Agenda - Planning Commission - 04/04/2013

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Zoning Bulletin March 10, 2013 1 Volume 7 1 Issue 5 Town. He asserted that the Sign Ordinance was unconstitutional both facially (i.e., on its face) and as applied (to him), violating his rights under the First Amendment to the United States Constitution. Finding there were no material issues of fact in dispute, and deciding the matter based on the law alone, the district court ruled for Bowden. It held that since the Sign Ordinance exempted public art and holiday decorations from the restrictions that applied to all other types of signs, the Sign Ordinance was a content -based regulation, which had to be reviewed under a strict scrutiny standard. Under that standard, the court invalidated the Ordinance as being unconstitutional. The Town appealed. On appeal, the Town argued that the district court erred in applying the strict scrutiny standard. The Town argued that its regulations may distinguish speech based on content so long as its reasons for doing so are not based on the message conveyed. In other words, it argued that the Sign Ordinance was content neutral despite the exclusion of public art and holiday decorations from the restrictions that applied to all other signs because its reasons for the exclusion were not content based. Accordingly, the Town contended that the content- neutral Sign Ordinance should be analyzed under an intermediate scrutiny standard. Also, the Town maintained that the Ordinance was constitutional under that standard. DECISION: Reversed, and matter remanded. The United States Court of Appeals, Fourth Circuit, agreed with the Town's argument. The court held that the Sign Ordinance was constitutional. In so holding, the court "reject[ed] any absolutist reading of content neutrality, and instead orient[ed] [its] inquiry toward why —not whether — the Town ha[d] distinguished content in its regulation." The court said the purpose of content neutrality was to prevent a government from supervis- ing the "marketplace of ideas . . . [by] choos[ing] which issues are worth discussing or debating." A regulation is not a content -based regulation of speech, said the court, if: "(1) the regulation is not a regulation of speech, but rather a regulation of the places where some speech may occur; (2) the regulation was not adopted because of disagreement with the message the speech conveys; or (3) the government's interests in the regulation are un- related to the content of the affected speech." In other words, if a regulation is "justified without reference to the content of regulated speech," that regulation is deemed content neutral "even if it facially differentiates be- tween types of speech." Thus, here, in determining whether the Sign Ordinance was content based or content neutral, the court looked at: "whether the Sign Ordinance ha[d] distinguished content from whether it ha[d] distinguished because of content." (Emphasis in original.) In other words, the court refused to "mechanically `scour the ordinance' to see if it omit[ted] some categories of signs," but instead focused on "whether the restriction was adopted because of a disagreement with the message conveyed." The court found it clear that, while the Sign Ordinance distinguished © 2013 Thomson Reuters 7