UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

Naser Jewelers, Inc.,

Plaintiff

v. Civil No. 06-cv-400-SM

Opinion No. 2007 DNH 081

City of Concord, New

Hampshire,

Defendant

O R D E R

Plaintiff Naser Jewelers, Inc. (“NJI”) challenges the City

of Concord’s ordinance banning Electronic Message Center (“EMC”)

signs. In a Report and Recommendation dated November 22, 2006

(document no. 17), the Magistrate Judge recommended that

plaintiff’s request for preliminary injunctive relief be denied

(document no. 4). 

Before the court is plaintiff’s objection to the Magistrate

Judge’s Report and Recommendation (document no. 19). After due

consideration of the objection, the Magistrate Judge’s Report and

Recommendation is approved and his recommendation adopted, but on

somewhat different grounds. Accordingly, plaintiff’s motion for

a preliminary injunction is denied.

Case 1:06-cv-00400-SM Document 33 Filed 06/25/07 Page 1 of 12
1 The version of the revised ordinance provided to the

Magistrate Judge at the hearing was apparently filed in error. 

That version additionally prohibited “manually changeable copy

type signs, except for the placement of a temporary manually

changeable copy sign as allowed under [a separate ordinance].” 

Concord subsequently filed a corrected copy of Ordinance 2653,

which does not prohibit “manually changeable copy type signs.”

See Pl.’s Am. Answer, Ex. A (document no. 26). 

2

Standard of Review

A Magistrate Judge’s Report and Recommendation on a motion

for injunctive relief is reviewed de novo. 28 U.S.C. §

636(b)(1). This court “may accept, reject, or modify, in whole

or in part, the findings or recommendations made by the

magistrate . . . or recommit the matter to the magistrate with

instructions.” Id.; see also FED. R. CIV. P. 72(b).

Background

The factual background of this case is set forth in detail

in the Magistrate Judge’s Report and Recommendation. In brief,

the dispute involves a City regulation, Ordinance 2653 (the

“Ordinance”), that, inter alia, prohibits signs that move or

create the illusion of movement, signs which are or appear to be

animated or projected, signs that affect or look similar to

traffic signs or signals, and “electronic message center type

signs.”1 

Case 1:06-cv-00400-SM Document 33 Filed 06/25/07 Page 2 of 12
3

The current Ordinance was enacted in response to a lawsuit

that challenged a prior version - one that prohibited all EMCs

except those that displayed current time, date, and temperature

(“TDT”). In that suit, Carlson Chrysler v. City of Concord, No.

05-E-412 (New Hampshire Superior Court, Merrimack County), the

trial court found the ordinance allowing only TDT EMCs

unconstitutional, as an unlawful content-based regulation of

commercial speech. Concord has appealed that decision to the New

Hampshire Supreme Court.

In response to the Superior Court ruling, Concord revised

its ordinance to eliminate any suggestion of content-based

regulation, choosing to instead prohibit all EMCs, without regard

to message content. NJI challenges the new ordinance under 42

U.S.C. § 1983, claiming it also unconstitutionally burdens the

right to free speech. NJI seeks to enjoin Concord from enforcing

the Ordinance and, as noted, after a hearing on the matter, the

Magistrate Judge recommended that the court deny the motion.

Discussion

NJI posits fourteen separate objections to the Magistrate

Judge’s recommendation. Essentially, it says the Magistrate

Judge applied the wrong legal standard of review (objections 1

Case 1:06-cv-00400-SM Document 33 Filed 06/25/07 Page 3 of 12
2 Those objections each address various aspects of the

relevant inquiries necessary to properly resolve this case. 

Objection 4 asserts that the Magistrate Judge erred in not

applying the test set forth in City of Ladue v. Gilleo, 512 U.S.

43 (1994). Objections 3 and 8 contend that the Magistrate Judge

erred in applying the Central Hudson test, while objections 6, 7,

9, 10, and 11 all relate to specific elements of the Central

Hudson test.

4

and 5), erroneously characterized NJI’s speech as merely

commercial (objection 2), misapplied the test described in

Central Hudson Gas & Elec. v. Pub. Serv. Comm’n, 447 U.S. 557

(1980) to the facts (objections 3, 4, 6, 7, 8, 9, 10, and 11),2

and drew a number of incorrect conclusions (objections 12, 13,

and 14).

