                    United States Court of Appeals
                          FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 03-2824
                                   ___________

John S. La Tour,                          *
                                          *
             Plaintiff-Appellant,         *
                                          * Appeal from the United States
       v.                                 * District Court for the Western
                                          * District of Arkansas.
City of Fayetteville, Arkansas;           *
Brandt Warwick; Casey Jones;              *
Kit Williams; Bob Estes; Mike             *
McKimmey, Defendants, in both             *
their individual and official capacities, *
                                          *
             Defendants-Appellees.        *
                                     ___________

                            Submitted: March 31, 2004
                                Filed: April 6, 2006
                                  ___________

Before MELLOY, HANSEN, and COLLOTON, Circuit Judges.
                           ___________

MELLOY, Circuit Judge.

      John S. La Tour appeals several district court1 orders in his 42 U.S.C. § 1983
challenge to the constitutionality of a municipal ordinance prohibiting him from
displaying a flashing or blinking electronic sign. We affirm.


      1
        The Honorable Jimm Larry Hendren, Chief Judge, United States District Court
for the Western District of Arkansas.
                                          I.

       La Tour is a certified public accountant who lives and works in Fayetteville,
Arkansas (the “City”). On December 23, 1999, he contacted the City’s sign inspector
to inquire about purchasing a sign for the window of his office. The inspector told La
Tour that indoor signs were not regulated.2 La Tour then purchased an electronic sign
that displays messages up to twenty-one characters long. The sign can be
programmed to display one set of characters, go blank, and then display another set
of characters. Used in this manner, the sign can display messages that would not fit
on the sign if used only in a non-flashing, static mode. After La Tour used the sign
to display political messages,3 City officials ordered him to remove the sign because
it violated Unified Development Ordinance Section 174.08(B) (the “Ordinance”),
which prohibits any “sign which flashes, blinks, or is animated.”4 This section does
not contain any exceptions, but the City admits that it has not enforced the regulation
with respect to flashing signs that display only the time and/or temperature, without
advertising matter. The parties agree that La Tour’s sign operates in the same manner
as the time and temperature signs that the City allows.

       When La Tour refused to remove the sign, the City filed a criminal summons.
La Tour was tried and convicted in municipal court. He appealed the conviction, and
the City settled the case. The City agreed to allow La Tour to change the message on


      2
         The City claims that La Tour did not inform the inspector that he was
interested in purchasing an electronic sign that would be displayed to persons outside
his office.
      3
       La Tour’s messages included the statements: “Choose Life,” “God Listens,”
and “RecallCoody.com.”
      4
        The district court also examined other provisions in Chapter 174 of the
Ordinance and found several to be unconstitutional. The City has not appealed that
ruling.

                                         -2-
his sign once every three hours and refunded his fines and court costs. La Tour then
filed a claim in the United States District Court for the Western District of Arkansas
on January 3, 2002, seeking civil damages under 42 U.S.C. § 1983. The district court
found some sections of the Ordinance unconstitutional, but held that Section
174.08(B) was constitutional on its face and as applied. The district court also found
that La Tour’s rights under the Equal Protection Clause had not been violated and
denied La Tour’s request to amend his complaint to add certain City officials as
defendants. In a separate ruling, the district court prohibited La Tour from presenting
evidence regarding additional signs in and around the City. La Tour timely appealed.

                                          II.

      We assume, without deciding, that La Tour successfully preserved an objection
to the district court’s ruling which excluded La Tour from offering testimony
regarding other flashing signs. “We review a trial court’s evidentiary rulings under
the abuse of discretion standard, affording the district court substantial deference.”
Shelton v. Consumer Prods. Safety Comm’n, 277 F.3d 998, 1009 (8th Cir. 2002).
After a careful review of the record, we believe that La Tour’s proffered evidence
would not have significantly impacted the constitutional analysis. As such, we find
no abuse of discretion in excluding it.

