The Institute for Justice (IJ) is asking the U.S. Supreme Court to hear an appeal of a Fourth Circuit ruling in a case that deals with the intersection of eminent domain and free speech. From the IJ Web site:

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 hung a 375-square foot protest banner on 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 Dominion—the very entity that stood to acquire Central Radio’s property—the city quickly cited Central Radio and ordered the banner be taken down. Yet, under Norfolk’s 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 city’s attempted taking of Central Radio’s property was illegal, vindicating the company’s property rights. Unfortunately, however, the federal courts refused to vindicate Central Radio’s free speech rights. When the company challenged the city’s 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 2-1 decision of the U.S. 4th Circuit Court of Appeals affirmed the district court.

One criterion the Supreme Court has set for government efforts to restrict speech is that they be content neutral. Even here, the picture is a bit murky. For example, the court has also shown a willingness to protect political speech over commercial speech. That would seem to augur in favor of allowing the banner to stand. The city argues that its compelling interest in restricting speech here is public safety. That argument seems pretty thin, but two justices on the Fourth Circuit panel bought it.

  . . . restricting Central Radio’s 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.”

By that reasoning, when it comes to roadside signage, political speech would likely be less protected than commercial speech, provided the latter isn’t too provocative. If the argument here is that the more successful a roadside sign is at attracting attention and reaction from motorists the more cause the city has to prohibit it, that’s a rule that basically empowers cities and states to ban any signs with contentious political messages. In fact, it would conceivably empower them to prohibit any sign that criticizes the same governments making the rules. And the more egregious the government misconduct the sign is protesting, the more cause the government would have to ban it.

This reasoning also presents an interesting dilemma for commercial advertising — it seems to mean that the more successful your ad is at attracting the attention of potential customers, the more legal justification the city has to ban it.

Of course, those are just the legal issues here. There are political considerations as well. In order to rule on the free speech claim, the courts have to assume that the city is arguing in good faith. There’s no reason the rest of us should. We’re free to consider the possibility that city officials are merely upset that they lost the eminent domain case, and so they’re now pettily preventing the property owner from celebrating his victory over them. I’d say that’s not only possible, it’s likely. Imagine if another building a few miles down the road put up a banner celebrating the city’s wise and prudent development policies. Does anyone honestly think the owner of that property would need to go to court in order to keep his banner?