PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

AMERICAN LEGION POST 7 OF 

DURHAM, NORTH CAROLINA,

Plaintiff-Appellant,  No. 00-1500

v.

CITY OF DURHAM,

Defendant-Appellee. 

Appeal from the United States District Court

for the Middle District of North Carolina, at Durham.

Paul Trevor Sharp, Magistrate Judge.

(CA-98-607-1)

Argued: November 1, 2000

Decided: February 5, 2001

Before WILKINSON, Chief Judge, WILLIAMS, Circuit Judge, and

Frank J. MAGILL, Senior Circuit Judge of the United States Court

of Appeals for the Eighth Circuit, sitting by designation.

Affirmed by published opinion. Judge Williams wrote the opinion, in

which Chief Judge Wilkinson and Senior Judge Magill joined. 

COUNSEL

ARGUED: James B. Craven, III, Durham, North Carolina, for Appellant. Karen Ann Sindelar, Assistant City Attorney for the City of Durham, Durham, North Carolina, for Appellee. ON BRIEF: Joseph H.

Craven, Durham, North Carolina, for Appellant. 
OPINION

WILLIAMS, Circuit Judge: 

Appellant, American Legion Post 7 of Durham, North Carolina,

challenges the constitutionality of the City of Durham’s zoning ordinance restricting the size of publicly displayed flags, signs, banners,

and other visual displays.1 The district court granted summary judgment to the City. Because we find that the City’s flag size restrictions

reasonably limit the time, place, and manner of speech in a fashion

that preserves ample alternative avenues for communication and is

supported by the City’s substantial aesthetic interests, we affirm. 

I.

In 1988, the Durham City Council adopted a comprehensive sign

ordinance ("the 1988 ordinance"), codified as Durham, N.C. City

Zoning Ordinance § 12 (1994), which regulated the display of signs,

banners, flags and other visual displays.2 The 1988 ordinance

restricted the size of publicly displayed national and state flags to 60

square feet in area and provided that such flags must be flown from

a pole not more than 40 feet high. Durham, N.C. City Zoning Ordinance § 12.3 ¶ 10 (1994). The 1988 ordinance specifically provided

for differential treatment for "[f]lags of this nation, state or other

political subdivisions," which were regulated as "flags," as opposed

to flags not meeting these content or political derivation criteria,

which were regulated more stringently as "banners." See id. at ¶ 22

(providing a regime of more stingent regulation for "banners," and

providing that "banners" containing a message or logo are regulated

as "signs" and subjected to a number of additional siting, size, and

display restrictions). A "substitution provision" in the 1988 ordinance,

as interpreted by the City, eliminated this content-based distinction

for noncommercial flags, because any display carrying a noncommercial message could be "substituted" for any permitted display, so that

1The Legion’s challenge is limited to the ordinance as applied to the

display of the American flag. 

2We cite to the copy of the 1988 ordinance provided by the parties,

which incorporates all changes to the City’s zoning ordinances through

January, 1994. (J.A. at 104-25.) 

2 AMERICAN LEGION POST 7 v. CITY OF DURHAM
a noncommercial flag not meeting the ordinance’s content criteria

could nonetheless qualify for treatment as a "flag" rather than a "banner."3

 Durham, N.C. City Zoning Ordinance § 12.8.5 (1994). The

City’s stated purposes in enacting the 1988 ordinance included traffic

safety, protection of the aesthetic environment, and promotion of economic development.4

Sometime in 1997, the City, enforcing its flag ordinance for the

first time, cited a Bob Evans restaurant for flying a large American

flag in violation of the 1988 ordinance. On June 26, 1998, the Legion

held a ceremony honoring the American flag; the ceremony included

representatives of the Veterans of Foreign Wars, the Marine Corps

League, and the Military Order of the Purple Heart. As part of this

ceremony, the Legion raised a 14 x 17 foot (238 square foot) American flag to the top of the flagpole and saluted it. On June 30, 1998,

the City served upon the Legion a Notice of Violation alleging that

the Legion had violated the 1988 ordinance by displaying an oversized flag, demanding that the Legion correct this violation within

two days, and threatening financial penalties and possible criminal

prosecution in the event of noncompliance. 