       We engage in de novo review of the district court’s determination that the
Ordinance is constitutional. Fraternal Order of Police v. Stenehjem, 431 F.3d 591,
596 (8th Cir. 2005). Before making our own determination of the constitutionality of
the Ordinance, we must determine which level of scrutiny to apply. Whitton v. City
of Gladstone, 54 F.3d 1400, 1403 (8th Cir. 1995), If the Ordinance is content-based,
it faces exacting scrutiny. Burson v. Freeman, 504 U.S. 191, 198 (1992). If the
Ordinance is content-neutral, it faces only intermediate scrutiny. United States v.
Dinwiddie, 76 F.3d 913, 923 (8th Cir. 1996).



                                         -3-
       The Ordinance is clearly content-neutral on its face as it does not allow any
flashing, blinking or animated signs, regardless of their content. However, La Tour
argues that the Ordinance is content-based “as applied” because City officials do not
prohibit flashing signs that display time and temperature readings. La Tour argues
that anytime one must look at the contents of a message to determine if it is
prohibited, the regulation at issue must necessarily be content-based. In support of this
argument, La Tour cites our statement in Whitton that “a restriction on speech is
content-based when the message conveyed determines whether the speech is subject
to the restriction.” 54 F.3d at 1403-04.

       There are a number of reasons that Whitton is distinguishable. First, the
regulation in Whitton was deemed to be content-based on its face, whereas the
Ordinance is only arguably content-based as applied. Second, the regulation in
Whitton imposed restrictions only on one type of speech: political election signs. The
Ordinance bans all flashing signs and, as applied, only provides one narrow exception
for signs displaying the time and temperature. Third, although one technically has to
examine the content of the signs in each case to see if the sign is prohibited, the
inquiry is much more searching in Whitton. It takes some analysis to determine if a
sign is “political,” but one can tell at a glance whether a sign is displaying the time or
temperature. Fourth, and most importantly, we found that the regulation in Whitton
did not apply restrictions “to identical signs displaying nonpolitical messages which
present identical concerns.” 54 F.3d at 1407 (emphasis in original). Here, the
ubiquitous time and temperature signs allowed by the City do not pose identical
concerns as signs that function similarly but that display messages that are more
distracting. Allowing only time and temperature signs cannot be said to “give one
side of a debatable public question an advantage in expressing its views to the people”
or allow the City to “select the permissible subjects for public debate and thereby to
control the search for political truth.” City of Ladue v. Gilleo, 512 U.S. 43, 51 (1994)
(internal quotations and citations omitted).



                                           -4-
       Even if Whitton could not be distinguished on its facts, it is not our most recent
analysis of a content-based restriction. In Excalibur Group, Inc. v. City of
Minneapolis, 116 F.3d 1216, 1220 (8th Cir. 1997), we stated that an ordinance “is
content-neutral if it is ‘justified without reference to the content of the regulated
speech.’” (quoting Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989)). Here,
the City’s desire to promote traffic safety is in no way tied to the content of the
flashing signs it seeks to regulate. More recently, we also stated that “[a] regulation
that distinguishes between speech activities likely to produce the consequences that
it seeks to prevent and speech activities unlikely to have those consequences ‘cannot
be struck down for failure to maintain “content neutrality.”’” Fraternal Order of
Police, 431 F.3d at 596-97 (quoting Hill v Colorado, 530 U.S. 703, 724 (2000))
(reversing the district court’s invalidation of a portion of an act which the district court
deemed content-based because it banned telephone “solicitation” but not “advocacy”).
We agree with the district court that, because a message displaying the time and/or
temperature is short and rudimentary, such a message poses less of a traffic hazard
than other messages. In light of all of these reasons, we find the Ordinance to be
content-neutral.

       Because the regulation is content-neutral, it is constitutional if it “is ‘narrowly
tailored to serve a significant governmental interest, and . . . leaves open ample
alternative channels for communication of the information.’” United States v.
Nenninger, 351 F.3d 340, 345-46 (8th Cir. 2003) (quoting Clark v. Cmty for Creative
Non-Violence, 468 U.S. 288, 293 (1984)). The interests expressed by the City are
esthetics and traffic safety. These are significant governmental interests. Metromedia,
Inc. v. City of San Diego, 453 U.S. 490, 507-08 (1981). To be narrowly tailored, the
regulation does not have to be the least restrictive means of furthering the City’s
interest. Thorburn v. Austin, 231 F.3d 1114, 1120 (8th Cir. 2000). A message
displaying the time and/or temperature poses less of a traffic hazard than other
messages. Thus, the City may allow such an exception and still have a regulation that
is narrowly tailored. We also agree with the district court that La Tour has ample


                                            -5-
alternative channels to communicate his messages including non-electronic signs and
his electronic sign operating in a non-flashing manner. Thus, the regulation is
constitutional.

