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Kenyatta Johnson, Individually and As A 2008 v. City and County of Philadelphia

December 27, 2011

KENYATTA JOHNSON, INDIVIDUALLY AND AS A 2008 DEMOCRATIC PARTY PRIMARY CANDIDATE FOR STATE REPRESENTATIVE AND ELECTOR AND ON BEHALF OF ALL CITIZENS WITHIN THE 186TH LEGISLATIVE DISTRICT OF ALL CITIZENS OF PHILADELPHIA; DAMON K. ROBERTS, INDIVIDUALLY AND AS A 2007 DEMOCRATIC PARTY CANDIDATE FOR A PHILADELPHIA CITY COUNCIL AND ELECTOR AND ON BEHALF OF ALL CITIZENS WITHIN THE SECOND COUNCILMANIC DISTRICT AND ALL CITIZENS OF PHILADELPHIA,
APPELLANTS,
v.
CITY AND COUNTY OF PHILADELPHIA



On Appeal from the United States District Court for the Eastern District of Pennsylvania (D.C. No. 2-08-cv-01748) District Judge: Hon. James Knoll Gardner

The opinion of the court was delivered by: Jordan, Circuit Judge.

PRECEDENTIAL

Argued November 8, 2011

Before: SCIRICA, SMITH, and JORDAN, Circuit Judges.

OPINION OF THE COURT

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.

I. Background

A. The Ordinance

Appellants challenge the constitutionality of a City ordinance that prohibits the posting of signs on utility poles, streetlights, sign posts, and trees in a public right-of-way. Enacted after a similar ordinance was enjoined on First Amendment grounds,*fn1 the ordinance now at issue was designed to cure the earlier ordinance's constitutional infirmities (App. at 110; 118) and to promote public safety and aesthetics in the City (see App. at 108-09 (testimony from the Director of Legislative Affairs for the City's Department of Licenses and Inspections stating that signs are a "source of blight" that "[a]side from being visually unattractive ... also present[] problems related to public safety, by causing distractions for motorists operating vehicles")).

Specifically, the present ordinance states that, except as provided in accordance with a program permitting banners under certain circumstances (the "Banner Program"),*fn2 no person may post any "banners, pennants, placards, posters, stickers, advertising flags, [or] plaques," Philadelphia Code § 10-1201, on any "utility pole," "streetlight," "traffic or parking sign or device, including any post to which such sign or device is attached," "historical marker," or "City-owned tree or tree in the public right-of-way," id. § 10-1202(a)(1)- (5). The ordinance further provides that any violating sign "may be removed by the Department of Licenses & Inspections or its designees," id. § 10-1203(a), with the party "responsible for the posting of [the] sign" bearing "the cost incurred in [its] removal" as well as "a penalty of $75," id. § 10-1203(b). The ordinance does not prohibit signs on private property, or otherwise restrict communication.

B. Appellants' Constitutional Challenge

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."*fn3 (App. at 56.) By their own description, Appellants had relatively scarce resources to expend on their campaigns. Johnson spent only $9,693.78 on his campaign, and Roberts spent $14,698.00 with unpaid debts of $7,187.00. They assert that, given their limited funds, they would have ordinarily relied heavily on signs posted on street poles to spread their political messages.*fn4 However, if they had done so, they each faced the possibility of incurring significant fines because of the City's ordinance. Indeed, Johnson received a letter from the City advising him that he must remove any signs placed in contravention of the ordinance or "be billed for the cost incurred for the removal plus a $75 penalty," (App. at 71), and Roberts, like several other political candidates and private businesses responsible for violating the City's ordinance, received numerous tickets.

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 "totally bans one of the most effective campaign tools - political signs," which "eliminate[s] any chance of electoral success" for candidates with limited resources, inasmuch as political signs are inexpensive and "can be localized in a fashion that no other medium ...


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