Berg v. Village of Scarsdale

Background

Pro se plaintiff Robert J. Berg sued the Village of Scarsdale and the Village of Scarsdale Police Department under 42 U.S.C. § 1983. He challenged Village Code Sections 196-17 and 256-1, which regulated signs and other obstructions in public places, including Village rights-of-way. Berg sought injunctive relief, a declaration, and damages.

Before the February 2018 school facilities bond referendum, residents posted “Vote Yes” and “Vote No” signs. Some “Vote Yes” signs were placed in the Village right-of-way. The Police removed or collected some political signs after complaints, while the record showed that the Village had generally accommodated political signs during election periods. The Police later issued an order stopping enforcement and removal of all signs in the right-of-way.

Vagueness and facial constitutional challenges

Berg argued that Sections 196-17 and 256-1 were unconstitutionally vague under the Fourteenth Amendment because they did not give adequate notice of what conduct was prohibited. He also argued that Section 256-1 lacked sufficient standards for officials deciding whether to issue permits.

The court rejected these claims. It held that Section 196-17 clearly prohibited posting, attaching, or displaying signs and similar materials in public places, and that the Village Code’s definition of a right-of-way and public place gave adequate notice that the rule applied there. The court also held that Section 256-1’s prohibition on obstructing a public place without a written permit was understandable under ordinary usage. The court found that related provisions supplied sufficient safety-focused standards for permit decisions. It therefore concluded that neither ordinance was void for vagueness.

Berg also argued that the ordinances facially violated the First Amendment as content-based restrictions on speech. The court held that the ordinances were content-neutral because, by their terms, they applied to signs and obstructions without regard to the message or viewpoint expressed. The court further held that the rules served substantial governmental interests, including appearance, pedestrian safety, and traffic safety; were sufficiently tailored to those interests; and left open alternative ways to communicate, including posting signs on private property with permission. The court also rejected Berg’s challenge to the permit system as an unconstitutional prior restraint.

Selective enforcement

Berg separately argued that the Village applied the facially neutral rules selectively based on speech content and viewpoint. The court agreed in part. It found that the Village had a policy or custom of giving political signs preferential treatment by rarely enforcing the sign rules against them, while enforcing the rules against other types of signs. Because the First Amendment generally prohibits government from favoring one type of speech over another in this way, the court held that this selective enforcement violated the First Amendment.

The court distinguished that unlawful practice from a neutral policy enforcing the sign ban against all signs or enforcing it against none. It also stated that the record did not support Berg’s separate claim that the Police discriminated against his particular political viewpoint.

Disposition

The court granted Berg’s motion for summary judgment to the extent it asserted that the Village’s selective enforcement against political signs relative to other forms of speech violated the First Amendment, and denied the motion as to the remaining claims. It granted the Village’s cross-motion to the extent it asserted that the ordinances were constitutional under the First and Fourteenth Amendments, and denied the cross-motion to the extent it asserted that the content-based enforcement was consistent with the First Amendment.

The court vacated the preliminary injunction, declined to permanently enjoin enforcement of the ordinances, and stated that the Village could enforce them against all types of signs or against none of them, but could not enforce them selectively based on the type of speech or viewpoint. The court directed the Clerk to enter judgment for the Village on the facial constitutional claims and for Berg on the selective-enforcement claim, and to terminate the case.