       Because La Tour’s Equal Protection claim is dependant on the argument that
the City enforced the Ordinance in a content-based manner, that claim necessary fails.
Similarly, because the Ordinance is constitutional, we reject all of La Tour’s claims
against the City officials who enforced the Ordinance. As such, we need not address
whether La Tour should have been allowed to amend his complaint to add additional
officials, whether those officials are entitled to absolute or qualified immunity, or
whether La Tour is entitled to punitive damages.


                                         III.

      For the foregoing reasons, we affirm the orders of the district court.

COLLOTON, Circuit Judge, concurring in the judgment.

      In his “as applied” challenge to Fayetteville’s prohibition on flashing or
blinking signs, John LaTour contends that it is impermissible under the First
Amendment for the city to make one exemption to its overall ban by allowing time-
and-temperature signs without advertising matter, while precluding him from
operating a flashing sign on which he wishes to post various political and religious
(and perhaps commercial) messages. The district court explained that the time-and-
temperature signs at issue use no more than four characters, and that the alternating
information on the signs need not be read together to gather meaning – that is, the
current time has meaning independent of the current temperature.

      LaTour, by contrast, wishes to display at least some longer messages that
require several different displays to complete the statement on his sign, which has a

                                         -6-
21-character capacity. (Add., Tab K, at 2). A passing motorist would thus be required
to watch the sign long enough to read more than one of the alternating displays from
LaTour’s sign to perceive the meaning of the message communicated. As a result,
LaTour’s longer messages pose a greater distraction and traffic hazard than typical
time-and-temperature signs, and to this extent, I agree with Judge Melloy’s analysis
as to why the distinction between the two varieties of signs is justified by concerns of
traffic safety without reference to the content of the regulated speech. See Ward v.
Rock Against Racism, 491 U.S. 781, 791 (1989). Indeed, there is no showing that the
time-and-temperature exemption would be available to a sign that required multiple
displays to generate the same substantive “content” as the four-character signs that
were found to be exempt, to wit: “The current time is ten thirty-nine in the morning,
and the current temperature is sixty-eight degrees Fahrenheit and twenty degrees
Celsius.”

       The more difficult question arises with regard to LaTour’s apparent desire to
flash messages that are short enough to appear in a single display, such as
“recallcoody.com” or, as he hypothesizes in his brief on appeal, “Vote for Smith” and
“Secure Liberty.” Although the familiarity of a time-and-temperature sign may permit
a motorist to absorb that message in a quick glance, while an unexpected reference to
recalling an unfamiliar elected official may require longer mental concentration, the
difference in threats to traffic safety between the two signs, standing alone, is less
pronounced than in the case of the multi-screen display.

       The stronger content-neutral justification for limiting the exemption to
traditional time-and-temperature signs is the city’s legitimate interest in preventing
unlimited proliferation of flashing and blinking signs throughout Fayetteville. The
district court found that only two time-and-temperature displays exist in the city
(Add., Tab K, at 24), although LaTour asserts that such signs have been permitted for
thirty years, (Reply Br. at 11), and the court found that time-and-temperature signs
without advertising matter are thus unlikely to proliferate. (Add., Tab K, at 24). If

                                          -7-
the city were to permit one flashing sign saying, “Vote for Smith” and “Secure
Liberty,” however, it would not be feasible thereafter to limit the proliferation of
flashing signs without impermissibly favoring one side of a public question or limiting
the permissible subjects for public debate. See City of Ladue v. Gilleo, 512 U.S. 43,
51 (1994). LaTour himself has predicted that flashing and blinking signs will
proliferate if the signs are allowed to include opinions and ideas, (Add., Tab K, at 24),
and while there was apparently no evidence available on this hypothetical question,
the district court perceived a “sounder basis for believing” that proliferation of
political, religious, and commercial signs would occur. See also Members of City
Council of Los Angeles v. Taxpayers for Vincent, 466 U.S. 789, 817 (1984) (ordinance
justified by finding that if signs were permitted to remain, they “would encourage
others to post additional signs”). I thus find this situation distinguishable from the
Supreme Court’s “narrow” holding in City of Cincinnati v. Discovery Network, Inc.,
507 U.S. 420, 428 (1993), where the city’s prohibition of certain newsracks had “only
a minimal impact on the overall number of newsracks on the city’s sidewalks,” id. at
418, and the ordinance thus lacked a content-neutral justification. Id. at 429-30.

