Volokh Conspiracy: Can a city suppress speech protesting eminent domain?

The Institute for Justice had petitioned the Supreme Court to take an interesting case out of the Fourth Circuit involving the suppression of free speech protesting a taking of private property. Here is the press release:

Case Appealed to U.S. Supreme Court Shows How If We Lose One Right, We Can Lose Them All

First the Government Tried to Illegally Take Their Land, Then the Government Silenced Them So They Couldnt Hang a Protest Banner on Their Own Property

Key Facts This case started with government abusing its power of eminent domain. 10 years ago, the U.S. Supreme Court issued its infamousKeloruling eviscerating constitutional protections against eminent domain abuse. Company hung a protest banner; the government demanded they cover it up.

Arlington, Va.Ten years ago, in its infamousKelodecision, the U.S. Supreme Court adopted a radically broad interpretation of the governments power to take private property through eminent domain. But the Court recognized that the necessity and wisdom of using eminent domain are matters of legitimate public debate. Central Radio Company attempted to participate in that debate when the government tried to take its property through eminent domain. The city of Norfolk, Va., however, prevented it from doing so, barring the company from hanging a protest banner on the land in dispute. Now Central Radio is taking its fight to the U.S. Supreme Court,asking the Court to review a major case at the intersection of free speech and property rights.

This case demonstrates just how intertwined our constitutional rights arehow protecting free speech is essential to protecting our other fundamental liberties, including property rights, noted Michael Bindas, a senior attorney with the Institute for Justice, which represents Central Radio.

Central Radio has been a Norfolk institution for more than 80 years, but in 2010 the Norfolk Redevelopment and Housing Authority moved to take its land and building through eminent domain and turn it over to nearby Old Dominion University (a land grab Central Radio would ultimately defeat). In response to the threat, Central Radio hunga 375-square foot protest banneron the very building the government was trying to take. It read: 50 years on this street/78 years in Norfolk/100 workers/Threatened by eminent domain!

Acting on a complaint made by an official at Old Dominionthe very entity that stood to acquire Central Radios propertythe city quickly cited Central Radio and ordered the banner be taken down. Yet, under Norfolks sign code, the banner would have been allowed if it had fallen into one of the various favored categories of signs that Norfolk exempts from regulation. For example, a banner of the same size, in the same location, would have been perfectly permissible if, rather than protesting city policy, it depicted the city flag or crest.

In the fall of 2013, the Virginia Supreme Court held that the citys attempted taking of Central Radios property was illegal, vindicating the companys property rights. Unfortunately, however, the federal courts refused to vindicate Central Radios free speech rights. When the company challenged the citys sign code under the First Amendment, the U.S. District Court for the Eastern District of Virginia upheld it. And in January 2015, a divided 2-1decision of the U.S. 4thCircuit Court of Appeals affirmed the district court.

According to the 4thCircuit majority opinion, it was irrelevant that the sign code drew distinctions between different types of banners based on their content so long as those distinctions were what the court deemed reasonable. Moreover, restricting Central Radios banner was warranted, according to the majority, because some passersby had reacted emphatically to the sign by waving, honking and shouting in support when they saw it. The majority claimed that these expressions of support were evidence that motorists [we]re distracted by [the] sign while driving.

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Volokh Conspiracy: Can a city suppress speech protesting eminent domain?