George F. Will: Sign code as a weapon

Published: January 24, 2013
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78 YEARS IN NORFOLK

100 WORKERS

THREATENED BY EMINENT DOMAIN!

In the banner's lower right-hand corner is a circle with a red slash through the words “Eminent Domain Abuse.”

Today that circle is all that is visible. The city, acting on a complaint by ODU's Real Estate Foundation — the entity trying to seize the company's property — says the size of the full sign violates Norfolk's sign code. Norfolk's behavior is unconstitutional because:

The city's sign code, which is of rabbinical complexity, has been capriciously enforced — some banners on city and private buildings violate the code's size restrictions. The code is more permissive regarding signs with particular content (e.g., government messages or religious symbols), which violates First Amendment jurisprudence prohibiting content discrimination. The sign code is suddenly being more evenhandedly enforced but only because, a city official has admitted, since Central Radio began protesting, “people are watching.” Furthermore, any content-based speech restriction must pass judicial “strict scrutiny” by establishing that it is necessary to achieve a compelling governmental interest, but the government's only interest in restricting Central Radio's speech is to make it easier for the government to throw its weight around.

We have seen this before. A few years ago, a St. Louis man whose property was being seized under Kelo's permission for government theft adorned his building with a sign similar in size and message to that of Central Radio's. The city government tried to silence him with sign restrictions as flawed and capriciously enforced as Norfolk's are. An alderwoman explained with ruinous candor: “If this sign is allowed to remain, then anyone with property along any thoroughfare can paint signs … to influence passersby and with no control by any city agency.” Uncontrolled speech? Gracious.

The St. Louis man trounced the city in his sign dispute, helped by the Institute for Justice, a little platoon of libertarian litigators who roam the country putting leashes on misbehaving governments. Because IJ is representing Central Radio's First Amendment rights, Norfolk may have to content itself with traducing only one rather than two provisions of the Bill of Rights.

George Will's email address is georgewill@washpost.com.

WASHINGTON POST WRITERS GROUP