Wake Forest Law Review

By Chad M. Zimlich

Today, in the civil case Reynolds v. Middleton, a published opinion, the Fourth Circuit vacated and remanded a finding of summary judgment in favor of Henrico County, Virginia.

A New Ordinance Restricting Speech

A homeless man, questioning the constitutionality of Henrico County’s amendment to an ordinance restricting panhandling while on a highway, brought the issue before the Fourth Circuit. The amended ordinance was found to be constitutional by the District Court of the Eastern District of Virginia, and the question presented was as to whether or not summary judgment in favor of the County had been appropriate.

Chief of Police Combats Panhandling Seeing It as an “Increasingly Present Danger”

Before 2012, the County had a prohibition on anyone standing on the road (including the medians) and distributing leaflets, asking for money, or selling goods. The Henrico County Board of Supervisors amended this prohibition after recommendations by Chief of Police, Douglas Middleton, urged the board to include “sitting” as well as standing within the activities prohibited. The recommendations were due to an increase in complaints that more and more individuals were soliciting while sitting in medians, which Chief Middleton saw as a possible traffic-safety concern. Without consulting traffic-safety or any other experts, and basing his opinion on his experience as a law-enforcement officer, he requested that the County Attorney’s Office prepare a report, and brought his concern to the Board of Supervisors, who passed the Amended Ordinance.

In response to no longer being able to solicit donations or offering to work in exchange for food, Robert S. Reynolds brought a pro se action challenging the Amended Ordinance under the First Amendment. Both the County and Reynolds made cross-motions for summary judgment, and the district court granted the County’s motion and denied Reynolds’ motion.

A Gamut of Old Rules and Newer Interpretations

The question of constitutionality under the First Amendment is not new, however, it is one that is still being defined. In a case like this, the government has the power to regulate speech in a traditional public forum (such as a median or public sidewalk), but that power is limited. The First Amendment requires regulations that are content-neutral in time, place, and manner of speech to be subject to intermediate scrutiny, or “narrowly tailored to serve a significant government interest and leave open ample alternative channels of communication.” Basically, the regulation must not burden substantially more speech than necessary based on the interest.

A Question of Proof, and the Shifting of Burdens

The next rule to be iterated by the Fourth Circuit was that the burden of proof shifts in a First Amendment case depending on where you are in the question of constitutionality. It begins with a requirement that the plaintiff show the speech in question is protected by the First Amendment, and that the action by the government restricted that speech. Next, the burden shifts to the government to prove that the speech restriction was justified as per the relevant constitutional requirements.

Differing Evidentiary Standards and an Interpretation of McCullen

Finally, the Fourth Circuit explained that the issue of what the government must present evidentially depends on the speech regulation in question. The Fourth Circuit had not required some kind of evidentiary support to uphold speech regulations that are not materially distinguishable from regulations that have been found to be constitutional by the Fourth Circuit or the Supreme Court. Additionally, there is not normally a requirement to present evidence showing the existence of the governmental interest. However, in this case, the Fourth Circuit clarified that intermediate scrutiny, as seen through the recent Supreme Court case McCullen v. Coakley, required that the government “present actual evidence supporting its assertion that a speech restriction does not burden substantially more speech than necessary.”

A Lack of Evidentiary Support and an Overbroad Prohibition of Speech

Reynolds first argued that the County did not have sufficient evidence that roadway-solicitation was dangerous or that the Amended Ordinance actually furthered the interest of traffic-safety. The court quickly disagreed with this argument, stating that the government interest was sufficiently shown by Chief Middleton’s testimony, along with a “healthy dose of common sense.”

Reynolds’ second argument, however, proved to be much more effective. He contended that, even if the interest was sufficient, the County failed to show that the regulation was narrowly tailored and did not substantially burden more speech than necessary. The Fourth Circuit agreed, noting that the danger asserted by the evidence provided was concerned with busy intersections. The Amended Ordinance, however, went far beyond this, eliminating virtually all speech while not restricting pure conduct such as physically blocking traffic. This included prohibiting the passing out of political leaflets, and soliciting charitable contributions, and the most protected kinds of speech. Furthermore, there was no evidentiary support that the Amended Ordinance was to combat a countywide problem, or that the County had tried to use available alternatives to address its safety concerns.

McCullen Says Lack of Evidence Means County Fails Intermediate Scrutiny

Because the County did not provide enough evidentiary support for its speech restriction to withstand intermediate scrutiny, it was not entitled to summary judgment. However, the Fourth Circuit decided to remand the case to provide the County an opportunity to gather and present evidence sufficient to satisfy the standard laid out in McCullen.

By Chad M. Zimlich

In a decision handed down on Tuesday, the Fourth Circuit was confronted with the case of Central Radio Co. Inc. v. City of Norfolk, which arose from a citation of the owner of a 375 square-foot sign and a possible violation of the owner’s rights under the First and Fourteenth Amendments.

The Constitutionality of the Sign Code

The issue presented before the Fourth Circuit dealt with a zoning ordinance the governed the placement and display of signage which was adopted by the City of Norfolk (“the City”). The purpose of said code, Norfolk, Va., Code app. A § 16 (2012) (“the Sign Code”), was both to improve the “physical appearance” of the city, as well as to prevent the hazards accompanying too many, too large, or inappropriately placed signs.

