Central Radio Company Inc. v. City of Norfolk

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-1996
CENTRAL RADIO COMPANY INC; ROBERT WILSON; KELLY DICKINSON,
Plaintiffs - Appellants,
v.
CITY OF NORFOLK, VIRGINIA,
Defendant - Appellee.
No. 13-1997
CENTRAL RADIO COMPANY INC; ROBERT WILSON; KELLY DICKINSON,
Plaintiffs - Appellees,
v.
CITY OF NORFOLK, VIRGINIA,
Defendant - Appellant.
On Remand from the Supreme Court of the United States.
(S. Ct. No. 14-1201)
Argued: September 17, 2014 Decided: January 29, 2016
Before GREGORY, AGEE, and KEENAN, Circuit Judges.
Dismissed in part, affirmed in part, reversed in part, and
remanded by published opinion. Judge Keenan wrote the opinion,
in which Judge Gregory and Judge Agee joined.
ARGUED: Michael Eugene Bindas, INSTITUTE FOR JUSTICE, Bellevue,
Washington, for Appellants/Cross-Appellees. Adam Daniel Melita,
CITY ATTORNEY'S OFFICE, Norfolk, Virginia, for Appellee/Cross-
Appellant. ON BRIEF: Robert P. Frommer, Erica Smith, INSTITUTE
FOR JUSTICE, Arlington, Virginia, for Appellants/Cross-
Appellees. Melvin W. Ringer, CITY ATTORNEY'S OFFICE, Norfolk,
Virginia, for Appellee/Cross-Appellant.
2
BARBARA MILANO KEENAN, Circuit Judge:
In this appeal, we consider whether the district court
erred in granting summary judgment to the City of Norfolk on
claims that the City’s sign ordinance violated the plaintiffs’
rights under the First Amendment and the Equal Protection Clause
of the Fourteenth Amendment. The plaintiffs, a radio
manufacturing and repair business and two of its managers,
asserted that the sign ordinance unconstitutionally exempted
certain displays from regulation, effectuated a prior restraint
on speech, and was enforced selectively in a discriminatory
manner by zoning officials.
Our resolution of this appeal is guided by the Supreme
Court’s recent decision in Reed v. Town of Gilbert, 135 S. Ct.
2218 (2015). Applying the principles of content neutrality
articulated in Reed, we hold that the sign ordinance challenged
in the plaintiffs’ complaint is a content-based regulation that
does not survive strict scrutiny. Accordingly, we reverse the
district court’s judgment with respect to the plaintiffs’ First
Amendment challenge and remand that claim to the district court
to award nominal damages to the plaintiffs and for consideration
of other appropriate relief. However, we find no merit in the
plaintiffs’ selective enforcement claim, and we affirm the
court’s disposition of that claim.
3
Because the City of Norfolk amended the sign ordinance in
October 2015 following the Court’s decision in Reed, we also
conclude that the plaintiffs’ request for prospective relief
based on the content restrictions in the prior ordinance is
moot. On remand, the district court may consider whether the
plaintiffs may bring a new claim challenging the
constitutionality of the amended ordinance and seek any
associated injunctive relief.
I.
A.
The City of Norfolk (the City) adopted a zoning ordinance
that included a chapter governing the placement and display of
signs (the former sign code). 1 See Norfolk, Va., Code app. A
§ 16 (2012). The City enacted the former sign code for several
reasons, including to “enhance and protect the physical
appearance of all areas of the city,” and to “reduce the
distractions, obstructions and hazards to pedestrian and auto
traffic caused by the excessive number, size or height,
1 In November 2014, the City amended the former sign code to
remove the code’s exemption for flags or emblems of “religious
organizations.” See Norfolk, Va., Ordinance 45,769 § 1 & Ex. A
(Nov. 25, 2014). The City amended the ordinance again in
October 2015, as we discuss further below. Unless otherwise
noted, all citations in this opinion are to the pre-amendment
version of the former sign code challenged in the plaintiffs’
complaint, see J.A. 231-82.
