in the united states court of appeals - the national law ... · in the united states court of...

No. 11-1480

In The

United States Court of Appeals For the Fourth Circuit

DAWN D. BROWN, in her capacity as Administratrix of the Estate of William David Bowden,

Plaintiff – Appellee,

v.

TOWN OF CARY, Defendant – Appellant.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF NORTH CAROLINA AT RALEIGH

PETITION FOR PANEL REHEARING OR REHEARING EN BANC

Mark R. Sigmon GRAEBE HANNA & SULLIVAN, PLLC 4350 Lassiter at North Hills Avenue Suite 375 Raleigh, North Carolina 27609 (919) 863-9094 Counsel for Appellee

Christopher Brook AMERICAN CIVIL LIBERTIES UNION OF

NORTH CAROLINA LEGAL FOUNDATION Post Office Box 28004 Raleigh, North Carolina 27611 (919) 834-3466 Counsel for Appellee

Appeal: 11-1480 Doc: 67 Filed: 02/05/2013 Pg: 1 of 39

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TABLE OF CONTENTS

Page

Table of Authorities .................................................................................................. ii

FRAP 35(b)(1) and Local Rule 40(b) Statement ...................................................... 1

Statement of the Facts ............................................................................................... 3

Reasons for Granting the Petition ............................................................................. 4

A. The panel’s decision is incorrect and joins the wrong side of a circuit conflict ................................................................................ 5

B. The question presented is a matter of tremendous practical importance ............................................................................................ 9

Conclusion ............................................................................................................... 11


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TABLE OF AUTHORITIES

Page(s)

CASES ACLU of Ill. v. Alvarez,

679 F.3d 583 (7th Cir. 2012) ...................................................................... 5, 6 City of Los Angeles v. Alameda Books, Inc.,

535 U.S. 425 (2002) ................................................................................ 6, 7, 9 City of Renton v. Playtime Theatres, Inc.,

475 U.S. 41 (1986) ...................................................................................... 7, 8

Connick v. Myers,

461 U.S. 138 (1983) ........................................................................................ 3 Covenant Media of S.C., LLC v. City of N. Charleston,

493 F.3d 421 (4th Cir. 2007) .......................................................................... 7

First Nat’l Bank v. Bellotti,

435 U.S. 765 (1978) ........................................................................................ 3 G.K. Ltd. Travel v. City of Lake Oswego,

436 F.3d 1064 (9th Cir. 2006) ........................................................................ 6 H.D.V.-Greektown, LLC v. City of Detroit,

568 F.3d 609 (6th Cir. 2009) .......................................................................... 5

Hill v. Colorado,

530 U.S. 703 (2000) ........................................................................................ 9

Matthews v. Needham,

764 F.2d 58 (1st Cir. 1985) ............................................................................. 5 Melrose, Inc. v. City of Pittsburgh,

613 F.3d 380 (3d Cir. 2010)............................................................................ 6


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Menotti v. City of Seattle, 409 F.3d 1113 (9th Cir. 2005) .................................................................... 8, 9

National Advertising Co. v. Babylon,

900 F.2d 551 (2d Cir. 1990)............................................................................ 5 Neighborhood Enters, Inc. v. City of St. Louis,

644 F.3d 728 (8th Cir. 2011) .................................................................. 1, 2, 5 Perry Educ. Ass’n v. Perry Local Educators’ Ass’n,

460 U.S. 37 (1983) .......................................................................................... 8 Satellite Broad. & Commc’ns. Ass’n v. FCC,

275 F.3d 337 (4th Cir. 2001) .......................................................................... 7

Serv. Emp. lnt’l Union, Local 5 v. City of Houston,

595 F.3d 588 (5th Cir. 2010) ...................................................................... 2, 5 Solantic, LLC v. City of Neptune Beach,

410 F.3d 1250 (11th Cir. 2005) .................................................................. 2, 5

Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622 (1994) ............................................................................ 2, 6, 7, 9


FRAP 35(b)(1) AND LOCAL RULE 40(b) STATEMENT

This case involves the two types of speech most jealously protected by the

First Amendment: political speech and speech on private property. Original

plaintiff William David Bowden, angry at the Town of Cary for how it treated him

in connection with a road-widening and eminent domain project at his house,

painted a protest sign on the side of that house. The simple sign read, “Screwed by

the Town of Cary.” Claiming that the sign violated its sign ordinance, the Town

threatened to fine Bowden hundreds of dollars a day if he did not remove the sign.

