Naser Jewlers v. City of Concord
In Naser Jewelers, Inc. v. City of Concord, a small business challenged the city's complete ban on electronic message centers (EMCs) and all changeable copy signs. On November 8, 2006, Naser Jewelers, Inc. (NJI) appeared in the United States District Court for the District of New Hampshire in order to obtain a preliminary injunction to bar the city from enforcing the ban while litigation was pending. The preliminary injunction, if granted, would have allowed NJI to install an EMC in the base of its monument sign, until the case was finally resolved some months in the future.
We have provided a copy of the official transcript of the hearing for your review and consideration. We believe that NJI provided a compelling argument against the city's ban, and that the city failed to provide any valid evidence to justify the ban. In fact, Concord claimed the ban was based on reasons of traffic safety and aesthetics, but the transcript shows that the city conceded that the aesthetics were subjective and that they had no real evidence to show that traffic safety was a concern.
However, on November 24, 2006, the Magistrate ruled that Concord's ban on EMCs was constitutional, despite all evidence to the contrary. The Magistrate relied on a video shown at the hearing to conclude EMCs create a traffic safety problem, a video that was not even viewed by the city council. Moreover, it is the opinion of NJI counsel that the video was produced solely to flush out a personal opinion on the aesthetic appeal of EMCs, and that it had no scientific or empirical basis whatsoever. The city unequivocally admitted it banned the signs because a planner told them it could, that it had no evidence to show it chose a narrowly tailored or least restrictive ban as compared with two dozen alternatives, and that it had no evidence to show it relied upon traffic safety. The decision directly conflicts with controlling U.S. Supreme Court law in Lorrilard v. O'Reilly, which requires regulators to produce real evidence that the city actually relied upon to support the ban, and conflicts with Edenfield v. Fane, which forbids courts from turning away from the actual evidence produced and deferring to naked claims of First Amendment compliance.