4
inappropriate types of illumination, indiscriminate placement or
unsafe construction of signs.” Id. § 16-1.
The former sign code applied to “any sign within the city
which is visible from any street, sidewalk or public or private
common open space.” Id. § 16-2. However, as defined in the
ordinance, the term “sign” did not encompass any “flag or emblem
of any nation, organization of nations, state, city, or any
religious organization,” or any “works of art which in no way
identify or specifically relate to a product or service.” Id.
§ 2-3. Such exempted displays were not subject to regulation
under the former sign code.
With respect to signs that were eligible for regulation,
the former sign code generally required that individuals apply
for a “sign certificate” verifying compliance with the code.
Id. §§ 16-5.1, 16-5.3. Upon the filing of such an application,
the City was required to issue a “sign certificate” if the
proposed sign complied with the provisions that applied in the
zoning district where the sign was to be located. Id. §§ 16-
5.4, 16-8.
In the “I-1” industrial zoning district in which plaintiff
Central Radio Company Inc.’s (Central Radio) property is
located, the former sign code restricted the size of signs. Id.
§ 16-8.3. The size restrictions varied depending on whether a
sign was categorized as a “temporary sign,” which was permitted
5
to be as large as 60 square feet, a “freestanding sign,” which
was permitted to be as large as 75 square feet, or an “other
than freestanding sign,” which was permitted to be as many
square feet as the number of linear feet of building frontage
facing a public street. 2 Id. The City did not patrol its zoning
districts for violations of size restrictions or other
provisions of the former sign code, but did inspect displays in
response to complaints made by members of the public.
B.
The plaintiffs’ challenges to the City’s sign code relate
to a protest of certain adverse action taken against Central
Radio by the Norfolk Redevelopment and Housing Authority (NRHA).
The NRHA is a chartered political subdivision of Virginia, and
consists of an independent committee of seven members appointed
by the Norfolk City Council. See Va. Code Ann. § 36-4.
2
Under the former sign code, a “temporary sign” was “[a]
sign or advertising display constructed of cloth, canvas,
fabric, paper, plywood or other light material designed to be
displayed and removed within [specified] time periods.”
Norfolk, Va., Code app. A § 16-3 (2012). A “freestanding sign”
was “[a]ny sign placed upon or supported by the ground
independently of any other structure.” Id. An “other than
freestanding sign,” or “wall sign,” as it was colloquially
described by the parties and by the district court, was “[a]
sign fastened to the wall of a building or structure in such a
manner that the wall becomes the supporting structure for, or
forms the background surface of, the sign or a sign painted
directly on the wall of the structure.” Id.
6
In April 2010, the NRHA initiated condemnation proceedings
against Central Radio and several other landowners, allegedly
intending to take and transfer the various properties to Old
Dominion University (ODU). Central Radio and the other
landowners successfully opposed the taking in state court.
Although a trial court initially ruled in favor of the NRHA,
that ruling was reversed on appeal by the Supreme Court of
Virginia. PKO Ventures, LLC v. Norfolk Redevelopment & Hous.
Auth., 747 S.E.2d 826, 829-30 (Va. 2013) (holding that the NRHA
lacked the statutory authority to acquire non-blighted property
by eminent domain). Accordingly, the condemnation proceeding
against Central Radio was dismissed. Norfolk Redevelopment &
Hous. Auth. v. Central Radio Co., No. CL102965, 2014 WL 3672087
(Va. Cir. Ct. Apr. 15, 2014).
In March 2012, while the appeal was pending in state court,
Central Radio’s managers placed a 375-square-foot banner (the
banner) on the side of Central Radio’s building facing Hampton
Boulevard, a major, six-lane state highway. The banner depicted
an American flag, Central Radio’s logo, a red circle with a
slash across the words “Eminent Domain Abuse,” and the following
message in rows of capital letters: “50 YEARS ON THIS STREET /
78 YEARS IN NORFOLK / 100 WORKERS / THREATENED BY / EMINENT
7
DOMAIN!” 3 The plaintiffs intended that the banner “be visible
for several blocks along Hampton Boulevard” and “make a
statement about Central Radio’s fight with the NRHA,” which
would constitute “a shout” rather than “a whisper.”
