Appeals Court Tells City It Can't Use Its Terribly-Written Zoning Laws To Censor Speech

Here's a fun free speech win from the 4th Circuit Appeals Court. Well, it's at least a fun read, especially when the judges go after the city of Norfolk's highly-questionable claim that its completely inconsistent zoning statute isn't loaded with content-based restrictions. First, though, here's a bit of background. Norfolk's Central Radio Company's building was on the list of places to be destroyed by the city to make way for an expansion of Old Dominion University. To protest this plan, it hung a large sign on the side of its building stating its opposition to eminent domain abuse.

It also protested the university's planned expansion by suing it, ultimately undoing the government's plan to demolish CRC's building. The city, tipped off by an Old Dominion employee, decided to "investigate" the company's sign and, of course, found it to be in violation of city advertising statutes. This prompted another lawsuit from the Central Radio Company, this time seeking to have the ordinance found unconstitutional. Unfortunately, it wasn't quite so lucky this time. The district court found the statute did not infringe on the company's First Amendment rights. The Fourth Circuit Court of Appeals agreed. CRC petitioned the Supreme Court. Its timing was fortuitous. The Supreme Court had recently handed down a decision in a similar case (Reed v. Town of Gilbert). The decision reaffirmed that government entities cannot impose content-based restrictions without narrowly crafting the limitations to "further a compelling government interest." The US Supreme Court booted the case back to the appeals court with instructions to apply its recent Reed decision. Taking this into consideration, the Appeals Court finds in favor of Central Radio Company and isn't too impressed with Norfolk's ill-advised attempt to censor content that didn't agree with its eminent domain plans.

Based on Reed, we hold that the City’s regulation was a content-based restriction of speech. The former sign code exempted governmental or religious flags and emblems, but applied to private and secular flags and emblems. In addition, it exempted “works of art” that “in no way identif[ied] or specifically relate[d] to a product or service,” but it applied to art that referenced a product or service. On its face, the former sign code was content-based because it applied or did not apply as a result of content, that is, “the topic discussed or the idea or message expressed.”

Because of the internal inconsistencies in the statute (which has since been rewritten), the government can't claim its restrictions aren't content-based. Those assertions have been undone by the city's inability to craft a coherent policy. The law was supposedly put in place to improve the city's aesthetics and cut down on distracted driving. According to the city of Norfolk, these two things were supposedly "compelling government interests." The court disagrees, finding it to be a badly-written law with severe Constitutional issues.

With respect to the City’s stated interest in preserving aesthetic appeal, for example, the flag of a private or secular organization was “no greater an eyesore” than the flag of a government or religion, id. (quoting City of Cincinnati v. Discovery Network, Inc., 507 U.S. 410, 425 (1993)), and works of art that referenced a product or service did not necessarily detract from the City’s physical appearance any more than other works of art. Yet, the former sign code allowed the unlimited proliferation of governmental and religious flags, as well as works of art that met the City’s dubious criterion, while sharply restricting the number and size of flags and art bearing other messages. [...] The City also has not shown that limiting the size and number of private and secular flags, as well as works of art that referenced products or services, was necessary to eliminate threats to traffic safety. There is no evidence in the record that secular flags were any more distracting than religious ones, or that a large work of art displaying a reference to a product threatened the safety of motorists any more than any other large, exempted pieces of artwork.

A workable, Constitutional policy wasn't handed down by the city until well after its original statute proved to be a problem. Because the policy has been al