Filed: Jan. 13, 2015
Latest Update: Mar. 02, 2020
Summary: Certiorari granted by Supreme Court, in case 13-1997, June 29, 2015 Vacated and Remanded by Supreme Court, in case 13-1997, June 29, 2015 PUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 13-1996 CENTRAL RADIO COMPANY INC; ROBERT WILSON; KELLY DICKINSON, Plaintiffs - Appellants, v. CITY OF NORFOLK, VIRGINIA, Defendant - Appellee. No. 13-1997 CENTRAL RADIO COMPANY INC; ROBERT WILSON; KELLY DICKINSON, Plaintiffs - Appellees, v. CITY OF NORFOLK, VIRGINIA, Defendant - Appellant. Ap
Summary: Certiorari granted by Supreme Court, in case 13-1997, June 29, 2015 Vacated and Remanded by Supreme Court, in case 13-1997, June 29, 2015 PUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 13-1996 CENTRAL RADIO COMPANY INC; ROBERT WILSON; KELLY DICKINSON, Plaintiffs - Appellants, v. CITY OF NORFOLK, VIRGINIA, Defendant - Appellee. No. 13-1997 CENTRAL RADIO COMPANY INC; ROBERT WILSON; KELLY DICKINSON, Plaintiffs - Appellees, v. CITY OF NORFOLK, VIRGINIA, Defendant - Appellant. App..
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Certiorari granted by Supreme Court, in case 13-1997, June 29, 2015
Vacated and Remanded by Supreme Court, in case 13-1997, June 29, 2015
PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-1996
CENTRAL RADIO COMPANY INC; ROBERT WILSON; KELLY DICKINSON,
Plaintiffs - Appellants,
v.
CITY OF NORFOLK, VIRGINIA,
Defendant - Appellee.
No. 13-1997
CENTRAL RADIO COMPANY INC; ROBERT WILSON; KELLY DICKINSON,
Plaintiffs - Appellees,
v.
CITY OF NORFOLK, VIRGINIA,
Defendant - Appellant.
Appeals from the United States District Court for the Eastern
District of Virginia, at Norfolk. Arenda L. Wright Allen,
District Judge. (2:12-cv-00247-AWA-DEM)
Argued: September 17, 2014 Decided: January 13, 2015
Before GREGORY, AGEE, and KEENAN, Circuit Judges.
Affirmed by published opinion. Judge Keenan wrote the majority
opinion, in which Judge Agee joined. Judge Gregory wrote a
separate dissenting opinion.
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.
2
BARBARA MILANO KEENAN, Circuit Judge:
In this appeal, we consider whether the district court
erred in granting summary judgment to the City of Norfolk on
claims that the City’s sign ordinance violated the plaintiffs’
rights under the First Amendment and the Equal Protection Clause
of the Fourteenth Amendment. The plaintiffs, a radio
manufacturing and repair business and two of its managers,
asserted that the sign ordinance unconstitutionally exempted
certain displays from regulation, effectuated a prior restraint
on speech, and was selectively enforced in a discriminatory
manner by zoning officials. Upon our review, we agree with the
district court that the sign ordinance is a content-neutral
restriction on speech that satisfies intermediate scrutiny, and
we find no merit in the plaintiffs’ other constitutional
challenges. Therefore, we affirm the district court’s judgment.
I.
A.
The City of Norfolk (the City) adopted a zoning ordinance
that includes a chapter governing the placement and display of
signs (the sign code). See Norfolk, Va., Code app. A § 16
(2012). The City enacted the sign code for several reasons,
including to “enhance and protect the physical appearance of all
areas of the city,” and to “reduce the distractions,
3
obstructions and hazards to pedestrian and auto traffic caused
by the excessive number, size or height, inappropriate types of
illumination, indiscriminate placement or unsafe construction of
signs.” Id. § 16-1.
The sign code applies to “any sign within the city which is
visible from any street, sidewalk or public or private common
open space.” Id. § 16-2. However, as defined in the ordinance,
a “sign” does not include any “flag or emblem of any nation,
organization of nations, state, city, or any religious
organization,” or any “works of art which in no way identify or
specifically relate to a product or service.”
Id. § 2-3. Such
exempted displays are not subject to regulation under the sign
code.
With respect to signs that are eligible for regulation, the
sign code generally requires that individuals apply for a “sign
certificate” verifying compliance with the sign code. Id.