An employee of ODU complained about the banner to a City
official, who notified the City’s zoning enforcement staff. The
City official did not identify the source of the complaint to
zoning officials. After investigating the matter, a zoning
official informed Central Radio’s managers that the banner
violated the applicable size restrictions set forth in the
former sign code. At a later inspection, zoning officials noted
that the plaintiffs had failed to bring the display into
compliance with the former sign code, and ultimately issued
Central Radio citations for displaying an oversized sign and for
failing to obtain a sign certificate before installing the sign. 4
3
The Appendix to this Opinion contains a photograph of the
plaintiffs’ display.
4
At the time of the first visit, a City zoning official
stated that Central Radio’s banner could not exceed 40 square
feet, because the building wall facing Hampton Boulevard was 40
feet long. This calculation appeared to treat Central Radio’s
banner as an “other than freestanding sign” or “wall sign” under
the size restrictions of the former sign code. See Norfolk,
Va., Code app. A § 16-8.3(c) (2012). However, when City zoning
officials returned to the Central Radio site less than a week
later, they stated that Central Radio’s banner could not exceed
60 square feet, a determination apparently based on the
restrictions governing “temporary signs.” See id. § 16-8.3(a).
Ultimately, the written citation issued by the City required
(Continued)
8
In May 2012, the plaintiffs initiated a civil action to
enjoin the City from enforcing the former sign code. The
plaintiffs alleged that the former sign code was
unconstitutional because it subjected their display to size and
location restrictions, but exempted certain “flag[s] or
emblem[s]” and “works of art” from any similar limitations.
Although they contended that the former sign code constituted a
content-based restriction subject to strict scrutiny, the
plaintiffs argued in the alternative that the former sign code
also failed to satisfy intermediate scrutiny. The plaintiffs
further alleged that the former sign code’s provision requiring
them to obtain a sign certificate before erecting a display
effectuated an impermissible prior restraint on speech, and that
the City selectively applied the former sign code to the
plaintiffs’ display in a discriminatory manner. In addition to
requesting declaratory relief and nominal damages, the
plaintiffs moved for a temporary restraining order and a
preliminary injunction.
The district court denied the plaintiffs’ motions and,
after discovery was completed, granted summary judgment in favor
of the City. In doing so, the court concluded that the
Central Radio to reduce the size of its banner to 60 square feet
or less.
9
provisions in the former sign code exempting flags, emblems, and
works of art were content-neutral. Applying intermediate
scrutiny, the court held that the former sign code was a
constitutional exercise of the City’s regulatory authority.
Further, the court held that the challenged sign ordinance
exemptions were reasonably related to the City’s interests in
promoting traffic safety and aesthetics, because such exempted
displays “are less likely to distract drivers than signs” and
“are commonly designed to be aesthetically pleasing.” In
reaching this conclusion, the court also rejected the
plaintiffs’ prior restraint and selective enforcement claims.
After the court entered final judgment, the plaintiffs filed
this appeal. 5
We heard argument and issued a decision consistent with our
then-applicable case law, which affirmed the district court’s
judgment. Central Radio petitioned for certiorari to the
Supreme Court, which granted the petition, vacated our opinion,
5
We disagree with the City’s contention that the district
court abused its discretion in extending the deadline for filing
the appeal after finding that any neglect by plaintiffs’ counsel
was excusable. Cf. Thompson v. E.I. DuPont de Nemours & Co., 76
F.3d 530, 532 n.2 (4th Cir. 1996) (observing that the decision
to grant an enlargement of time upon a showing of excusable
neglect “remains committed to the discretion of the district
court”). The district court did not exceed its discretion in
excusing a brief delay that did not prejudice the defendant or
result from any bad faith on the plaintiffs’ part. See, e.g.,
Salts v. Epps, 676 F.3d 468, 474-75 (5th Cir. 2012).
