UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF WISCONSIN

GREEN BAY DIVISION

TIMOTHY AND MEGAN FLOREK

Plaintiffs,
Case No. 23-CV-122
v.

MICHAELA BEDORA, in her individual and

official capacities, and the CITY OF NEENAH,

Defendants.

PLAINTIFFS’ REPLY BRIEF IN SUPPORT OF

MOTION FOR PRELIMINARY INJUNCTION

The Floreks’ speech, protesting potential City rezoning efforts as expressed

through a yard sign on their private property, is constitutionally protected under the

First Amendment. Defendants may not impose either content-based restrictions or

arbitrary and unreasonable burdens upon protected speech; nor may they retaliate

against their citizens for engaging in protected speech. E.g., Reed v. Town of Gilbert,

Ariz., 576 U.S. 155, 163, 169 (2015); Schenck v. Pro-Choice Network of W. New York,

519 U.S. 357, 377 (1997); Ezell v. City of Chicago, 651 F.3d 684, 707 (7th Cir. 2011);

Nieves v. Bartlett, 139 S. Ct. 1715, 1722 (2019).

To obtain a preliminary injunction, the Floreks “must establish that [they are]

likely to succeed on the merits, that [they are] likely to suffer irreparable harm in the

absence of preliminary relief, that the balance of the equities tips in [their] favor, and

Case 1:23-cv-00122-WCG Filed 03/20/23 Page 1 of 16 Document 17

that an injunction is in the public interest.” Higher Soc'y of Indiana v. Tippecanoe

Cnty., Indiana, 858 F.3d 1113, 1116 (7th Cir. 2017) (citation omitted).

In their opening brief, the Floreks showed how they satisfy each of these

requirements. In response, Defendants do not dispute that the Floreks have satisfied

the latter three preliminary injunction requirements, and accordingly, Defendants

concede those matters. Defendants argue then, solely on the merits. But the main

arguments that Defendants advance were specifically considered and rejected by the

Supreme Court nearly a decade ago in Reed. The Floreks are likely to succeed on each

of their three claims.

ARGUMENT

I. The City’s sign code is content-based and unconstitutional under the

First Amendment and Reed.

Under the Floreks’ first claim, the City’s sign code is content-based, and thus

subject to strict scrutiny review, which it cannot survive because it is not narrowly

tailored to serve a compelling governmental interest.

A. The City’s sign code is content-based.

In addressing this issue, Defendants assert that this Court should read only

the “portable sign” restriction under Section 24-132(8) of the City of Neenah

Municipal Code, 1 and that, if the Court does so limit its reading, the City’s sign code

“does not target any particular content.” Doc. 15:3. Defendants go on to claim that

“there is no evidence that the City disagreed with the content of the [Floreks’] sign,”

1
City of Neenah Municipal Code, Chapter 24 “Signs.” See Doc. 4-1.

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and that these coupled contentions are sufficient to render the City’s sign code

constitutional. Id.

But the “portable sign” restriction under Section 24-132(8) does not operate in

a vacuum and cannot be the end of the inquiry. Defendants acknowledge the Floreks’

position is that Section 24-132(8) must be read in the context of the entire sign code.

Doc. 15:3. Yet, Defendants argue that if this Court were to read any particular

subsection of the sign code in context of the whole, this would be a legal mistake. See

Doc. 15:4. Surprisingly, Defendants actually cite Reed in favor of their position on

this issue. This is “surprising” because in Reed, the Supreme Court did exactly what

the Floreks request this Court to do, and exactly the opposite of what the Defendants

are advocating.

In Reed, a pastor challenged a local sign code restriction imposed on his

temporary sign directing the public to church meetings. In deciding the case, the

Supreme Court did not limit its reading of the Town of Gilbert’s sign code to the

section of code applying to temporary signs. Instead, the Court noted that the Town

of Gilbert’s at issue sign code “identifies various categories of signs based on the type

of information they convey, then subjects each category to different restrictions.”

