It Turns Out You Can Indeed Criticize the Government
As I wrote almost exactly a year ago, my friend Mark Sigmon filed a case on behalf of the ACLU seeking to prohibit a town in North Carolina from enforcing its sign ordinance against a man who painted “Screwed by the Town of Cary” on the side of his house. Well, yesterday, the federal district court granted the plaintiff David Bowden summary judgment and entered a permanent injunction against the town.
The court concluded that the sign ordinance was content-based under the First Amendment because it required more than a perfunctory inquiry into the content of signs in order to determine whether the ordinance would apply. For example, the ordinance required the town to determine whether something was a “work of art,” a “holiday message,” etc. The court then concluded that the town’s asserted interests in aesthetics and traffic safety were not compelling, and that even if they were, the ordinance was not narrowly tailored because it would allow, for example, a huge flashing holiday sign.
The opinion in the case makes clear that governments should not be in the business of looking at the substance of speech, except in the most superficial manner — for example, to determine if something is commercial speech or not. Because the law is not entirely clear in this area, if the Town of Cary appeals, the resulting opinion should be instructive. Hopefully the Fourth Circuit would affirm the district court and take another step to ensure that core speech is relatively unmolested. Especially political speech that you write on your own house.
Kudos to Mark and to the First Amendment.
Adding Free Speech Insult to Property Rights Injury
My friend and former law firm colleague Mark Sigmon — who co-authored Cato’s brief in the New Haven firefighters case — is representing a man facing daily fines for displaying a large political message on his house.
David Bowden was upset about the way he had been treated by the town of Cary, NC, regarding damage to his property during a road-widening project. This past July, Bowden hired someone to paint “Screwed By The Town of Cary” on the front of his house. A few weeks ago, the town gave Bowden seven days to remove the sign or face daily fines — $100 for the first day, $250 for the second, $500 for each subsequent day – for violating a local sign ordinance. That’s when Mark, who’s affiliated with the ACLU of North Carolina, filed a lawsuit on Bowden’s behalf. The complaint alleges that the town violated Bowden’s rights to free speech and to petition his government under the First Amendment and similar provisions of North Carolina’s constitution.
While the facts of this case are a bit colorful – and I’m sure Mark is enjoying the notoriety (here’s his appearance on Fox & Friends) — this is no laughing matter. The town appears to be compounding the damage it did to a resident’s property rights by now violating his rights to speech and political expression. At least now the town has agreed to refrain from enforcing its ordinance and levying fines until the case is resolved — which is essentially a capitulation to Bowden’s request for a preliminary injunction.
For more news on this story go here, here, and here. And you can read the ACLU’s press release and access all the legal pleadings in the case here.
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