10
and remanded for us to reconsider the case in light of its June
2015 decision in Reed. Cent. Radio Co. v. City of Norfolk, 776
F.3d 229 (4th Cir. 2015), vacated and remanded, 135 S. Ct. 2893
(2015). We later requested that the parties file supplemental
briefing on that issue.
Following the parties’ supplemental briefing, the City
filed a motion suggesting that certain of the plaintiffs’
requests for relief are now moot in light of the City’s decision
in October 2015 to amend the former sign code to comply with
Reed. The current sign code (the amended sign code) no longer
exempts certain flags, emblems, and works of art from
regulation, but does specify that works of art and flags are
“examples of items which typically do not satisfy” the code’s
definition of “sign.” See Norfolk, Va., Ordinance 46,108 Ex. A
§ 2-3 (Oct. 27, 2015). The amended sign code also imposes a
time limit on the City’s decision to issue or deny a sign
certificate by deeming a request approved if the City has not
acted within a prescribed period. Id. § 16-10.2(b). The
plaintiffs oppose the City’s request that portions of the appeal
be dismissed as moot.
11
II.
A.
The parties’ main arguments on appeal concern whether the
former sign code was a content-neutral restriction on speech
reviewed under intermediate scrutiny, or a content-based
restriction subject to strict scrutiny. As we explain below, we
agree with the plaintiffs that, under Reed, the former sign code
was a content-based restriction that cannot withstand strict
scrutiny.
1.
We begin by considering the City’s contention that certain
of the plaintiffs’ requests for relief are now moot because the
amended sign code does not exclude flags, emblems, and works of
art from the definition of “sign.” Under the mootness doctrine,
we do not have jurisdiction over a case if an actual controversy
does not exist at the time of appeal. See Brooks v. Vassar, 462
F.3d 341, 348 (4th Cir. 2006). As relevant here, “[w]hen a
legislature amends . . . a statute, a case challenging the prior
law can become moot even where re-enactment of the statute at
issue is within the power of the legislature,” so long as re-
enactment does not appear probable. Id. (citation and internal
quotation marks omitted).
The City appears to concede that the plaintiffs’ request
for retrospective relief in the form of nominal damages, based
12
on an alleged unconstitutional content-based restriction on
speech, is not moot. We agree. See Covenant Media of S.C., LLC
v. City of N. Charleston, 493 F.3d 421, 429 n.4 (4th Cir. 2007)
(holding that a plaintiff’s challenge to a later-amended
ordinance was not moot, because the plaintiff sought nominal and
compensatory damages).
We conclude, however, that the plaintiffs’ request for
prospective injunctive relief is moot, because the challenged
language of the former sign code exempting certain flags,
emblems, and works of art from regulation is no longer in force.
In light of the City’s submission that it amended the former
sign code to comply with the Court’s decision in Reed, we are
confident that there is “little likelihood” that the City will
re-enact the prior version of the ordinance. Am. Legion Post 7
of Durham, N.C. v. City of Durham, 239 F.3d 601, 606 (4th Cir.
2001). We therefore dismiss the portion of this appeal relating
to the plaintiffs’ request for prospective relief on this claim.
2.
We turn to consider whether the former sign code imposed a
content-neutral or a content-based restriction on speech. In
evaluating the content neutrality of a sign regulation
restricting speech, we focus on the Supreme Court’s decision in
Reed v. Town of Gilbert, 135 S. Ct. 2218 (2015). We recently
observed that this decision conflicted with, and therefore
13
abrogated, our Circuit’s previous formulation for analyzing
content neutrality, in which we had held that “[t]he
government’s purpose is the controlling consideration.” Cahaly
v. LaRosa, 796 F.3d 399, 405 (4th Cir. 2015) (quoting
Clatterbuck v. City of Charlottesville, 708 F.3d 549, 555 (4th
Cir. 2013)); see, e.g., Clatterbuck, 708 F.3d at 556 (describing
that we applied a “pragmatic rather than formalistic approach to
evaluating content neutrality” under which a regulation “is only
content-based if it distinguishes content with a censorial
intent”) (citation and internal quotation marks omitted).