§§ 16-5.1, 16-5.3. Upon the filing of such an application, the
City is required to issue a “sign certificate” if the proposed
sign complies with the provisions that apply in the zoning
district where the sign will be located.
Id. §§ 16-5.4, 16-8.
In the “I-1” industrial zoning district in which plaintiff
Central Radio Company Inc.’s (Central Radio) property is
located, the ordinance provisions include restrictions on the
size of signs. Id. § 16-8.3. The size restrictions vary
4
depending on whether a sign is categorized as a “temporary
sign,” which may be as large as 60 square feet, a “freestanding
sign,” which may be as large as 75 square feet, or an “other
than freestanding sign,” which may be as many square feet as the
number of linear feet of building frontage facing a public
street. 1 Id. The City does not patrol its zoning districts for
violations of size restrictions or other provisions of the sign
code, but does inspect displays in response to complaints made
by members of the public.
B.
The plaintiffs’ challenges to the City’s sign code relate
to a protest of certain adverse action taken against Central
Radio by the Norfolk Redevelopment and Housing Authority (NRHA).
The NRHA is a chartered political subdivision of Virginia, and
consists of an independent committee of seven members appointed
by the Norfolk City Council. See Va. Code Ann. § 36-4.
1
Under the sign code, a “temporary sign” is “[a] sign or
advertising display constructed of cloth, canvas, fabric, paper,
plywood or other light material designed to be displayed and
removed within [specified] time periods.” Norfolk, Va., Code
app. A § 16-3 (2012). A “freestanding sign” is “[a]ny sign
placed upon or supported by the ground independently of any
other structure.” Id. An “other than freestanding sign,” or
“wall sign,” as it is colloquially described by the parties and
by the district court, is “[a] sign fastened to the wall of a
building or structure in such a manner that the wall becomes the
supporting structure for, or forms the background surface of,
the sign or a sign painted directly on the wall of the
structure.”
Id.
5
In April 2010, the NRHA initiated condemnation proceedings
against Central Radio and several other landowners, allegedly
intending to take and transfer the various properties to Old
Dominion University (ODU). Central Radio and the other
landowners successfully opposed the taking in state court.
Although a trial court initially ruled in favor of the NRHA,
that ruling was reversed on appeal by the Supreme Court of
Virginia. PKO Ventures, LLC v. Norfolk Redevelopment & Hous.
Auth.,
747 S.E.2d 826, 829-30 (Va. 2013) (holding that the NRHA
lacked the statutory authority to acquire non-blighted property
by eminent domain). Accordingly, the condemnation proceeding
against Central Radio was dismissed. Norfolk Redevelopment &
Hous. Auth. v. Central Radio Co., No. CL102965,
2014 WL 3672087
(Va. Cir. Ct. Apr. 15, 2014).
In March 2012, while the appeal was pending in state court,
Central Radio’s managers placed a 375-square-foot banner (the
banner) on the side of Central Radio’s building facing Hampton
Boulevard, a major, six-lane state highway. The banner depicted
an American flag, Central Radio’s logo, a red circle with a
slash across the words “Eminent Domain Abuse,” and the following
message in rows of capital letters: “50 YEARS ON THIS STREET /
78 YEARS IN NORFOLK / 100 WORKERS / THREATENED BY / EMINENT
6
DOMAIN!” 2 The 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.”
An employee of ODU complained about the banner to a City
official, who notified the City’s zoning enforcement staff.
After investigating the matter, a zoning official informed
Central Radio’s managers that the banner violated the applicable
size restrictions set forth in the sign code. At a later
inspection, zoning officials noted that the plaintiffs had
failed to bring the display into compliance with the sign code,
and ultimately issued Central Radio citations for displaying an
oversized sign and for failing to obtain a sign certificate
before installing the sign. 3
2
The Appendix to this Opinion contains an image of the
plaintiffs’ display.
3
At the time of the first visit, a City zoning official
stated that Central Radio’s banner could not exceed 40 square
feet, because the building wall facing Hampton Boulevard was 40
feet long. This calculation appeared to treat Central Radio’s
banner as an “other than freestanding sign” or “wall sign” under
the size restrictions of the sign code. See Norfolk, Va., Code
app. A § 16-8.3(c) (2012). However, when City zoning officials
returned to the Central Radio site less than a week later, they
stated that Central Radio’s banner could not exceed 60 square
feet, a determination apparently based on the restrictions
governing “temporary signs.” See id. § 16-8.3(a). Ultimately,
the written citation issued by the City required Central Radio
to reduce the size of its banner to 60 square feet or less.