Although the district court granted Bowden nominal damages and a preliminary

injunction, a panel of this Court reversed, concluding that the sign ordinance was

content-neutral and survived intermediate scrutiny. A9-18.1 That decision is a

matter of exceptional importance and should be reviewed by the en banc Court for

two reasons.

First, as the panel acknowledged, its decision is in direct conflict with the

Fifth, Eighth, and Eleventh Circuits. A11-12. Those courts each have recognized

that, in cases like this one, a court should look to whether the ordinance on its face

discriminates by content—and if it does, apply strict scrutiny without attempting to

suss out whether that discrimination was supposedly “motivated” by disagreement

with the message conveyed. See Neighborhood Enters, Inc. v. City of St. Louis,

1 The panel opinion is appended and cited as “A#.”


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644 F.3d 728, 736 (8th Cir. 2011) (holding sign ordinance exemptions content-

based since “one must look at the content of the object”); Serv. Emp. lnt’l Union,

Local 5 v. City of Houston, 595 F.3d 588, 596 (5th Cir. 2010) (“A regulatory

scheme that requires the government to examine the content of the message that is

conveyed is content-based regardless of its motivating purpose.” (internal

quotations omitted)); Solantic, LLC v. City of Neptune Beach, 410 F.3d 1250,

1263-66 (11th Cir. 2005) (holding that a sign ordinance very similar to Cary’s was

content-based). The panel, by contrast, held that even an ordinance that

discriminates by content on its face is content-neutral if the supposed reason for the

discrimination was content-neutral. For the reasons offered by the Fifth, Eighth,

and Eleventh Circuits, the panel’s holding is incorrect. As the Supreme Court has

reiterated, an ordinance that discriminates by content on its face is content-based,

regardless of any supposed motivation offered by the government. See Turner

Broad. Sys., Inc. v. FCC, 512 U.S. 622, 642-43 (1994). The panel opinion

disparages that rule as “formalistic,” but it is the clear, workable, and safe rule

demanded by the First Amendment.

Second, the issue is one of substantial importance. Municipalities should not

be allowed to use the guise of supposedly content-neutral ordinances—which in fact

clearly privilege certain kinds of innocuous and “pleasing” speech—to silence

homeowners like Bowden who want to use their private property for political


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protest, however “unseemly” such protest might be. To restrict core political

speech while privileging, for example, Halloween decorations, turns the First

Amendment upside down. See, e.g., Connick v. Myers, 461 U.S. 138, 145 (1983)

(“[S]peech on public issues…is entitled to special protection.”); First Nat’l Bank v.

Bellotti, 435 U.S. 765, 776 (1978) (describing political speech as living “at the heart

of the First Amendment’s protection”). Moreover, municipal rules over private

property have become increasingly strict, and the panel’s opinion welcomes yet

greater strictness in the most important of areas: free speech. If the panel opinion

stands, municipalities will be emboldened to silence those who, like Bowden, want

to stick their neck out and ruffle feathers. The principle at stake is critical to every

homeowner, not just Bowden.

STATEMENT OF THE FACTS

As Cary has acknowledged, it has a long history of extremely restrictive and

lengthy sign ordinances, reflecting its reputation as a place committed to

conformity. (J.A. 758; 1300-1594). Indeed, Cary issued a policy statement in 2005

recognizing that “[t]he Town has intentionally adopted extremely restrictive

regulations on signs in both residential and nonresidential areas….” (J.A. 1023-25).

That policy statement also describes the Town’s desire to prevent certain “overly

enthusiastic individual[s]” from expressing their messages too boldly. (J.A. 1024).


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As a result of what Bowden deemed to be a lack of adequate resolution of a

dispute between him and the Town regarding water run-off stemming from a road-

widening and eminent domain project at his house, Bowden spray-painted a protest

sign on the front of his house on Friday, July 31, 2009. (J.A. 13; 329-32). The

protest sign stated in large letters, “Screwed by The Town of Cary.” (J.A. 13; 32-

32). The appendix to the panel opinion shows a photograph of the sign.

Just hours after Bowden painted his sign, Cary hand-delivered to him a

“Notice of Zoning Violation,” which advised Bowden that he would be fined up to

$500 per day if he did not remove his sign. (J.A. 333-34). Bowden refused, and his

sign quickly attracted attention. Bowden began explaining to radio, television, and

print media that he finally had the Town’s attention, which would surely go away if

the sign was removed. (J.A. 16; 489-508).