Although the parties and the Magistrate Judge provide

extensive and informative analyses of issues arising under the

Central Hudson framework, I find that the issues before the court

are subject to more direct resolution. Because, as discussed

more fully below, the City’s current EMC ban is content neutral,

the court need not apply the commercial speech test set forth in

Central Hudson, but should instead resolve the matter under the

time, place, and manner test described in Ward v. Rock Against

Racism, 491 U.S. 781, 791 (1989). See Gun Owners’ Action League,

Inc. v. Swift, 284 F.3d 198, 212 (1st Cir. 2002).

Case 1:06-cv-00400-SM Document 33 Filed 06/25/07 Page 4 of 12
3 As the Magistrate Judge explained, a preliminary

injunction is appropriate only when the moving party satisfies a

four-factor test. See Esso Std. Oil Co. v. Monroig-Zayas, 445

F.3d 13, 17-18 (1st Cir. 2006); see also Ross-Simons of Warwick,

Inc. v. Baccarat, Inc., 102 F.3d 12, 18 (1st Cir. 1996)

(explaining that the burden is on the moving party). The moving

party must establish: “(1) the likelihood of success on the

merits; (2) the potential for irreparable harm [to the movant] if

the injunction is denied; (3) the balance of relevant

impositions, i.e., the hardship to the nonmovant if enjoined as

contrasted with the hardship to the movant if no injunction

issues; and (4) the effect (if any) of the court’s ruling on the

public interest.” Esso Std. Oil Co., 445 F.3d at 18. Although

each factor is important, the Court of Appeals has noted that the

likelihood of success on the merits is the “‘sine qua non’ of a

preliminary injunction analysis . . .” SEC v. Fife, 311 F.3d 1,

8 (1st Cir. 2002) (quoting Weaver v. Henderson, 984 F.2d 11, 12

(1st Cir. 1993)). 

5

Initially, NJI objects to the preliminary injunction

standard applied by the Magistrate Judge,3 arguing that, because

this case involves a constitutional challenge to an ordinance,

NJI is entitled to a presumption of success on the merits. NJI

relies on Ashcroft v. ACLU, 542 U.S. 656, 666 (2004) which

explained that in cases in which the government “bears the burden

of proof on the ultimate question of [a regulation’s]

constitutionality,” the party seeking a preliminary injunction

“must be deemed likely to prevail” unless the government can

demonstrate that the challenged statute is constitutional. As

described below, however, the City made such a showing in this

case. The record, albeit relatively undeveloped at this early

Case 1:06-cv-00400-SM Document 33 Filed 06/25/07 Page 5 of 12
6

stage of the litigation, amply supports the conclusion that the

Ordinance is likely constitutional. 

It is undisputed that the EMC signs at issue fall within the

concept of “speech” protected by the First Amendment. See City

of Ladue v. Gilleo, 512 U.S. 43, 48 (1994). It is also

undisputed that the City may regulate the display of signs to the

extent necessary to serve legitimate governmental purposes, so

long as its regulation does not unduly impose upon protected

constitutional rights. Id. And, it is apparent that the

Ordinance does not aim to advance or suppress any particular

viewpoint or message conveyed by the type of signs it prohibits. 

In other words, the ordinance banning EMC-type signs is properly

characterized as a “content-neutral” regulation in that it does

not seek to regulate based on the nature of the message sought to

be communicated. See Simon & Schuster, Inc. v. Members of the

N.Y. State Crime Victims Bd., 502 U.S. 105, 122 n. * (1991); Ward

v. Rock Against Racism, 491 U.S. 781, 791 (1989); see also

Asociacion de Educacion Privada de P.R., Inc. v. Garcia-Padilla,

--- F.3d. ---, 2007 U.S. App. LEXIS 8295, *33-34 (1st Cir. Apr.

11, 2007).