In 1997, following the issuance of the Bob Evans restaurant citation, the City began to consider possible revisions to the 1988 ordinance. This process culminated with the enactment on August 3,

1998, slightly more than one month after issuance of the Legion’s

citation, of a revised flag ordinance ("the 1998 ordinance"), codified

as Durham, N.C. City Zoning Ordinance § 8.1.27. The 1998 ordinance replaced the fixed 60-square-foot flag size limit with a flexible

3The substitution provision, which is still in effect, provides that

"[n]oncommercial signs are allowed in all districts and may be substituted for any sign expressly allowed under this ordinance." Durham,

N.C. City Zoning Ordinance § 12.8.5 (1994). 

4The City has produced an affadavit indicating that the ordinance

serves these purposes. The Legion has produced affidavits tending to cast

doubt on the rational connection between the ordinance and these goals.

An affidavit from a registered land surveyor states that the Legion’s flag

could not pose a traffic safety hazard, and an affidavit from a realtor

states that the Legion’s flag "will have only a positive effect on . . . property values" in the area. (J.A. at 37-40). 

AMERICAN LEGION POST 7 v. CITY OF DURHAM 3
limit based upon flagpole height, which in turn was limited based

upon the area’s zoning designation. See id. at ¶¶ 2, 3. In nonresidential districts, a flagpole with a maximum height of 70 feet bearing a

flag or flags of up to 216 square feet is permitted. In a residential district, such as the one in which the Legion’s property is located, flagpole height is limited to 25 feet and thus, flag size is limited to 40

square feet. See id. at ¶¶ 2 3. The 1998 ordinance also requires flags

to be displayed on flagpoles; prohibits the construction of more than

three flag poles on a given property; prohibits the display of more

than two flags on a flagpole; establishes a setback requirement for

flagpoles, and further restricts flags containing commercial messages

by rendering the separate provisions of the City’s sign ordinance

applicable to such flags. See id. at ¶¶ 2-7. The 1998 ordinance also

replaced the content-based distinctions of the 1988 ordinance with a

definition of a "flag" as "a piece of fabric or other flexible material

solely containing distinctive colors, patterns, standards, words or

emblems used as a symbol of an organization or entity, including but

not limited to political jurisdictions . . . ." Id. at ¶ 1. 

On July 14, 1998, the Legion filed a complaint against the City,

alleging that the 1988 ordinance violated the First Amendment insofar

as it regulated the display of American flags. The suit sought injunctive relief, a declaratory judgment that the ordinance was unconstitutional, damages, and costs. After the City amended the ordinance on

August 3, 1998, the Legion amended its complaint to include claims

similar to those raised in the original complaint regarding the new

ordinance. Both sides consented to determination of the case before

a United States magistrate judge and filed motions for summary judgment and supporting affidavits.5

 On March 21, 2000, the district court

denied the Legion’s summary judgment motion, granted summary

judgment for the City, and entered final judgment for the City. The

Legion filed its notice of appeal on April 17, 2000. 

In this appeal, the Legion argues that the district court erred in

holding that its challenge to the City’s now-superseded 1988 ordi5

28 U.S.C.A. § 636 (West 2000), provides that with the consent of the

parties and the approval of the district court, a United States Magistrate

Judge may "conduct any or all proceedings . . . and order the entry of

judgment in the case." 28 U.S.C.A. § 636(c)(1) (West 2000). 

4 AMERICAN LEGION POST 7 v. CITY OF DURHAM
nance is moot. The Legion further argues that the 1998 ordinance is

content-based and is thus subject to heightened First Amendment

scrutiny. In response, the City argues first that its 1998 ordinance

does not burden speech to any significant degree, so that the district

court erred in applying the time, place, and manner analysis elucidated by the Supreme Court in Clark v. Cmty. for Creative NonViolence, 468 U.S. 288, 293 (1984). The City argues second that if

the 1998 ordinance does burden speech, the ordinance is contentneutral and therefore should be evaluated under Clark; the City contends that the ordinance meets this standard. We understand the

Legion to counter that, assuming the ordinance is analyzed under the

less onerous Clark test, it fails to meet those standards because it is

not narrowly tailored and the record does not support a finding that,

as applied to the Legion, the ordinance furthers any significant government interest. We address each argument in turn, reviewing the

district court’s grant of summary judgment de novo. See Providence

Square Assoc., L.L.C. v. G.D.F., Inc., 211 F.3d 846, 850 (4th Cir.

