Camp Hill Borough Republican Association; Caroline Machiraju; Katherine Pearson v. Borough of Camp Hill

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_______________
No. 23-1746
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CAMP HILL BOROUGH REPUBLICAN ASSOCIATION;
CAROLINE MACHIRAJU; KATHERINE PEARSON
v.
BOROUGH OF CAMP HILL; ALISSA PACKER, in her
official capacity as President, Borough Council, Borough of
Camp Hill; SARA GIBSON; COLTON WEICHMAN, in his
official capacity as Codes Enforcement Officer, Borough of
Camp Hill,
Appellants
_______________
On Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. No. 1:22-cv-01679)
District Judge: Honorable Jennifer P. Wilson
_______________
Argued: January 17, 2024
Before: JORDAN, BIBAS, and AMBRO, Circuit Judges
(Filed: May 9, 2024)

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Elizabeth L. Kramer
Edward L. Stinnett, II
Isaac P. Wakefield [ARGUED]
SALZMANN HUGHES
1801 Market Street, Suite 300
Camp Hill, PA 17011
Counsel for Appellants
Brian C. Caffrey
Marc A. Scaringi [ARGUED]
Jeffrey R. Schott
SCARINGI & SCARINGI
2000 Linglestown Road, Suite 106
Harrisburg, PA 17110
Counsel for Appellees
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OPINION OF THE COURT
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BIBAS, Circuit Judge.
Rarely may the government limit speech based on its content.
The Borough of Camp Hill passed an ordinance to keep resi-
dents from cluttering their lawns with signs. That ordinance
defines about twenty categories of signs and applies different
limits to each. But it classifies some signs based on their content.
That classification is a red flag. Because parts of the ordinance
are not narrowly tailored to further a compelling government inter-
est, they are unconstitutional on their face. So we will affirm the
District Court’s summary judgment for the challengers.

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I. THE SIGN ORDINANCE
Before the 2022 midterm elections, two Camp Hill resi-
dents put signs on their lawns to support a host of political
candidates. Katherine Pearson put up two signs about a hun-
dred days before the election. Weeks later, Caroline Machiraju
put up three signs. But Camp Hill told them both to take their
signs down because they violated a local sign ordinance.
The ordinance applies different rules to different sign cate-
gories. Pearson’s and Machiraju’s signs were Temporary
Signs. Within that category, their signs were also Personal
Expression Signs: signs that “express[ ] an opinion, interest,
position, or other non-commercial message.” App. 52. The
ordinance limits how many Personal Expression Signs a resi-
dent may put up (two) and when they may go up (starting only
sixty days before the election or other event). Machiraju had
too many signs, and Pearson had put hers up too early. Each
complied with Camp Hill’s demands and took her signs down.
Then they sued Camp Hill, challenging those provisions
under the First Amendment both facially and as applied. The
District Court granted them summary judgment on their facial
challenge. It reasoned that the Temporary Sign and Personal
Expression Sign provisions were content based and failed strict
scrutiny.
Camp Hill now appeals. We review de novo a district
court’s grant of summary judgment. Tundo v. County of Pas-
saic, 923 F.3d 283, 286 (3d Cir. 2019). To win on a facial free-
speech challenge, Pearson and Machiraju must “establish that
no set of circumstances exists under which the [ordinance]
would be valid, or, in the First Amendment context, show that

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the law is overbroad because a substantial number of its appli-
cations are unconstitutional” relative to its constitutional appli-
cations. Mazo v. N.J. Sec’y of State, 54 F.4th 124, 134 (3d Cir.
2022) (internal quotation marks omitted).
II. THE CHALLENGED PROVISIONS ARE CONTENT BASED
The First Amendment presumptively prevents the govern-
ment from restricting speech based on its content. Free Speech
Coal., Inc. v. Att’y Gen., 974 F.3d 408, 420 (3d Cir. 2020). By
limiting lawn signs, Camp Hill’s ordinance restricts speech.
The Borough argues that it limits not what a resident can say,
but how she can say it, making it a “time, place, or manner
restriction.” Appellants’ Br. 13. The government has more lee-
way to enforce such limits. Ward v. Rock Against Racism, 491
U.S. 781, 798–99 (1989).
But this ordinance does not qualify. Camp Hill mistakes an
ordinance that restricts when, where, and how someone can
speak for a time-place-or-manner restriction. But the latter is a
term of art. And an ordinance that asks what a person said and
why does not fit. In other words, a time-place-or-manner
restriction must be content neutral. Id. at 791–92. This law is
not. In two different ways, it restricts some signs based on their
content. First, it defines Personal Expression Signs by separat-
ing commercial from noncommercial speech. Second, by
carving out Holiday Decorations, it makes the remaining
Temporary Sign category a content-based catchall. Because
the ordinance is content based, it cannot be a mere time-place-
or-manner restriction. So it survives only if it can satisfy strict
scrutiny. See Reed v. Town of Gilbert, 576 U.S. 155, 163–64
(2015).

