MISSOURI CIRCUIT COURT

22ND

JUDICIAL CIRCUIT

CITY OF ST. LOUIS

CITY OF ST. LOUIS, )

Plaintiff, )

Vs. ) Case #1322-CR03339

BRIAN W. WESTBROOK, )

Defendant. ) 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 City’s 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 statute’s

affirmative requirements (albeit on a third party). Third, the application of the ordinance in this

case violates Mr. Westbrook’s 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. Black’s Law Dictionary defines the word “sale” as “The transfer of property

or title for a price.” Black’s 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 City’s case fails.

Third, the City’s 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. Westbrook’s 5th

Amendment due process rights under the United States

Constitution and under its counterpart in the Missouri’s 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 “woman’s 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 Defendant’s

conduct constitutes a violation of the City Ordinance is contrary to Missouri’s 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. Comm’n, 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 Parenthood’s 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

O’Fallon, 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 O’Sullivan, City Counselor, 1520 Market St., St. Louis, MO 63103,

osullivanr@stlouis-mo.gov.

/s/Gerard A Nieters______