(CN) – The small, central Washington town of Leavenworth can require all of its downtown commercial signs to comply with an “Old World Bavarian-Alpine theme,” a federal judge ruled.
Since the mid-1960s the town of about 2,000 in Chelan County, at the base of the Cascade Mountains, has cultivated a quaint Old World theme to match the craggy mountain vistas which resemble the German Alps.
What started as a voluntary measure to boost tourism became mandatory in 1970s and 1980s as the City Council created an architectural review board and then a sign ordinance to enforce the Bavarian theme.
As a tourist draw the measures were successful the town now draws more than 2 million visitors a year – 1,000 times more than its population – with as many as 50,000 on any given weekend, the city says.
In 2007 Steven and Deborah Demarest bought a motel and erected a sign without going through the city’s design review process.
The city found the sign to be in violation of its code because of its “plastic appearance,” inclusion of phone numbers, a web address and a smiley face logo.
The Demarests were also warned that displaying a computer monitor in a window, tying balloons to their fence, using an electronic message board and passing out flyers without a permit also violated the code.
The innkeepers sued the city, claiming the Bavarian-only theme violated the First Amendment because “anything non-Bavarian amounts to a disfavored message suppressed by the regulations.”
Bit in granting summary judgment to Leavenworth, Senior District Judge Justin L. Quackenbush said the Demarests’ characterization of the code was “simply wrong.”
“The challenged provisions of the Leavenworth Municipal Code nowhere prohibit public discussion of anything ‘non-Bavarian.’ No provision restricts, nor can the City reject a sign permit application, due to the viewpoint it contains,” Quackenbush wrote.
For the same reason, Quackenbush rejected the Demarests’ argument that the Bavarian theme requirement was a form of compelled speech because it forced them to “directly advance the culture of Bavaria.”
“The Bavarian theme does not compel plaintiffs to engage in any speech, nor does it regulate the speakers’ beliefs, message, ideas or viewpoints,” Quackenbush ruled.
After finding that the city code did not control content, the judge applied the test for government control of commercial speech established by the Supreme Court in Central Hudson Gas & Electric Corp. v. Public Service Commission of New York.
The Supreme Court found that so long as the proposed speech was not unlawful or misleading, government could control speech if it could assert an interest in doing so, if the restrictions it imposed directly advanced that interest, and if the restriction was not more extensive than necessary to the advance the interest.
Leavenworth claims that its Bavarian theme was adopted to promote tourism, and that its success depended “almost entirely on maintaining the charm and beauty associated with the Bavarian theme.”
The Demarests did not deny that the city had a compelling interest in promoting tourism, but said that because the Bavarian theme was “made up,” it was less deserving of protection than, for instance, ordinances banning billboards in front of historical sites or places of natural beauty.
Quackenbush didn’t buy it.
“Despite plaintiffs’ own consternation with the artificial nature of the Bavarian theme, it nevertheless, like the beaches of Hawaii, has evolved to be a major economic and aesthetic asset, which the City has clearly demonstrated it has a substantial interest in protecting,” the judge wrote.
Nor did he find that the city’s requirement that menus posted in front of restaurants had to adhere to the Bavarian theme an “absurd” overreach, as the Demarests claimed.
Quackenbush found that the inclusive nature of the requirements showed that the city was consistent in its pursuit of the theme and did not allow exemptions that would weaken the image it sought to foster.
“Where the City’s ends are aesthetics, tourism, economics, and safety, and the means have included regulation of the size, placement, design, number, and duration of signs, there appears to be a reasonable fit. Though no municipal code is perfect, perfection is not required,” the judge concluded.
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