As we explained in Cahaly, the Supreme Court in Reed
rejected such an approach. Instead, the Court held that at the
first step of the content neutrality analysis, the government’s
justification or purpose in enacting a sign regulation is
irrelevant. Cahaly, 796 F.3d at 405. Accordingly, under the
holding in Reed, “[g]overnment regulation of speech is content
based if a law applies to particular speech because of the topic
discussed or the idea or message expressed.” Reed, 135 S. Ct.
at 2227. Only when a regulation does not expressly draw
distinctions based on a sign’s communicative content may we
examine, at the second step of the Reed analysis, whether the
regulation “cannot be ‘justified without reference to the
content of the regulated speech,’ or . . . [was] adopted by the
government ‘because of disagreement with the message [the
14
speech] conveys.’” Id. (quoting Ward v. Rock Against Racism,
491 U.S. 781, 791 (1989)).
Although we considered a sign ordinance with exemptions
similar to those presented by this appeal in Brown v. Town of
Cary, 706 F.3d 294 (4th Cir. 2013), in that case we applied an
analysis that is no longer valid due to the Supreme Court’s
decision in Reed. Indeed, the panel in Brown was bound by our
earlier precedent, thereby moving directly to the second step of
the Reed analysis. See id. at 304-05 (determining that
exemptions for “public art” and governmental or religious
“holiday decorations” were reasonably related to government
interests in traffic safety and aesthetics, justifying
application of intermediate scrutiny).
Now informed by the Supreme Court’s directives in Reed, we
begin our analysis by considering whether the City’s former sign
code “applie[d] to particular speech because of the topic
discussed or the idea or message expressed.” Reed, 135 S. Ct.
at 2227. Based on Reed, we hold that the City’s regulation was
a content-based restriction of speech. The former sign code
exempted governmental or religious flags and emblems, but
applied to private and secular flags and emblems. In addition,
it exempted “works of art” that “in no way identif[ied] or
specifically relate[d] to a product or service,” but it applied
to art that referenced a product or service. On its face, the
15
former sign code was content-based because it applied or did not
apply as a result of content, that is, “the topic discussed or
the idea or message expressed.” Id.; see also Cahaly, 796 F.3d
at 405 (holding South Carolina’s anti-robocall statute is
content-based regulation because it “applies to calls with a
consumer or political message but does not reach calls made for
any other purpose”); Solantic, LLC v. City of Neptune Beach, 410
F.3d 1250, 1264-66 (11th Cir. 2005) (applying the same test
articulated in Reed to a city sign code, and holding that an
exemption applicable to “flags and insignia only of a
‘government, religious, charitable, fraternal, or other
organization’” was “plainly content based” because “some types
of signs are extensively regulated while others are exempt from
regulation based on the nature of the messages they seek to
convey”).
3.
Because the former sign code was a content-based regulation
of speech, we apply strict scrutiny in determining its
constitutionality. Reed, 135 S. Ct. at 2231. Under this
standard, the government must show that the regulation
“further[ed] a compelling interest and [wa]s narrowly tailored
to achieve that interest.” Id. (quotation omitted).
With respect to narrow tailoring, we require the government
to prove that no “less restrictive alternative” would serve its
16
purpose. United States v. Playboy Entm’t Grp., Inc., 529 U.S.
803, 813 (2000). A regulation is unconstitutionally
overinclusive if it “unnecessarily circumscrib[es] protected
expression,” Republican Party of Minn. v. White, 536 U.S. 765,
775 (2002) (quotation omitted), and is fatally underinclusive if
it “leav[es] appreciable damage to [the government’s] interest
unprohibited,” Reed, 135 S. Ct. at 2232 (quotation omitted).