Reed, 576 U.S. at 159. More specifically, the Court explained that the Town of

Gilbert’s sign code:

defines “Temporary Directional Signs” on the basis of whether a sign

conveys the message of directing the public to church or some other
“qualifying event.” It defines “Political Signs” on the basis of whether a
sign's message is “designed to influence the outcome of an election.” And
it defines “Ideological Signs” on the basis of whether a sign
“communicat[es] a message or ideas” that do not fit within the Code's

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 other categories. It then subjects each of these categories to different
restrictions.

Id. at 164. (brackets in original) (internal citations omitted). The Court went on to

explain that:

The restrictions in the Sign Code that apply to any given sign thus
depend entirely on the communicative content of the sign. If a sign
informs its reader of the time and place a book club will discuss John
Locke's Two Treatises of Government, that sign will be treated
differently from a sign expressing the view that one should vote for one
of Locke's followers in an upcoming election, and both signs will be
treated differently from a sign expressing an ideological view rooted in
Locke's theory of government. More to the point, the Church's signs
inviting people to attend its worship services are treated differently from
signs conveying other types of ideas.

Id. In reading the specific, temporary sign subsection of the Town’s sign code in the

context of the sign code as a whole, the Reed Court found both the subsection and the

entire sign code unconstitutional because a sign code that regulates speech in this

way is “content based on its face,” and the Town’s code could not withstand strict

scrutiny. Id. at 159, 163-65. The same is true with respect to the City’s sign code here.

Like the Town of Gilbert’s sign code, the City of Neenah’s sign code here

imposes more stringent restrictions for signs containing certain messages, than other

signs containing other messages. In their opening brief, the Floreks explained how

Section 24-132(8) imposes more stringent restrictions on their chosen political

message, than other subsections of the sign code imposed on signs conveying other

messages. The Floreks could, for example, under Section 24-133, indefinitely display

a “no trespassing” or “no dumping” sign in their front yard, or advertise a home

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business; but they are limited to 30-days’ time for their chosen political message. Doc.

4:5.

Similarly, just as the Town of Gilbert’s sign code contained an impermissible

catch-all provision for “‘message[s] or ideas’ that do not fit within the Code’s other

categories,” Reed, 576 U.S. at 164, the “portable sign” restriction under Section 24-

132(8) of the City’s sign code also serves as a catch-all classification for any signs,

including the Floreks’ sign, that do not fall into the other listed content-based

classifications. Of course, the “portable sign” catch-all provision is not applied for

content determined by Defendants to be more favorable. For example, if the Floreks’

sign instead said “for sale by owner,” as opposed to displaying the Floreks’ chosen

political message, the sign would instead be regulated more favorably as a “real estate

sign” under Section 24-132(3) and could be displayed indefinitely, pending the

consummation of a sale. Doc. 4:11.

Fundamentally, the City’s sign code presents numerous irreconcilable

difficulties. Based on content, some signs require permits; some do not. See Sec. 24-

131. Likewise, according to content, some signs have time limits; others do not.

Compare Sec. 24-132 with Sec. 24-133. Signs may also have variously differing size

limitations—all depending on content. See, e.g., Sec. 24-132(1), 24-132(2)(b), 24-

132(3), 24-132(6). Further, with respect to signs challenging actions taken by the City

itself, Defendants state that they would not have sent a “Notice of Violation” to the

Floreks if their sign had displayed a different message on a different issue—one that

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was “pending” before the City’s common council. Doc. 5-1. Of course, such an

admission only demonstrates the content-based nature of the City’s sign code.

Notably, Defendants exempt themselves and their messages from any

restrictions at all. Under Section 24-133(3), any “public officer in the performance of

his public duty” may erect a sign that has no size, place or time limits for display.

That is, Defendants favor their speech over that of citizens in spite of the First

Amendment’s stance against attempts to “distinguish[] among different speakers,

allowing speech by some but not others.” Citizens United v. Fed. Election Comm'n,

558 U.S. 310, 340–41 (2010).

Ultimately, Defendants utterly fail to explain how the City’s sign code, read as

a whole, is content neutral. They do not address it because there can be no answer

for it. Defendants also specifically ignore that the Floreks’ sign is regulated under

Section 24-132(8) of the sign code solely because the content of their sign does not fit

under one of the other, more favorable content-based sign classifications. Because the

City’s sign code “target[s] speech based on its communicative content,” it is

necessarily content-based. Reed, 576 U.S. at 163.

