As we hoped it might, the Norfolk, Virginia property owner -- represented by the Institute for Justice -- who was on the losing side of the Fourth Circuit's 2-1 recent opinion in Central Radio Co. Inc. v. City of Norfolk, 776 F.3d 229 (4th Cir. Jan. 13, 2015) has filed a cert petition.
In that case, the Fourth Circuit held that the above sign, erected on the owner's building to protest a separate eminent domain action, violated the city's sign code, and this restriction did not violate the First Amendment. The court concluded that the sign ordinance was content-neutral, even though it exempted national and religious "flags" and "emblems," and "works of art" that do not relate to a product or service. The city lacked "censorial intent to value some forms of speech over others to distort public debate, to restrict expression because of its message, its ideas, its subject matter, or to prohibit the express of an idea simply because society finds the idea itself offensive or disagreeable." Thus, this property owner was not singled out, and the city regulates most every sign.
Content neutrality results in "intermediate scrutiny," and the court concluded the ordinance furthered the city's interest in physical appearance, and reducing distractions, was narrowly tailored, and left open alternative channels of communication. The plaintiffs could have reduced the size of their 375 square-foot banner to 60 square feet, and they'd be okay. The majority opinion noted, "[t]he plaintiffs intended that the banner 'be visible for several blocks along Hampton Boulevard' and 'make a statement about Central Radio’s fight with the NRHA,' which would constitute 'a shout' rather than 'a whisper.'"
Here are the Questions Presented:
Central Radio placed a banner on the side of its building protesting government’s attempt to take the building by eminent domain. The City of Norfolk quickly cited Central Radio for violating the City’s sign code, despite not having enforced the code against any other political sign in at least a quarter-century. Although the sign code prohibited Central Radio’s protest banner, it exempts various other categories of signs from regulation. For example, Central Radio’s banner would have been allowed if, rather than protesting city policy, it depicted the city crest or flag.
The day after this Court heard argument in Reed v. Town of Gilbert, No. 13-502, the Fourth Circuit, over a dissent from Judge Gregory, upheld Norfolk’s sign code. Following the approach adopted by the Ninth Circuit in Reed, the Fourth Circuit found the challenged provisions content-neutral. Applying intermediate scrutiny to the sign code, it held that Norfolk was justified in restricting Central Radio’s banner because some passersby had honked, waved, or shouted in support of it.
The questions presented are:
1. Does Norfolk’s mere assertion of a content-neutral justification or lack of discriminatory motive render its facially content-based sign code contentneutral and justify the code’s differential treatment of Central Radio’s protest banner?
2. Can government restrict a protest sign on private property simply because some passersby honk, wave, or yell in support of its message?
Stay tuned, more to follow.