Victory for Virginia Property Owner in Sign Fight: U.S. Supreme Court Vacates Lower Court Ruling That Government Could Suppress Protest Banner

John Kramer
John Kramer · June 29, 2015

Arlington, Va.—In an important decision at the intersection of free speech and property rights, the U.S. Supreme Court today vacated a 4th U.S. Circuit Court of Appeals judgment that had allowed the city of Norfolk, Va., to suppress a banner protesting the government’s illegal attempt to seize private property by eminent domain. Today’s decision sends the case, Central Radio Company v. City of Norfolk, back to the 4th Circuit so that it can reconsider the case in light of recent guidance the Supreme Court has provided on sign regulations and free speech in Reed v. Town of Gilbert.

“This is a twin victory for free speech and property rights,” said Michael Bindas, a senior attorney with the Institute for Justice (IJ), which represents Central Radio Company, the small Norfolk business that placed the protest banner on the side of its building when the government tried to seize it. “Citizens must be free to speak out in protest when the government violates their property rights.”

Upon hearing today’s news, Bob Wilson, one of Central Radio’s owners, exclaimed, “I am ecstatic! My local government violated my constitutional rights, but today, the U.S. Supreme Court restored those rights, and it restored my faith in our nation’s justice system.”

The critical connection between free speech and property rights was underscored 10 years ago this month in the Supreme Court’s infamous Kelo decision. In Kelo v. City of New London, the Court adopted a radically broad interpretation of the government’s power to take private property by eminent domain, but it added that the “necessity and wisdom of using eminent domain” are “matters of legitimate public debate.”

Central Radio attempted to participate in that debate when the government tried to take its property (a taking the Virginia Supreme Court would later hold illegal). 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 under the code 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 discriminated 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.

According to the 4th Circuit majority opinion, it was irrelevant that the sign code drew distinctions between different types of banners based on their content so long as those distinctions were what the court deemed “reasonable.” Moreover, restricting Central Radio’s banner was warranted, according to the majority, because some passersby had “reacted emphatically” to the sign by waving, honking and shouting in support when they saw it. The majority claimed that these expressions of support were evidence that “motorists [we]re distracted by [the] sign while driving.”

Judge Gregory’s dissent, on the other hand, argued that the majority’s decision threatened our most foundational rights. “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,” wrote Judge Gregory. “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.”

On March 31 of this year, Central Radio filed a petition for certiorari asking the U.S. Supreme Court to review the 4th Circuit’s decision. It argued that the distinctions drawn by Norfolk’s sign code are impermissibly content-based and that government cannot suppress speech based on the fact that passersby express their support for a sign’s message.

Highlighting the importance of Central Radio’s appeal, a group of prominent First Amendment scholars and a national First Amendment research center filed a friend-of-the-court brief urging the Supreme Court to accept review of the case in order to correct the 4th Circuit’s decision. A low-income housing ministry and prominent activist likewise filed a friend-of-the-court brief emphasizing the crucial link between free speech and property rights.

In today’s order, the Supreme Court granted Central Radio’s petition, vacated the 4th Circuit’s judgment and remanded the case back to the 4th Circuit so that it can reconsider the case in light of the Supreme Court’s recent decision in Reed v. Town of Gilbert. In Reed, decided on June 18, 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.

“With today’s decision in Central Radio’s case and its recent decision in Reed, the Supreme Court has made clear that government does not get to play favorites with the First Amendment by arbitrarily deciding who gets to speak and what they get to say,” explained Robert Frommer, an IJ attorney who was part of the Central Radio litigation team.

Added Erica Smith, another IJ attorney on the case, “Government cannot suppress speech simply because it doesn’t like the topic the speaker is talking about or what the speaker has to say about it.”

“While today’s victory is momentous,” added Chip Mellor, president and general counsel of the Institute for Justice, “we will not rest until the free speech rights of all Americans are firmly secured. Courts must respect and protect the right of citizens to stand up against an abusive government and speak out in defense of their rights.”

Founded in 1991, the Institute for Justice is the national law firm for liberty.