SCRANTON – An Olyphant family who alleged their rights to free speech and expression were being infringed upon by their borough and its zoning official, who had taken exception to a sign posted outside their home which read “F— THE GOVERNMENT" have received a stay of their case, in advance of a potential settlement.
Dave Bliler, Chelsea Bliler and Paige Bliler first filed suit in the U.S. District Court for the Middle District of Pennsylvania on Dec. 12 versus Olyphant Borough and its Zoning Officer William Shigo. All parties are of Olyphant.
“Peacefully expressing speech through signs on one’s own property is a central liberty protected by the First Amendment. The right to display opinions on matters of public concern has long been vital to the concept of American identity and trumps all but the most important and narrowly tailored government interests. Attempts to regulate such speech carry a heavy presumption of invalidity,” the suit said.
“The Borough’s sign ordinance tramples this liberty. It limits most residential property owners to just one sign that is no larger than six square feet. Whether the sign is for ideological causes, political campaigns or religious faith, almost all signs are subject to this restriction. And for the one sign that most residential property owners may have, it is subject to a permitting regime. The words on the sign must pass the Borough’s content reviewers, applicants must pay a fee, and the Borough can take as much time as it likes in adjudicating permit decisions.”
The suit added that “despite these restrictions on Borough residents, the Borough has completely exempted itself from the ordinance” – ergo, “while Borough residents may erect just one small sign on their property, the government may place as many signs – of whatever size and on whatever topics – as it likes on its property and in addition, the ordinance grants favorable treatment to other types of signs based on their content.”
“The ordinance violates the United States Constitution, and the Blilers are the victims of the Borough’s unlawful ordinance. In October 2023, the Blilers placed a four-by-eight-foot thin plastic sign on the front of their house in a residential Olyphant neighborhood. The sign said, ‘F— THE GOVERNMENT.’ Shortly after the Blilers erected the sign, the Borough sent them an enforcement letter, informing them that the sign was in violation of the ordinance’s permit and size requirements. The letter threatened to haul the Blilers before a judge and impose a $500 fine per day if they were found to be in violation of the ordinance. Though their neighborhood is littered with signs that appear to lack a permit, to the Blilers’ knowledge, they are the only ones facing the Borough’s enforcement action,” the suit stated.
“Fearful of facing this significant fine, the Blilers have, for now, opted to take down the sign rather than risk punishment. But their desire to continue expressing their message has not dissipated. To the contrary, their criticism of the government has intensified. And rightly so – the ordinance is an impermissibly restrictive regulation of speech, and the Borough’s attempts to silence the Blilers’ speech constitute viewpoint discrimination. When citizens are prohibited from criticizing the government on their own property but the government can say whatever it wants, the First Amendment is offended. And the First Amendment prohibits the ordinance’s favoritism for other signs based on their content. The Court should enjoin defendants from enforcing the ordinance and award the Blilers the other relief requested herein.”
On Jan. 5, the defendants motioned to dismiss the case, for failure to state claims upon which relief could be granted.
“The genesis of this lawsuit is a sign the plaintiffs placed on their home in October of 2023, saying ‘F— THE GOVERNMENT.’ The subject sign ordinance applies to all on premise signs, structures and awnings located in the Borough. The property owners are limited to one sign per premises, and the signs have size limitations. The ordinance requires that all temporary signs in the borough receive a permit. The Zoning Officer issues a permit if the proposed sign complies with the ordinance. After submitting an application, the Zoning Officer has 30 days to determine whether to issue a permit,” the motion to dismiss stated.
“If the application is denied, the property owner may appeal to the Zoning Hearing Board. On or about Oct. 13, 2023, the subject sign was placed in the plaintiffs’ front yard. On Oct. 16, 2023, plaintiff was visited by the Chief of Police, however, no citations were issued. On or about Nov. 2, 2023, the plaintiffs received a letter from the Zoning Officer indicating that they needed to obtain a permit for the sign. Rather than apply for a permit, the plaintiffs removed their sign on Nov. 12, 2023. Count I of the Complaint alleges a First Amendment violation. Count II alleges an Equal Protection violation. Count III alleges a Due Process violation.”
The motion added that “while a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiffs’ obligation to provide the grounds of his entitlement to relief requires more than labels and conclusions in a formulaic recitation of the elements of a cause of action will not do.”
“Plaintiffs in this matter have failed to adequately state a cause of action upon which relief may be granted. Plaintiffs have failed to allege sufficient facts to support their claims. Plaintiffs have failed to state a valid claim against the defendants. Plaintiffs lack standing. For the foregoing reasons…plaintiffs’ claims should be dismissed with prejudice,” the motion continued.
UPDATE
On Jan. 30, counsel for all parties jointly filed for a stay of the litigation, while settlement negotiations are underway.
“On Dec. 12, 2023, plaintiffs filed their verified complaint and motion for preliminary injunction. On Jan. 5, 2024, defendants filed their response in opposition to plaintiffs’ motion for preliminary injunction. On that same day, defendants filed their Rule 12 motion to dismiss. On Jan. 18, 2024, defendants filed their memorandum in support of their motion to dismiss. On Jan. 19, 2024, plaintiffs filed their reply in support of their motion for preliminary injunction,” the stay motion stated.
“Plaintiffs’ deadline to file their response in opposition to defendants’ motion to dismiss is Feb. 1, 2024. The parties have entered preliminary settlement negotiations, and they are optimistic that this matter may be resolved through settlement. The parties thus respectfully request that the Court enter an order (1) staying all pending deadlines and proceedings in this matter to allow them time to explore settlement and (2) requiring the parties to file a joint status report on or before March 1, 2024, with an update on progress toward settlement, whereupon the Court may determine whether a further stay is warranted.”
The following day, Jan. 31, U.S. District Court for the Middle District of Pennsylvania Judge Julia K. Munley ordered the stay be granted under the proposed terms, which require a joint status update be provided on March 1.
For counts of violation of freedom of speech, equal protection and due process under the First and Fourteenth Amendments to the U.S. Constitution, the plaintiffs are seeking the Court to preliminarily and permanently enjoin defendants from enforcing the ordinance; to preliminarily and permanently enjoin defendants from enforcing the ordinance against the sign; to declare the ordinance unconstitutional on its face; to declare the ordinance unconstitutional as applied to the sign; to award the Blilers nominal and compensatory damages; to award the Blilers reasonable attorney fees, costs and expenses pursuant to 42 U.S.C. Section 1988 and to grant such other and further relief as this Court should find just and proper.
The plaintiffs are represented by Eric Arthur Sell and Josh Dixon of the Center for American Liberty in Mount Airy, Md., plus Karin M. Sweigart of Dhillon Law Group, Inc. in San Francisco, Calif.
The defendants are represented by William J. McPartland of Marshall Dennehey, in Moosic.
U.S. District Court for the Middle District of Pennsylvania case 3:23-cv-02063
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com