2000) (reviewing a grant of summary judgment de novo). Summary

judgment is appropriate only "if the pleadings, depositions, answers

to interrogatories, and admissions on file, together with the affidavits,

if any, show that there is no genuine issue as to any material fact."

Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322

(1986). In deciding whether there is a genuine issue of material fact,

the evidence of the nonmoving party is to be believed and all justifiable inferences must be drawn in its favor. See Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 255 (1986). 

II.

The Legion has attacked both the 1988 ordinance, under which it

was cited in the incident giving rise to this action, and the 1998 ordinance. The district court found that the claim that the 1988 ordinance

was unconstitutional was mooted by the City’s subsequent amendment of that ordinance because "there is no real or imminent threat

. . . that Defendant will reenact the [1988] ordinance at any time in

the future." (J.A. at 248.) 

The Legion argues that the district court erred in finding that the

claims as to the 1988 ordinance were moot. The Legion argues that

without a definitive ruling as to the 1988 ordinance’s constitutionalAMERICAN LEGION POST 7 v. CITY OF DURHAM 5
ity, the City remains free to re-enact that ordinance at any time.

(Appellant’s Br. at 13-15.) See also National Advertising v. City of

Fort Lauderdale, 934 F.2d 283, 285-86 (11th Cir. 1991) (holding that

because "[i]t remains uncertain whether the City would return the sign

code to its original form if it managed to defeat jurisdiction in this

case," a live case or controversy exists and the district court erred in

mooting claim based on amended ordinance). 

Mootness is primarily a function of the Article III "case or controversy" limitation on the jurisdiction of the Federal courts.6

See id. at

286 (noting that moot cases cannot meet the Article III standard). The

Legion observes, correctly, that the mere amendment or repeal of a

challenged ordinance does not automatically moot a challenge to that

ordinance. See City of Mesquite v. Aladdin’s Castle, Inc., 455 U.S.

283, 289 (1982) (stating that "a defendant’s voluntary cessation of a

challenged practice does not deprive a federal court of its power to

determine the legality of the practice," and holding that since nothing

prevents a municipality from reenacting challenged provisions, a

challenge to these provisions is not moot); see also United States v.

W.T. Grant Co., 345 U.S. 629, 632 (1953) (observing that "mere voluntary cessation of illegal conduct does not moot a case . . . ."). 

Aladdin’s Castle, however, is distinguishable because in that case,

the city had repeatedly amended the ordinance at issue in response to

court rulings and had announced its intention to re-enact the challenged provision if the judgment in question was vacated on mootness

grounds. See Aladdin’s Castle, 455 U.S. at 289 n.11. The City argues

that it has demonstrated that it will not re-enact the challenged 1988

ordinance, because the process which led to the enactment of the 1998

ordinance began seven months before this case was filed in the district court and the ordinance was revised long before the district court

ruled in this case. (Appellee’s Brief at 32.) 

The Supreme Court has held that in some circumstances, the repeal

or amendment of a statute moots a challenge even where re-enactment

of the statute at issue is within the power of the legislature. See Mas6But see Honig v. Doe, 484 U.S. 305, 330 (1994) (Rehnquist, C.J., concurring) (arguing that the mootness doctrine should be viewed as prudential and not based on the Constitution). 