After Cary issued another “Notice of Zoning Violation” threatening Bowden,

Bowden filed this lawsuit. The district court ruled for Bowden, concluding that the

sign ordinance was content-based because of its various exemptions and failed strict

scrutiny. (J.A. 199-224). A panel of this Court reversed, concluding that the sign

ordinance was content-neutral and survived intermediate scrutiny. A9-18.

REASONS FOR GRANTING THE PETITION

In reversing the district court, the panel concluded that Cary’s sign ordinance

was content-neutral. That decision not only is incorrect, but it joins the wrong side


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of a circuit conflict on a matter that will affect millions of homeowners. En banc

review accordingly is warranted.

A. The panel’s decision is incorrect and joins the wrong side of a circuit conflict.

By virtue of the panel opinion, as the opinion acknowledges, this Court is

now in direct conflict with the Fifth, Eighth, and Eleventh Circuits. See

Neighborhood Enters., 644 F.3d at 736; City of Houston, 595 F.3d at 596; Solantic,

410 F.3d at 1263-66. However, the Court is now also in conflict with the First and

Second Circuits, which have held that exemptions in sign ordinances render those

ordinances content-based. See National Advertising Co. v. Babylon, 900 F.2d 551,

557 (2d Cir. 1990) (holding that “the exceptions to the ban for temporary political

signs and for signs identifying a grand opening, parade, festival, fund drive or other

similar occasion impermissibly discriminate between types of noncommercial

speech based on content”); Matthews v. Needham, 764 F.2d 58, 60 (1st Cir. 1985)

(rejecting the argument that a town’s discrimination regarding the “function” of a

sign, such as between the function of a “for sale” sign versus a political sign, was

not content-based discrimination). The Court is now aligned with at least one other

circuit. See H.D.V.-Greektown, LLC v. City of Detroit, 568 F.3d 609, 622 (6th Cir.

2009).2 This circuit split is reason alone for the Court to consider the matter en

2 The panel opinion also claims to be on the side of the Third, Seventh, and Ninth Circuits, citing ACLU of Ill. v. Alvarez, 679 F.3d 583, 603 (7th Cir. 2012),


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banc.

More importantly, the panel opinion is wrong, for the reasons offered by the

Fifth, Eighth, and Eleventh Circuits. Those courts recognized that an ordinance that

discriminates by content on its face is content-based, regardless of any supposed

motivation offered by the government. That principle is longstanding and has been

reiterated by the Supreme Court and this Court. Turner, 512 U.S. at 642-43 (1994)

(“Nor will the mere assertion of a content-neutral purpose be enough to save a law

which, on its face, discriminates based on content.”)3; City of Los Angeles v.

Alameda Books, Inc., 535 U.S. 425, 448 (2002) (“[W]hether a statute is content

Melrose, Inc. v. City of Pittsburgh, 613 F.3d 380, 389 (3d Cir. 2010), and G.K. Ltd. Travel v. City of Lake Oswego, 436 F.3d 1064, 1079 (9th Cir. 2006). A12. While those cases provide some support for the panel opinion, Alvarez is somewhat inapt and the other two opinions actually try to work a middle ground between the two “sides” of the issue at hand. See Alvarez, 679 F.3d at 603 (suggesting, but not holding, that an anti-eavesdropping statute that exempted, for example, police recordings of conversations was not content-based merely because the state had to listen to the recording to determine whether it involved a police officer); Melrose, 613 F.3d 389 (applying the Third Circuit’s “context-sensitive” approach, which is based on the idea that “[s]ome signs are more important than others because they are more related to the particular location than are other signs,” such as “for sale” signs); City of Lake Oswego, 436 F.3d 1079 (allowing discrimination based on “triggering events” like yard sales, and based on the identity of the speaker, without holding the ordinance content-based). Bowden’s sign, of course, was directly related to the location of the sign. 3 The panel included this quotation from Turner as part of its holding that a government must prove a “reasonable fit” to show that the motives behind a facially content-based restriction were actually content-neutral. A15. However, nothing in Turner itself suggests such a holding, and thus the panel’s extrapolation from the word “mere” to specific additional requirements is unjustified. In contrast, the plain language of Turner requires that facially content-based restrictions satisfy strict scrutiny, regardless of the government’s motivation.


