The Fifth Circuit, however, has taken the position that the summary affirmance of
Watseka does not establish the legitimacy of the least restrictive means test.
SDJ, Inc. v. City of Houston, 841 F.2d 107 (5th Cir.1988) (on denial of rehearing en banc),
petition for cert. filed. The Fifth Circuit was of the view that, in affirming, the Supreme Court had not necessarily decided that issue. With all respect, we disagree with the Fifth Circuit. Three Justices dissented from the summary affirmance on the express and sole ground that the court of appeals should not have imposed a requirement of the least restrictive means upon a time, place and manner regulation.
Watseka, 107 S.Ct. at 920 (White, Jr., joined by Rehnquist, C.J., and O'Connor, J., dissenting). The jurisdictional statement in
Watseka presented the Supreme Court with the question whether the ordinance's limitation must merely be reasonable, or “must be the most reasonable limitation.”
SDJ, Inc., 841 F.2d at 108. Under these circumstances, we conclude that the Supreme Court's affirmance addresses and approves the least restrictive means test imposed by the Seventh Circuit in
Watseka. In light of the Fifth Circuit's position, however, we add that we would reach the same conclusion in the absence of the Supreme Court's affirmance of
Watseka.