6 AMERICAN LEGION POST 7 v. CITY OF DURHAM
sachusetts v. Oakes, 491 U.S. 576, 582 (1989) (holding that the

amendment of a law prohibiting nude photography of minors mooted

First Amendment overbreadth challenge to law); Kremens v. Bartley,

431 U.S. 119, 132 (1977) (holding that the repeal of a statute permitting involuntary commitment of juveniles mooted challenge to statute). The practical likelihood of reenactment of the challenged law

appears to be the key to the Supreme Court’s mootness jurisprudence

in situations such as this one. See Erwin Chemerinsky, Federal Jurisdiction 139 (3d ed. 1999) (summarizing the Supreme Court’s jurisprudence by stating that "cases will not be dismissed as moot if the Court

believes there is a likelihood of reenactment of a substantially similar

law if the lawsuit is dismissed"). 

Here, we agree with the district court that there is little likelihood

of the City reenacting the 1988 ordinance if the district court’s finding

of mootness is affirmed. Thus, the district court was correct in its

mootness ruling. We do not, therefore, address the merits of the claim

that the 1988 ordinance is unconstitutional. 

III.

In evaluating the 1998 ordinance, we first confront the threshold

issue of whether it burdens speech and thus is subject to First Amendment scrutiny. The City argues that the Legion failed to provide any

evidence indicating that its ability to communicate its message was

impaired by the City’s flag size restriction, and thus the district court

erred in performing a First Amendment analysis because the 1998

ordinance does not burden speech at all. (Appellee’s Brief at 14, 16.)

We proceed in analyzing this issue by comparing the nature and magnitude of the 1998 ordinance’s burden on speech with the burden

present in other cases in which courts have found a sufficient burden

on speech to render First Amendment scrutiny appropriate. We ultimately conclude that the Legion produced adequate evidence that the

City’s 1998 ordinance burdens speech, because the display of a flag

of a given size is communicative activity and the Legion demonstrated that the ordinance directly restricts the Legion’s communicative activity. 

While the 1998 ordinance burdens speech to a lesser degree than

the regulations at issue in various cases cited by the City, see, e.g.,

AMERICAN LEGION POST 7 v. CITY OF DURHAM 7
Arlington County Republican Comm. v. Arlington County, 983 F.2d

587, 594 (4th Cir. 1993) (invalidating, under the First Amendment, a

municipal ordinance imposing a two-sign limit in residential zones),

the City cites no authority for its proposition that an "entire medium

of communication or a portion of such medium," must be foreclosed

in order for a regulation to burden speech. (Appellee’s Brief at 16.)

Indeed, while we did not perform an extensive "burdening speech"

analysis in Arlington County, we suggested that even a minor burden

on speech is sufficient to trigger a First Amendment analysis. In

approaching a First Amendment challenge to the two-sign limit at

issue in Arlington County, we stated that "we first question whether

the two-sign limit burdens any speech. If we find any burden, we

must then determine whether the two-sign limit imposes content neutral or content based restrictions." Arlington County, 983 F.2d at 593

(emphasis added). We reasoned that the two-sign limit "affects speech

rather than conduct," because "‘[c]ommunication by signs and posters

is virtually pure speech.’" Id. (quoting Baldwin v. Redwood City, 540

F.2d 1360, 1366 (9th Cir. 1976)). We further noted that the two-sign

limit prevented homeowners from expressing support for more than

two candidates, a concern of particular significance "if two voters living within the same household support opposing candidates." Id. at

594. We did not ask, as part of the threshold "burdening speech" analysis, whether the two-sign limit imposes a great burden on speech,

but rather, formulated the test as whether "any" burden exists, and

relied principally on the proposition that a direct limitation on the

"pure speech" at issue constituted a burden on speech. Id. at 593-94.

It is clear that the 1998 ordinance burdens speech. The Legion was

cited by the City for flying an oversized and well recognized symbol

of political speech. Flags, especially flags of a political sort, enjoy an

honored position in the First Amendment hierarchy. One may engage

in protected speech by burning a flag, see Texas v. Johnson, 491 U.S.

