You are on page 1of 7

Mark Smith DISTRCIT COURT OF

Plaintiff DALLAS COUNTY

v.

City of Dallas Homeowners’ Association Caroline Hecker
Defendant Administrative Judge

MEMORANDUM OPINION

* * * * *

The court considers whether an ordinance adopted by a government-authorized
homeowners’ association prohibiting any signs from being displayed anywhere within an
easement subject to the homeowners’ association, unless the sign is displayed within 60
days of an election, violates the Equal Protection Clause of the Fourteenth Amendment
and whether the conduct in question is protected by the First Amendment regardless of
the regulation.

I. Findings of Fact

Six months before the Presidential 2016 Inauguration Day, the Juarezes, a Mexican
family, had immigrated to the United States from Mexico.

While in the process of crossing the border, the Juarez family was targeted by a sniper,
executed by a white supremacist inspired by GOP candidate Donald Trump. The
Juarez’s youngest son was struck in the arm by the sniper’s bullet, was escorted to
the closest hospital, and was discharged bearing a sling.

Two weeks after the incident, the Juarez family moved into a neighborhood in Dallas.
Rumors of the attack grew, and the neighbors learned of the Juarez’s encounter with
the sniper. Two days after the Juarez family moved in, one neighbor, Mark Smith,
known as an avid Trump supporter, placed three signs on a grass strip in front of the
family’s house. There is a sidewalk separating the grass strip from the Juarez's front
yard.

The Juarez’s neighborhood had originally lacked a sidewalk, but the City added one after
residents petitioned the government to build one to make the street safer. The
construction of the sidewalk also included the grass strip between the road and the
sidewalk, known as an “easement.” The sidewalk has not only been used to provide
passage for pedestrians, it has also been a platform for protests, picketing, and rallies by
the neighbors.
Of the signs placed on the easement, one read "Make America Great Again," the second
read, "Build the Wall," and the third was an image depicting four people cowering
together in Mexico in front of the wall bordering the United States, and displaying
several Americans armed with machine guns situated at the top of the wall aiming at the
family. One member of the family has what appears to be a sling or cast around his arm.
All signs are hand-painted.

The Dallas City Council passed an ordinance authorizing homeowners’ associations to
adopt reasonable regulations for the protection and betterment of their neighborhood. The
homeowners’ association for the Juarez’s neighborhood had adopted a regulation
prohibiting all signs, displays, and posters from being placed in the easement area of the
neighborhood unless such signs or displays are placed within 60 days before a general
election. The stated purpose of the regulation was to limit traffic distractions given the
close proximity to the road.

The homeowners’ association requested Mark Smith to take the signs down or face a
fine. Mark Smith refused and filed a civil action, asking the District Court for Dallas
County to enjoin enforcement of the regulation.

II. Discussion

First, the court will consider whether the conduct in question is speech. The first two
signs are recognized as pure speech, however; since the last sign is a picture rather than
written words, the court must analyze whether it can even be considered speech.

A.

The signs exhibiting written speech are undoubtedly recognized as speech. Considering
the current stances of GOP candidate Donald Trump, the court will recognize them as
political speech displaying the mantra of the candidate as well as the candidate’s
professed immigration policy. One of the signs consists of an image, displaying no
written words. However, the Court has recognized that conduct may be expressive and
thus can be protected as symbolic speech.

Not all conduct is recognized as speech protected by the First Amendment. Only in
certain contexts can conduct be recognized as speech. If the “speaker” intends to convey
a certain idea or message and it is likely that the message will be understood by those
who view it, then the conduct will likely be protected (Texas v. Johnson).

Art forms have consistently enjoyed the privilege of First Amendment protection. For
example, the Supreme Court has held that nude dancing could be considered expression
in Barnes v. Glenn Theater, Inc., but that nudity in itself is not (South Florida Free
Beaches v. City of Miami). Motion pictures have the ability to present ideas and views
and have the potential to shape public opinion. Thus, motion pictures with this intent are

2
too included within the free speech protections of the First Amendment (Joseph Burstyn,
Inc. v. Wilson).

There is not doubt that the picture displayed in this case is a form of art and expression.
But the court must decide if this is a form of expression that is entitled to benefits from
the protections of the First Amendment. The entire sign was hand-painted as opposed to
be printed out from a website or copied from a book. It displays elements of artistic
value; the court recognizes it as an art form.

However, this does not automatically imply the picture is expression. Although the idea
portrayed in the picture is crude and appalling, there is still a clear view being expressed
likely to be understood by a reasonable person. The court will recognize it as symbolic
speech.

III.

Now that the court has determined the conduct in question to be speech, since the
ordinance is government-authorized and regulates speech, any attempt at regulation of
such speech must be lawful. We will consider whether the homeowners’ association
regulation is on its face constitutional, or if it is related to the expression of free speech.

A.