       The Supreme Court in Gilleo assumed, arguendo, the validity of the city’s
argument that an interest in avoiding unlimited proliferation of signs, with its
attendant contribution to visual clutter and damage to aesthetics, made an exemption
to a general prohibition on signs free from impermissible content discrimination. 512
U.S. at 52-53. The Court then found the city’s ordinance unconstitutional on other
grounds, because it “almost completely foreclosed a venerable means of
communication that [was] both unique and important.” Id. at 54. Unlike the
aggrieved citizen in Gilleo, LaTour does not contend that the city’s prohibition on
flashing signs is unconstitutional because it prohibits too much speech. LaTour
remains free to post painted or other static signs in his window, or to display an
electronic sign that changes messages every three hours. (Add., Tab K, at 3). In light
of the city’s legitimate and substantial concerns with traffic safety and aesthetics, and
the other avenues of expression that remain available to LaTour, the general ban on

                                          -8-
flashing signs is not challenged. In his constitutional arguments on appeal, LaTour
asserts only that the prohibition is underinclusive.5

       Reaching the issue assumed in Gilleo, I conclude that prevention of
proliferation of flashing signs is a content-neutral justification for the distinction made
by Fayetteville between LaTour’s proposed signs, which are likely to trigger
proliferation, and time-and-temperature signs, which are not. A proliferation of
flashing and blinking signs undoubtedly would interfere with Fayetteville’s substantial
interests in traffic safety and aesthetics. A motorist who encounters dozens of flashing
signs on a wide range of ever-changing topics is likely to be more distracted than a
driver who might steal a quick glance at a familiar sign displaying the current
temperature. An interest in avoiding the visual clutter that would be created by a
multiplicity of flashing signs is likewise substantial enough to justify avoiding the sort
of proliferation that LaTour’s activity would invite. See Taxpayers for Vincent, 466
U.S. at 816-17 (upholding prohibition of posting signs on public property based on
interest in avoiding visual clutter). I thus conclude that Fayetteville’s decision to
create only a de minimis exemption for flashing time-and-temperature signs is justified
by the city’s substantial interests in aesthetics and traffic safety, and without reference
to the content of the regulated speech. Cf. also Rappa v. New Castle County, 18 F.3d

      5
        With respect to LaTour’s evidentiary point on appeal, I conclude that the
district court did not abuse its discretion. At a pretrial hearing held on May 7, 2003,
La Tour proposed to introduce evidence of flashing devices at the Washington County
Fair, at the University of Arkansas football stadium, at a traveling carnival staged at
a local fairgrounds, and inside the Fayetteville police station. The district court held
that it would not be appropriate to “hold a trial within a trial” to determine whether
these flashing lights would violate the ordinance. Given LaTour’s failure to raise the
issues until the week before trial, after discovery had closed, the court ruled that “to
get into that now is basically fundamentally unfair,” and that “to bring in a myriad of
other potential examples at the last moment . . . would unduly complicate the trial,
unduly extend it, and that it would tend to, rather than clarify the matter, simply to
confuse it further.” (Tr. at 63-65). This ruling was a sound application of Federal
Rule of Evidence 403.

                                           -9-
1043, 1079-80 (3d Cir. 1994) (Alito, J., concurring) (suggesting that where state and
county enacted a general ban on outdoor signs, content-based exceptions that were
“truly de minimis” did not violate the First Amendment).