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A. The ordinance treats noncommercial messages worse
The ordinance limits the size, height, timing, and illumina-
tion of Personal Expression Signs more strictly than it limits
other Temporary Signs. And those harsher rules apply because
Personal Expression Signs express noncommercial messages.
Categorizing speech as noncommercial is categorizing it by
content. By favoring commercial expression over noncom-
mercial, the ordinance targets speech based on its message. So
it is not content neutral. Id. at 163.
To tell if a category is based on the sign’s content, we ask
how an ordinary reader would know what category a sign belongs
in. If he can do so by judging the sign’s content-neutral fea-
tures, like its size or location, the category is content neutral.
See City of Austin v. Reagan Nat’l Advert. of Austin, LLC, 596
U.S. 61, 71 (2022). But if he must consider its subject matter,
the category is content based. Reed, 576 U.S. at 169–71.
This inquiry follows three steps. First, we identify the reg-
ulated category and a comparable category that is treated dif-
ferently. See id. at 164. In City of Austin, for example, the Court
compared signs advertising off-premises businesses (the regu-
lated category) to on-premises signs. 596 U.S. at 66. Here, the
regulated category is Personal Expression Signs. Camp Hill
admits that the only distinction between Personal Expression
Signs and other Temporary Signs is their “commercial versus
noncommercial” content. Appellants’ Br. 29. So commercial
Temporary Signs is the right category for comparison.
Second, we discern what feature distinguishes the regulated
category from the comparable category. In City of Austin, the
defining feature was the sign’s location. 596 U.S. at 71. But

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here, the defining feature is the sign’s noncommercial mes-
sage. A Personal Expression Sign is any sign “that expresses
an opinion, interest, position, or other non-commercial mes-
sage.” App. 52. The final term colors the first three. So the
category reaches noncommercial opinions, interests, positions,
and other content. Collectively, these terms cover all non-
commercial messages. Thus, “the very basis” for Personal
Expression Signs “is the difference in content between ordi-
nary [signs] and commercial speech.” City of Cincinnati v. Dis-
covery Network, Inc., 507 U.S. 410, 429 (1993).
Finally, we decide whether that feature is the sign’s topic,
viewpoint, or subject matter. See Reed, 576 U.S. at 164. To
identify whether a sign is on premises, “[t]he message on the
sign matters only to the extent that it informs the sign’s relative
location.” City of Austin, 596 U.S. at 71. Because that was true
of the regulation in City of Austin, it was content neutral.
But Camp Hill’s sign ordinance is not. It distinguishes com-
mercial from noncommercial speech. Yet to tell if speech is
commercial, we ask, for instance, if it advertises a product, uses
that product’s name, and furthers the speaker’s economic
goals. Bolger v. Youngs Drug Prods. Corp., 463 U.S. 60, 66–
67 (1983). Each of these inquiries requires judging the
speech’s content. And because categorizing a sign as non-
commercial requires a content-based judgment, the Per-
sonal Expression category cannot be a time-place-or-manner
restriction.
What is more, the category treats noncommercial speech
worse than commercial speech. Under the plain text of the
ordinance, commercial signs may be put up for thirty days,

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taken down, and then put up again. But Personal Expression
Signs about events may not be put up more than sixty days in
advance of the event; and unlike commercial signs, they may
not be lit up or taller than six feet.
That gets the doctrine backward. Historically, the govern-
ment has had more leeway to regulate commercial speech than
other kinds of speech. Yet this ordinance disfavors noncommercial
speech, which has never enjoyed less protection. So the Bor-
ough cannot rely on the commercial-speech doctrine, and the
Personal Expression category faces strict scrutiny.
B. The ordinance treats holiday signs better than other
temporary signs
The Temporary Signs category is itself constitutionally sus-
pect. The ordinance defines a Temporary Sign as a “non-
permanent Sign that is located on private property.” App. 53.
On its face, that definition is content neutral. Reed, 576 U.S. at
173. Yet the ordinance goes on to carve out from it a content-
based category of non-permanent signs. Holiday Decorations
are “signs … that are a non-permanent installation celebrating
… holidays.” App. 51. To tell if a sign celebrates a holiday, we
must consider its content. And unlike other non-permanent
signs, residents may put up as many Holiday Decorations as
they want.
The Holiday Decorations category discriminates against
signs based not only on their content, but also their viewpoint.
To get special treatment, a sign must celebrate the holiday.
Imagine two Veterans Day messages. First, a veteran puts up a
sign reading: “Support Our Troops and Veterans.” Then a pac-
ifist responds with his own sign: “War Is Not the Answer.”

