denied to plaintiffs by the regulation at hand...."). He or she must simply be afforded the opportunity to "reach the `intended audience,'" Startzell v. City of Phila., 533 F.3d 183, 202 (3d Cir.2008) (citation omitted), in an adequate manner, see Taxpayers for Vincent, 466 U.S. at 812, 104 S.Ct. 2118 ("[A] restriction on expressive activity may be invalid if the remaining modes of communication are inadequate.").
It is clear that the City's ordinance allows ample alternative avenues for communication. While the ordinance in Taxpayers for Vincent—like the City's ordinance—prohibited the posting of signs on street poles, the Supreme Court was satisfied with the district court's finding that there was nothing about "the posting of political posters on public property [that is] a uniquely valuable or important mode of communication." 466 U.S. at 812, 104 S.Ct. 2118. The Court relied on the district court's finding that the plaintiffs had several alternative avenues for communication: "they remain[ed] free to picket and parade, to distribute handbills, to carry signs and to post their signs and handbills on their automobiles and on private property with the permission of the owners thereof." Id. at 795, 104 S.Ct. 2118.
Here, too, notwithstanding Appellants' conclusory pronouncements that there is simply no way to wage a low-budget campaign in Philadelphia in compliance with the City's ordinance, the evidence demonstrates that there are several other avenues of communication. Roberts and Johnson themselves engaged in other means of campaigning,
As Appellants evidently recognize, then, there is tremendous value in being able to post political signs on private property. Likewise, the Supreme Court has noted:
City of Ladue v. Gilleo, 512 U.S. 43, 55, 114 S.Ct. 2038, 129 L.Ed.2d 36 (1994) (internal footnote omitted). We have likewise observed that "[p]osting a sign on one's own property may not only be easier and less expensive than alternative means of communication, but may be a unique means of self-expression for the property owner." Rappa, 18 F.3d at 1077. It bears emphasis, in this regard, that over half of Johnson's political posters were placed on private property. Clearly, signs on private property are a valuable and regularly utilized campaign tool that—at least when combined with other avenues of communication—provide a sufficient alternative to the sign-posting forbidden by the City. Taxpayers for Vincent, 466 U.S. at 811-12, 104 S.Ct. 2118.
Because the City's ordinance is content-neutral, narrowly tailored to serve a significant government interest, and leaves open ample alternative channels for communication, the District Court properly entered judgment in the City's favor on Appellants' First Amendment claims.
Appellants also argue that the District Court erred in granting summary judgment against them on their Fourteenth Amendment and Twenty-Fourth Amendment claims.
Their Fourteenth Amendment claim appears to be based on the belief that the Banner Program favors commercial speech over political speech and, therefore, violates the Equal Protection Clause. As previously noted, however, that factual contention is entirely unsupported by the record. Appellants' complaint acknowledges as much, stating that "[Appellants] are not aware that any political candidates ever used the so called `Banner Program' as a form of campaigning for political office," (App. at 63), and Appellants concede that they did not seek to participate in that program. Accordingly, there is no genuine issue of material fact for trial as to Appellants' Fourteenth Amendment claim.
Appellants' Twenty-Fourth Amendment claim is that the City's ordinance is an unlawful poll tax.
For the foregoing reasons, we will affirm the judgment of the District Court.