7
In May 2012, the plaintiffs initiated a civil action to
enjoin the City from enforcing its sign code. 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.
The district court denied the plaintiffs’ motions and,
after discovery was completed, granted summary judgment in favor
of the City. The court concluded that the provisions in the
sign code exempting flags, emblems, and works of art were
content-neutral. Applying intermediate scrutiny, the court held
that the sign code was a constitutional exercise of the City’s
regulatory authority. The court held that those exemptions were
reasonably related to the City’s interests in promoting traffic
safety and aesthetics, because such exempted displays “are less
likely to distract drivers than signs” and “are commonly
designed to be aesthetically pleasing.” In reaching this
8
conclusion, the court also rejected the plaintiffs’ prior
restraint and selective enforcement claims. After the court
entered final judgment, the plaintiffs filed this appeal. 4
II.
The core component of the plaintiffs’ challenge to the sign
code is their argument that the sign code constitutes a content-
based restriction on speech, both facially and as applied, that
cannot survive strict scrutiny. We disagree with this argument,
and address each component of the plaintiffs’ constitutional
challenges in turn.
A.
1.
In evaluating the content neutrality of a municipal sign
ordinance, our “principal inquiry” is “whether the government
has adopted a regulation of speech because of disagreement with
the message it conveys.” Hill v. Colorado, 530 U.S. 703, 719
4
We disagree with the City’s contention that the district
court abused its discretion in extending the deadline for filing
the appeal after finding that any neglect by plaintiffs’ counsel
was excusable. Cf. Thompson v. E.I. DuPont de Nemours & Co., 76
F.3d 530, 532 n.2 (4th Cir. 1996) (observing that the decision
to grant an enlargement of time upon a showing of excusable
neglect “remains committed to the discretion of the district
court”). The district court did not exceed its discretion in
excusing a brief delay that did not prejudice the defendant or
result from any bad faith on the plaintiffs’ part. See, e.g.,
Salts v. Epps,
676 F.3d 468, 474-75 (5th Cir. 2012).
9
(2000) (citation omitted); see Ward v. Rock Against Racism, 491
U.S. 781, 791 (1989) (“The government’s purpose is the
controlling consideration.”). We have described this inquiry as
being “practical” in nature, and have noted that the Supreme
Court has rejected any “formalistic approach to evaluating
content neutrality that looks only to the terms of a
regulation.” Wag More Dogs, LLC v. Cozart,
680 F.3d 359, 366
(4th Cir. 2012). Under our precedent,
[a] regulation is not a content-based regulation of
speech if (1) the regulation is not a regulation of
speech, but rather a regulation of the places where
some speech may occur; (2) the regulation was not
adopted because of disagreement with the message the
speech conveys; or (3) the government’s interests in
the regulation are unrelated to the content of the
affected speech.
Brown v. Town of Cary, 706 F.3d 294, 302 (4th Cir. 2013)
(quoting Wag More
Dogs, 680 F.3d at 366).
We therefore have observed that “[a] statute’s
differentiation between types of speech does not inexorably
portend its classification as a content-based restriction.” Wag
More Dogs, 680 F.3d at 366-67; see also
id. at 368 (“That
[municipal] officials must superficially evaluate a sign’s
content to determine the extent of applicable restrictions is
not an augur of constitutional doom.”). Instead, “a distinction
is only content-based if it distinguishes content ‘with a
10
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
expression of an idea simply because society finds the idea
itself offensive or disagreeable.’” Clatterbuck v. City of
Charlottesville, 708 F.3d 549, 556 (4th Cir. 2013) (quoting
Brown, 706 F.3d at 301-02); see Covenant Media of S.C., LLC v.
City of N. Charleston,
493 F.3d 421, 434 (4th Cir. 2007) (noting
that a sign ordinance may “require[] looking generally at what
type of message a sign carries to determine where it can be
located,” so long as the municipality does not undertake a “more
searching inquiry into the content” that would “regulate the
location of different types of signs based on the ideas or views
expressed”) (citation and internal quotation marks omitted). We
discern censorial intent by examining whether there is a
relationship between an ordinance’s legislative purpose and the
content distinctions addressed in the ordinance,
Brown, 706 F.3d
at 303, and by deciding “whether the government’s content-
neutral justification reasonably comports with the content
distinction on the face of the regulation.”