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A zoning officer would likely treat the first sign as celebrating
the holiday because its message is positive. But he might well
treat the second sign’s lament differently.
The Holiday Decorations provisions are not challenged in
this suit, but they raise constitutional concerns that infect the
Temporary Sign category. A Temporary Sign is defined by
what it is not—it does not celebrate a holiday. That is a subject-
matter distinction, separating out Holiday Decorations as a
content-based (and viewpoint-based) subset. And the two
categories have different limits on size, number, and duration
based on what the sign says. When an ordinance singles out
one content-based category for better treatment, the remaining
catchall category becomes content based too. See Reed, 576
U.S. at 159–60, 169. So by favoring holiday messages, the
ordinance lets enforcement officers discriminate based on a
sign’s subject matter. Like the distinction between commercial
and noncommercial messages, the distinction between holiday
and nonholiday messages is content based. The Temporary
Signs category must also face strict scrutiny.
III. THE CHALLENGED PROVISIONS FAIL
STRICT SCRUTINY
To discriminate based on a message’s content, the govern-
ment needs a compelling reason. Content-based restrictions
“have the constant potential to be a repressive force in the lives
and thoughts of a free people.” Ashcroft v. ACLU, 542 U.S.
656, 660 (2004). They cannot stand unless they “further[ ] a
compelling interest and [are] narrowly tailored to achieve
that interest.” Reed, 576 U.S. at 171.

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Camp Hill must defend two of its decisions: First, why did
it impose a stricter time limit on noncommercial event-based
signs than on commercial ones? Second, why did it limit how
many temporary signs may express nonholiday messages but
not how many may express holiday messages?
To justify these decisions, Camp Hill invokes two interests
that it claims compelled it to limit speech: traffic safety and
aesthetics. Though both are legitimate interests, we have never
held them to be compelling. See Johnson v. City & County of
Philadelphia, 665 F.3d 486, 491 (3d Cir. 2011).
Even if both interests were compelling, the ordinance
would “fail as hopelessly underinclusive.” Reed, 576 U.S. at
171. Camp Hill bears the burden of proving that the restrictions
were tailored both to serve those interests and to curtail speech
as little as possible. But it was not tailored to those interests,
let alone narrowly tailored. To show that lawn signs are ugly
and unsafe, the Borough relies on Pearson and Machiraju’s
depositions. True, both said they did not like yards overflowing
with signs with which they disagreed. And they admitted that
older signs had fallen apart or been knocked over by the wind.
But their testimony does not prove that the ordinance combated
these concerns effectively. See Fisher v. Univ. of Tex. at Aus-
tin, 570 U.S. 297, 311–12 (2013). And without that evidence,
Camp Hill cannot show that it tailored the ordinance to pro-
mote traffic safety or preserve aesthetic appeal.
Plus, narrow tailoring requires using the “least restrictive
means among available, effective alternatives.” Ashcroft, 542
U.S. at 666. This ordinance does not. As for aesthetics, Per-
sonal Expression Signs are “no greater an eyesore” than

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commercial lawn signs. City of Cincinnati, 507 U.S. at 425.
Camp Hill gives no reason to think that holiday signs are nec-
essarily more attractive. Maybe people prefer inflatable Santas,
Frostys, and the like to lawn signs, but Camp Hill failed to
show that. And, as written, the favored Holiday Decorations
category includes lawn signs with holiday messages. We can-
not say that one lawn sign is more aesthetically pleasing than
another based on its message. (That approach would build an
inappropriate content judgment into narrow tailoring.) Instead,
Camp Hill could have applied the same number and time limits
to all lawn signs. Its contrived approach is not narrowly tai-
lored to preserve the town’s aesthetics.
So too with traffic safety. Like other lawn signs, commer-
cial and holiday signs can fall down and fall apart. They are
also as likely, if not more likely, to distract drivers. If anything,
Camp Hill’s preferential treatment of Holiday Decorations un-
dermines its purported interest in traffic safety. Unchecked,
residents filled their front yards with gardens of illuminated
Halloween creatures, tree-sized plastic skeletons, and large
reindeer. These spooky spirits and skeletons may startle driv-
ers, and Rudolph with his nose so bright may blind them. So
this arrangement cannot be the least restrictive way to protect
drivers and pedestrians.
Going forward, Camp Hill has constitutional options. It
may restrict signs based on time, place, or manner regardless
of their content. But without a much stronger showing, it may
not treat some speech worse based on its content.

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* * * * *
While trying to preserve aesthetics and promote traffic
safety, Camp Hill stitched together a crazy quilt of a sign
ordinance. Because it discriminates against some messages,
the ordinance is unconstitutional on its face. So we will affirm
the District Court’s summary judgment for the challengers.

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