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neutral or content based is something that can be determined on the face of it; if the

statute describes speech by content then it is content based.”); Satellite Broad. &

Commc’ns. Ass’n v. FCC, 275 F.3d 337, 353-54 (4th Cir. 2001) (noting that Turner

requires a two-step analysis: the first is to determine whether the regulation

discriminates by content on its face, and the second, which applies only where the

regulation is content-neutral on its face, looks to motivation to possibly render the

regulation content-based despite the facial content-neutrality); Covenant Media of

S.C., LLC v. City of N. Charleston, 493 F.3d 421, 433 (4th Cir. 2007) (“First, we

must examine the plain terms of the regulation to see whether, on its face, the

regulation confers benefits or imposes burdens based upon the content of the speech

it regulates. If it does not, we then ask whether the regulation’s manifest purpose is

to regulate speech because of the message it conveys.” (internal quotation

omitted)).4

Furthermore, the panel opinion’s method of trying to figure out the

motivation behind the restrictions—by analyzing the “fit” between the Town’s

asserted interests and its undisputed content-based discrimination—conflates the 4 In only one area has the Supreme Court saved a facially content-based regulation by finding a content-neutral purpose: in the “secondary effects” doctrine of City of Renton v. Playtime Theatres, Inc., 475 U.S. 41, 46-47 (1986), where the Court held that the city’s desire to mitigate the harmful collateral effects of pornographic movie theaters justified a blatant restriction on their (and only their) location. The panel opinion essentially extends this limited doctrine to sign ordinances—and apparently to every other government restriction on speech that is justified by supposed content-neutral concerns like aesthetics and traffic safety.


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content-based/content-neutral analysis with the application of whatever level of

scrutiny results from that analysis. That is, it impermissibly (and confusingly)

conflates the initial selection of the appropriate test with the application of that test.

Indeed, a whole section of the panel opinion analyzing whether the sign ordinance

is content-based looks to whether the ordinance furthers the asserted interests in

aesthetics and traffic safety, which sounds a lot like whether the ordinance “furthers

a substantial government interest” and is “narrowly tailored to that interest”

(intermediate scrutiny), or is “necessary to further a compelling government

interest” (strict scrutiny). See Renton, 475 U.S. at 46-47; Perry Educ. Ass’n v.

Perry Local Educators’ Ass’n, 460 U.S. 37, 45 (1983).

The panel opinion’s replacement of a clear, longstanding, and useful

analytical sequence with one that is confusing and circular is problematic. Under

the panel opinion’s rule, if a regulation would satisfy intermediate scrutiny, it will

be deemed content-neutral and thus subject to intermediate scrutiny, no matter what

actually motivated the restriction, and despite the fact that it is facially content-

based. Taken to its logical limit, this rule could replace strict scrutiny with the far

less demanding intermediate scrutiny for any facially content-based restriction, so

long as the government body is sufficiently disciplined about which motivations it

discloses through its statutory drafting. Courts have long avoided that result, with

good reason. See e.g., Menotti v. City of Seattle, 409 F.3d 1113, 1129 (9th Cir.


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2005) (holding, after Hill v. Colorado, 530 U.S. 703 (2000), that “we do not make a

searching inquiry of hidden motive; rather, we look at the literal command of the

restraint. Stated another way…whether a statute is content neutral or content based

is something that can be determined on the face of it; if the statute describes speech

by content then it is content based” (citing City of Los Angeles v. Alameda Books,

Inc., 535 U.S. 425, 448 (2002)) (internal quotation omitted).) The panel’s result

lends itself all too easily to the government quashing speech critical of itself, the

“absolutist” concern truly at the heart of the First Amendment.

B. The question presented is a matter of tremendous practical importance.

The issues at stake are of substantial importance. Municipalities should not

be allowed to use the guise of ostensibly content-neutral ordinances—which in fact

clearly privilege certain kinds of innocuous and “pleasing” speech—to silence

homeowners like Bowden who want to use their private property for political

protest, however “unseemly” such protest might be. If there is any area where clear

and firm rules should exist to keep the government from overreaching, it is when

the government regulates what messages a homeowner can put on his own house.

The danger of a desire to suppress certain disfavored messages being smuggled

under the radar as content-neutral is too great.

Indeed, the value of the clear, workable, and safe rule reiterated in Turner and

followed by the Eighth, Fifth, and Eleventh Circuits—and the danger of the rule


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adopted by the panel here—are on display in the present case. For example, in

trying to divine whether the Town’s sign ordinance was actually motivated by a

desire to suppress certain messages, through analyzing the “fit,” the panel

acknowledged that “a nativity scene [exempted] or an elaborate work or art

[exempted] may implicate traffic safety no less than an ordinary residential sign,”

and that “a sign erected for a ‘Town-recognized event’ [exempted] may impair

rather than promote aesthetic appeal.” But, the panel held, “the content neutrality

inquiry is whether the Sign Ordinance’s exemptions have a reasonable, not optimal,

relationship to these asserted interests.” Such gauziness is inimical to the First

Amendment; the correct rule wisely sidesteps it.

