By Robert Frommer
For almost 25 years IJ has defended the right of individuals to express themselves by displaying signs. We bring these cases both to protect our clients’ free-speech rights and to push for wholesale legal change. Now, after years of work, a landmark decision by the U.S. Supreme Court has fully adopted IJ’s position on a critical First Amendment issue. This ruling will benefit speakers across the nation, including our clients who own Central Radio, a company that builds and repairs ship-based radio equipment in Norfolk, Va.
As Liberty & Law readers may recall, IJ brought suit on behalf of Central Radio after it hung a banner to protest a Norfolk agency’s attempt to take its property using eminent domain. Almost immediately, Norfolk said the banner had to come down, although it could have stayed up if it had instead depicted a government flag or a “work of art.” In other words, Norfolk city officials decide which signs stay up or come down based on what the signs say.
Traditionally, laws like Norfolk’s had to survive “strict scrutiny”—the most demanding standard of judicial review. In St. Louis, IJ represented Jim Roos after the city like Norfolk cited him for displaying an anti-eminent-domain mural on a threatened building. The 8th U.S. Circuit Court of Appeals struck down St. Louis’ sign code after declaring that it was subject to strict scrutiny because it forbade Jim’s mural while allowing similarly sized government flags and works of art.
By contrast, the 4th U.S. Circuit Court of Appeals, whose jurisdiction includes Virginia, repeatedly held that speech restrictions are subject to strict scrutiny only if the government’s motive is censorship. In 2010, we represented Kim Houghton, an entrepreneur forced by Arlington, Va., to cover up her whimsical mural of cartoon dogs, bones and paw prints. The 4th Circuit upheld Arlington’s sign code—even though it contained exemptions like those in St. Louis’ code—because its alleged purpose was to promote traffic safety and aesthetics rather than censor speech. The 4th Circuit followed this same approach in Central Radio’s case and upheld Norfolk’s sign code.
But IJ never says die. Besides our front-line litigation we submitted amicus briefs to the U.S. Supreme Court asking it to resolve this issue. In Reed v. Town of Gilbert, a case similar to our commercial speech cases, IJ submitted an amicus brief on behalf of 10 IJ clients who asked the Court to return the First Amendment to its roots by holding that a law is subject to strict scrutiny either if it requires officials to inspect a message’s subject to decide how to regulate it or if its purpose is to censor.
In June, the Supreme Court answered the call. In an opinion that some are calling the most important First Amendment decision in 30 years, the Court in Reed broadly proclaimed that IJ’s position was the law of the land. The Court’s decision in Reed restored the speech protections that all Americans had historically enjoyed.
Moreover, Reed breathed new life into Central Radio’s lawsuit. Two weeks after the decision, the Supreme Court told the 4th Circuit to reconsider Central Radio’s case in light of the test that IJ had put forward. We fully expect the 4th Circuit to give Central Radio the victory it deserves.
And, if it doesn’t, then IJ will just have to return to the Supreme Court and make history once again.
Robert Frommer is an IJ attorney.