restrictions as to size, appearance, setback, etc., as a plausible substitute for a four-month total ban on in-ground "for rent" signs. Central Hudson at least demands some explanation of why a restriction must be as extensive as it is, and the Township has not given such an explanation for Subsection Q.
Altogether, then, Subsection Q does not appear to meet the tests for a valid regulation of commercial speech set forth in Central Hudson. The "for rent" signs that it undertakes to regulate are certainly truthful speech concerning a lawful transaction. The defendants have not demonstrated that the Township's aesthetic interests are of the substantial nature demanded to justify limitations on commercial expression. Particularly in view of the seasonal variations of the regulation and the differential treatment of "for sale" and "for rent" signs, the defendants have not established that the present regulation "directly advances" the aesthetic interests; nor have they established that it is not more extensive than necessary.
IV. STANDARDS FOR PRELIMINARY INJUNCTIVE RELIEF
To justify the grant of a preliminary injunction, the court must find that the plaintiffs have demonstrated both a likelihood of success on the merits and a probability of irreparable harm absent injunctive relief. The court must also consider the balance of possible harm to other interested persons from the grant or denial of the injunction, and the public interest. Hoxworth v. Blinder, Robinson & Co., Inc., 903 F.2d 186, 197-98 (3d Cir. 1990). In the present case, the foregoing extensive discussion of Subsection Q's infirmities under both a R.A.V. v. St. Paul test and a Central Hudson test clearly establishes plaintiffs' likelihood of success on the merits.
As to the required showing of irreparable harm, plaintiffs assert that a First Amendment violation necessarily entails irreparable harm to those who have been denied their rights of free speech, relying on Elrod v. Burns, 427 U.S. 347, 96 S. Ct. 2673, 49 L. Ed. 2d 547 (1976). In that case, the Supreme Court held that government employees who had been dismissed or threatened with dismissal because of their political party affiliations, had shown the irreparable injury necessary to a grant of a preliminary injunction. "The loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury." Id. at 373, 96 S. Ct. at 2690, 49 L. Ed. 2d at 565. The defendants, to the contrary, assert that Hohe v. Casey, 868 F.2d 69 (3d Cir.), cert. denied, 493 U.S. 848, 110 S. Ct. 144, 107 L. Ed. 2d 102 (1989), establishes that First Amendment violations need not constitute irreparable injury.
The defendants are somewhat overreading Hohe v. Casey and are taking its message out of context. In that case, the plaintiffs, non-union public employees, brought a First Amendment challenge to the collection of agency fee deductions by the union that was their bargaining agent. Essentially, the plaintiffs asserted that the withholding of the fees prevented them from using the funds to promote some unspecified alternative form of social or political expression. The plaintiffs had sought to enjoin the deductions, even though the union had agreed to hold all collected fees in escrow pending final determination. The district court denied preliminary injunctive relief, and the Court of Appeals for the Third Circuit affirmed on the basis that the collection of fees simply did not rise to a level of constitutional deprivation sufficient to show irreparable injury. The plaintiffs, if successful, would be able to obtain restitution of the fees from the escrowed funds. Id. at 73.
The present case is distinguishable on its facts from Hohe v. Casey. Even in Hohe v. Casey, the Court of Appeals did not question that a demonstrated suppression of free speech constitutes irreparable harm. Id. at 73. The plaintiffs challenging the Long Beach Township Ordinance have certainly demonstrated a curtailment of their rights of expression. The owner of the Farr property was issued a Notice of Violation, whose enforcement was apparently only abated by the filing of this action. The defendants themselves presented evidence showing window "for rent" signs on premises of persons who are members of CUFFS II. From these individuals' membership in a group that challenges Subsection Q and the Ordinance in general, it is a very fair inference that those potential lessors would be displaying yard signs, were it not for the Ordinance. Individual plaintiff Harry L. Brown, Jr. testified that he took down his agency's yard signs because of the Ordinance.
Altogether, plaintiffs have demonstrated the sort of loss of First Amendment freedoms that constitutes irreparable harm under Elrod v. Burns, supra.
Consideration of the final two elements for testing the propriety of a preliminary injunction, the balance of harms and the public interest, also supports the grant of an injunction here. While the defendants have a legitimate interest in promoting an aesthetic appearance for the Township, it is unclear, as explained earlier, how the "for rent" sign restrictions advance that aesthetic interest. If the Township wishes to craft a constitutionally adequate regulation of signs for aesthetic ends, it will have the coming winter season, during which "for rent" signs would be generally permitted even under Subsection Q, to accomplish that objective. Under the circumstances, it appears that little harm, if any, could accrue to the defendants from the grant of an injunction. In addition, in cases involving First Amendment speech rights, consideration of the public interest tends to weigh in favor of enjoining undue restrictions on expression. For example, in Loftus v. Township of Lawrence Park, supra, a case challenging a prohibition of political yard signs, the court found the problem of censured expression to be a significant harm to the public.
Subsection Q of Long Beach Township Ordinance 89-43C is a content-based regulation of commercial speech, in that it applies very different levels of restriction to "for sale" and "for rent" signs. Because it is not content neutral, in order to be permissible under the First Amendment, Subsection Q would have to be necessary to achieve a compelling governmental interest. The Township has thus far demonstrated only an aesthetic interest as motivation for the Ordinance; it has not yet demonstrated either that this interest is compelling, or that the differential treatment of "for rent" signs is necessary to achieve it. In addition, even if Subsection Q were content neutral, it would be an impermissible regulation of commercial speech because the defendants have not demonstrated that their aesthetic interest is substantial, that it is directly advanced by the "for rent" sign restriction, or that the restriction is not more extensive than necessary.
The defendants will therefore be enjoined from enforcement of Subsection Q pending resolution of this action or further order of the court.
An Order accompanies this opinion.
ORDER - September 25, 1992, Filed
This matter having come before the Court on plaintiffs' application for a preliminary injunction restraining enforcement of Section 22-6.2(q) of Long Beach Township Ordinance 89-43C, and the Court having reviewed the submissions of the parties and the parties having presented testimony at the hearing held herein on July 1, 1992, and for good cause shown, as more particularly set forth in the accompanying opinion;
IT IS on this 25th day of September, 1992, ORDERED that plaintiffs' motion for a preliminary injunction is hereby GRANTED, and defendants Long Beach Township Board of Commissioners and Sean Devitt, and their officers, agents, servants, employees, and attorneys, and those persons in active concert or participation with them, are hereby RESTRAINED, ENJOINED and PROHIBITED from enforcing or attempting to enforce Section 22-6.2(q) of Long Beach Township Ordinance 89-43C, from and after the date that the bond requirement specified herein is met, until resolution of this action or further order of the court; and
IT IS FURTHER ORDERED that plaintiffs shall, within thirty (30) days of the date hereof, give security in the sum of $ 1,000.00 pursuant to Fed. R. Civ. P. 65(c); and
IT IS FURTHER ORDERED that this action is hereby referred to Magistrate-Judge John J. Hughes for scheduling of pretrial proceedings.
MARY LITTLE PARELL
United States District Judge