B. City of Austin v. Reagan Nat’l Advert. Of Austin, LLC is of no help

to Defendants, and Reed is controlling.

Defendants attempt to rely on City of Austin, Texas v. Reagan Nat'l Advert. of

Austin, LLC 142 S. Ct. 1464 (2022), but that case has nothing to do with this one. In

City of Austin, the Supreme Court upheld a locality’s sign code classifications for on-

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and off-premises signs, 2 reinforcing standing precedent that an on-/off-premises

distinction may be content neutral where a sign’s message “matters only to the extent

that it informs the sign’s relative location.” 142 S. Ct. at 1473. That is, unlike the sign

code at issue in Reed, the City of Austin’s sign code permissibly distinguished based

on location, not content. Id. at 1472-73. Here is a key part of the Court’s analysis

distinguishing the City of Austin from Reed:

A sign’s substantive message itself is irrelevant to the application of the

provisions; there are no content-discriminatory classifications for
political messages, ideological messages, or directional messages
concerning specific events . . . . Rather, the City’s provisions distinguish
based on location: A given sign is treated differently based solely on
whether it is located on the same premises as the thing being discussed
or not.

Id. Accordingly, City of Austin is inapplicable here because the City of Neenah’s sign

code impermissibly distinguishes based on content, not location. Said differently, in

our case, a sign’s message according to the “topic or subject matter” communicated

“matters” as the very basis for which a sign is classified and treated under the City’s

sign code. Id. at 1464, 1466 (distinguishing Reed from City of Austin).

This case isn’t just similar to Reed; it is nearly identical to it: Here, the City

has adopted a comprehensive sign code that applies varying size, placement, and time

restrictions to 23 different categories of signs (ironically enough, the same number of

classifications as in Reed), in which the City “singles out specific subject matter for

differential treatment,” providing more or less favorable treatment to some signs over

Essentially, the City of Austin regulated off-premises signs (billboards) more strictly than on-
2

premises signs.

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others. Reed, 576 U.S. at 169. This content-based scheme is specifically invalidated

under Reed.

C. The City’s sign code’s content-based distinctions are not

narrowly tailored to serve compelling governmental interests.

Because the City’s sign code “target[s] speech based on its communicative

content,” it is necessarily content-based and subject to strict scrutiny review. Reed,

576 U.S. at 163 (citing R.A.V. v. St. Paul, 505 U.S. 377, 395 (1992); Simon & Schuster,

Inc. v. Members of N.Y. State Crime Victims Bd., 502 U.S. 105, 115, 118 (1991)). But

Defendants establish no argument that the City’s sign code is narrowly tailored to

serve a compelling governmental interest.

Defendants first recite the purpose statements from the City’s sign code

pursuant to Section 24-1. Doc. 15:5. 3 Defendants contend that “[i]t goes without

saying that allowing Neenah residents to leave random signs up indefinitely would

frustrate the City’s goals,” meaning that both the City’s goals and the frustration

should be obvious. Doc. 15:6. But there is nothing obvious to suggest that Defendants’

statement is true in so far as strict scrutiny review is concerned.

Instead, what is self-evident is that a regulation’s purpose “to regulate” signs

under Section 24-1(1) does not, in and of itself, articulate any compelling

governmental interest whatsoever for the imposition of a content-based regulation.

3 There are four discrete purpose statements outlined under Section 24-1 of the City’s sign
code: “(1) to regulate, administer, and enforce outdoor sign advertising and display within the City; (2)
to protect the safety and welfare of the public; (3) to promote well maintained and attractive sign
displays within the community; and (4) to provide for adequate business identification, advertising
and communication.”

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Indeed, if the City’s goals and the frustration thereof “go[] without saying” as

Defendants contend, then it would also go without saying that “directional and

instructional signs”, “government signs,” “home occupation signs,” “house numbers

and name plates,” “memorial signs and plaques,” “no trespassing or no dumping

signs,” “public notices,” and “neighborhood identification signs”—all of which may be

left up indefinitely—would likewise frustrate the City’s goals. But Defendants’

rationale does not “go[] without saying” because none of these signs have time limits.

