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February 23, 2016
  Central Radio Company, Inc. v. City of Norfolk -- Fourth Circuit
Where There's a Sign, There's a Way: Company to Obtain Nominal Damages from City Due to Unconstitutional Sign Code

Areas of Law: Zoning law

Issue Presented: Whether a former sign code in Norfolk, Virginia, was a content-neutral restriction on speech reviewed under intermediate scrutiny or a content-based restriction subject to strict scrutiny.

Brief Summary: In a published opinion written by Judge Keenan, the United States Court of Appeals for the Fourth Circuit ("the court") held that the former sign code in Norfolk, Virginia, was a content-based restriction subject to strict scrutiny. Further, the court found that the sign code did not meet strict scrutiny because aesthetics and traffic safety are not compelling government interests. Thus, the former sign code was held unconstitutional under the First Amendment and the case was remanded to the district court for a determination of nominal damages.

Extended Summary: In Norfolk, Virginia, a former sign code applied to "any sign within the city which is visible from any street, sidewalk or public or private common open space." The term "sign" excluded any "flag or emblem of any nation, organization of nations, state, city, or any religious organizations," or any "works of art which in no way identify or specifically relate to a product or service." The sign code also implemented sizing restrictions, requiring that temporary signs be no more than 60 feet, and freestanding signs be no more than 75 feet. The city also required citizens to apply for a sign certificate prior to putting up a sign so the city could ensure their sign was in compliance with the sign code prior to display.

There arose an eminent domain dispute between Central Radio Company, Inc. ("Central Radio"), the Plaintiffs in this case, and Norfolk Redevelopment and Housing Authority ("NRHA"). The NRHA was trying to take property from Central Radio to transfer to Old Dominion University. NRHA was unsuccessful in court and subsequently appealed.

While this matter was on appeal, Central Radio put up a sign without applying for a sign certificate that was noncompliant with the sign code. The sign was a 375 square foot banner that had an American flag, Central Radio's logo, and a red circle with a slash across the words "eminent domain abuse." The sign further stated:

"50 years on this street; 78 years in Norfolk; 100 workers; threatened by eminent domain!"

An employee of Old Dominion University observed this sign and complained to a city official. Thereafter, the city's zoning enforcement staff got involved and informed Central Radio that its banner violated the sign code and that it should either take the sign down or adjust it. Central Radio never changed their banner after this warning so the City subsequently issued them citations for displaying an oversized sign and for failing to obtain a sign certificate before installing the sign.

Central Radio filed a civil action to enjoin the city from enforcing the sign code and made three allegations: (1) the sign code was unconstitutional because it subjected Central Radio's display to size and location restrictions but exempted certain "flags or emblems" and "works of art" from any similar limitations and thus, the code constituted content-based restriction that failed to satisfy strict, and even intermediate, scrutiny; (2) the sign code's requirement that citizens obtain a sign certificate prior to putting the sign up is an impermissible prior restraint on speech; and (3) the city selectively applied the sign code to Central Radio in a discriminatory manner.

The district court granted summary judgment to the City, explaining that the sign code was content neutral and thus should be evaluated using intermediate scrutiny. The district court further explained that the sign code was a constitutional exercise of the city's regulatory authority because it was reasonably related to the city's interests in promoting traffic safety and aesthetics. The United States Court of Appeals for the Fourth Circuit initially affirmed this holding, explaining that it was consistent with prior Fourth Circuit precedent. Central Radio then sought review in the United States Supreme Court. On review, the Supreme Court vacated the Fourth Circuit's opinion and remanded the case for reconsideration in light of the Supreme Court's 2015 case Reed v. Town of Gilbert.

On remand, the Fourth Circuit recognized that Reed was a complete departure from prior Fourth Circuit precedent. Using Reed as guidance, the court applied the Reed test to determine whether the former sign code was content-neutral or content-based. The Reed test specifies that "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." Using this test, the Fourth Circuit found the Norfolk sign code applied to particular speech because it exempted government, religious flags, emblems and certain works of art from its prohibition, while disallowing other flags. Because the former sign code is a content-based restriction, strict scrutiny applies and the government must show that the regulation furthered a compelling interest and was narrowly tailored to achieve that interest.

The court held that the government failed to meet strict scrutiny because aesthetics and travel safety are not compelling interests. Moreover, even if the government did meet strict scrutiny, the restriction was not narrowly tailored, but instead was under-inclusive. The court emphasized that the flag of an organization is no greater an eyesore than the flag of a government or religion. Moreover, the city failed to explain how limiting the size of the sign would eliminate threats to traffic safety. As a result, the former sign code was held unconstitutional under the First Amendment. The case was remanded to the district court for a determination of nominal damages to Central Radio.

To read the full opinion, click here.

Panel: Judges Gregory, Agee, and Keenan.

Argument Date: 09/17/2014

Date of Issued Opinion:

Docket Number: Case No. 13-1997

Decided: Dismissed in part, affirmed in part, reversed in part, and remanded by published opinion.

Case Alert Author: Janna Domico, Univ. of Maryland Carey School of Law

Counsel: ARGUED: 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: None

Case Alert Supervisor:
Professor Renée Hutchins

    Posted By: Renee Hutchins @ 02/23/2016 12:58 PM     4th Circuit  

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