Brown v. Town of Cary, 2013 WL 221978 (4th Cir.) was an appeal from the judgment of a federal trial court invalidating defendant’s sign code, a part of its Land Development Ordinance (LDO). The LDO allowed up to two residential signs of not more than 42 feet in height and five sq. ft. per sign in area, but exempted holiday decorations and public art, as defined in the ordinance. Bowden, a Cary residential property owner who was frustrated by the treatment received to his damage claim from a municipal road-paving project, wrote “Screwed by the Town of Cary” on a 15-foot swath 14-25 inches high across his house in fluorescent orange. Bowden was prosecuted by the Town for two LDO violations – one of which alleged he had a non-complying wall sign, rather than a residential sign – a wall sign was limited to two feet under the LDO. Secondly, the Town alleged that the sign was made with high intensity color. Neither allegation involved the content of the sign. Bowden then brought a Section 1983 action in federal court challenging the two exemptions under the sign ordinance as content-based. The trial court agreed, enjoined the ordinance, gave plaintiff $1.00 in damages, and awarded $36,197 in attorney fees and costs.
Bowden died during the pendency of this appeal and plaintiff succeeded him. Applying North Carolina law, the Fourth Circuit said that Bowden’s claim survived his death even though the damages were nominal. Moreover, the case involved the legitimacy of the exemption so the Fourth Circuit agreed that Bowden’s successors had standing to litigate the free speech issues.
In approaching the merits, the court reviewed the trial court’s grant of summary judgment to plaintiff on a de novo basis, finding that the case turned on whether the challenged ordinance was content-neutral. Defendant contended it could differentiate messages based on content so long as its reasons for doing so were not based on the message itself. The Fourth Circuit said it would reject:
“. . . any absolutist reading of content-neutrality, and instead orient our inquiry toward why – not whether – the Town has distinguished content in its regulation. Viewed in that light we are satisfied that the Sign Ordinance is content-neutral. Applying the intermediate scrutiny required for content-neutral restrictions on speech, we hold that the Sign Ordinance does not violate the First Amendment.”
While signs are a form of protected expression, they may be regulated by their physical characteristics such as height, area and the like. Their content cannot be regulated as easily but reasonable time, place and matter restrictions may be imposed. In those cases the principal issue is whether such regulation is imposed because of disagreement with the content. The trial court did not have before it the Fourth Circuit’s case of Wag More Dogs, LLC vs. Cozart, 680 F3d 359 (4th Cir., 2012) where the court took a more pragmatic approach used by the U.S. Supreme Court in Hill vs. Colorado, 530 U.S. 703 (2000), finding the content neutrality rule purpose was to prevent the Government from supervising the marketplace of ideas by choosing topics of public debate. If so, the equation of content distinction and content neutrality is incorrect. Content neutrality has only those distinctions imposed with a censorial intent, i.e., to value some forms of speech over others so as to restrict public debate or simply because one or more members of the public find the underlying ideas disagreeable. The court noted that some of its sister circuits had embraced an absolutist notion of content neutrality the way the trial court had decided its case. However, the Fourth Circuit said that such an approach imputed a censorial purpose to such content distinctions which did not imperil free speech, noting a Ninth Circuit view that, pushed to its logical conclusion, would allow for no sign except the blank sign.
The court applied the Wag More Dogs test:
“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.”
Here, the court saw a distinction between on and off-premises signs which was unrelated to its content and served other aims (such as traffic safety and aesthetics) unrelated to the content of the speech. The principal case cited by plaintiffs was Metromedia, Inc. vs. City of San Diego, 459 US 490 (1981); however, the court found that this case was not on point because it turned on the preference of commercial over non-commercial messages which was inconsistent with the values of the Constitution that could not be justified in a content-neutral way. Thus, if the Town could justify a content-based regulation, it might show a “reasonable fit” between its legitimate interests in traffic safety and aesthetics and its exemptions for holiday decorations and public art. Those regulations could pass muster under the First Amendment. The court said it separated the issue of content distinction from that of content discrimination based on content and found the question to be whether that distinction bore a reasonable relationship to the asserted content-neutral format for these regulations.
Thus, while the challenged ordinance distinguished content, the court said the case was over whether those distinctions were justified independent of content. Both exceptions enhanced, rather than diminished aesthetic values. Moreover, the holiday art was temporary and not much of a strain on traffic. While it is true that individual exempted signs might have some adverse effects on these goals, the court found the standard to be whether they had a reasonable, rather than an optimal, impact on those goals – a job more properly assigned to the legislative branch. In this case, the Town used reasonable time, place and manner sign restrictions based on its recognized goals and policies which were unrelated to the suppression of speech. The court found the regulations to be content-neutral under its intermediate scrutiny analysis (i.e., it furthered the City’s legitimate interests in traffic safety and aesthetics, was narrowly tailored to further those interests, and left open ample alternative channels of communication.) The size, color and positioning restrictions do no more than eliminate the exact evils sought to be remedied. The permitted signs gave ample alternative channels of communication. Finally, the ordinance was not vague as to the differences between the exempted signs and others, and the language used does not lend itself to mathematical precision but does provide sufficient guidance for citizens to understand the reach of its prohibitions. In any event, the sign at issue does not qualify under the exemptions. The court concluded:
“Unlike oral speech, signs take up space and may obstruct views, distract motorists, displace alternative uses for land, and pose other problems that legitimately call for regulation.” * * * The content neutrality doctrine of the First Amendment does not impose an all-or-nothing ultimatum upon municipalities that confront these problems. What it requires is that any content distinction a government makes must have a reasonable relation to a content-neutral purpose. What it forbids are content distinctions that jeopardize our most venerated First Amendment principles by regulating public opinion under the guise of public welfare.”
Given the absolutist nature of Oregon’s free speech inquiry under Article I, Section 8 of the State Constitution, the question of this alternative analysis will not arise soon in this state. Still, the debate over absolutism vs. pragmatism will continue to be controversial.
Brown v. Town of Cary, 2013 WL 221978 (4th Cir.)
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