Why does a sign that says “Don’t Rezone Shattuck Middle School Leave R1

Alone” frustrate some purpose, while signs displaying “no trespassing” or “no

dumping” do not? Defendants do not explain themselves, because the underlying

answer “goes without saying”—it is the content of the sign that matters.

Nor do Defendants explain how “safety,” “adequate business identification,

advertising and communication,” or aesthetics interests under Sections 24-1(2)–(4)

rise to the level of “compelling” so as to justify the City’s differential treatment of

“construction signs,” “political campaign signs,” “real estate signs,” “yard sale signs,”

“subdivision signs,” and others under Section 24-132. Keeping on with their silence,

Defendants say nothing regarding any compelling governmental interest for

restricting the Floreks’ political sign opposing City action on a topic of public concern.

This silence is because Defendants have no justification that could possibly withstand

constitutional muster under strict scrutiny review.

Even if Defendants could somehow establish a compelling interest in support

of the distinctions drawn under the City’s sign code, they cannot meet the settled

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standards of narrow tailoring. In particular, the sign code’s “distinctions fail as

hopelessly underinclusive.” See Reed, 576 U.S. at 171–72. For example, in considering

the proffered aesthetic interest under the sign code’s purpose statements at Section

24-1(3), it cannot be said that stricter size and time limitations on one content-based

classification, such as for “political campaign signs,” is necessary to beautify or

“declutter” the City, see Doc. 15:16, while at the same time allowing for looser

restrictions on other content-based classifications that create the same problems—

“real estate signs,” “subdivision signs,” “memorial signs and plagues”, and so on. See

Reed, 576 U.S. at 171–72.

In the same way, there is no basis for concluding that the widely varying

restrictions, specific to each of the numerous content-based classifications under

Sections 24-132 and 24-133 of the sign code, are necessary to eliminating threats to

safety. See id. Indeed, it is difficult to see how an “athletic field sign,” which has a

time limitation, could pose a greater threat to safety than a “directional and

instructional sign,” which has no time limitation, where both of these signs, in fact,

have a directional and instructional purpose. The City’s sign code fails narrow

tailoring “[b]ecause a ‘law cannot be regarded as protecting an interest of the highest

order, and thus as justifying a restriction on truthful speech, when it leaves

appreciable damage to that supposedly vital interest unprohibited.’” Reed, 576 U.S.

at 172 (citing Republican Party of Minn. v. White, 536 U.S. 765, 780 (2002)).

“The [City] has ample content-neutral options available to resolve problems

with safety and aesthetics.” Id. at 173. For example, it may regulate various aspects

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of signs that have nothing to do with a sign's message: location, size, building

materials, lighting, and moving parts. “[T]he [City] may go a long way toward entirely

forbidding the posting of signs,” so long as it has a compelling interest and does so in

an evenhanded, content-neutral manner. Id. Defendants fail to articulate any

compelling interest for the City’s sign code distinctions meeting the standards of

narrow tailoring and advance no tenable arguments to the contrary. The City’s sign

code is entirely content-based, unjustified, and unconstitutional under the First

Amendment and Reed.

II. The City’s sign code imposes arbitrary and unreasonable restrictions
on protected speech.

As the Floreks asserted in their second claim, in addition to being

unconstitutionally content-based, the City’s sign code also violates the First

Amendment through its arbitrary and unreasonable restrictions on protected speech

including political speech—and the Floreks are likely to succeed on this claim as well.

Defendants do not appear to address this second, independent claim. They offer

only a brief assertion that the Floreks have “alternative channels available to them

for communicating their message.” Doc. 15:7. But that is not how the First

Amendment works, nor is it a defense to the Floreks’ claim: the availability of

“alternative channels” for communication is not the standard for constitutionality.

The government may not simply curtail First Amendment speech as it pleases.

Rather, “commenting on matters of public concern,” as political speech, lies at “the

heart of the First Amendment,” and laws burdening such speech must be justified

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under strict scrutiny review. Schenck, 519 U.S. at 377; Ezell, 651 F.3d at 707; Citizens

United, 558 U.S. at 340.

