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, 114 S.Ct. 2038, 129 L.Ed.2d 36 (1994) (internal quotations and citations omitted).