The courts have recognized many different government regulations on speech, some
lawful and some not. Today we deal with a time, place, and manner restriction given that
the regulation prohibits all signs during a specified time. In order for a time, place, and
manner restriction to be upheld, it must pass the Court’s established test designed to
determine its constitutionality.

This court finds the regulation in this case to be a time, place, and manner restriction as it
prohibits all signs unless 60 days before an election on a specified area of a person’s
lawn. However, that does not end the inquiry. We must still determine whether this
prohibition is constitutional.

As a time, place, and manner restriction, as established in Ward v. Rock Against Racism
(1989), it must pass an explicit test. The regulation must be formed to serve a significant
government interest, must be narrowly tailored to serve said interest, must be content
neutral, and must leave open ample alternative channels for communication.

The court recognizes the government’s interest in banning displays in easement areas as
serving the legitimate government interest of promoting pubic safety. Given the close
proximity of the easement to the road, it is likely that signs in this area will pose an
increased distraction to drivers. Prohibiting displays on this area and not an entire lawn is
intended to limit distractions for drivers. However, the court cannot find that the
significant government interest outweighs the protection of free exercise. The court

3
cannot find the regulation to be specifically tailored to serve the interest. It does not
restrict all activity in this area that could be distracting, but rather just stationary signs,
which one could argue are the least distracting expressions of speech.

The last prong the ordinance must satisfy is whether or not it is content-neutral in terms
of what content it is prohibiting. Although the regulation claims to ban all signs and
displays, it is not clear whether it is entirely narrowly tailored to serve the government
interest. The court cannot find any reason why the government interest will be served
more effectively if signs are banned unless it is 60 days before an election. If anything,
there will likely be substantially more clutter during this time period that would pose a
large distraction for drivers.

If the government wanted to ban all signs, it would have banned all signs. Permitting
displays 60 days before an election implies political views and presidential candidate
preferences would have been allowed, but not other opinions and ideas. There is no
exception for the government when it comes to restricting specific ideas and content
(Cohen v. California). The court finds that the intention of the time of regulation is to
permit only views exhibiting political value or merit.

The regulation has however made room for alternative channels for communication given
that a person may still place signs on their private property. Although the court
recognizes the logic that it is easier to spread a message to more people if signs are
placed closer to the road as opposed to farther up on the yard, there are still other ways a
person may express his/her views than exhibiting signs or posters. However, passing one
prong does not mean the regulation is permitted or facially valid.

The regulation does not ban expression only in terms of time, place, and manner, but also
in terms of views and beliefs. The exemption for views expressed close to an election, but
not any other time exceeds past the government’s stated interest in promoting safety and
drifts into permitting only political opinions. This form of censorship aims to decide what
views are important and should be discussed; as such, it violates the Equal Protection
Clause of the Fourteenth Amendment as well as the Free Speech Clause of the First
Amendment (Cox v. Louisiana). The government may regulate speech, but it may not
grant the use of a forum for specific views or content and “it may not select which issues
are worth discussing or debating in public facilities” (Police Dept. of City of Chicago v.
Mosley).

IV.

In determining whether the speech in question is accepted as protected speech, the court
also must analyze the forum in question. The more protected the forum, the more
protected the speech.

A.

4
In this case, we do not deal with a person’s private property when analyzing the forum.
The portion of the property in which the ordinance prohibits signs is recognized as a
government-authorized right to use area in the neighborhood. The sidewalk and the
easement are recognized as government property opened up to the public for use.
However, given the history of protests and assemblies on public sidewalks not only in
this neighborhood, but also across the country, sidewalks are recognized as a traditional
public forum.

The regulation in this case involves the grassy area of the easement. This is because signs
cannot easily be placed in a sidewalk, thus it was not necessary for the ordinance to
include the sidewalk. Protests and exercises of free speech often include the easement by
default. When marching along sidewalks or holding rallies in the street, there is no
regulation put in place to restrict activity on the easement, but not the sidewalk. The
easement is unavoidably included in exercises of free speech and consequently should be
viewed as a public forum.

In Grayned v. City of Rockford, the Court ruled when considering whether a space is
recognized as a public forum, the activity in question should be compatible with normal
activity known to take place in the space. Since sidewalks traditionally are known as
platforms for free exercise, and the ordinance itself establishes it is generally known that
signs are placed on lawns to express ideas, it is not a stretch to assume it is not abnormal
for the grassy, right to use area to be used for expression of ideas as well. Thus, this area
will also be recognized as a public forum. When considering public forums, no regulation
may restrict based on content.

In Carey v. Brown, the Court ruled that the statute in question made no attempt to
distinguish between why labor picketing is less intrusive to a person’s privacy within
their home than any other form of picketing. Here, the ordinance fails to explain why
signs and not other forms of free speech are more dangerous for drivers. In addition, it
also fails to explain why signs displayed within 60 days of an election would pose less of
a distraction to drivers. Even if the government interest is substantial enough to limit free
speech on a public forum as in Frisby v. Schultz, the tailoring of the regulation is not
narrow enough to justify it.