397, 406 (1989), or by affixing a peace symbol to a flag and flying

it upside down, see Spence v. Washington, 418 U.S. 405, 409-10

(1970). It, therefore, is clear that the Legion’s avowed attempt to

demonstrate intensity of patriotic feeling by flying a very large flag

implicates First Amendment interests, at least to a sufficient degree

to cause the City’s ordinance to burden speech. The City’s limit on

the size of flags directly limits speech and seems closely analogous

to the New York City restriction on rock concert volume in Central

8 AMERICAN LEGION POST 7 v. CITY OF DURHAM
Park that was the subject of Ward v. Rock Against Racism, 491 U.S.

781 (1989). In Ward, the Supreme Court upheld as a valid time, place,

and manner restriction a scheme designed to limit the volume of

musical performances in Central Park. The Court’s use of a time,

place, and manner analysis implicitly recognized a threshold burden

on speech. See id. at 803. The major distinction between Ward and

this case, that Ward involved music rather than the display of political

flags (which are if anything even closer to the core of expression protected by the First Amendment),7

 favors the Legion’s position. Cf.

Clark v. Cmty. for Creative Non-Violence, 468 U.S. 288, 293 (1984)

(suggesting that sleeping overnight in a tent city erected on the Washington Mall was "expressive conduct protected to some extent by the

First Amendment," sufficient to trigger the application of time, place,

and manner analysis). If regulation of the volume of music at a rock

concert or regulation of one’s ability to sleep in a mock tent city constitutes a burden on speech, surely a limit on the size of a publiclydisplayed political symbol burdens speech. The decisions of the

Supreme Court and this Court indicate that the amount of burden on

speech needed to trigger First Amendment scrutiny as a threshold

matter is minimal. 

IV.

The Legion contends that the 1998 ordinance is content-based and

thus should be subject to heightened First Amendment scrutiny. The

City responds that its 1998 ordinance is content-neutral because it

does not facially distinguish between flags based on the messages that

they convey and because there is no evidence that, in enacting the

ordinance, the City was motivated by a content-based purpose. See

Turner Broadcasting System, Inc. v. FCC, 512 U.S. 622, 643 (1994)

(indicating that, in most cases, whether a law benefits or burdens

speech by referring to content on its face is determinative of the law’s

7

See, e.g., Texas v. Johnson, 491 U.S. 397, 404-05 (1989) (noting that

attaching a peace sign to the American flag, refusing to salute the flag,

and flying a red flag "all may find shelter under the First Amendment");

West Virginia Bd. of Education v. Barnette, 319 U.S. 624, 632 (1943)

("Symbolism is a primitive but effective way of communicating ideas.

The use of an emblem or flag to symbolize some system, idea, institution

or personality, is a short cut from mind to mind."). 

AMERICAN LEGION POST 7 v. CITY OF DURHAM 9
content-based or content-neutral character). The Legion notes that a

content-based purpose can be used to show that a regulation which is

facially content-neutral is in fact content-based. See id. at 642. The

Legion does not, however, suggest that the City had any contentbased purpose in enacting the 1998 ordinance, nor does it provide any

evidence of such a purpose. Ultimately, the Legion’s argument

reduces to a claim that the 1998 ordinance is not content-neutral on

its face because the ordinance regulates flag size. Size, however, is

not a content criterion. See Foti v. City of Menlo Park, 146 F.3d 629,

640-41 (9th Cir. 1998) (holding that a regulation of the size and number of signs used in picketing was content-neutral). 

The Legion alludes to the "commercial/noncommercial difference"

as one possible basis for a finding that the 1998 ordinance is contentbased, without explaining the nature of the commercial/

noncommercial difference to which it alludes and without presenting

a developed argument as to how this difference renders the ordinance

content-based. (Appellant’s Br. at 18.) That some differential treatment is permitted on the basis of speech’s commercial or noncommercial character would seem to be a necessary implication of the

Supreme Court’s use of different constitutional tests for regulations

of commercial versus noncommercial speech. Compare Central Hudson Gas & Electric Corp. v. Public Service Commission, 447 U.S.

557, 564 (1980) (providing that for a content-based restriction on

commercial speech, the government must show that it has a substantial interest, the regulation directly advances that interest, and the regulation is not more extensive than necessary to serve that interest),

with Perry Educ. Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37,

45 (1983) (holding that a content-based restriction on noncommercial

expression must be "necessary to serve a compelling state interest.").