It is beyond question that the Floreks’ expression through their sign is

protected under the First Amendment. City of Ladue v. Gilleo, 512 U.S. 43, 48 (1994)

(“signs are a form of expression protected by the Free Speech Clause”). And far from

Defendants’ contention that the Floreks’ speech “impart[s] no timely or relevant

speech to or on behalf of Neenah residents,” Doc. 15:6, ample community and social

media groups and news reports confirm that the potential rezoning of the Shattuck

Middle School property is indisputably a matter of public concern, implicating

political speech, whether the City’s common council is currently planning to vote on

a rezoning effort or not. See e.g., D. Behnke, Appleton Post-Crescent, Number of

buyers for Neenah's Shattuck school property stands at two, and Northpointe was first

(Jan. 13, 2023); 4 P. Steeno, Local Five News - Green Bay, Neighbors oppose Shattuck

Middle School property development plan (Nov. 15, 2022) (“Many Neenah residents,

especially people who live around the Shattuck Middle School property, are opposed

to the development proposal. . . . There’s also an online petition opposing the

development that has over 500 signatures.”); 5 Citizen Petition: No to the rezoning of

the Shattuck Middle School property; 6 D. Behnke, Appleton Post-Crescent, Neenah

4
Available at https://www.postcrescent.com/story/news/local/2023/01/13/neenahs-shattuck-
school-property-only-has-two-interested-buyers/69791506007/ (last accessed Mar. 10, 2023).
5
Available at https://www.wearegreenbay.com/news/local-news/neighbors-oppose-shattuck-
middle-school-property-development-plan/ (last accessed Mar. 10, 2023).
6
Available at https://www.change.org/p/no-to-the-rezoning-of-the-shattuck-middle-school-
property (last accessed Mar. 10, 2023).

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council rejects rezoning of Shattuck school property for redevelopment as apartments,

homes (Dec. 8, 2022) (“[City Common Council Member Todd] Stevenson said he

received ‘an unprecedented amount of communication from all over the world

concerning [the rezoning of the Shattuck Middle School property.]’”); 7 O. Acree, NBC-

26 - Green Bay, Vote to rezone the Shattuck Middle School property fails (Dec. 8, 2022)

(“Community members would like to be included in the process moving forward.”);8

Facebook Group Shattuck Area Support R-1 Zoning. 9, 10

As discussed in the Floreks’ opening brief and herein, the City’s sign code

classifications and the results thereof demonstrate its whimsical nature, amounting

to arbitrary and unreasonable burdens imposed upon protected speech, including

political speech. “[I]t is [Defendants’] burden to demonstrate that the [c]ode’s

differentiation between . . . signs[] furthers a compelling governmental interest and

is narrowly tailored to that end.” Reed, 576 U.S. at 171. However, as explained in the

previous sections, Defendants have offered no justification in satisfaction of this

standard. Accordingly, independent of its unconstitutionality as a content-based sign

ordinance, the sign ordinance also unconstitutionally restricts protected political

speech.

7
Available at https://www.postcrescent.com/story/news/local/2022/12/08/neenah-rejects-
rezoning-of-shattuck-school-for-apartments-homes/69702933007/ (last accessed Mar. 10, 2023).
8
Available at https://www.nbc26.com/neenah/the-vote-to-rezone-the-shattuck-middle-school-
property-fails (last accessed Mar. 10, 2023).
9
Available at https://www.facebook.com/groups/shattuckproperty/ (last accessed Mar. 10,
2023).
10
Should there be any question as to whether the Floreks’ speech constitutes a matter of public
concern implicating political speech, the Floreks reserve the right to disclose Defendants’ release of
records on this point pursuant to the Floreks’ earlier public records request.

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III. Defendants’ threats to punish the Floreks for their speech violate the
First Amendment.

Under the Floreks’ third claim, Defendants’ actions in sending notices of

violation to the Floreks constitute punishment for the Floreks’ exercise of protected

political speech in violation of the First Amendment. Defendants argue that because

they did not act maliciously, the Floreks are not likely to succeed on this claim, Doc.

15:7–8; but Defendants’ argument fails.

