SCOTUS Grants Cert in Eminent Domain Sign Case

While everyone was rightly focused on the flurry of historic decisions at the end of the Supreme Court term (including the raisins takings case, my personal favorite) the court also granted cert in an interesting sign regulation case that, until now, was not on my radar. Robert Thomas, head of the eminent domain committee of the ABA's State & Local Government Law Section, posted an interesting summary of the case on his blog: 

Central Radio placed a banner on the side of its building protesting government’s attempt to take the building by eminent domain. The City of Norfolk quickly cited Central Radio for violating the City’s sign code, despite not having enforced the code against any other political sign in at least a quarter-century. Although the sign code prohibited Central Radio’s protest banner, it exempts various other categories of signs from regulation. For example, Central Radio’s banner would have been allowed if, rather than protesting city policy, it depicted the city crest or flag.

The day after this Court heard argument in Reed v. Town of Gilbert, No. 13-502, the Fourth Circuit, over a dissent from Judge Gregory, upheld Norfolk’s sign code. Following the approach adopted by the Ninth Circuit in Reed, the Fourth Circuit found the challenged provisions content-neutral. Applying intermediate scrutiny to the sign code, it held that Norfolk was justified in restricting Central Radio’s banner because some passersby had honked, waved, or shouted in support of it.

The questions presented are:

1. Does Norfolk’s mere assertion of a content-neutral justification or lack of discriminatory motive render its facially content-based sign code content neutral and justify the code’s differential treatment of Central Radio’s protest banner?

2. Can government restrict a protest sign on private property simply because some passersby honk, wave, or yell in support of its message?

Given the court's general hostility to sign regulation (see, e.g. Reed v. Gilbert as discussed above and covered in this WaPo story) is the outcome in this forthcoming case a forgone conclusion?

Jamie Baker Roskie