See also Metromedia Inc. v. City of San Diego, 453 U.S. 490, 506

(1981) (stating that "we continue to observe the distinction between

commercial and noncommercial speech, indicating that the former

[can] be forbidden and regulated in situations where the latter [cannot] be"). 

The 1998 ordinance restricts flags containing commercial messages

more stringently than flags containing noncommercial messages;

flags containing commercial messages must comply with the restrictions imposed by the sign ordinance, Durham, N.C. City Zoning Ordi10 AMERICAN LEGION POST 7 v. CITY OF DURHAM
nance § 12.1 et seq., which are more stringent than the restrictions

imposed by the flag ordinance. See Durham, N.C. City Zoning Ordinance § 8.1.27 ¶ 6 (providing that "[f]lags displaying a logo, message,

statement, or expression relating to commercial interests . . . must also

conform with all sign regulations under Section 12" of the

City/County Zoning Ordinance). We do not take the Legion to argue

that the ordinance’s more stringent regulation of commercial messages constitutes a content-based restriction. To the contrary, the

Legion disclaims any attempt to assert that the regulation excessively

restricts commercial speech, stating that "this case is not about how

large a flag" businesses can fly. (Appellant’s Br. at 26.) The Legion

argues instead that the 1998 ordinance is overbroad because it

includes noncommercial as well as commercial displays of the American flag, while the Legion believes that the City’s concerns justify

mainly a restriction on the display of flags by businesses. (Appellant’s

Br. at 31.) Thus, the Legion does not argue that the rationale of City

of Cincinnati v. Discovery Network, 507 U.S. 410, 429 (1993), renders § 8.1.27 ¶ 6 of the 1998 ordinance content-based. See id. (holding that a regulation prohibiting the placement of public display boxes

for "commercial handbills," but which permitted the placement of

such boxes for "noncommercial" publications, drew a distinction that

was not justifiable in terms of the government’s proffered interests in

regulating and was sufficient to render the regulation content-based).8

We conclude that the 1998 ordinance is content-neutral because it

does not facially distinguish between noncommercial messages based

on content and because there is no evidence of a content-based purpose. Thus, the three-part test for a content-neutral regulation of the

time, place, and manner of speech, as elucidated by the Supreme

8The Supreme Court’s finding that the display box regulation was

content-based negated any claim that it was a permissible time, place,

and manner restriction. See City of Cincinnati v. Discovery Network, 507

U.S. 410, 429 (1993). Applying the Central Hudson Gas & Electric

Corp. v. Public Service Commission, 447 U.S. 557, 564 (1980), test for

content-based restrictions on commercial speech, the Court found that

Cincinnati’s commercial/noncommercial distinction bore "no relationship whatsoever to the particular interests that the city has asserted. It is

therefore an impermissible means of responding to the city’s admittedly

legitimate interests." Id. at 424 (emphasis in original). 

AMERICAN LEGION POST 7 v. CITY OF DURHAM 11
Court in Clark v. Cmty. for Creative Non-Violence, 468 U.S. 288, 293

(1984), provides the proper standard against which to determine the

1998 ordinance’s constitutionality.9

V.

Having concluded that we should apply the time, place, and manner test because the 1998 ordinance is content-neutral, we next turn

to the question of whether the ordinance meets the standard for permissible time, place, and manner restrictions. A content-neutral regulation of the time, place, and manner of speech is generally valid if

it furthers a substantial government interest, is narrowly tailored to

further that interest, and leaves open ample alternative channels of

communication. See Clark v. Cmty. for Creative Non-Violence, 468

U.S. 288, 293 (1984) (stating and applying this standard to a regulation prohibiting protesters from sleeping overnight in a mock tent city

on the Washington Mall). 

The City argues that the 1998 ordinance furthers its substantial

interest in "maintaining and improving the community’s appearance,

eliminating visual clutter, ensuring traffic safety, preserving property

values, and attracting sources of economic development." (Appellee’s

Br. at 20.) The district court correctly found that under relevant

Supreme Court and Fourth Circuit precedent, a community’s interest

in preserving its aesthetic character is indeed a "substantial interest."

