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Media Alerts - Central Radio Company, Inc., et al. v. City of Norfolk, Virginia -- Fourth Circuit
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February 6, 2015
  Central Radio Company, Inc., et al. v. City of Norfolk, Virginia -- Fourth Circuit
Headline: Bigger Not Always Better--Local Ordinance Limiting Size of Protest Signs But Exempting Other Displays Found Constitutional

Areas of Law: Constitutional Law, First Amendment

Issue Presented: Whether local sign ordinance which limits size of signs visible to the public, but exempts governmental and religious flags and emblems and noncommercial works of art from regulation violates the First Amendment.

Extended Summary: In April 2010, the Norfolk Redevelopment and Housing Authority ("NRHA") initiated condemnation proceedings against Central Radio, Inc., a radio manufacturing and repair business. The NRHA intended to transfer the property to Old Dominion University. In March 2012, while Central Radio was challenging the taking in state court (Central Radio eventually won), Central Radio placed a 375-square-foot banner on the side of its building facing a major, six-lane highway reading "50 YEARS ON THIS STREET / 78 YEARS IN NORFOLK / 100 WORKERS / THREATENED BY / EMINENT DOMAIN." The banner also depicted an American flag, Central Radio's logo, and a red circle with a slash across "Eminent Domain Abuse." Under a zoning ordinance that limited the size of signs ("sign code"), the City issued citations to Central Radio for displaying an over-sized sign and for failing to obtain a sign certificate prior to installation.

The sign code regulations were an attempt to enhance the City's aesthetic appeal and reduce distractions and obstructions to pedestrian and auto traffic. The sign code applied to any sign visible to the public, but did not apply to governmental or religious "flags or emblems" or noncommercial "works of art." In May 2012, Central Radio initiated a civil action to enjoin the City from enforcing the sign code, arguing that the exemptions made it unconstitutional. The district court granted summary judgment to the City, and Central Radio appealed.

In a split decision, the United States Court of Appeals for the Fourth Circuit affirmed the district court's decision and found that the City's sign ordinance was a content-neutral restriction on speech that satisfied intermediate scrutiny. The court held that the sign code was not a content-based regulation on speech because, despite its exception for governmental and religious flags and emblems and non-commercial works of art, the City had demonstrated a "reasonable relationship" between these exemptions and its legitimate interests in traffic safety and aesthetics.

Content-neutral regulations of speech are valid if they further a substantial government interest, are narrowly tailored to further that interest, and leave open ample alternative channels of communication. Here, the court found that (1) the City's desire to promote its physical appearance and reduce distractions was a substantial government interest; (2) the sign code was narrowly tailored to further that interest because the City had carefully calculated the costs and benefits associated with the burden on speech and the sign code did not burden speech more than necessary; and (3) unlike an outright ban on speech, the City's sign code left open ample alternative channels of communication because it only limited the size of signs. The court also concluded that the City did not selectively enforce the sign code and that Central Radio had not identified a "pattern of unlawful favoritism."

In a dissenting opinion, Judge Gregory argued that the sign code was a content-based regulation on speech subject to evaluation under strict scrutiny because the City did not demonstrate a "reasonable fit" between its exemptions for government and religious emblems and flags and its interest in improving aesthetics and traffic safety. Judge Gregory found that here, in a case that "implicates some of the most important values at the heart of our democracy: political speech challenging the government's seizure of private property," stopping short of subjecting the sign code to a more rigorous examination under heightened scrutiny "does a disservice to our cherished constitutional right to freedom of speech."

To read the full opinion, please click here.

Panel: Judges Gregory, Agee, and Keenan

Argument Date: 09/17/2014

Date of Issued Opinion: 01/13/2015

Docket Number: Case Nos. 13-1996, 13-1997

Decided: Affirmed by published opinion

Case Alert Author: Laura Koman, Univ. of Maryland Carey School of Law

Counsel: Michael Eugene Bindas, INSTITUTE FOR JUSTICE, Bellevue, Washington, for Appellants/Cross-Appellees. Adam Daniel Melita, CITY ATTORNEY'S OFFICE, Norfolk, Virginia, for Appellee/Cross-Appellant. ON BRIEF: Robert P. Frommer, Erica Smith, INSTITUTE FOR JUSTICE, Arlington, Virginia, for Appellants/Cross-Appellees. Melvin W. Ringer, CITY ATTORNEY'S OFFICE, Norfolk, Virginia, for Appellee/Cross-Appellant.

Author of Opinion: Judge Keenan

Dissenting Opinion: Judge Gregory

Case Alert Circuit Supervisor: Professor Renée Hutchins

Edited: 02/13/2015 at 03:41 PM by Renee Hutchins

    Posted By: Renee Hutchins @ 02/06/2015 03:06 PM     4th Circuit  

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