In displaying a yard sign on their private property, the Floreks have merely

sought to express their opinion about potential City action. The Floreks’ expression

through their posted sign is quintessential, protected political speech, occupying

sacred First Amendment ground, see Schenck, 519 U.S. at 377, City of Ladue, 512

U.S. at 48, and the government is prohibited from penalizing, or otherwise retaliating

against, the Floreks for such protected speech. Nieves, 139 S. Ct. at 1722; Surita v.

Hyde, 665 F.3d 860, 871 (7th Cir. 2011).

Defendants’ response only confirms that Defendants have impermissibly

retaliated against the Floreks for their protected speech. Indeed, as Defendants

explain, they sought “to enforce the City’s Sign Ordinance [] in response to a

complaint that the Floreks were violating [it]” by sending “two Notices of Violation

advising the Floreks of the time limitation on portable signs.” Doc. 15:7. Defendants

do not dispute that the Floreks’ failure to comply with Defendants’ orders could result

in significant penalties of up to $500 for the first day and $1,000 every day thereafter,

e.g., Doc. 4:6; see also City of Neenah Municipal Code, Sections 1-20(c)-(d); nor do they

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dispute that these penalty threats constitute a deprivation, chilling enough to deter

further expressions of First Amendment speech.

Defendants’ contention that “government action must be caused by an officer’s

malice and not the plaintiff’s prohibited conduct” as a requirement for a First

Amendment retaliation claim is somewhat misplaced, and regardless, it does not help

them. See Doc. 15:7–8. Generally, “malice,” in relation to the cause of adverse

government action, is used in the context of retaliatory “claims [that] give rise to

complex causal inquiries,” including criminal malicious prosecution and arrest cases.

Nieves, 139 S. Ct. at 1724. 11 Such malicious prosecution and false-arrest claims are

obviously distinguished from the First Amendment retaliation claim that the Floreks

make here. There is nothing complex about causation here—Defendants concede that

they sent “two ‘Notices of Violation’” to the Floreks in response to the Floreks’

protected speech. Doc. 15:7. Moreover, Defendants have indeed antagonized the

Floreks (and others similarly situated) through enforcement of a constitutionally

unjustified sign code that imposes content-based restrictions and arbitrary and

unreasonable burdens. Certainly, Defendants ought to know by now that their

enforcement efforts are unlawful given the eight-year duration that has passed since

11
See also Aleman v. Vill. of Hanover Park, 662 F.3d 897, 907 (7th Cir. 2011) (“malice, which
means in this context that the officer who initiated the prosecution had ‘any motive other than that of
bringing a guilty party to justice.’”); Thayer v. Chiczewski, 705 F.3d 237, 252 (7th Cir. 2012) (in
analyzing causation, “we must decide if taking all the facts and reasonable inferences in his favor,
there can be no reasonable dispute that Officer Chiczewski would have arrested [plaintiff] despite any
animus toward [plaintiff’s] protected First Amendment activity.”).

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Reed was decided. It is long past time for Defendants to ensure local compliance with

the Constitution.

The Floreks are likely to succeed on their First Amendment retaliation claim

because they plainly engaged in First Amendment speech; they suffered a deprivation

likely to deter further expressions of protected speech; and the protected speech was

“at least a motivating factor” for Defendants’ actions—and that is the end of the

inquiry. Thayer, 705 F.3d at 251.

CONCLUSION

For the foregoing reasons as well as those reasons stated in the Floreks’

opening brief supporting their motion for preliminary relief, the Floreks are likely to

succeed on the merits of all of their claims. Since Defendants do not contest any of

the other injunction requirements, the Floreks respectfully request this Court to

grant their motion for preliminary relief.

Dated: March 20, 2023

Respectfully Submitted,

WISCONSIN INSTITUTE FOR

LAW & LIBERTY, INC.
s/ Cara M. Tolliver
Richard M. Esenberg (WI Bar No. 1005622)
Cara M. Tolliver (WI Bar No. 1112818)
Lucas T. Vebber (WI Bar No. 1067543)
330 East Kilbourn Avenue, Suite 725
Milwaukee, WI 53202
Telephone: (414) 727-9455
Facsimile: (414) 727-6385
Rick@will-law.org
Cara@will-law.org
Lucas@will-law.org

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