Case 1:06-cv-00400-SM Document 33 Filed 06/25/07 Page 6 of 12
7

To survive a constitutional challenge, content-neutral

regulations must meet an “intermediate scrutiny” test, that is,

they must be “narrowly tailored to serve a significant

governmental interest, and allow[] for reasonable alternative

channels of communication.” Gun Owners’ Action League, Inc. v.

Swift, 284 F.3d 198, 212 (1st Cir. 2002) (internal quotation

marks and citations omitted); see Ward, 491 U.S. at 791. “Under

intermediate scrutiny, restrictions imposed by a statute need not

be the least restrictive or least intrusive means of

accomplishing the statute’s legitimate governmental interest.” 

Garcia-Padilla, 2007 U.S. App. LEXIS 8295, *35 (citing Ward, 491

U.S. at 798-99). “Rather, narrow tailoring is satisfied so long

as the regulation promotes a substantial government interest that

would be achieved less effectively without it, or if ‘the means

chosen are not substantially broader than necessary to achieve

the government’s interest.’” Id. (citing Ward, 491 U.S. at 799-

800) (internal citation omitted).

Concord asserts that its outright ban on EMCs advances both

important traffic safety and community aesthetics interests, each

of which constitutes a substantial governmental interest. See

Case 1:06-cv-00400-SM Document 33 Filed 06/25/07 Page 7 of 12
4 Although Metromedia was a plurality opinion, seven

justices agreed that traffic safety and aesthetics are

substantial governmental interests. See Metromedia, 453 U.S. at

510 (plurality); id. at 549-53 (Stevens, J., dissenting in part);

id. at 560-61 (Burger, C.J., dissenting); id. at 570 (Rehnquist,

J., dissenting).

5 NJI also claims that aesthetics alone does not constitute

a substantial governmental interest sufficient to warrant a total

ban on EMCs. The court disagrees. See Members of City Council

v. Taxpayers for Vincent, 466 U.S. 789, 806 (1984) (citing cases

that “indicate that municipalities have a weighty, essentially

esthetic interest in proscribing intrusive and unpleasant formats

for expression”); Am. Legion Post 7 v. City of Durham, 239 F.3d

601, 610 (4th Cir. 2001) (explaining that while aesthetics do not

constitute a compelling governmental interest sufficient to

justify a content-based regulation, they constitute a substantial

governmental interest sufficient to warrant a content-neutral

restriction).

8

Metromedia v. City of San Diego, 453 U.S. 490, 507-08 (1981);4

see also Lorillard Tobacco Co. v. Reilly, 533 U.S. 525, 551

(2001); Riel v. City of Bradford, --- F.3d ---, 2007 U.S. App.

LEXIS 10346, *36 (3d Cir. May 3, 2007); La Tour v. City of

Fayetteville, 442 F.3d 1094, 1097 (8th Cir. 2006); Ballen v. City

of Redmond, 466 F.3d 736, 742 (9th Cir. 2006).

NJI disagrees, arguing that Concord’s total ban on EMCs is

not narrowly tailored to serve purported governmental interests

because the City has no basis upon which to think that EMCs

adversely affect traffic safety.5 But the City “need not provide

detailed proof that the regulation advances its purported

Case 1:06-cv-00400-SM Document 33 Filed 06/25/07 Page 8 of 12
9

interests of safety and aesthetics.” Ctr. for Bio-Ethical

Reform, Inc. v. City & County of Honolulu, 455 F.3d 910, 922 (9th

Cir. 2006) (citing Ackerley Commc’ns of the Nw. v. Krochalis, 108

F.3d 1095, 1099-100 (9th Cir. 1997)). Indeed, when considering

the constitutional viability of a regulation, the court need not

“determine whether the regulation is sound or appropriate; nor is

it [the court’s] function to pass judgment on [the regulation’s]

wisdom,” Ry. Express Agency, Inc. v. New York, 336 U.S. 106, 109

(1949), because doing so “would be trespassing on one of the most

intensely local and specialized of all municipal problems. . . .” 

Id. In short, it is within the City’s authority to determine for

itself that a particular ordinance will, in fact, advance its

substantial governmental interests, and such findings shall not

generally be disturbed by a court unless shown to be “palpably

false.” Id. 