Clatterbuck, 708
F.3d at 556.
In Brown v. Town of Cary, we reviewed a challenge to a sign
ordinance that generally subjected residential signs to certain
quantity and size restrictions, but exempted from regulation
11
“holiday decorations” erected in honor of governmental or
religious holidays and “public art” intended to beautify public
areas. 706 F.3d at 298. We held that the municipality
demonstrated a “reasonable relationship” between its exemptions
and its legitimate interests in traffic safety and aesthetics,
concluding that it was “reasonable to presume that public art
and holiday decorations enhance rather than harm aesthetic
appeal, and that seasonal holiday displays have a temporary, and
therefore less significant, impact on traffic safety.”
Id. at
304. Although we acknowledged that the exempted displays “may
implicate traffic safety no less than an ordinary residential
sign,” and may even “impair rather than promote aesthetic
appeal,” we clarified that “the content neutrality inquiry is
whether [a particular ordinance’s] exemptions have a reasonable,
not optimal, relationship to these asserted interests.”
Id. We
also noted that empirical judgments regarding “the precise
restriction necessary” to carry out legitimate legislative
interests are best left to legislative bodies.
Id. (quoting
Randall v. Sorrell,
548 U.S. 230, 248 (2006) (plurality
opinion)).
The content distinctions that we upheld in Brown resemble
those at issue in the present case. The plaintiffs, however,
attempt to distinguish the present sign code exemptions by
arguing that they facially are unrelated to legislative
12
interests in aesthetics or traffic safety, whereas the
exemptions in Brown expressly involved decorations that were
“not intended to be permanent in nature” and art that was
“intended to beautify or provide aesthetic influences to public
areas.” 706 F.3d at 298.
The plaintiffs further characterize the City’s sign code
exemptions as being too narrow, in that they exempt the flags
and emblems only of governmental or religious organizations, and
being too broad, in that they exempt all works of art but do not
specifically define “art.” The plaintiffs argue that because
private or secular flags may have the same effect on aesthetics
and traffic safety as exempted displays, and because certain
works of art may have a more detrimental effect with regard to
those purposes than displays subject to regulation, the
exemptions lack a reasonable relationship to any legitimate
interests and thus are content-based restrictions on speech.
The plaintiffs’ analysis fails, however, because in
determining the level of scrutiny, we are not concerned with the
“precise” or “optimal” tailoring of exemptions to a sign
ordinance, but the extent to which they bear a “reasonable”
relationship to legitimate legislative purposes. Id. at 304.
Indeed, in Brown, we agreed that similar exemptions “may impair”
legislative interests, but concluded that the sign ordinance was
content-neutral because it placed “reasonable time, place, and
13
manner restrictions only on the physical characteristics of
messages . . . exempt[ing] certain categories of signs from
those restrictions solely on the basis of the [municipality’s]
asserted and legitimate interests of traffic safety and
aesthetics.” Id. at 304-05.
We reach a similar conclusion here. 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. Wag More Dogs, 680 F.3d at 368
(citation omitted);
Brown, 706 F.3d at 304.
We conclude that it is reasonable to presume that works of
art generally “enhance rather than harm aesthetic appeal,”
Brown, 706 F.3d at 304, and we find it similarly reasonable to
conclude that flags or emblems generally have a less significant
impact on traffic safety than other, more distracting displays.
These exemptions do not differentiate between content based on
“the ideas or views expressed.” Covenant
Media, 493 F.3d at 434
(quoting Turner Broad. Sys., Inc. v. FCC,
512 U.S. 622, 643
(1994)) (internal quotation marks omitted). By exempting the
flags or emblems of governmental or religious organizations from
14
reasonable size restrictions, the City has not indicated any
preference for a particular governmental or religious speaker or
message, and the sign code exerts only an “incidental effect” on
the flags or emblems of other organizations. Wag More Dogs, 680
F.3d at 368. Also, by exempting works of art that are non-
commercial in character, the City has not favored certain
artistic messages over others. Given the City’s “clear content-
neutral purpose” and the absence of a more specific inquiry in
the sign code regarding the content of the regulated signs, we
conclude that the sign code is a content-neutral regulation of
speech. See Covenant
Media, 493 F.3d at 434.