The panel did not even address the sign ordinance’s exemption for flags, after

which appear the following (presumably controlling) “Principles of Interpretation”:

“The intent of this provision is to allow and even encourage the installation and use

of flags for patriotic purposes, where such flags relate to the principal building on

the site, but at the same time to discourage the use of flags at entrances or along

street frontages as ‘attention attracting devices.’” It is unclear how patriotic flags

might cause fewer traffic problems than “unpatriotic” flags—although surely the

Town would argue that they are more “aesthetically pleasing.” And when it comes

to aesthetics, the panel held that “it [is] reasonable to presume that public art and

holiday decorations [which are exempted from the ordinance] enhance rather than


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harm aesthetic appeal....” Surely the First Amendment demands more than an a

priori determination that certain (vaguely-worded) classes of speech will be

uniformly and predictably more “aesthetically appeal[ing]” than other classes of

protected speech.5

The panel opinion is not just contrary to controlling precedent, it is

dangerous. The First Amendment does not allow a municipality to exempt certain

speech based on content and then target core political speech at a person’s own

home.

CONCLUSION

The petition for rehearing or rehearing en banc should be granted.

5 The panel opinion also rejected Appellee’s vagueness challenge. A18-19. While Appellee does not address that separate challenge in this petition, she reserves the argument going forward. Moreover, under the panel opinion, vagueness is intertwined with the primary First Amendment challenge: because the level of scrutiny depends on the level of “fit” between the alleged aim and the means, any vagueness in either, but especially the means, becomes critical.


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Respectfully submitted this 5th day of February, 2013.

/s/ Mark R. Sigmon Mark R. Sigmon GRAEBE HANNA & SULLIVAN, PLLC 4350 Lassiter at North Hills Ave. Suite 375 Raleigh, North Carolina 27609 Telephone: (919) 863-9094 Fax: (919) 863-9095 Email: [email protected] *Cooperating Attorney for the American Civil Liberties Union of North Carolina Legal Foundation

Christopher Brook Legal Director, American Civil Liberties Union of North Carolina Legal Foundation

Post Office Box 28004 Raleigh, North Carolina 27611 Telephone: (919) 834-3466 Fax: (866) 511-1344 Email: [email protected]

Counsel for Appellee


CERTIFICATE OF SERVICE

I hereby certify that on February 5th, 2013, I electronically filed the foregoing PETITION FOR PANEL REHEARING OR REHEARING EN BANC with the Clerk of Court using the CM/ECF system, which will send notification of such filing to the following:

Elizabeth A. Martineau, [email protected] Lisa C. Glover, [email protected] Christopher Brook, [email protected] William D. Brintono, [email protected] Randall R. Morrison, [email protected] Patrick Houghton Flanagan, [email protected]

/s/ Mark R. Sigmon Mark R. Sigmon


APPENDIX


PUBLISHED

UNITED STATES COURT OF APPEALSFOR THE FOURTH CIRCUIT

DAWN D. BROWN, in her capacityas Administratrix of the Estate ofWilliam David Bowden,

Plaintiff-Appellee,

v.

TOWN OF CARY,

Defendant-Appellant.

THE NORTH CAROLINA LEAGUE OF

No. 11-1480MUNICIPALITIES; VIRGINIA MUNICIPAL LEAGUE; MUNICIPAL

ASSOCIATION OF SOUTH CAROLINA;VIRGINIA ASSOCIATION OF COUNTIES;INTERNATIONAL MUNICIPAL LAWYERS

ASSOCIATION; SCENIC AMERICA, INC.,

Amici Supporting Appellant,

THE NORTH CAROLINA

INSTITUTE FOR CONSTITUTIONAL

LAW,

Amicus Supporting Appellee. Appeal from the United States District Court

for the Eastern District of North Carolina, at Raleigh.Louise W. Flanagan, Chief District Judge.

(5:09-cv-00504-FL)

Argued: September 19, 2012

Decided: January 22, 2013


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Before NIEMEYER and DIAZ, Circuit Judges, andMax O. COGBURN, Jr., United States District Judge

for the Western District of North Carolina,sitting by designation.

Reversed and remanded by published opinion. Judge Diazwrote the opinion, in which Judge Niemeyer and Judge Cog-burn joined.

