Posted by: Patricia Salkin | January 28, 2013

4th Circuit Court of Appeals Upholds Constitutionality of Municipal Sign Ordinance Finding it Content Neutral

The Town of Cary appealed the District Court’s decision invalidating the municipality’s sign ordinance as it applied to William Bowden who painted “Screwed by the Town of Cary” on his house. The court ruled that the ordinance was a content-based constraint on Bowden’s First Amendment rights. The Court of Appeals for the Fourth Circuit reversed, holding that the ordinance was a content-neutral restriction. When the court applied intermediate scrutiny it found that the ordinance did not violate the First Amendment.

The dispute arose when Bowden, who often quarreled with the Town, painted “Screwed by the Town of Cary” on his house after it was allegedly damaged by water discharge from municipal road-paving projects. In response, the Town issued a notice of zoning violation, citing to Chapter 9 of the Land Development Ordinance (LDO) which governs the placement and display of residential signs. The Town stated that under chapter 9, signs could not exceed two square feet or use high intensity colors or fluorescent pigments; Bowden painted the sign across a fifteen-foot swath of his house in a bright fluorescent orange paint. The Town explained to Bowden that the issue was the size and color of the sign and not the content, but Bowden still refused to remove it. Instead, he sued the Town in district court for infringing on his First Amendment rights. As mentioned before the court ruled in Bowden’s favor and this appeal followed.

The issue before the court was whether the sign ordinance was content neutral. A regulation is content neutral if it is “justified without reference to the content of regulated speech,” even if it “facially differentiates between types of speech.” Although chapter 9 does distinguish some content from others, such as holiday decorations and public art, “the distinctions themselves are justified for reasons independent of content.”

The LDO explicitly stated that the purpose of the sign ordinance was to promote aesthetics and traffic safety. The ordinance’s exemptions for public art enhance aesthetic appeal while holiday displays are only temporary, and therefore have a less significant impact on traffic safety. Because the exemptions bore a reasonable relationship to the interests of aesthetics and traffic safety, and because the regulation placed reasonable restrictions on only the physical characteristics of the signs, the court held that the ordinance is content neutral and examined its constitutionality under intermediate scrutiny.

Under this level of scrutiny, the sign would be constitutional if it “furthers a substantial government interest, is narrowly tailored to further that interest, and leaves open ample alternative channels of communication.” The court first noted that the Town’s stated interests in promoting aesthetics and traffic safety are substantial. The Town provided documentation on how unregulated signage could depress property value, cause visual blight, and could even distract motorists if the paint was too bright or intense.

The court then moved on to determine if the ordinance is narrowly tailored, meaning that it does not “burden substantially more speech than is necessary to further the government’s legitimate interests.” The court held that the ordinance passed constitutional muster because the size, color and positioning restriction “[did] no more than eliminate the exact source of the evil it sought to remedy.” Additionally, the court noted that the ordinance does not place an outright ban on residential signs, but rather generally permits them subject to reasonable restrictions, and within these restrictions the sign could bear any message the speaker wishes to convey.

For the reasons set forth above the sign ordinance was constitutional and the Town of Cary did not infringe upon Bowden’s First Amendment rights.

Brown v Town of Cary, 2013 WL 221978 (C.A. 4 N.C. 1/22/2013)

The opinion can be accessed at: http://www.ca4.uscourts.gov/Opinions/Published/111480.P.pdf

 


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