        The city’s exemption for time-and-temperature signs without advertising matter
does not offend the First Amendment principles with which scrutiny of underinclusive
regulation of speech is typically concerned. The city’s approach does not “attempt to
give one side of a debatable public question an advantage in expressing its views to
the people,” and it does not “seek to select the permissible subjects for public debate
and thereby to control the search for political truth.” Gilleo, 512 U.S. at 51 (internal
quotations and ellipses omitted). The exemption does not undermine the credibility
of the city’s stated reasons for prohibiting all other flashing and blinking signs. Id.
at 52. It merely allows the display of a traditional, alternating public service message
that poses a negligible threat to the interests that justify the general ban. The
regulatory approach is narrowly tailored to serve a significant government interest,
and it leaves open ample alternative channels for communication. I do not believe the
First and Fourteenth Amendments require Fayetteville to choose between either
banning time-and-temperature signs or allowing unlimited flashing and blinking signs
throughout the city. I therefore concur in the judgment affirming the district court.

HANSEN, Circuit Judge, dissenting.

       Because I believe that the City’s determination that Mr. LaTour’s sign violated
the City’s sign ordinance was based solely on the message displayed on his sign, the
district court should have applied strict scrutiny analysis. Accordingly, I would
reverse and remand the case for reconsideration using that test.

       The ordinance itself bans all flashing and blinking signs of any kind, regardless
of the content they display. Mr. LaTour was prosecuted because his flashing sign
displayed content other than the time and temperature. The owners of other flashing

                                         -10-
signs (which the parties agree operate -- that is the signs flash or blink -- in the very
same way that Mr. LaTour’s sign does) but which display the time and temperature
were not and are not prosecuted, nor are their signs ordered to be removed. The
application by the City of its ordinance is, therefor, not accomplished in a content
neutral way, because the message on the sign’s display (time and temperature versus
something else) is what determines whether or not the sign will be permitted to be
used and whether or not its owner will be criminally prosecuted. That the City’s
enforcement of its ordinance is content-based is further confirmed by our court’s
statement of the facts, ante at 2, that “[a]fter LaTour used the sign to display political
messages, City officials ordered him to remove the sign....”

       A ban on all flashing or blinking signs because of a desire to promote traffic
safety and aesthetics would be content-neutral under our prior case of Excalibur
Group Inc. v. City of Minneapolis, 116 F.3d 1216 (8th Cir. 1997), simply because it
is “justified without reference to the content of the regulated speech.” Ward v. Rock
Against Racism, 491 U.S. 781, 791 (1989). But a city’s policy of allowing some
blinking or flashing signs to display as content the time and temperature, but
prohibiting other blinking or flashing signs that display different content (e.g., “Dow
Up 16” or, as Mr. LaTour’s sign said, “Choose Life”) can only be based upon or
enforced by specific reference to the regulated speech, as opposed to observing only
its method of display.

       In City of Cincinnati v. Discovery Network, Inc., 507 U.S. 410 (1993),
Cincinnati applied an ordinance against handbill distribution to prohibit freestanding
newsracks on public property that contained commercial handbills, but allowed
similar newsracks that contained newspapers. The city claimed its regulation was
content-neutral because its justifications for the regulation -- safety and aesthetics --
were unrelated to the content of the prohibited handbills. The Supreme Court rejected
the argument because “the very basis for the regulation is the difference in content
between ordinary newspapers and commercial speech.” Id. at 49. The Court noted

                                          -11-
that it had “expressly rejected the argument that discriminatory treatment is suspect
under the First Amendment only when the legislature intends to suppress certain
ideas.” Id. (internal citations and quotations omitted). Because “whether any
particular newsrack [fell] within the ban [was] determined by the content of the
publication resting inside the newsrack,” the ban was content-based “by any
commonsense understanding of the term.” Id.

      Likewise here. Whether any particular blinking sign is ordered removed or its
owner prosecuted is determined by the content of the message exhibited on the sign.
The city's decision to enforce its ban against some blinking signs and not others is
determined solely by the message the sign displays. Benign time and temperature
messages are permitted; all others, benign or biased, are not. Such an enforcement
policy is surely content-based by a “commonsense understanding of the term,”
because it is only after considering the content displayed that the city decides to act
against a particular sign.

      Because I believe the district court should take the first cut at determining
whether or not the ordinance as applied passes strict scrutiny, I would reverse its
judgment and remand the case for further consideration. Accordingly, I respectfully
dissent.
                      ______________________________




                                         -12-
