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Media Alerts - Brown v. Town of Cary -Fourth Circuit
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March 7, 2013
  Brown v. Town of Cary -Fourth Circuit
Headline: Man's Right to Free Speech Not Violated by Restriction on Painting Message on House

Area of Law: Constitutional Law

Issue Presented: Whether an ordinance restricting the size, color, and display of a residential sign is an unconstitutional infringement on free speech.

Brief Summary: After painting "Screwed by the Town of Cary" across the façade of his home, Cary, North Carolina resident William Bowden received two notices that he had violated a municipal zoning ordinance. He sued the town, attacking the constitutionality of the ordinance as a content-based infringement of his First Amendment rights. The United States Court of Appeals for the Fourth Circuit found that the town ordinance was not an unconstitutional constraint on Bowden's right to free speech, as it did no more than further the Town's interest in promoting aesthetics and traffic safety.

Significance: The Fourth Circuit joins the Third, Sixth, Seventh, and Ninth Circuits in their "practical" approach to analyzing content neutrality. The Fifth, Eighth, and Eleventh Circuits hew to an "absolutist" reading of content neutrality.

Extended Summary: Cary, North Carolina resident William Bowden painted "Screwed by the Town of Cary" across the façade of his home in fluorescent orange lettering varying from fourteen to twenty-one inches in height. The Town notified Bowden that this display violated a municipal zoning ordinance governing the size, color, and display of residential signs, and recommended that he hang a sign in compliance with the ordinance. The purpose of the ordinance was to promote traffic safety and aesthetics, so as to raise property values and attract business and residents to the area. Two types of displays were exempted from the ordinance's definition of sign: holiday decorations and public art.

Bowden filed suit against the Town under 42 U.S.C. § 1983, asserting that the ordinance was an unconstitutional, content-based infringement on his First Amendment right to free speech. Bowden argued that to determine whether the display fell into one of the two allowed exemptions, the Town had to consider its content. The United States District Court for the Eastern District of North Carolina granted summary judgment to Bowden. On appeal, the Town argued that a regulation may distinguish speech based on its content so long as its reasons for doing so are not based on the message conveyed.

The Fourth Circuit first addressed the question of jurisdiction and found that Bowden's suit survived his death, as he was asserting a past deprivation of constitutional rights. The court then set forth the test for content neutrality: a law is impermissibly content-based where the government has restricted speech because of a disagreement with the message that speech conveys. In this case, however, the Fourth Circuit found that the Town regulated speech for reasons other than content -- namely, aesthetics and traffic control. Consequently, because the content distinction was not impermissibly content-based, the ordinance was content-neutral. Such content-neutral restrictions are subject to an intermediate level of constitutional scrutiny by courts. Challenged conduct will survive this level of scrutiny if it is sufficiently narrowly tailored to furthering the local government's interests. Here, the ordinance survived that test. The Fourth Circuit thus concluded that the Town's ordinance did not represent an infringement of Bowden's First Amendment right to free speech, and the Town was entitled to summary judgment.

To read the full opinion, please visit http://pacer.ca4.uscourts.gov/...ion.pdf/111480.P.pdf.

Panel: Judges Diaz and Niemeyer, and Max O. Cogburn, Jr. (W.D.N.C.), sitting by designation.

Argument: 09/19/12

Date of Issued Opinion: 01/22/13

Docket Number: 11-1480

Decided: Reversed and remanded

Case Alert Author: Claire Caplan

Counsel: ARGUED: Elizabeth A. Martineau. MARTINEAU KING PLLC, Charlotte, North Carolina; William D. Brington, ROGERS TOWERS, PA, Jacksonville, Florida, for Appellant. Mark Russell Sigmon, GRAEBE HANNA & SULLIVAN, PLLC, Raleigh, North Carolina, for Appellee. ON BRIEF: Lisa C. Glover, TOWN OF CARY, Cary, North Carolina, for Appellant. Katherine L. Parker, AMERICAN CIVIL LIBERTIES UNION OF NORTH CAROLINA LEGAL FOUNDATION, Raleigh, North Carolina, for Appellee. Patrick H. Flanigan, CRANFILL, SUMNER & HARTZOG, Charlotte, North Carolina; Randal R. Morrison, SABINE & MORRISON, San Diego, California; John M. Baker, GREENE ESPEL PLLP, Minneapolis, Minnesota; Dana K. Maine, FREEMAN MATHIS & GARY, LLP, Atlanta, Georgia, for Amici Supporting Appellant. Jeanette K. Doran, Executive Director and General Counsel, NORTH CAROLINA INSTITUTE FOR CONSTITUTIONAL LAW, Raleigh, North Carolina, for Amicus Supporting Appellee.

Author of Opinion: Diaz, J.

Case Alert Circuit Supervisor: Professor Renée Hutchins

    Posted By: Renee Hutchins @ 03/07/2013 04:27 PM     4th Circuit  

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