Posted by: Patricia Salkin | March 1, 2016

Fourth Circuit Court of Appeals Finds Content-Based Speech Restriction in Sign Ordinance was Not Narrowly Tailored

The City of Norfolk adopted a zoning ordinance that included a chapter governing the placement and display of signs. This ordinance was enacted to “enhance and protect the physical appearance of all areas of the city,” and to “reduce the distractions, obstructions and hazards to pedestrian and auto traffic caused by the excessive number, size or height, inappropriate types of illumination, indiscriminate placement or unsafe construction of signs.” The plaintiffs’ challenges to the City’s sign code related to a protest of certain adverse action taken against Central Radio by the Norfolk Redevelopment and Housing Authority (NRHA). In April 2010, the NRHA had initiated condemnation proceedings against Central Radio and several other landowners, allegedly intending to take and transfer the various properties to Old Dominion University (ODU). Although a trial court initially ruled in favor of the NRHA, that ruling was reversed on appeal by the Supreme Court of Virginia. while the appeal was pending in state court, Central Radio’s managers placed a 375–square–foot banner on the side of Central Radio’s building facing Hampton Boulevard, a major, six-lane state highway. The banner depicted an American flag, Central Radio’s logo, a red circle with a slash across the words “Eminent Domain Abuse,” and the following message in rows of capital letters: “50 YEARS ON THIS STREET / 78 YEARS IN NORFOLK / 100 WORKERS / THREATENED BY / EMINENT DOMAIN!” A city zoning official informed Central Radio’s managers that the banner violated the applicable size restrictions set forth in the former sign code and began issuing citations.

Central Radio brought action against city, challenging city’s ordinance limiting size of signs on First Amendment free speech grounds and alleging selective enforcement in violation of equal protection. The United States District Court granted summary judgment to city, which was affirmed by the Court of Appeals. The United States Supreme Court vacated and remanded. The City filed a motion suggesting that certain of the plaintiffs’ requests for relief were moot in light of the City’s decision in October 2015 to amend the former sign code. The court agreed, finding the plaintiffs’ request for prospective injunctive relief was moot, because the challenged language of the former sign code exempting certain flags, emblems, and works of art from regulation was no longer in force. However, the plaintiffs’ request for retrospective relief in the form of nominal damages, based on an alleged unconstitutional content-based restriction on speech, was not moot.

Under the Supreme Court’s holding in Reed v. Town of Gilbert, ––– U.S. ––––, 135 S.Ct. 2218, 192 L.Ed.2d 236 (2015), government regulation of speech is content based if a law applies to particular speech because of the topic discussed or the idea or message expressed. Only when a regulation does not expressly draw distinctions based on a sign’s communicative content may the court examine whether the regulation “cannot be justified without reference to the content of the regulated speech, or was adopted by the government ‘because of disagreement with the message the speech conveys”. Here, the former sign code was content-based because it applied or did not apply as a result of content. Accordingly, the court applied strict scrutiny in determining its constitutionality.

The court first noted that, no court has ever held that the interests in aesthetics and safety form a compelling justification for a content-based restriction of political speech. However, even if they had it was not narrowly tailored because the former sign code allowed the unlimited proliferation of governmental and religious flags, as well as works of art that met the City’s dubious criterion, while sharply restricting the number and size of flags and art bearing other messages. There was no evidence in the record that secular flags were any more distracting than religious ones, or that a large work of art displaying a reference to a product threatened the safety of motorists any more than any other large, exempted pieces of artwork. However, despite finding the Ordinance was unconstitutional, the court found that the dismissal of the plaintiffs’ selective enforcement claim was proper because there was insufficient evidence that the City was motivated by a discriminatory intent.

Central Radio Co. Inc. v City of Norfolk, 2016 WL 360775 (4th Cir. CA 1/29/16)

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