Agenda - Planning Commission - 06/04/2015

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March 10, 2015 1 Volume 9 1 Issue 5 Zoning Bulletin In evaluating the content neutrality of the sign code, the court explained that a regulation is not a content -based regulation of speech 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 govern- ment's interests in the regulation are unrelated to the content of the affected speech. As to the sign code's distinction between the types of speech requir- ing a sign certificate (i.e., most signs requiring a certificate, but exemptions for flags, emblems, and works of art), the court said that "a distinction is only content -based if it distinguishes content 'with a censorial intent to value some forms of speech over others to distort public debate, to restrict expression because of its message, its ideas, its subject matter, or to pro- hibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.' " The court explained that it would find censo- rial intent if it could find a relationship between the sign code's purpose and the content distinctions in the sign code. Central Radio argued that a censorial intent existed here because the sign code exemptions were unrelated to the legislative interests behind the sign code, namely aesthetics and traffic safety. The court rejected that argument. It found that under the sign code, the City generally allowed signs regardless of the message displayed, and simply restricted the time, place, or manner of their location. Exemptions to those restrictions (i.e., for flags, emblems and works of art) may have had an "incidental effect on some speakers or messages," found the court, but the exemptions "did not convert the sign code into 'a content -based restriction on speech when the exemptions [bore] a `reasonable relationship' to the City's asserted interests" of aesthetics and traffic safety. The court found that works of art "enhance rather than harm aesthetic appeal," and flags and emblems have "a less significant impact on traffic safety than other, more distracting displays." Having found that the sign code was content -neutral (not content -based), the court then evaluated its constitutionality under intermediate scrutiny. Under such scrutiny, a content -neutral regulation is constitutional and valid if it: (1) furthers a substantial government interest; (2) is narrowly tailored to further that interest; and (3) leaves open ample alternative channels of communication. Here, the court found that all three elements were met: (1) Concerns for aesthetics and traffic safety were substantial government interests, which the sign code protected. (2) The sign code was narrowly tailored because it did not "burden substantially more speech than is neces- sary to further the [interests of aesthetics and traffic safety]," but regulated only the size and location of signs. (3) The sign code left open "ample alternative channels of communication" by "generally permitting the display of signs `subject only to size and location restrictions.' " See also: Wag More Dogs, Ltd. Liability Corp. v. Cozart, 680 F.3d 359 (4th Cir. 2012). See also: Brown v. Town of Cary, 706 F.3d 294 (4th Cir. 2013). 4 © 2015 Thomson Reuters