MISSOURI CIRCUIT COURT 22ND JUDICIAL CIRCUIT CITY OF ST. LOUIS CITY OF ST. LOUIS, Plaintiff, Vs.

BRIAN W. WESTBROOK, Defendant. ) ) ) ) )

Case #1322-CR03339 Div. 24

MOTION TO DISMISS CASE Comes now Defendant, by his attorney, and hereby moves the Court for Dismissal of this case against Defendant pursuant to Rule 37.51(b) of the Missouri Rules of Civil Procedure and in support of said motion states as follows: Defendant, Brian Westbrook, received a citation summons for violating St. Louis City Revised City Code Section 15.84.010 alleging the posting of an untrue, deceptive or misleading advertising sign. The Citys case should be dismissed for several reasons. Inapplicability of City Ordinance 15.84.010 The application of the ordinance itself fails in multiple ways. First, Mr. Westbrook was offering nothing for sale, so the ordinance is inapplicable, and there is no evidence that the sign itself was untrue, deceptive, or misleading, so even if applicable, the statutory standard is not met. Second, the application of the ordinance in this case conflicts with another statutes affirmative requirements (albeit on a third party). Third, the application of the ordinance in this case violates Mr. Westbrooks First Amendment Free Speech rights. Section 15.84.010 reads as follows:
Any person who, with intent to sell or in anywise to dispose of merchandise, securities, service or anything offered directly or indirectly by such person to the public for sale or distribution, or with intent to increase the consumption thereof, or induce the public in any manner to enter into any obligations relating thereto, or to acquire title thereto, or any interest therein, makes, publishes, disseminates, circulates or places before the public or causes directly or indirectly to be

made, published, disseminated, circulated or placed before the public, in this city, in any newspaper or other publication sold or offered for sale upon any public street, sidewalk or other public place, or offered, or delivered by carrier or other agency, to any person, or any subscribers, within this city, or on any sign in any manner posted, exposed or displayed upon any street, sidewalk or public ground, or in any handbill or advertisement in any manner displayed, or posted upon any street, sidewalk or public ground, or on any placard, advertisement or handbill in any manner delivered, displayed, exhibited or carried in any street, or public ground or upon any sidewalk, or any banner or sign flying across the street or from any building or structure of any kind, an advertisement of any sort, regarding merchandise, securities, service or anything therein offered for sale to the public, which advertisement contains assertion, representation or statement which is untrue, deceptive or misleading, as to quantity, quality, character, kind, cost or value of anything therein or thereby mentioned for sale shall be guilty of a misdemeanor. (1948 C. Ch. 3 1: 1960 C. 735.010, 735.020.)

The essential elements of the Ordinance potentially relevant to this case are bolded. At a minimum, the Ordinance requires that the sign offer something for sale to the public and that it contain some assertion or representation which is untrue, deceptive or misleading. First, nothing was offered for sale by the Defendant in this case. An offer of for sale means an exchange for value, i.e. the giving of something of value in exchange for the receipt of something of value. Blacks Law Dictionary defines the word sale as The transfer of property or title for a price. Blacks Law Dictionary (9th ed. 2009), available at Westlaw BLACKS. Free means the opposite, costing nothing; gratuitous, Id. thus not something offered for sale. In this case, there was no contemplated exchange of value but merely the giving of something. By its express terms, the Ordinance does not encompass signs offering completely free services, such as a pregnancy test or ultrasound (not offered as part of or in conjunction with an attempt to sell something). Second, the Ordinance itself is conflicting in its application. If the Defendant is providing the free services, then the sign is not untrue. If the Defendant is merely making a referral, then he is not offering for sale. Either way, the Citys case fails. Third, the Citys attempt to interpret the Ordinance to expand to situations clearly not encompassed by the plain meaning of its text render the Ordinance void for vagueness in