The former sign code was enacted to promote the City’s
“physical appearance” and to “reduce the distractions,
obstructions and hazards to pedestrian and auto traffic.”
Although interests in aesthetics and traffic safety may be
“substantial government goals,” Metromedia, Inc. v. City of San
Diego, 453 U.S. 490, 507-08 (1981) (plurality opinion), neither
we nor the Supreme Court have ever held that they constitute
compelling government interests. See, e.g., Neighborhood
Enters., Inc. v. City of St. Louis, 644 F.3d 728, 738 (8th Cir.
2011) (stating that interests in aesthetics and traffic safety,
“while significant, have never been held to be compelling”);
McCormack v. Twp. of Clinton, 872 F. Supp. 1320, 1325 n.2
(D.N.J. 1994) (noting that “while courts certainly have
recognized states’ and municipalities’ interests in aesthetics
and safety, no court has ever held that these interests form a
compelling justification for a content-based restriction of
political speech”). The City’s proffered evidence on this point
17
fell far below any threshold by which a trier of fact could
conclude that a compelling government interest existed. See
Dimmitt v. City of Clearwater, 985 F.2d 1565, 1569-70 (11th Cir.
1993) (“The deleterious effect of graphic communication upon
visual aesthetics and traffic safety, substantiated here only by
meager evidence in the record, is not a compelling state
interest of the sort required to justify content based
regulation of noncommercial speech.”).
Even if we were to assume, however, that the City’s
asserted interests provided compelling justification for
content-based restrictions of speech, the City has failed to
show that its restrictions were narrowly tailored to serve those
interests. Indeed, just as in Reed, the City’s exemptions from
the former sign code were “hopelessly underinclusive.” 135 S.
Ct. at 2231.
With respect to the City’s stated interest in preserving
aesthetic appeal, for example, the flag of a private or secular
organization was “no greater an eyesore” than the flag of a
government or religion, id. (quoting City of Cincinnati v.
Discovery Network, Inc., 507 U.S. 410, 425 (1993)), and works of
art that referenced a product or service did not necessarily
detract from the City’s physical appearance any more than other
works of art. Yet, the former sign code allowed the unlimited
proliferation of governmental and religious flags, as well as
18
works of art that met the City’s dubious criterion, while
sharply restricting the number and size of flags and art bearing
other messages. See Dimmitt, 985 F.2d at 1570 (stating that the
asserted interests in aesthetics and traffic safety “clearly are
not served by the distinction between [exempted] and other types
of flags; therefore, the regulation is not ‘narrowly drawn’ to
achieve its asserted end”).
The City also has not shown that limiting the size and
number of private and secular flags, as well as works of art
that referenced products or services, was necessary to eliminate
threats to traffic safety. There is no evidence in the record
that secular flags were any more distracting than religious
ones, or that a large work of art displaying a reference to a
product threatened the safety of motorists any more than any
other large, exempted pieces of artwork.
Given the underinclusiveness of the former sign code, the
City has failed to satisfy its burden of proving that its
restriction of speech was narrowly tailored to further a
compelling government interest. Accordingly, we conclude that
the former sign code fails strict scrutiny, and therefore was
unconstitutional under the First Amendment. 6
6Given our conclusion that the former sign code was
unconstitutional, we need not reach the plaintiffs’ alternative
argument that the former sign code’s requirement that a
(Continued)
19
B.
The plaintiffs also argue that the City selectively
enforced the former sign code in violation of the First
Amendment and the Equal Protection Clause of the Fourteenth
Amendment when the City issued the citations to the plaintiffs
but allowed analogous displays to stand unchallenged. A
selective enforcement claim of this nature requires a plaintiff
to demonstrate that the government’s enforcement process “had a
discriminatory effect and that it was motivated by a
discriminatory purpose.” Wayte v. United States, 470 U.S. 598,
608 (1985). Thus, a plaintiff must show not only that similarly
situated individuals were treated differently, but that there
was “clear and intentional discrimination.” Sylvia Dev. Corp.
v. Calvert Cnty., Md., 48 F.3d 810, 825 (4th Cir. 1995) (citing
Washington v. Davis, 426 U.S. 229, 239 (1976)).
