The plaintiff and city engaged in an extended dispute after the city widened a street adjacent to his home. The plaintiff contended the road project devalued his property and caused flooding problems. The city made a number of improvements to address drainage issues, but refused the plaintiff’s demand that his lot be purchased for 130 percent of its tax value. In response the plaintiff had “Screwed by the Town of Cary” painted in large letters across the front of his home. The city cited him for a violation of its sign ordinance, primarily on the grounds that the “sign” was approximately 48 sq. ft., well in excess of the maximum five sq. ft. allowed in this residential zoning district.
The court held the sign regulation violated the First Amendment and enjoined the town from its enforcement. The regulation exempted several types of signs from its coverage or this size limit. The exemptions included holiday decorations (the court noting that a sign of the same size reading “Merry Christmas to the Town of Cary” would be exempt), public art, and temporary signs advertising town-recognized events. The court held this made the ordinance content-based rather than content-neutral. The court noted that even though there was no intent on the part of the town to suppress content and the town’s objectives (aesthetics and traffic safety) were content neutral, the ordinance required a “searching inquiry” to determine if it was regulated. The ordinance distinguished its regulatory coverage based on that inquiry, thus making it content based. The court therefore applied strict scrutiny and invalided the regulation as not supporting compelling governmental interests and not being narrowly drawn (noting as an example, that a giant flashing Christmas sign that would be more distracting to motorists would be exempt).
Bowden v. Town of Cary, 2010 WL 5071613 (E.D. N.C. 12/7/2010)
The decision can be accessed here
Special thanks to Professor David Owens, the Gladys H. Coates Professor of Public Law and Government at The University of North Carolina at Chapel Hill