Since the easement is only referenced to prohibit signs, the court cannot recognize it as
distinguishable from the sidewalk. Thus, it is included in the realm of a public forum and
speech, as long as it is protected, is permitted. Since the area restricted is a public forum,
the regulation must be examined using strict scrutiny. Yet, the court has found the
regulation to fail the time, place, and manner test required in order to restrict speech on a
public forum. The regulation may serve a government interest, but it is not explicitly
tailored to accomplish this interest.

V.

5
Finally, although the forum permits for the exercise of free speech, not all speech is
protected. The court will now analyze whether the speech in question is protected under
the Free Exercise Clause of the First Amendment.

A.

The forum in this case is traditionally public; consequently, the regulation must be
examined under strict scrutiny. Yet, it has been found invalid as it is content-based and
not narrowly tailored to service the specified interest. However, the impact of these
decisions is only relevant if the speech exercised by Mr. Smith is protected under the
First Amendment.

Given the context, the court will recognize the speech and expression as political in
nature, thus it deserves the most protection.

The first sign reading, “Make America Great Again” references a well-known mantra
developed by the campaign team of presidential candidate Donald Trump. It is
intertwined with political platforms and views as expressed by the candidate. It also
elicits no imminent action to incitement to violence or other illegal activity (Brandenburg
v. Ohio). Nor does it involve a personalized insult to a person who would be likely to
start a fight (Chaplinsky v. Ohio).

The second sign reading, “Build the Wall,” should also be considered political speech
given national security and foreign policy initiatives advanced by Donald Trump to
construct a border wall between Mexico and the Untied States. The idea of constructing a
wall has become a rallying cry of Donald Trump’s political platform. It shall be regarded
as political speech. This sign also does not incite imminent lawless action nor does it
involve a personalized insult to a person who would be likely to start a fight (Chaplinsky
v. Ohio; Brandenburg v. Ohio).

B.

Lastly, the court must analyze whether the picture or symbolic speech in this case is
protected. The picture depicts machine guns aimed at a family before they have reached
the border between Mexico and the United States. Although objectionable to many, “the
government may not prohibit the expression of an idea simply because society finds the
idea itself offensive or disagreeable” (Texas v. Johnson).

The idea conveyed by the sign is that the boarder control should be so strict as to provide
every boarder security guard with a machine gun. At the same time, some viewers might
conclude that the sign intends to suggest that the people depicted in the picture under
threat of machine guns represent the Juarez family given that one of the members bears a
sling around his arm. The court recognizes the youngest son of the Juarez family was
involved in a targeted attack involving a sniper at the border, and has since been wearing
an arm sling. However, even if there is an explicit threat directed at the Juarez family,
this does not necessarily mean the speech is unprotected.

6
A threat made towards a person is not automatically unprotected speech. Moreover, the
court in this case does not, however, find the picture to constitute an explicit threat to the
Juarez family. The picture, though crude, does reflect a legitimate, though to some
distasteful, border policy. It does not explicitly imply the family will be injured or
murdered on sight.

Furthermore, although limits on insulting or “fighting words” do not raise a
Constitutional problem (Chaplinksy v. New Hampshire), in this case, the speech, though
it might be crude and personal, is not unrelated to free speech. The picture is assumed to
be a political idea held by the plaintiff to implement stricter immigration procedures and
measures.

In addition, the picture does not call for a direct incitement to harm the Juarez family or
any Mexicans. The picture is presumed to take place outside real time since the Juarez
family has already passed the border. There is no rational reason to assume the plaintiff is
suggesting to forcefully bring the family back across the border and threaten them with
machine guns. Therefore, it is not reasonable to assume the purpose of the plaintiff’s
speech is to incite violence against the family. Even if someone assumes the plaintiff is
advocating for such, it is not likely to incite imminent lawless action and is simply an
expression of political views, which is protected.

Speech that is obscene is not protected by the First Amendment. Although violence can
be viewed as obscene rather than indecent, there are no actual depictions of violence in
the third sign. The court does not find the hand-drawn depiction of weapons aimed at a
family without any illustrations of obscene violence or gore to be unprotected.

Additionally, even if there were more serious or gruesome depictions of violence
reaching into the realm of obscenity, because of the artistic and arguably political value
of the hand-painted sign, this claim would fail the obscenity test established in Miller v.
California.

The court finds the regulation in question fails to restrict speech on a public forum in a
content-neutral, narrowly tailored fashion and thus must be struck down on its face under
the Equal Protection Clause. The speech in question is otherwise protected under the First
Amendment.

For all the above reasons, the court finds in favor of the plaintiff.

7