Berg v. Village of Scarsdale

Background

Robert J. Berg, representing himself, sued the Village of Scarsdale and the Village of Scarsdale Police Department under 42 U.S.C. § 1983. He challenged two Village Code provisions regulating signs in public places, including Village rights-of-way. Section 196-17 prohibited posting, attaching, or displaying signs and similar materials on or over streets, parks, and other public places. Section 256-1 prohibited obstructing a street, sidewalk, public easement, or other public place without a written permit from the Village Engineer.

Berg and other residents posted signs supporting a school facilities bond referendum. Some “Vote Yes” signs were placed in the Village right-of-way, while larger “Vote No” signs generally were not. Before the referendum, the Police began removing or requiring the removal of Vote Yes signs in the right-of-way. The record also showed that, for many years, Village officials had generally accommodated political signs while enforcing the sign rules against many nonpolitical signs.

After Berg filed suit, the court issued a temporary restraining order and preliminary injunction concerning political signs that did not create safety or traffic hazards. In response, the Police issued an order stopping enforcement and removal of all signs in Village property or rights-of-way, whether commercial or political.

Claims and legal standards

Berg sought summary judgment, which is judgment without a trial when the undisputed evidence shows that a party is legally entitled to win. He argued that Sections 196-17 and 256-1 were unconstitutionally vague under the Fourteenth Amendment and were unconstitutional content-based restrictions on speech under the First Amendment. He also argued that the Village selectively enforced the rules based on the type of speech and, within political speech, based on viewpoint.

The Village cross-moved for summary judgment, arguing that the ordinances were permissible content-neutral regulations. The court evaluated each motion separately and considered the evidence in the light least favorable to the party seeking judgment.

Vagueness challenges

The court rejected Berg’s argument that the ordinances failed to give ordinary people adequate notice of what they prohibited. It held that Section 196-17’s references to signs and other materials in streets, parks, and public places were sufficiently clear. The Village Code’s definition of “right-of-way” and its definition of “public place” adequately informed residents that the rule applied to Village rights-of-way.

The court also held that Section 256-1 was not impermissibly vague merely because the Code did not define “obstruct.” The ordinary meaning of that term, together with Village officials’ interpretations, made clear that placing an object in a right-of-way could constitute an obstruction. The court further held that the ordinance’s standards for permit decisions were sufficient because Section 294-1(B), read together with Section 310-2, focused on interference with drivers’ views and traffic hazards and defined “structure” to include signs.

First Amendment challenge to the ordinances

The court held that Sections 196-17 and 256-1 were facially content-neutral: they applied to signs and obstructions without referring to the message or viewpoint expressed. The court found that the rules furthered significant government interests in appearance, pedestrian safety, and traffic safety. It also held that the rules were sufficiently tailored and left alternative ways to communicate, including posting signs on private property with permission.

The court rejected Berg’s argument that Section 256-1 created an unconstitutional prior restraint. Although the permit requirement involved advance administrative approval, the court held that the applicable standards were sufficiently definite and focused on safety rather than speech content. The three-business-day decision period also supported the court’s conclusion.

Selective enforcement

The court separately addressed how the Village had applied the otherwise constitutional ordinances. It held that the Village and Police had given political signs preferential treatment by rarely enforcing the sign rules against them, even while enforcing the rules against other types of signs. That practice treated speech differently based on content and therefore violated the First Amendment.

The court did not find sufficient evidence that the Police discriminated between signs supporting and opposing the bond referendum based on viewpoint. It also explained that the Village’s later policy of enforcing the rules against all signs, or its current policy of enforcing them against none, was content-neutral. The Village could enforce the ban against all types of signs or against none of them, but could not selectively enforce it based on whether a sign was political, commercial, or another type of speech.

Disposition

Judge Nelson S. Roman granted Berg’s motion for summary judgment to the extent it asserted that the Village’s selective enforcement against political signs violated the First Amendment. He denied Berg’s motion as to the remaining claims. He 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 Village’s content-based enforcement was consistent with the First Amendment.

The court directed entry of judgment for the Village on the constitutional challenges to the ordinances and for Berg on the selective-enforcement claim, with $1 in nominal damages. It vacated the temporary restraining order and preliminary injunction, declined to permanently enjoin enforcement, and allowed the Village to resume enforcement consistent with the First Amendment.