COUNSEL

ARGUED: Elizabeth A. Martineau, MARTINEAU KINGPLLC, Charlotte, North Carolina; William D. Brinton, ROG-ERS TOWERS, PA, Jacksonville, Florida, for Appellant.Mark Russell Sigmon, GRAEBE HANNA & SULLIVAN,PLLC, Raleigh, North Carolina, for Appellee. ON BRIEF:Lisa C. Glover, TOWN OF CARY, Cary, North Carolina, forAppellant. Katherine L. Parker, AMERICAN CIVIL LIBER-TIES UNION OF NORTH CAROLINA LEGAL FOUNDA-TION, Raleigh, North Carolina, for Appellee. Patrick H.Flanagan, CRANFILL, SUMNER & HARTZOG, Charlotte,North Carolina; Randal R. Morrison, SABINE & MORRI-SON, San Diego, California; John M. Baker, GREENEESPEL PLLP, Minneapolis, Minnesota; Dana K. Maine,FREEMAN MATHIS & GARY, LLP, Atlanta, Georgia, forAmici Supporting Appellant. Jeanette K. Doran, ExecutiveDirector and General Counsel, NORTH CAROLINA INSTI-TUTE FOR CONSTITUTIONAL LAW, Raleigh, North Car-olina, for Amicus Supporting Appellee.

2 BROWN v. TOWN OF CARY


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OPINION

DIAZ, Circuit Judge:

The Town of Cary, North Carolina (the "Town"), appealsthe district court’s invalidation of its municipal sign ordinanceas it applied to resident William David Bowden ("Bowden").The district court held that the ordinance was a content basedconstraint on Bowden’s First Amendment rights. We dis-agree. Because the ordinance regulates speech for reasonsindependent of content, it is a content neutral restriction sub-ject to intermediate scrutiny. Applying that scrutiny, we con-clude the ordinance does not violate the First Amendment andreverse.

I.

A.

Pursuant to the authority granted by the North Carolina leg-islature to state municipalities, the Town has implemented acomprehensive Land Development Ordinance ("LDO") toregulate land use within its jurisdiction. The current LDO,adopted in 2003, consists of twelve chapters of regulations,with chapter 9 (the "Sign Ordinance") governing the place-ment and display of residential signs.

Characteristic of most sign regulations, the legislativeintent of the Sign Ordinance is to promote aesthetics and traf-fic safety. Chapter 9.1.1(A) outlines the "purposes" of theSign Ordinance:

(1) To encourage the effective use of signs as ameans of communication in the Town;

(2) To maintain and enhance the pleasing look of theTown, which attracts to the Town major events ofregional, national, and international interest;

3BROWN v. TOWN OF CARY


A3


(3) To preserve Cary as a community that is attrac-tive to business;

(4) To improve pedestrian and traffic safety;

(5) To minimize the possible adverse effects of signson nearby public and private property; and

(6) To implement relevant provisions of the compre-hensive plan, as updated from year-to-year.

J.A. 339.

The Sign Ordinance also notes that "[a]ttractive and inte-grated urban design features tend to improve a town’s image,raise overall property values, attract new business and resi-dents, and improve the quality of life." Id. Town officials con-firm these objectives, see J.A. 1301 ("The Town’s concern foraesthetics, appearance, [and] visual appeal is a part of theLand Use Plan’s focus."), and they pervade the LDO pream-ble, see J.A. 632 ("The regulations are specifically intendedto: Preserve the character and quality of residential neighbor-hoods," "[l]essen congestion in the streets," and "[m]aintainand protect high quality aesthetic standards for develop-ment.").

Recognizing that residential signs serve an important pur-pose of providing residents with a forum in which to expresstheir "opinion on matters of public interest," in January 2005the Town modified the Sign Ordinance to permit residents todisplay up to two residential signs that "shall not exceed fivesquare feet per side in area and 42 inches in height." J.A.1023, 357.

The LDO defines a "sign" broadly as "[a]ny device, fixture,placard or structure, that uses any color, form, graphic, illumi-nation, symbol, or writing to advertise, attract attention,announce the purpose of, or identify the purpose of, a person



A4


or entity, or to communicate information of any kind to thepublic." J.A. 1091. But the LDO also states expressly that"holiday decorations" and "public art" are not signs subject tothe regulation. J.A. 1091.1

The LDO defines "holiday decorations" as "[d]isplayserected on a seasonal basis in observance of religious,national, or state holidays which are not intended to be perma-nent in nature and which contain no advertising material,"J.A. 869, and "public art" as "[i]tems expressing creative skillor imagination in a visual form, such as painting or sculpturewhich are intended to beautify or provide aesthetic influencesto public areas or areas which are visible from the publicrealm," J.A. 883.

