The City of Norfolk, VA adopted a sign ordinance that regulated any sign within the city that is visible from any street, sidewalk, or public or private common open space by imposing size and location restrictions, as well as an application process for obtaining a certificate before putting up the sign. Exempted from regulation under the ordinance were flags and works of art. Central Radio Company, located in an industrial district on a major highway, challenged the ordinance when it was cited for refusing to take down a 375-square-foot banner on its building that condemned the City’s actions in an eminent domain proceeding against Central Radio.
Central Radio brought a civil action alleging the ordinance was unconstitutional because it imposed size and location requirements on some signs but not others, that requiring the acquisition of a certificate prior to placing a sign constituted a prior restraint on speech, and that the City selectively applied the ordinance to Central Radio in a discriminatory manner. The district court granted summary judgment for the City, and on appeal, the Courts of Appeals, 4th Circuit affirmed.
First, the Court determined that because the ordinance regulated only the physical characteristics of the messages, not the messages themselves, the ordinance created valid, content-neutral time, place, and manner restrictions on signs. The Court agreed with the City’s conclusion that is reasonable to conclude that artwork enhances rather than harms aesthetic appeal, and that signs and artwork may be less distracting to drivers and, as a result, have less of an impact on traffic and safety. Furthermore, the ordinance was not unconstitutional simply because it might have an incidental effect on speakers and their particular messages. Therefore, the ordinance was reviewed under the “intermediate scrutiny” test.
Second, under the intermediate scrutiny test, the Court determined that the ordinance did further the City’s substantial government interests of promoting physical appearance and reducing distractions, obstructions, and hazards to pedestrian and automobile traffic. The ordinance was narrowly tailored because it did not burden substantially more speech than is necessary to further the City’s interests. Additional channels of communication were also left open because the ordinance regulated only size and location, meaning that the speaker could still convey its message by placing a sign of appropriate size in an approved location. There is no constitutional right to place a message or sign in a location that the speaker deems most desirable.
In addition, Central Radio could not establish the discriminatory intent required to substantiate a claim for discriminatory selective enforcement, nor did its claim that the application and certificate procedure under the ordinance created a prior restraint have any merit. Because the sign ordinance was content-neutral, the City need not afford the procedural safeguards required of content-based restrictions.