2.
Because the sign code is content-neutral, we evaluate its
constitutionality under intermediate scrutiny. Brown, 706 F.3d
at 305. Under this level of deference, a content-neutral
regulation is valid if it “furthers a substantial government
interest, is narrowly tailored to further that interest, and
leaves open ample alternative channels of communication.”
Id.
(quoting Wag More
Dogs, 680 F.3d at 369) (internal quotation
marks omitted).
Initially, we observe that the sign code was enacted to
promote the City’s “physical appearance” and to “reduce the
distractions, obstructions and hazards to pedestrian and auto
traffic.” Such concerns for aesthetics and traffic safety
15
undoubtedly are substantial government interests. Id.
Moreover, the record contains evidence that Central Radio’s
banner affected those interests, 5 including testimony that the
banner was sufficiently large to be seen from a distance of
three city blocks, and that passing motorists reacted to the
banner by “honk[ing] their horns,” “yell[ing] things in
support,” and “wav[ing].” 6 See
id. (noting that a motorist
“beep[ing] his horn” in response to the plaintiff’s sign
5
The plaintiffs state that the City is obligated “to
proffer actual, objective evidence to support the sign-code
provisions.” We recently rejected, at the motion to dismiss
stage, this “literally unprecedented” argument, observing that
“were we to accept the proposition, dismissal would effectively
never be appropriate in the context of a First Amendment
challenge, as the inquiry starts and stops with facts alleged in
the plaintiff’s complaint and gives the government no
opportunity to test the plausibility of the claim by producing
evidence.” Wag More Dogs, 680 F.3d at 365 n.3. But we also
noted that the evidentiary burden is limited in that the City
“need not reinvent the wheel by coming forward with voluminous
evidence justifying a regulation of the type that has been
upheld several times over.”
Id. We reiterate that the burden
on the governmental defendant in this context is that “of
establishing that the [sign code] passes constitutional muster
under the rubric of intermediate scrutiny.”
Id.
6
The plaintiffs contend that “[e]xpressions of support are
not evidence of distraction; they are evidence of agreement.”
We fail to see how agreement with a message bears on the issue
whether motorists are distracted by a sign while driving. The
undisputed fact that passing motorists reacted emphatically to
Central Radio’s banner, regardless whether they privately or
publicly agreed with the banner’s message, constitutes evidence
that the banner contributed to the “distractions, obstructions
and hazards to pedestrian and auto traffic” that the sign code
was intended to reduce.
16
constituted evidence of specific traffic problems relating to
the display).
Next, we conclude that the sign code is narrowly tailored
because it does not “burden substantially more speech than is
necessary to further the government’s legitimate interests.”
Ward, 491 U.S. at 799. Instead, the sign code’s size and
location restrictions demonstrate that the City has “carefully
calculated the costs and benefits associated with the burden on
speech . . . .” City of Cincinnati v. Discovery Network, Inc.,
507 U.S. 410, 417 (1993) (internal quotation marks omitted).
Because such restrictions “do no more than eliminate the exact
source of the evil [the ordinance] sought to remedy,” we are
satisfied that the sign code is sufficiently well-tailored to
withstand constitutional scrutiny.
Brown, 706 F.3d at 305
(citation and internal quotation marks omitted).
Finally, unlike an outright ban on speech, the sign code
“leaves open ample alternative channels of communication” by
generally permitting the display of signs “subject only to size
and location restrictions.” Wag More Dogs, 680 F.3d at 369
(citation and internal quotation marks omitted). Although the
plaintiffs argue that there are no reasonable alternatives for
conveying the same message in a way that can be seen from
Hampton Boulevard by “the thousands of people who pass by
Central Radio’s property every day,” the plaintiffs do not have
17
a constitutional right to place their sign in the location and
manner that they deem most desirable. See Ross v. Early, 746
F.3d 546, 559 (4th Cir. 2014) (observing that “[t]he First
Amendment affords no special protection to a speaker’s favored
or most cost-effective mode of communication”) (citation and
internal quotation marks omitted). Accordingly, our inquiry
“does not rise or fall on the efficacy of a single medium of
expression.”
Id.
It is undisputed here that the plaintiffs’ 375-square-foot
banner would comport with the City’s sign code if the banner
were reduced to a size of 60 square feet. We recently have
deemed such an alternative to be adequate upon comparable facts.
