In a 2-1 decision, the U.S. Court of Appeals for the Fourth Circuit concluded that Norfolk, Virginia's sign ordinance did not violate the First Amendment, when it was applied to bar the anti-eminent domain banner shown above.
Central Radio Co. Inc. v. City of Norfolk, No. 13-1996 (4th Cir. Jan. 13, 2015), arose from a situation that also resulted in a property-owner favorable ruling from the Virginia Supreme Court in 2013. See PKO Ventures, LLC v. Norfolk Redevelopment and Housing Authority, 747 S.E.2d 826 (Va. Sep. 12, 2013) (a case won by our Owners' Counsel colleagues at Waldo & Lyle). The city's redevelopment authority planned on taking property to transfer it to Old Dominion University, but the Supreme Court shut it down, holding that the agency did not have the authority to take non-blighted property. See our write up of that decision here.
While it was pending, however, the case generated much public controversy, and a local business put up a banner on its building voicing its feelings about the situation. As the Fourth Circuit's majority opinon 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.'" Slip op. at 6.
An Old Dominion employee saw the shouting, complained, and city zoning enforcement staff was soon on the case. Get into compliance with the sign code -- which regulates the size, placement, construction, and method of illumination of signs -- or be fined, they said. As you might expect, the signers didn't, and they were cited. Next stop, federal court:
The plaintiffs alleged that the sign code was unconstitutional because it subjected their display to size and location restrictions, but exempted certain “flag[s] or emblem[s]” and “works of art” from any similar limitations. The plaintiffs also alleged that the sign code’s provision requiring them to obtain a sign certificate before erecting a display effectuated an impermissible prior restraint on speech, and that the City selectively applied the sign code to the plaintiffs’ display in a discriminatory manner. In addition to requesting declaratory relief and nominal damages, the plaintiffs moved for a temporary restraining order and a preliminary injunction.
Slip op. at 8.
The district court rejected their arguments, and the Fourth Circuit affirmed, concluding 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." Slip op. at 11. Bottom line: the plaintiffs weren't singled out, and the city regulates most every sign:
The City generally allows signs regardless of the message displayed, and simply restricts the time, place, or manner of their location. Exemptions to those restrictions may have an “incidental effect on some speakers or messages,” but such exemptions do not convert the sign code into a content-based restriction on speech when the exemptions bear a “reasonable relationship” to the City’s asserted interests.
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.
Whisper, don't shout.
These "anti-anti-eminent domain protest sign" situations are not uncommon (see this case from the 8th Circuit, and this ongoing case in our own backyard, for example). When you cast the content net wider, there's actually an entire subspecies of First Amendment law regarding signs. Yeah, we knew that.
The latest case seems to create a circuit split. The Eighth Circuit, in the opinion linked above apprears to have reached the opposite conclusion on a very similar ordinance, concluding that St. Louis' sign ordinance was not content neutral.
The plaintiffs have vowed to seek review in the Supreme Court. Because they are represented by the Institute for Justice (and because they can wave the circuit split flag), we don't doubt they will.
Hat tip to colleague Elaine Mittleman for the heads-up on this decision.