By Sarah Walton
On January 29, 2016, the Fourth Circuit issued a published opinion in the civil case of Central Radio Company Inc v. City of Norfolk. The Fourth Circuit dismissed the appeal in part, affirmed in part, reversed in part, and remanded the case to the district court for a determination regarding damages.
The Origins of the Dispute
Central Radio Company (“CRC”) is a radio manufacturing and repair business located in Norfolk, Virginia. In April 2010, the Norfolk Regional Housing Authority (“NRHA”) initiated a condemnation proceeding against CRC and other adjacent landowners. The NRHA initiated the proceeding so that it could transfer the land to Old Dominion University. The action was initially dismissed, but the NRHA appealed. While the appeal was pending, CRC put up a sign on the side of their building that said, “50 YEARS ON THIS STREET / 78 YEARS IN NORFOLK / 100 WORKERS / THREATENED BY / EMINENT DOMAIN!” An employee of Old Dominion University complained about the sign and a local zoning official for the City of Norfolk (“the City”) informed CRC that the banner violated Norfolk’s former sign code. The official cited CRC for displaying a sign that was too large and for failing to obtain a certificate before installing the sign. CRC subsequently filed an action to enjoin the city from enforcing the sign code.
The City’s Former Sign Code
The former sign code, which has since been amended, applied to “any sign within the city which is visible from any street, sidewalk or public or private common open space,” but did 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.” The code also mandated that individuals who wished to display a sign that fell within the aforementioned definition limit their sign to a certain size. The size of the sign depended on whether it was classified as “temporary” or “freestanding.”
Further, a sign that fell within the code’s definition had to be approved before being displayed. The individual seeking to display the sign had to apply for a certificate from the city, which in turn would review the application for compliance with the code. If the city determined that the sign complied with the code, it would issue a certificate to the individual seeking to display the sign.
The Supreme Court Vacates the Fourth Circuit’s Holding and Remands for Further Consideration
CRC alleged that the sign code was unconstitutional, arguing that it exempted certain flags or emblems, but not others. CRC also argued that the former sign code was a content-based regulation that warranted strict scrutiny. The district court disagreed. It held that the sign was content-neutral and applied intermediate scrutiny. In doing so, the district court concluded that the City’s justification for the regulation, which was to ensure that drivers and pedestrians would not be distracted when they viewed the signs from the road, satisfied intermediate scrutiny. CRC appealed and the Fourth Circuit affirmed the district court’s holding. CRC appealed to the Supreme Court, which vacated the Fourth Circuit’s ruling in light of its decision in Reed v. Town of Gilbert and remanded the case.
The Fourth Circuit Holds that the Sign was Content-Based and Applies Strict Scrutiny
On remand, CRC argued that the sign code was a content-based restriction on speech and the Fourth Circuit agreed. The court reasoned that the regulation applied to secular flags and banners, but did not apply to religious flags and banners, thereby making it a content-based restriction. Next, the court applied strict scrutiny and tested whether the City’s justification was compelling enough to restrict CRC’s speech. The court pointed out that neither it nor the Supreme Court had ever held that traffic safety was compelling enough to restrict speech. As a result, the Fourth Circuit reversed the district court on this issue.
The Fourth Circuit Dismisses CRC’s Claim for Prospective Relief and Affirms The District Court’s Holding Regarding CRC’s Discrimination Claim
CRC raised two other issues on appeal. First, CRC requested prospective relief based upon allegations of unconstitutional restrictions on speech. The court recognized that because the legislature amended the sign code and was unlikely to change it back to its prior form, the claim was moot and should be dismissed.
Second, CRC argued that the City applied the sign code in a discriminatory manner. The Fourth Circuit disagreed, holding that there was not enough evidence to show that the City acted with a discriminatory intent. As a result, the Fourth Circuit affirmed the district court’s holding on this issue.
The Fourth Circuit Dismisses in Part, Affirms in Part, Reverses in Part, and Remands for Further Proceedings
As a result, the Fourth Circuit dismissed CRC’s claim for prospective relief, affirmed the district court’s ruling on CRC’s discrimination claim, reversed the district court on the content-based versus content-neutral issue, and remanded the case for a determination of damages.