AT THE CORNER OF EMINENT DOMAIN ABUSE & FREE SPEECH: The Supreme Court will decide soon whether to grant review in Central Radio Co. v. City of Norfolk, a case in which a small business owner in Norfolk, Virginia displayed a large banner to protest the city’s eminent domain attempt to seize the business’s property. The banner read: “50 YEARS ON THIS STREET / 78 YEARS IN NORFOLK / 100 WORKERS / THREATENED BY / EMINENT DOMAIN.” The banner also depicted an American flag, Central Radio’s logo, and a red circle with a slash across “Eminent Domain Abuse.”
A local zoning ordinance limited the size of signs, except governmental or religious “flags or emblems” or noncommercial “works of art. The city issued citations to Central Radio for displaying an over-sized sign and for failing to obtain a sign certificate prior to installation. Lower federal courts have upheld the actions against Central Radio as content-neutral restrictions on speech.
The Institute for Justice, representing the business owners against the city, raises First Amendment claims it hopes the Supreme Court will take up:
We argued that the sign code violated the Constitution because it exempted other types of messages of the same magnitude, such as certain flags, emblems or works of art. In addition, we asserted that requiring someone to receive municipal approval before displaying a sign amounted to an unconstitutional prior restraint on free speech.
As the banner issue worked its way through the judiciary, Wilson received welcome news in September 2013, when the Virginia Supreme Court ruled that the Norfolk Redevelopment and Housing Authority did not have the right to seize the properties it was targeting. The decision effectively killed the city’s efforts to take out Central Radio. . . .
[T]he notion that the city’s move to banish the sign had nothing to do with its content doesn’t pass the smell test.
As Post blogger Radley Balko noted in April, “Imagine if another building a few miles down the road put up a banner celebrating the city’s wise and prudent development policies. Does anyone honestly think the owner of that property would need to go to court to keep his banner?”
Balko’s question answers itself. These sign ordinances are out of control around the country, not just Norfolk. I once litigated a case in Michigan against a township that wouldn’t let a bakery owner fly an American flag in front of his business because of an ordinance that banned all flags, putatively because they “distracted” drivers. Presumably the ordinance at issue in Central Radio is grounded in a similar unsupported assertion that large signs are “distracting.” But once government starts allowing some signs and forbidding others, that rationale becomes patently arbitrary and irrational, and inherently suggests favortism for the content of some speech over others.