First Amendment Scholars, National Free Speech Group, Prominent Activist and Low-Income Housing Provider Urge U.S. Supreme Court to Hear Major Case at the Intersection of Free Speech and Property Rights

Case Involves Government’s Attempt to Silence Speech Protesting an Illegal Taking of Private Property

Key Facts

  • This case started with government abusing its power of eminent domain.
  • 10 years ago, the U.S. Supreme Court issued its infamous Kelo ruling eviscerating constitutional protections against eminent domain abuse.
  • Company hung a protest banner; the government demanded they cover it up.

Arlington, Va.—Yesterday, May 4, 2015, a group of prominent First Amendment scholars, a national First Amendment research center, a longtime activist against eminent domain abuse and a low-income housing provider and ministry from St. Louis submitted friend-of-the-court briefs urging the U.S. Supreme Court to review a 4th U.S. Circuit Court of Appeals decision that allowed the city of Norfolk, Va., to suppress a banner protesting the government’s illegal attempt to seize private property by eminent domain. The case, Central Radio Company v. City of Norfolk, has major implications at the intersection of free speech and property rights.

Ten years ago, in its infamous Kelo decision, the U.S. Supreme Court adopted a radically broad interpretation of the government’s power to take private property through eminent domain. But the Court recognized that the “necessity and wisdom of using eminent domain” are “matters of legitimate public debate.” Central Radio Company attempted to participate in that debate when the government tried to take its property through eminent domain. It placed a large protest banner on the side of the very building the government was trying to take. The banner read: “50 years on this street/78 years in Norfolk/100 workers/Threatened by eminent domain!”

The city of Norfolk, however, quickly ordered Central Radio to remove the protest banner because it violated the city’s sign code. Yet a banner of the same size, in the same location, would have been perfectly permissible if, rather than protesting city policy, it depicted the city flag or crest—or, for that matter, a religious emblem or a work of art.

Central Radio filed a free speech lawsuit challenging the city’s sign code in 2012. Even though the sign code discriminates against certain types of signs based on their content, the U.S. District Court for the Eastern District of Virginia upheld the code. And in January 2015, the 4th Circuit, over a vigorous dissent by Judge Roger Gregory, affirmed the district court. On March 31 of this year, Central Radio filed a petition for certiorari asking the U.S. Supreme Court to review that decision.

The 4th Circuit’s decision “sharply deviate[s] from th[e] [Supreme] Court’s precedents and risk[s] eroding the critical distinction between content-based speech restrictions and content-neutral ones,” according to a friend-of-the-court brief submitted to the Supreme Court yesterday by Professors Ashutosh A. Bhagwat, Eric M. Freedman, Richard Garnett, Seth F. Kreimer, Nadine Strossen and James Weinstein, as well as the Pennsylvania Center for the First Amendment. The brief, authored by renowned First Amendment scholar Eugene Volokh, urges the Supreme Court to accept review of Central Radio’s case in order to correct the 4th Circuit’s decision.

Also urging the Supreme Court to review the case is a separate friend-of-the-court brief submitted yesterday by Neighborhood Enterprises, Inc. and Sanctuary In The Ordinary (“Sanctuary”), a housing ministry and low-income housing provider in St. Louis, as well as Jim Roos, founder of Neighborhood Enterprises and Sanctuary and a longtime activist against eminent domain abuse. When the city of St. Louis sought to take one of their buildings by eminent domain back in 2007, Neighborhood Enterprises, Sanctuary and Roos, like Central Radio, placed a large sign on the side of the building protesting the taking. Like Norfolk, St. Louis quickly ordered them to remove the sign for violating the city’s sign code, which contained provisions almost identical to Norfolk’s. Neighborhood Enterprises, Sanctuary and Roos then challenged the sign code and the 8th U.S. Circuit Court of Appeals came to the exact opposite conclusion as the 4th Circuit did in Central Radio’s case:  It struck the sign restrictions down as impermissibly content-based.

In the friend-of-the-court brief they filed yesterday, Neighborhood Enterprises, Sanctuary and Roos note that “[f]or property owners facing confiscation, the most effective and efficient means of . . . opposing takings is often to place protest signs directly on the threatened property itself.”  “Such signs and their placement on the property at risk,” they explain, “reveal[] to the public the true cost of the proposed taking in an immediate and emotional way and inspir[e] an appreciation for the lives and businesses at stake.” Central Radio’s building, the brief powerfully observes, “was marked by the sign, just as the city had marked the building for expropriation. In one glance, viewers would see both the building and the threat it faced. No other display would have conveyed the same message . . . .”

In his dissent from the 4th Circuit’s decision, Judge Gregory expressed similar sentiments. “This case implicates some of the most important values at the heart of our democracy:  political speech challenging the government’s seizure of private property—exactly the kind of taking that our Fifth Amendment protects against,” he wrote. “If a citizen cannot speak out against the king taking her land, I fear we abandon a core protection of our Constitution’s First Amendment.”

Founded in 1991, the Institute for Justice is the national law firm for liberty. To learn more about this case, visit www.ij.org/central-radio-company-v-city-of-norfolk.

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