In a double blow to free speech and property rights, the city of Norfolk, Virginia, tried to suppress a small business’s protest banner condemning the government’s unlawful attempt to seize its property through eminent domain. On February 26, 2016 the Fourth Circuit vindicated Central Radio Company’s free speech rights after an almost four-year legal battle—a battle that made national news several times and even made its way to the U.S. Supreme Court.

It all started when the city’s land developer—the Norfolk Redevelopment and Housing Authority (NRHA)—condemned more than 170 residential, institutional and business buildings near Hampton Boulevard in order to hand the properties over to Old Dominion University. One of those properties was Central Radio, which has been building and repairing ship-based radio equipment in Norfolk since 1934. After losing an initial fight in Virginia trial court to keep Central Radio’s property, one of the company’s owners, Bob Wilson, and its vice president, Kelly Dickinson, decided to take their battle to the court of public opinion: they hung a 375-square-foot banner on the side of the Central Radio building protesting the attempt to take the property.

When officials at Old Dominion University Real Estate Foundation saw the sign, they immediately complained to the City. The City responded by citing Central Radio for violating the city’s rarely enforced sign code. The code limits Central Radio to a sign of 60 square feet, which would be illegible to passerby on Hampton Boulevard—a busy road where thousands of people, including city officials, travel every day.

Meanwhile, a banner of the same size, in the same location, would have been perfectly permissible under the code if, rather than protesting city policy, it depicted the city flag. The sign code completely exempted government flags and emblems, religious flags and emblems, and works of art.

In September 2013, the Virginia Supreme Court vindicated Central Radio’s property rights, halting the unlawful attempt to take its property. But the assault on its free speech rights continued. After a divided panel of the 4th U.S. Circuit Court of Appeals ruled that Norfolk’s suppression of Central Radio’s speech was constitutionally permissible, IJ petitioned the U.S. Supreme Court for review.

On June 29, 2015, the U.S. Supreme Court reversed and remanded the case back to the 4th Circuit so that it could reconsider the case in light of the U.S. Supreme Court’s recent decision in Reed v. Town of Gilbert. In Reed, the Supreme Court held that a municipal sign code that treats some signs better than others based on their subject matter is subject to the most stringent constitutional scrutiny and is presumptively unconstitutional.

On February 26, 2016 the Fourth Circuit vindicated Central Radio’s free speech rights, finding that Norfolk’s sign code impermissibly discriminated against some signs, like Central Radio’s protest banner, while freely allowing other signs. The opinion will help protect speech across the country and should be a wakeup call to other cities with discriminatory sign codes. Cities should treat all speech and signs equally, regardless of their content; the key is not more regulation, but less.

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John E. Kramer Vice President for Strategic Relations [email protected]

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