Even assuming, without deciding, that the City’s past
refusal to enforce strictly the former sign code constituted
evidence of discriminatory effect, 7 dismissal of the plaintiffs’
certificate be obtained before displaying a sign, without
imposing time limits or standards on the City’s method for
granting such certificates, constituted an impermissible prior
restraint on speech under the First Amendment.
7 On appeal, the City appears to have conceded that it
declined to enforce the former sign code against the oversized
electronic message board of a local museum, but maintains that
“Central Radio failed to show that the decision to forego
(Continued)
20
selective enforcement claim was proper because there was
insufficient evidence that the City was motivated by a
discriminatory intent. We have recognized several factors as
probative in determining discriminatory intent, including:
(1) evidence of a “consistent pattern” of actions by
the decisionmaking body disparately impacting members
of a particular class of persons; (2) historical
background of the decision, which may take into
account any history of discrimination by the
decisionmaking body or the jurisdiction it represents;
(3) the specific sequence of events leading up to the
particular decision being challenged, including any
significant departures from normal procedures; and (4)
contemporary statements by decisionmakers on the
record or in minutes of their meetings.
Sylvia Dev., 48 F.3d at 819 (citing Vill. of Arlington Heights
v. Metro. Hous. Dev. Corp., 429 U.S. 252, 266-68 (1977)).
None of these factors weighs in the plaintiffs’ favor.
Although the plaintiffs attempt to impugn the City’s motives in
enforcing the former sign code against their banner protesting
the use of eminent domain by the NRHA, the record is devoid of
evidence that the City attempted to reduce the size of Central
Radio’s sign because the City disagreed with Central Radio’s
message or sought to suppress a message that was critical of the
NRHA, an independent entity. Also absent from the record is any
enforcement was motivated by a desire to favor some particular
message.”
21
indication of “significant departures from normal procedures” by
City zoning officials, id., who received a complaint about a
sign, conducted an investigation, consulted with one another,
and issued Central Radio a verbal warning followed by written
citations.
We agree with the district court that the City’s past
failure to enforce the former sign code strictly, and the City’s
more zealous efforts to do so since the commencement of this
litigation, are not sufficient to substantiate the “invidiously
discriminatory intent” that is required of a selective
enforcement claim. Sylvia Dev., 48 F.3d at 819 (citations and
internal quotation marks omitted). Instead, the plaintiffs must
show “that the decisionmaker . . . selected or reaffirmed a
particular course of action at least in part ‘because of,’ not
merely ‘in spite of,’ its adverse effects upon an identifiable
group.” Id. at 819 n.2 (citation and internal quotation marks
omitted). Such evidence is wholly lacking in this case.
Accordingly, we affirm the district court’s award of summary
judgment on the plaintiffs’ selective enforcement claim.
III.
Finally, the plaintiffs maintain that the amended sign code
continues to impose an unconstitutional content-based
restriction on speech by listing governmental flags and works of
22
art as examples of items that typically will not qualify as
signs. We decline to consider this new challenge to the amended
sign code in the first instance. We also decline to consider
the plaintiffs’ argument that the amended sign code continues to
impose an unconstitutional prior restraint despite the time
limits included in the amended sign code. On remand, the
district court is free to consider any new claims or arguments
the plaintiffs wish to raise related to the amended sign code,
as the court deems appropriate.
For the foregoing reasons, we dismiss the appeal in part,
and we affirm in part and reverse in part the district court’s
judgment. We remand the issue of nominal damages on Count Two
to the district court for a determination in the first instance.
DISMISSED IN PART, AFFIRMED IN PART,
REVERSED IN PART, AND REMANDED
23
APPENDIX
24