See Wag More
Dogs, 680 F.3d at 369 (reasoning that a sign
ordinance left open ample alternative channels of communication
because the plaintiff was allowed to display a 60-square-foot
version of a 960-square-foot painting). Accordingly, because
the City’s content-neutral sign code satisfies intermediate
scrutiny both facially and as applied to the plaintiffs’
display, we agree with the district court’s holding that the
sign code satisfies the constitutional requirements of the First
Amendment.
B.
The plaintiffs additionally argue that the City selectively
enforced its sign code in violation of the First Amendment and
18
the Equal Protection Clause of the Fourteenth Amendment when the
City issued the citations to the plaintiffs but allowed
analogous displays to stand. A selective enforcement claim of
this nature requires a plaintiff to demonstrate that the
government’s enforcement process “had a discriminatory effect
and that it was motivated by a discriminatory purpose.” Wayte
v. United States, 470 U.S. 598, 608 (1985). Thus, a plaintiff
must show not only that similarly situated individuals were
treated differently, but that there was “clear and intentional
discrimination.” Sylvia Dev. Corp. v. Calvert Cnty., Md.,
48
F.3d 810, 825 (4th Cir. 1995) (citing Washington v. Davis,
426
U.S. 229, 239 (1976)).
Even assuming, without deciding, that the City’s past
refusal to enforce strictly the sign code constituted evidence
of discriminatory effect, 7 dismissal of the plaintiffs’ selective
enforcement claim was proper because there was insufficient
evidence that the City was motivated by a discriminatory intent.
We have recognized several factors as probative in determining
discriminatory intent, including:
7
On appeal, the City appears to have conceded that it
declined to enforce its sign code against the oversized
electronic message board of a local museum, but maintains that
“Central Radio failed to show that the decision to forego
enforcement was motivated by a desire to favor some particular
message.”
19
(1) evidence of a “consistent pattern” of actions by
the decisionmaking body disparately impacting members
of a particular class of persons; (2) historical
background of the decision, which may take into
account any history of discrimination by the
decisionmaking body or the jurisdiction it represents;
(3) the specific sequence of events leading up to the
particular decision being challenged, including any
significant departures from normal procedures; and (4)
contemporary statements by decisionmakers on the
record or in minutes of their meetings.
Sylvia Dev., 48 F.3d at 819 (citing Vill. of Arlington Heights
v. Metro. Hous. Dev. Corp.,
429 U.S. 252, 266-68 (1977)).
None of these factors weighs in the plaintiffs’ favor.
Although the plaintiffs attempt to impugn the City’s motives in
enforcing its sign code against their banner protesting the use
of eminent domain by the NRHA, the record is devoid of evidence
that the City attempted to reduce the size of Central Radio’s
sign because the City disagreed with Central Radio’s message or
sought to suppress a message that was critical of the NRHA, an
independent entity. Also absent from the record is any
indication of “significant departures from normal procedures” by
City zoning officials, id., who received a complaint about a
sign, conducted an investigation, consulted with one another,
and issued Central Radio a verbal warning followed by written
citations.
We agree with the district court that the City’s past
failure to enforce its sign code strictly, and the City’s more
20
zealous efforts to do so since the commencement of this
litigation, are not sufficient to substantiate the “invidiously
discriminatory intent” that is required of a selective
enforcement claim. Sylvia Dev., 48 F.3d at 819 (citations and
internal quotation marks omitted). Instead, the plaintiffs must
show “that the decisionmaker . . . selected or reaffirmed a
particular course of action at least in part ‘because of,’ not
merely ‘in spite of,’ its adverse effects upon an identifiable
group.”
Id. at 819 n.2 (citation and internal quotation marks
omitted). Such evidence is wholly lacking in this case.
Accordingly, we affirm the district court’s award of summary
judgment on the plaintiffs’ selective enforcement claim.
C.
Finally, the plaintiffs argue that the sign code is an
unconstitutional prior restraint on speech because it required
them to obtain a sign certificate evidencing compliance with the
sign code, but failed to impose time limits or adequate
standards on the City’s decisionmaking process. We disagree.
The Supreme Court requires procedural safeguards for
certain speech licensing schemes, which protections include time
limitations on the decisionmaking process. See Freedman v.
Maryland, 380 U.S. 51, 58-60 (1965); 11126 Balt. Blvd., Inc. v.