9

In addition to providing the Clark standard for time, place, and manner regulations, the Supreme Court has stated that a regulation of expressive conduct is valid if it furthers an important or substantial

governmental interest unrelated to the suppression of free expression and

if the incidental restriction on protected expression is no greater than is

essential to furtherance of that interest. United States v. O’Brien, 391

U.S. 367, 377 (1968). The Supreme Court has indicated, however, that

the O’Brien test is "little, if any, different from the standard applied to

time, place, or manner restrictions." Clark v. Cmty. for Creative NonViolence, 468 U.S. 288, 298 (1984). Because the display of a flag is "virtually pure speech," Baldwin v. Redwood City, 540 F.2d 1360, 1366 (9th

Cir. 1976), we believe that, as a formal matter, this case fits more comfortably within the Clark time, place, and manner test than the O’Brien

expressive conduct test, and therefore we apply Clark. As Clark indicates, however, little is likely to turn on the distinction. 

12 AMERICAN LEGION POST 7 v. CITY OF DURHAM
See Members of the City Council of Los Angeles v. Taxpayers for Vincent, 466 U.S. 789, 805 (1984) (stating that "[i]t is within the constitutional power of the City to improve its appearance"); Arlington

County Republican Comm. v. Arlington County, 983 F.2d 587, 594

(4th Cir. 1993) (stating that traffic safety and aesthetics are "substantial government goals"). Vincent clearly forecloses the argument that

the City’s interest is insubstantial; the Vincent Court stated that "municipalities have a weighty, essentially esthetic interest in proscribing

intrusive and unpleasant formats for expression," sufficient to pass

muster under the time, place, and manner test. Taxpayers for Vincent,

466 U.S. at 806. 

The Legion cites decisions holding that aesthetics do not constitute

a compelling governmental interest sufficient to justify a contentbased restriction. See, e.g., Dimmitt v. City of Clearwater, 985 F.2d

1565, 1572 (11th Cir. 1993) (holding, in the context of a facial overbreadth challenge, that a regulation supported by aesthetic concerns

is not supported by sufficient government interests to validate

content-based regulation); Village of Schaumburg v. Jeep Eagle Sales

Corp., 676 N.E.2d 200, 204 (Ill. App. 1996) (finding that "[t]raffic

safety and visual aesthetics are not the sort of compelling state interest required to justify a content-based restriction on expression).

These cases are inapposite because they do not address whether aesthetics constitute a substantial, as opposed to a compelling, government interest. We find that the City’s asserted aesthetic interests are

indeed sufficient to satisfy the "substantial government interest"

prong of the Clark test for the validity of a content-neutral time,

place, and manner restriction.10

The Legion further argues that the 1998 ordinance is not narrowly

tailored and thus fails Clark’s second prong, because although the

ordinance primarily aims to eliminate commercial use of large flags,

it also applies to noncommercial entities. (Appellant’s Br. at 25.) We

note that the requirement that a statute be narrowly tailored under the

10While some conflict in the evidence exists regarding the extent to

which the ordinance served the asserted traffic safety and property values

purposes, the Legion raised no issue of material fact regarding the City’s

aesthetic justifications, which are legally sufficient to meet the first

prong of the Clark test. 

AMERICAN LEGION POST 7 v. CITY OF DURHAM 13
Clark time, place, and manner test is not a least intrusive means

requirement; this prong of the Clark test merely asks whether "‘the

. . . regulation promotes a substantial government interest that would

be achieved less effectively absent the regulation.’" Ward v. Rock

Against Racism, 491 U.S. 781, 798-99 (1989) (quoting United States

v. Albertini, 472 U.S. 675, 689 (1985)). A time, place, and manner

regulation is not narrowly tailored, however, if "a substantial portion

of [its] burden on speech does not serve to advance its goals." Ward,

491 U.S. at 799. Here, the City argues persuasively that the efficacy

of its overall scheme of sign and display regulation would be undermined either by exempting flags or by exempting noncommercial

entities from the strictures of the ordinance. (Appellee’s Br. at 28-30.)