Eminent Domain and a Protest Sign

The sign in question was placed by the Central Radio Company, Inc., (“Central Radio”) after a prolonged court battle with the City. The City, more specifically through the Norfolk Redevelopment and Housing Authority (“NRHA”), initiated condemnation proceedings against Central Radio, among others, back in April of 2010 in order to transfer property to Old Dominion University. After litigation, the Virginia Supreme Court ruled that the NRHA lacked authority to take Central Radio’s property under its eminent domain power, as the property was not blighted. In March of 2012, while the state court case was still pending appeal, Central Radio placed a 375 square-foot sign showing an American flag, Central Radio’s logo, a red circle with a slash across the words “Eminent Domain Abuse,” and the phrase “50 Years on this street, 78 years in Norfolk, 100 Workers Threatened by Eminent Domain!”

An employee of Old Dominion University brought the sign to the attention of the City, which informed Central Radio that the sign was in violation of the zoning ordinance. After Central Radio failed to remove the sign, the City issued citations for not properly obtaining a permit and displaying an oversized sign. Central Radio responded with a civil suit challenging the enforcement of the Sign Code.

Central Radio claimed that it was unconstitutional for the code to restrict their sign’s size while allowing exceptions for flags, emblems, and works of art. Additionally, they alleged that the requirement of a permit was an impermissible prior restraint on their freedom of speech, and they further claimed that the City applied the Sign Code in a discriminatory and arbitrary manner. However, the District Court for the Eastern District of Virginia disagreed and found for the City, and Central Radio appealed.

The Definition of Content-Based Restrictions on Speech

As Central Radio’s main argument revolved around content-based restrictions on speech, both as a facial and as an as applied challenge, they claimed that the Sign Code did not withstand Strict Scrutiny. However, as the Fourth Circuit’s majority opinion pointed out, 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.” If it is indeed content-based, it is subject to strict scrutiny. However, if it is content-neutral it is only subject to intermediate scrutiny.

Should it be determined as content-neutral and under intermediate scrutiny, the question becomes whether the regulation “furthers a substantial government interest, is narrowly tailored to further that interest, and leaves open ample alternative channels of communication.”

Content-Based Restrictions Must Target Content

First examining whether the Sign Code was adopted due to a disagreement over what speech occurs, the Court focused on any “censorial intent” shown through the relationship between the legislative purpose of the Code and the content distinctions it addresses. In doing so, it reiterated that the examination is whether the relationship is merely reasonable, not optimal. The Court rejected Central Radio’s contention that because flags and works of art “may have the same [detrimental] effect on aesthetics and traffic safety as exempted displays,” there was not a “reasonable relationship” to a legitimate state interest, making the Code content-based. The Court instead concluded that because the Code applies regardless of the message conveyed and only restricts the “time, place, or manner” of a sign’s location, it had a reasonable relationship to legitimate interests and was not a content-based restriction. The Court went on to distinguish “art” as an acceptable category for an exemption in this case, as the exemption was also content-neutral which bolstered the City’s argument that the Code was not content-based.

Because the Code was determined to be content-neutral, the Court continued its analysis based on an intermediate scrutiny rationale. This was an easy hurdle for the City to surpass, as aesthetics and traffic safety “are substantial government interests.” The Court even pointed out instances of drivers honking horns in support as evidence that the sign had an effect on traffic. Additionally, even the type of speech attempted by Central Radio was not eliminated, only restricted in size, leaving it an alternative, albeit smaller, means of communicating. The Court reiterated that there was no constitutional right for having the location or manner of speech that the speaker would see as most desirable.

Next, the Court examined the claim that the Sign Code was selectively enforced, which would have required Central Radio to show that there was a discriminatory effect on them which was motivated by a discriminatory purpose. However, Central Radio had not submitted the requisite evidence to prove such a claim, and therefore, the Court determined the district court was proper in its dismissal of this claim.

As for the claim of prior-restraint of speech in the granting of permits for signage, the Court also found for the City. While there are procedural safeguards for the decision-making processes relating to speech, those safeguards are in place only for content-based restrictions, which the Court had already determined were not present here. There was no circumstance of “unlawful favoritism,” nor was there an arbitrary amount of discretion given to the permitting officials.

A Brief Dissent

A dissenting opinion written by Judge Gregory questioned the majority’s lack of consideration of the political speech present in the case. The fact that the speech in question was prompted by the government’s attempt to seize Central Radio’s land was something that should not be ignored. Furthermore, the dissent disagreed with the majority’s conclusion that the City had demonstrated a “reasonable fit” between the governmental interest and the regulation. The dissent also felt that the Code discriminated based on content, even though it was asserted to have a content-neutral purpose.

A Banner Day for the Norfolk Sign Code

The Majority’s Opinion reiterated the standard for content-neutral speech restrictions, and the Sign Code passed its muster. It affirmed the district court’s ruling of summary judgment in favor of the City, and upheld the Code as constitutional, allowing for the citation of Central Radio and the removal of its sign. Apparently size does matter.