B.

William Bowden lived in Cary for many years, and hadlong quarreled with the Town over damage to his house alleg-edly caused by water discharge from municipal road-pavingprojects. Dissatisfied with the Town’s efforts to resolve thedispute, Bowden responded by painting the words "Screwedby the Town of Cary" across a fifteen foot swath of the facadeof his home. Bowden chose a bright fluorescent orange paintto express his unhappiness, using lettering that varied inheight from 14 to 21 inches.2

It was not long before a passing motorist alerted the policeto Bowden’s handiwork. Following a short investigation, theTown issued a "Notice of Zoning Violation" referencing thechapter 9.3.2(S) size limitations for residential signs. AfterBowden refused to remove the lettering, the Town issued asecond notice citing two different LDO violations. First, asthe display qualified as a "wall sign" rather than a residential

1The LDO exempts six other categories of signs from regulation, noneof which are at issue in this appeal.

2The Appendix to this opinion contains an image of Bowden’s display.



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sign, the Town alleged that it violated the size limitations ofchapter 9.3.2(X)(2)(a), which requires that all such signs "notexceed two square feet in area."3 J.A. 366. Second, the Townalleged that the sign violated the color restrictions of chapter9.8.3(B), which prohibits the "use of high intensity colors orfluorescent pigments."

The second notice demanded Bowden remove the sign orsuffer daily fines. The Town emphasized that it was not thecontent of Bowden’s sign, but rather its size and color, thatwas the problem. Accordingly, the Town recommended Bow-den display his message through a medium that complied withthe Sign Ordinance.4 Bowden refused. Instead, he sued under42 U.S.C. § 1983, asserting facial and as applied challengesto the constitutionality of the Sign Ordinance. Bowden princi-pally argued that because the Sign Ordinance exempted cer-tain signs from regulation while regulating his particular sign,it was a content based infringement on his First Amendmentrights. Both parties moved for summary judgment.

The district court ruled for Bowden. Relying principally onthe Supreme Court’s decision in Metromedia, Inc. v. City ofSan Diego, 453 U.S. 490 (1981) (plurality opinion), the dis-trict court first noted that the Sign Ordinance "specifies sev-eral types of signs[, including public art and holidaydecorations,] which are exempt from the restrictions thatapply to all other types of signs." Bowden v. Town of Cary,754 F. Supp. 2d 794, 802 (E.D.N.C. 2010). These exclusions,said the court, require the Town to engage in "a searchinginquiry into the content of a particular sign . . . to determinewhether it is subject to or exempt from regulation." Id. at 803.So, for example, because the Sign Ordinance requires examin-ing the content of a sign such as "Scrooged by the Town of

3The Sign Ordinance allows each homeowner to post one such wall signon their property. Bowden does not challenge this particular restriction.

4The record includes an example of a permissible, alternative way ofdisplaying Bowden’s message. See J.A. 1924; Appellant’s Br. at 16.



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Cary" to discern whether it is a holiday decoration and thusexcluded from regulation, the district court concluded that theSign Ordinance was a content based regulation. Applyingstrict scrutiny, the court invalidated the Sign Ordinance,granted Bowden a permanent injunction, and awarded himnominal damages of one dollar. In a subsequent order, the dis-trict court also awarded Bowden $36,197.27 in attorney feesand costs.

This appeal followed.

II.

Before passing on the constitutionality of the Sign Ordi-nance, we address two issues regarding our jurisdiction tohear the appeal.

First, Mr. Bowden died during the pendency of this appeal,and in August 2011 we entered an order substituting theAdministratrix of his estate, Dawn D. Brown ("Brown"), asPlaintiff-Appellee.5 We then directed supplemental briefingon the issue of whether Bowden’s § 1983 claim survived hisdeath.6

Historically, the common law rule for survivability was thata cause of action died with the person. See Zatuchni v. Sec’yof Health & Human Servs., 516 F.3d 1312, 1324 (Fed. Cir.2008) (Dyk, J., concurring) (citing Restatement (Second) ofTorts § 900(a) & cmt. a. (1979)). To displace the common lawrule, some jurisdictions have provided by statute that certainlegal claims survive the death of a party. See Moor v. Ala-meda County, 411 U.S. 693, 702 n.14 (1973).