Prince George’s Cnty., Md.,
58 F.3d 988, 997 (4th Cir. 1995) (en
banc). Those safeguards, however, apply only to content-based
21
“subject-matter censorship,” not to “content-neutral time,
place, and manner regulation.” Thomas v. Chi. Park Dist., 534
U.S. 316, 322 (2002).
Because we have held that the City’s sign code was content-
neutral, we further conclude that the sign code was not required
to impose a constitutional protection of time limits on the
decisions of zoning officials. See Covenant Media, 493 F.3d at
435. However, this conclusion does not necessarily end the
inquiry, because a decisionmaker cannot use the absence of such
requirements to stifle an individual’s First Amendment rights.
Id. (citing Thomas, 534 U.S. at 323).
Here, the plaintiffs do not allege that the City is
responsible for any undue delay in enforcing the sign code. In
fact, it appears that City zoning officials informed Central
Radio’s managers that their sign failed to comply with the sign
code immediately upon inspecting Central Radio’s property, and
issued written citations less than a week later when the
officials observed that the sign had not been modified or
removed despite the warning.
The plaintiffs argue, nevertheless, that the City’s sign
code confers too much discretion on the zoning officials who
process applications for sign certificates. Under the Supreme
Court’s decision in Thomas, “a content-neutral licensing
regulation must ‘contain adequate standards to guide the
22
official’s decision and render it subject to effective judicial
review.’” Wag More Dogs, 680 F.3d at 372 (quoting
Thomas, 534
U.S. at 323). “Adequate standards are those that channel the
decision maker’s discretion, forcing it to focus on concrete
topics that generate palpable effects on the surrounding
neighborhood.”
Id. (citation, brackets, and internal quotation
marks omitted).
Although the plaintiffs acknowledge that the City’s sign
code does not provide officials any discretion to deny a sign
certificate when the requisite standards are satisfied, the
plaintiffs argue that the standards governing size restrictions
and exemptions for “works of art” are so vague and indeterminate
that they do not provide any guide for official decisions. We
disagree with this argument.
The sign code clearly defines the circumstances in which
size restrictions apply based on a sign’s classification as a
“temporary sign,” “freestanding sign,” or “other than
freestanding sign,” see Norfolk, Va., Code app. A §§ 16-3, 16-
8.3 (2012), and limits the “works of art” exemption to displays
“which in no way identify or specifically relate to a product or
service,” id. § 2-3. Although arbitrariness in applying
restrictions or exemptions “would pose constitutional
difficulty,” any such abuse must be addressed “if and when a
pattern of unlawful favoritism appears, rather than by insisting
23
upon a degree of rigidity that is found in few legal
arrangements.” Wag More Dogs, 680 F.3d at 373 (quoting
Thomas,
534 U.S. at 325) (internal quotation marks omitted).
The plaintiffs have failed to show any such “pattern of
unlawful favoritism.” Id. Nor have the plaintiffs argued that
the sign code fails to satisfy Thomas’s requirement that an
ordinance provide for decisions “subject to effective judicial
review,” 534 U.S. at 323, perhaps because the plaintiffs had a
statutory right to appeal their citations to the board of zoning
appeals, Va. Code Ann. § 15.2-2311, and to file a petition for
judicial review of any final decision by that body,
id. § 15.2-
2314. Cf. Wag More
Dogs, 680 F.3d at 373 (noting that the
existence of an adequate statutory review process for certain
zoning decisions satisfied the second prong of the Thomas
formulation). Accordingly, because the City’s sign code
satisfies the standards required of content-neutral licensing
regulations, we conclude that the district court did not err in
rejecting the plaintiffs’ challenge to the sign code as an
unconstitutional prior restraint on speech.
III.
For these reasons, we affirm the district court’s judgment.
AFFIRMED
24
GREGORY, Circuit Judge, dissenting:
Central Radio challenges the City of Norfolk’s restrictions
on its sign protesting the seizure of its land by eminent domain
– a protest that the Virginia Supreme Court ultimately
vindicated. See PKO Ventures, LLC v. Norfolk Redev. & Hous.
Auth., 747 S.E.2d 826, 833 (Va. 2013). I write separately to
dissent from Part II.A.1 of the majority opinion, as I do not
believe our precedent compels application of a content-neutral
inquiry.
I would apply a content-based test to the City’s Sign Code.