violation of Mr. Westbrooks 5th Amendment due process rights under the United States Constitution and under its counterpart in the Missouris Constitution. Effect of Missouri Revised Statute Section 188.027.1(4) In addition, the court must take note of Section 188.027.1(4) of the Missouri Revised Statutes, commonly referred to as the womans right to know statute. It provides, The woman shall be provided with a geographically indexed list maintained by the department of health care providers, facilities, and clinics that perform ultrasounds, including those that offer ultrasound services free of charge. Such materials shall provide contact information for each provider, facility, or clinic including telephone numbers and, if available, website addresses. While the Defendant is not required to provide the information at issue in this case, to find that Defendants conduct constitutes a violation of the City Ordinance is contrary to Missouris public policy as set out in section 188.027.1(4). Mr. Westbrook has done nothing more than what Planned Parenthood is required to do. Violation of Free Speech Rights of U.S. Constitution, Amendment I The Ordinance requires that a statement be untrue in order to constitute a violation of the Ordinance. While the statement on the sign was true, the statement was, in any event, protected by the free speech clause of the First Amendment to the United States Constitution. Even a lie is protected under the first amendment as recently stated by the United States Supreme Court in the case of United States v. Alvarez, Case #11-210, 567 U.S. ___, decided 6/28/12. While the Court did note several situations where false statements are not constitutionally protected, such as perjury and defamation, the Court pointed out that those situations required a definable injury or harm. Alvarez, slip opinion at 6. Further, the statement must be a knowing or reckless falsehood. Madigan v. Telemarketing Associates, Inc., 538 U. S. 600, 620 (2003).

As discussed above, the sign did not advertise any product or service for sale and so did not constitute any form of commercial speech. Instead, the sign constituted political speech, which is highly protected. See Republican Party of Minnesota v. White, 416 F.3d 738, 749 (8th Cir. 2005). Any regulation which curtails political speech is subject to strict scrutiny. Accordingly, in order to prevail, the City is required to show that the Ordinance, advances a compelling state interest and is narrowly tailored to serve that interest. Id. [Citations omitted.] The City, however, has not identified any compelling interest underlying the Ordinance and has not established that the Ordinance was narrowly tailored to serve any such interest. Moreover, the attempt to prosecute Defendant under the Ordinance, notwithstanding its manifest inapplicability, is an attempt to regulate his speech based on its substantive content and the message it conveys. The Supreme Court has recognized that the government may not regulate speech on those bases and that, Discrimination against speech because of its message is presumed to be unconstitutional. Rosenberger v. Rector And Visitors Of the University of Virginia, 515 U.S. 819, 828 (1995). [Citations omitted.] As the Supreme Court further explained in Rosenberger, Viewpoint discrimination is thus an egregious form of content discrimination. The government must abstain from regulating speech when the specific motivating ideology or the opinion or perspective of the speaker is the rationale for the restriction. Id. [Citation omitted.] The City's attempt to interpret the Ordinance to expand to situations clearly not encompassed by the plain meaning of its text would render the Ordinance void for vagueness in violation of Mr. Westbrook's due process rights under the United States and Missouri constitutions. The reasoning embraced by the Eighth Circuit in Stahl v. City of St. Louis, 687 F.3d 1038 (8th Circ. 2012), applies equally here. Although the Stahl case dealt with a different

ordinance, the Stahl Court made clear that an ordinance is unconstitutional as violative of the Due Process Clause on its face if it does not provide fair notice of what conduct is prohibited. Stahl, 687 F.3d at 1040 (citing Qwest Corp. v. Minnesota Pub. Util. Commn, 427 F.3rd 1061, 1068 (8th Cir. 2005) and FCC v. Fox Television Stations, Inc., 132 S.Ct. 2307, 2317 (2012)). It found this particularly problematic when the result was a chilling effect on core First Amendment speech. Id.at 1041. The same concerns apply in this case. If the Ordinance is construed to apply to the sign at issue, on its face the Ordinance did not provide fair notice of what conduct was prohibited, with a resulting chilling effect on core First Amendment speech. Planned Parenthoods remedy in this case would be counterspeech, not the enlistment of City officials to harass someone providing truthful information to the public with alleged violations of an ordinance which violates that persons free speech rights under the First Amendment to the U. S. Constitution. CONCLUSION For all of the foregoing reasons set forth above, Defendant Brian Westbrook moves this court to dismiss this case with prejudice. /s/Gerard A Nieters_____________ Gerard A. Nieters MB #34164 Attorney for Defendant 19 Osperey Way OFallon, MO 63368 (314)368-8460 PROOF OF SERVICE The undersigned hereby certifies that the foregoing was emailed, this 26th day of September, 2013 to Rory OSullivan, City Counselor, 1520 Market St., St. Louis, MO 63103, osullivanr@stlouis-mo.gov. /s/Gerard A Nieters______