Because the City’s asserted reasons for enacting the 1998 ordinance

are not limited to controlling commercial flag displays but encompass

a more general set of aesthetic concerns, we find that the 1998 ordinance is narrowly tailored to combat the aesthetic injury which the

City supposes would occur if large flag displays were permitted.

While the Legion produced affidavits in the district court proceedings

below tending to show that the 1998 ordinance is overbroad from a

traffic safety and property values standpoint, the Legion did not demonstrate that the ordinance burdens more speech than necessary to

ensure that the City’s aesthetic interests are vindicated. 

The final portion of the time, place, and manner inquiry asks

whether the challenged regulation leaves open "ample alternative

channels for communication." Clark, 468 U.S. at 293. The Supreme

Court’s invalidation of a municipal sign ordinance against proffered

aesthetic justifications in City of Ladue v. Gilleo, 512 U.S. 43, 59

(1994), rested on this portion of the time, place, and manner test. In

Ladue, a municipality prohibited all publicly-displayed signs on private property, subject to a few narrow exceptions; its ordinance was

applied to prohibit an individual from displaying a small window sign

signaling opposition to the Persian Gulf War. Id. at 45-47. The

Supreme Court, noting that "[m]ost Americans would be understandably dismayed . . . to learn that it was illegal to display from their

window an 8- by 11-inch sign expressing their political views," struck

down the city’s sign ordinance. Id. at 58. The Court reasoned that the

city’s ordinance "foreclose[d] an entire medium of expression" and

did not leave an adequate substitute. Id. at 56. Further, the Court

relied, in distinguishing the posting of signs on public property in

14 AMERICAN LEGION POST 7 v. CITY OF DURHAM
Taxpayers for Vincent, on the "special respect for individual liberty

in the home [that] has long been part of our culture and our law" and

which has "special resonance when the government seeks to constrain

a person’s ability to speak there." Id. at 58. 

This case occupies ground between Taxpayers for Vincent and City

of Ladue with respect to the private property issue, in that the Legion

seeks to speak, through its flag, on private property but not in the

home. This case is not controlled by Ladue, however, because the

burden on speech is far more attenuated than the complete ban at

issue in that case. Indeed, the Ladue Court recognized that not every

kind of sign must be permitted in residential areas, noting, "[w]e also

are not confronted here with mere regulations short of a ban." Id. at

58 n.17. Because the 1998 ordinance merely establishes a relatively

liberal set of limits on flag size and provides a procedure for obtaining

temporary and permanent waivers by means of a "special use" permit,11

it is a "mere regulation[ ] short of a ban" under Ladue and does not

implicate First Amendment interests to a sufficient degree to fail this

portion of the time, place, and manner test. Id.

We conclude that the City’s 1998 ordinance is valid under each

portion of the Clark time, place, and manner test because it advances

a substantial government interest in preservation of the aesthetic environment, is reasonably well tailored to serve that goal, and leaves

open ample alternative avenues of expression. 

VI.

In conclusion, the district court correctly found that the Legion’s

challenge to the 1988 ordinance was moot and correctly held that the

City of Durham’s 1998 ordinance effected a permissible time, place,

11See Durham, N.C. City Zoning Ordinance § 8.1.27 ¶ 2 (providing for

a waiver of the flagpole size limits in residential districts via a special

use permit granted by the City Board of Adjustment). The Legion does

not argue that the "special use" permit procedure improperly vests unbridled discretion in the City Board of Adjustment. Further, the 1998 ordinance contains an automatic, blanket suspension of the flag size limits on

United States and North Carolina holidays. See Durham, N.C. City Zoning Ordinance § 8.1.27 ¶ 9. 

AMERICAN LEGION POST 7 v. CITY OF DURHAM 15
and manner regulation of speech. The judgment of the district court

is therefore affirmed. 

AFFIRMED

16 AMERICAN LEGION POST 7 v. CITY OF DURHAM