As the majority opinion recognizes, this Court’s so-called
practical inquiry is meant to determine if the government’s
regulation is “justified without reference to the content of
regulated speech.” Brown v. Town of Cary, 706 F.3d 294, 303
(4th Cir. 2013) (quoting Hill v. Colorado,
530 U.S. 703, 720
(2000)). As we stated in Brown, the lack of any relationship
between a law’s content distinction and its legislative end is
probative of whether the government has discriminated on the
basis of content.
See 706 F.3d at 303 (citing Metromedia, Inc.
v. City of San Diego,
453 U.S. 490, 513-14 (1981) (plurality)).
In a case like this, involving political speech against the
heaviest hand of government attempting to seize its citizen’s
land, we must ensure a “reasonable fit” between the City’s
asserted interests in aesthetics and traffic safety, and the
25
Code’s exemptions for government and religious emblems and
flags. Id.
I disagree that the City has demonstrated this “reasonable
fit.” Why is it that the symbols and text of a government flag
do not affect aesthetics or traffic safety and escape
regulation, whereas a picture of a flag does negatively affect
these interests and must be subjected to size and location
restrictions? I see no reason in such a distinction. This is a
much different case from the exemptions we confronted in Brown
for temporary holiday decorations and public art.
See 706 F.3d
at 304-05. There, we thought it “reasonable to presume” that
decorations and art enhance aesthetic appeal, and that the
seasonal nature of holiday displays had a “temporary, and
therefore less significant, impact on traffic safety.”
Id. at
304. Unlike in our case, the exemptions in Brown could be
justified on the basis of aesthetics and safety concerns. I
find no such justification here, where the City’s regulatory
scheme perpetually disadvantages dissidents like Central Radio.
The danger is not that the City has “indicated any preference
for a particular governmental or religious speaker or message,”
Maj. Op. at 15, but that it declines to regulate entirely and
therefore favors all official government and religious speakers
and speech. For this reason, the exemptions should be forced to
withstand heightened scrutiny under a content-based test.
26
Furthermore, the City has not adequately demonstrated that
its adoption of the Code and its exemptions was unrelated to
disagreement with a particular message. See Wag More Dogs, LLC
v. Cozart, 680 F.3d 359, 368 (4th Cir. 2012) (“[D]isagreement
with the message [speech] conveys . . . is the principal inquiry
in determining content neutrality.”) (internal quotation marks
and citation omitted). Although the City maintains this is the
case, it references only the Purpose Statement within the Code
as support. In Brown, we warned that “the mere assertion of a
content-neutral purpose” is not “enough to save a law which, on
its face, discriminates based on
content.” 706 F.3d at 304
(quoting Turner Broad. Sys., Inc. v. FCC,
512 U.S. 622, 642-43
(1994)); see also
id. (“[W]hen a government supplies a content-
neutral justification for the regulation, that justification is
not given controlling weight without further inquiry.”) (quoting
Whitton v. City of Gladstone,
54 F.3d 1400, 1406 (8th Cir.
1995)). Even if a party need not “com[e] forward with
voluminous evidence justifying a regulation,” Wag More
Dogs, 680
F.3d at 365 n.3, surely it must do something more than simply
point to a content-neutral justification written into the law’s
preface. At least in Brown, the city “adequately documented”
that its legislative interests were unrelated to the ordinance’s
content distinctions through legislative findings, policy
27
statements, and testimony of Town officials. Brown, 706 F.3d at
305. I find no such showing in this record. *
This case implicates some of the most important values at
the heart of our democracy: political speech challenging the
government’s seizure of private property – exactly the kind of
taking that our Fifth Amendment protects against. If a citizen
cannot speak out against the king taking her land, I fear we
abandon a core protection of our Constitution’s First Amendment.
Here, Central Radio spoke out against the king and won. It may
be that the Code passes the heightened scrutiny of a content-
based inquiry. But to stop short without subjecting the
regulation to a more rigorous examination does a disservice to
our cherished constitutional right to freedom of speech. I
respectfully dissent.
*
In fact, one of the drafters of the Code revealed in his
deposition: “Why do we create exemptions for government flags,
is that what you’re asking? Because I believe we believe that’s
the right thing to do . . . I think we consider the importance
of an American flag or a state flag to far exceed that of an
enthusiastic sports flag.” J.A. 1012-13.
28
APPENDIX
29
