After the mural was completed, Wag More Dogs was notified that it violated the county’s sign ordinance and had to be removed or covered over. Wag More Dogs then filed suit against the county claiming a variety of First Amendment violations. The district court dismissed, and the Fourth Circuit affirmed on appeal. Wag More Dogs, LLC v. Cozart, 680 F.3d 359 (4th Cir. 2012).
The court first addressed the issue of content-neutrality and explained that it applied a three-pronged test:
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 government’s interests in the regulation are unrelated to the content of the affected speech.In the court’s view, the sign ordinance at issue in this case was clearly content-neutral. As the court explained, the ordinance was adopted to regulate land use, not to stymie a particular disfavored message, and it did not become a content-based restriction simply because it differentiated between certain types of speech (e.g. by imposing size requirements on “business signs” that did not apply to similar noncommercial signs).
Next, the court found that the ordinance satisfied the intermediate scrutiny test. This standard, which is applied in commercial speech cases, permits content-neutral restrictions on speech if they further a substantial government interest, are narrowly tailored to further that interest, and leave open ample alternative channels of communication. As the court explained, the sign ordinance was enacted to promote traffic safety and enhance aesthetics, both of which are substantial government interests, and the ordinance’s size and location restrictions were narrowly tailored to further those interests because they did “no more than eliminate the exact source of the evil it sought to remedy.” Finally, the ordinance left open ample alternative channels of communication by generally permitting the display of all types of signs, subject to only size and location restrictions. As the court noted in this regard, Wag More Dogs could have lawfully displayed its mural if it were no more than 60 square feet in size.
The court also rejected Wag More Dogs’ argument that the mural was non-commercial speech entitled to greater First Amendment protection. As the court noted, the mural incorporated cartoon dogs from the business’ logo and, more importantly, Wag More Dogs had conceded in its complaint that the painting was meant to attract customers from the dog park.
Next, the court rejected Wag More Dogs’ contention that the ordinance’s general definition of the term “sign” rendered the entire regulation void for vagueness. As the court explained, “Wag More Dogs’ entreaties to view the definition of ‘sign’ in a vacuum and envision ways in which the provision is inadequate amount to no more than the kind of ‘speculation and possible vagueness in hypothetical situations’ that we will not consider. Wag More Dogs has simply not alleged that application of the ‘sign’ definition undermines the conclusion that the Sign Ordinance ‘is surely valid in the vast majority of its intended applications.”
Turning to the standards of enforcement, the court rejected Wag More Dogs’ allegations of discriminatory enforcement because its contentions amounted to nothing more than speculations.
Finally, the court disagreed with Wag More Dogs’ allegation that the comprehensive sign plan provision operated as a prior restraint on speech. Rather, the court found that the provision met the standards required of content-neutral licensing regulations, namely, that they must “contain adequate standards to guide the official’s decision and render it subject to effective judicial review.” This standard was met, the court found, by terms in the provision that allowed the Arlington Board to grant an exemption if it found that the proposed use would not “(1) affect adversely the health or safety of persons residing or working in the neighborhood of the proposed use; (2) be detrimental to the public welfare or injurious to property or improvements in the neighborhood; or (3) be in conflict with the purposes of the master plans of the County.”
Sources:
- Wag More Dogs, LLC v. Cozart, 680 F.3d 359 (4th Cir. 2012)
- Tom Jackman, Arlington’s Wag More Dogs mural is no more, The Washington Post State of NoVa Blog, Sep. 25, 2012
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