Concord has plausibly determined that EMCs and similar types

of signs, as described in the Ordinance, are likely to prove

distracting to drivers to the extent the signs are visible from

roadways, thereby adversely affecting traffic safety. That

legislative conclusion is hardly unreasonable, and would appear

to be supported by common sense. See e.g., Chapin Furniture

Outlet v. Town of Chapin, 2006 WL 2711851, *4 (D.S.C. Sept. 20,

Case 1:06-cv-00400-SM Document 33 Filed 06/25/07 Page 9 of 12
6 The constitutionality of the originally-filed Ordinance,

which purported to ban, inter alia, all “manually changeable copy

type signs,” would pose a different question entirely. Such a

broad ban might well extend beyond what is necessary to address

the City’s interest in traffic safety or aesthetics. The City

would have a difficult time supporting the notion that all

manually changeable copy signs like those seen outside virtually

every gas station, fast food restaurant, church, and movie

theater pose a substantial threat to the safety or aesthetics of

Concord’s commercial zones.

10

2006) (town’s judgment that flashing or scrolling signs

constitute a traffic hazard not unreasonable). And, while taste

and aesthetic sensitivity are debatable topics, it would seem

well within the City’s legitimate discretion to conclude that

bright, colorful, electronic signs that change color and messages

— or signs similar to those, are inconsistent with the aesthetic

values the City seeks to promote.

The Ordinance is also sufficiently narrowly tailored. The

City has not prohibited all signs, or even all signs displaying

changed copy.6 The Ordinance prohibits only those signs the City

plausibly thinks will adversely affect traffic safety, or prove

detrimental to aesthetic values the City seeks to promote.

Similarly, the Ordinance leaves NJI with reasonable alternative

channels by which to communicate its messages. Although “other

types of signs may lack the flexibility or convenience of an

EMC,” NJI remains free to employ a variety of other communicative

Case 1:06-cv-00400-SM Document 33 Filed 06/25/07 Page 10 of 12
7 NJI objects to the Magistrate Judge’s finding that

Concord’s EMC ban still leaves ample alternative channels for

NJI’s communications. NJI appears to miss the central point of

the “alternative channels” inquiry, however, focusing not on

whether NJI has alternative methods by which to disseminate its

message, but instead, on whether the City’s total ban on EMCs was

the least restrictive means available to achieve its governmental

interests. See Pl.’s Supplemental Objections 3. As discussed

previously, whether a regulation is the least restrictive or

least intrusive means of accomplishing the government’s

objectives is not the relevant inquiry in determining whether a

regulation is “narrowly tailored.” Garcia-Padilla, 2007 U.S.

App. LEXIS 8295, *35 (citing Ward, 491 U.S. at 798-99). Narrow

tailoring is satisfied so long as the regulation promotes a

substantial government interest that would be achieved less

effectively without it.” Id. (citing Ward, 491 U.S. at 799).

11

methods, including static signs or varying types of changeable

copy signs, and it remains free “to ‘speak’ on whatever issue it

pleases utilizing a medium not proscribed by [the Ordinance].” 

Chapin Furniture Outlet, Inc., 2006 WL 2711851, *4.7

In sum, Concord’s governmental interests in promoting

traffic safety and aesthetic values are substantial. The City’s

Ordinance banning EMCs and similar signs appears narrowly

tailored to enhance traffic safety and promote aesthetic values,

while still allowing for ample, reasonable alternative channels

of communication. On this preliminary record, it appears that

Ordinance 2653 passes constitutional muster, which in turn means

that NJI has failed to demonstrate that it is likely to succeed

Case 1:06-cv-00400-SM Document 33 Filed 06/25/07 Page 11 of 12
12

on the merits. Therefore, NJI is not entitled to a preliminary

injunction.

Conclusion

For the foregoing reasons, plaintiff’s motion for a

preliminary injunction (document no. 4) is denied.

SO ORDERED.

____________________________

Steven J. McAuliffe

Chief Judge

June 25, 2007

cc: Douglas M. Bragg, Esq.

John F. Winston, Esq.

Stephen H. Roberts, Esq.

Charles P. Bauer, Esq.

Lisa Lee, Esq.

Case 1:06-cv-00400-SM Document 33 Filed 06/25/07 Page 12 of 12