Talk about timing: Dana Berliner, Andy Gowder, and I were talking about the Central Radio case during a session on free speech and other First Amendment issues at the recent ALI-CLE Eminent Domain Conference, when we learned that at the same time we were speaking about the case, the U.S. Court of Appeals for the Fourth Circuit was issuing its opinion on remand from the Supreme Court.
Bottom line: Norfolk, Virginia's sign ordinance is an unconstitutional restriction on free speech. See slip op. at 1 ("Applying the principles of content neutrality articulated in Reed, we hold that the sign ordinance challenged in the plaintiffs’ complaint is a content-based regulation that does not survive strict scrutiny. Accordingly, we reverse the district court’s judgment with respect to the plaintiffs’ First Amendment challenge and remand that claim to the district court to award nominal damages to the plaintiffs and for consideration of other appropriate relief.").
There's a lot of good language in Central Radio Co., Inc. v. City of Norfolk, No. 13-1996 (Jan. 29, 2016), and we won't go over the opinion in detail, as you really should pick it up and read the whole thing. But we will say this:
- This result cannot be a big surprise, after the Court's GVR in light of the Reed case. Provided the Fourth Circuit got the Supreme Court's hint -- which it apparently did -- you kind of knew where this was likely to end up.
- Claims of "content neutrality" only go so far. Municipal lawyers, take heed: content neutrality isn't a way to allow your clients to discriminate against messages they don't like, and after Reed, the courts are going to take a harder look at such claims to see if they really are what they say they are.
- As we asked at the conference: are there any reasons why courts can look behind the curtain when it comes to free speech and religious freedoms (Church of the Lukumi Babalu Aye, anyone?), but not at claims of public use or purpose in eminent domain? We don't think so, and maybe this case is a small step in the right direction on that front.
Congratulations to Dana on the win.
Central Radio Co. Inc. v. City of Norfolk, No. 13-1996 (4th Cir. Jan. 29, 2016)
