As the outcome of Reed v. Town of Gilbert hangs in the balance, another case challenging a local sign code has been filed with the Supreme Court. This week, the plaintiff in Central Radio Company, Inc. v. City of Norfolk filed a petition for writ of certiorari seeking review of the Fourth Circuit Court of Appeals’ January decision upholding the City of Norfolk, Virginia’s sign regulations against a First Amendment challenge.
The history of Central Radio began in 1998, when Norfolk approved a redevelopment plan allowing for a taking by eminent domain of Central Radio Company’s property as part of an Old Dominion University campus expansion and redevelopment plan. In response to the city’s action and a Virginia state court ruling allowing the city to proceed with its plans, in 2012, the property owners placed a 375 square-foot protest banner on the building which was the subject of the eminent domain proceeding. Because the banner was placed without a permit and exceeded the size limits applicable to temporary signs, the city took enforcement action against Central Radio Company. The trial court denied the plaintiff’s motion for summary judgment, and the Fourth Circuit affirmed. During the course of the proceedings on the plaintiff’s First Amendment action, in 2013, the Virginia Supreme Court found that the city was barred from taking Central Radio Company’s property.
Much like the Gilbert, Arizona sign code in Reed, the Norfolk code regulates signs based upon categories of speech. Category-based regulation of speech is the subject of a federal circuit split that is expected to be resolved by the Reed decision, which will likely be released in June. In upholding the Norfolk sign code, the Fourth Circuit opinion in Central Radio applied logic similar to the Ninth Circuit’s challenged Reed decision. The Central Radio cert petition requests that the Supreme Court require the Fourth Circuit to revisit its decision following the release of the Reed opinion, or in the event that the split goes unresolved following Reed, to resolve the circuit split in favor of the plaintiff. No brief in opposition to the petition has been filed by the City of Norfolk.