5We use "Bowden" throughout the opinion to refer to Appellee. 6Both parties contend that the claim survives, but "we are, of course,

duty-bound to examine our jurisdiction, notwithstanding that the partiesconcede or stipulate it." Harrison v. Edison Bros. Apparel Stores, Inc., 924F.2d 530, 531 n.2 (4th Cir. 1991).



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As 42 U.S.C. § 1983 does not provide for survival ofclaims, we consult the law of the forum state—the North Car-olina survival statute—to determine whether the claim sur-vives. See 42 U.S.C. § 1988(a); Robertson v. Wegmann, 436U.S. 584, 588-90 (1978). That statute prescribes a default ruleof survival for all claims, with three exceptions, including for"causes of action where the relief sought could not beenjoyed, or granting it would be nugatory after death." N.C.Gen. Stat. § 28A-18-1(b)(3).

Analogizing Bowden’s federal civil rights claim to a corre-sponding action under North Carolina law, we are satisfiedthat the claim would survive under that statute. While it is axi-omatic that prospective injunctive relief "could not beenjoyed" by a deceased litigant, Bowden also asserted a pastdeprivation of his constitutional rights. Considering that thedefault rule of the North Carolina statute is one of survival,as well as the fact that courts have applied this particularexception only to prospective remedies, see In re Higgins,587 S.E.2d 77, 78-79 (N.C. Ct. App. 2003); Elmore v.Elmore, 313 S.E.2d 904 (N.C. Ct. App. 1984), we concludethat the controversy over this retrospective constitutional inju-ry—even if only compensable by nominal damages—wouldsurvive under North Carolina law, and therefore does notabate for our purposes. See McGowen v. Rental Tool Co., 428S.E.2d 275, 276 (N.C. Ct. App. 1993) (allowing a suit forretrospective personal injury to survive under North Carolinasurvival statute); see also Covenant Media of S.C. LLC v. Cityof N. Charleston, 493 F.3d 421, 424-25 (4th Cir. 2007) (hold-ing that a suit challenging a local sign ordinance was not ren-dered moot by the defendant’s amendment of the signordinance because even if claim for injunctive relief hadbecome moot, plaintiff was still entitled to at least nominaldamages for the alleged constitutional violation).

Next, the Town contends that Bowden lacks standing tochallenge the exemptions of the Sign Ordinance but insteadmay challenge only the provisions regulating the size and pig-



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ment of residential signs, since only those restrictions causedhim actual injury. The district court rejected this argument, aruling that we consider de novo. See Piney Run Pres. Ass’nv. County Comm’rs, 268 F.3d 255, 262 (4th Cir. 2001).

As the district court correctly noted, Bowden’s complaintalleges an infringement of his First Amendment rights stem-ming from the LDO’s allegedly content based exemptions.Inasmuch as the relevant content distinction derives from theTown’s conscious choice to exempt certain signs from regula-tion, Bowden’s legal injury derives from the exemptions noless than from the substantive restrictions themselves, and hemay therefore subject those exemptions to constitutional scru-tiny. See Ark. Writers’ Project, Inc. v. Ragland, 481 U.S. 221,227 (1987) (explaining that standing to challenge exemptionsexists where "others similarly situated were exempt from theoperation of a state law adversely affecting the claimant.");City of Ladue v. Gilleo, 512 U.S. 43, 50-51 (1994). That is,after all, the essence of the content neutrality inqui-ry—analyzing what speech the Town has chosen to regulateand what speech it has chosen to exempt. Accordingly, wereject the Town’s standing challenge and proceed to the mer-its of the district court’s ruling.

III.

In assessing the Sign Ordinance’s constitutionality underthe First Amendment, we review the district court’s summaryjudgment order de novo. Webster v. U.S. Dep’t of Agric., 685F.3d 411, 421 (4th Cir. 2012). Our first task is to determinewhether the Sign Ordinance "is content based or content neu-tral, and then, based on the answer to that question, to applythe proper level of scrutiny." Ladue, 512 U.S. at 59(O’Connor, J., concurring).

Not surprisingly, the parties present opposing views of howwe should assess content neutrality. Bowden argues that aregulation that depends on content distinctions is necessarily



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content based, while the Town argues that its regulation maydistinguish speech based on its content so long as its reasonsfor doing so are not based on the message conveyed. We thinkthe Town has the better argument.

For reasons we explain below, we reject any absolutistreading of content neutrality, and instead orient our inquirytoward why—not whether—the Town has distinguished con-tent in its regulation. Viewed in that light, we are satisfied thatthe Sign Ordinance is content neutral. Applying the interme-diate scrutiny required for content neutral restrictions onspeech, we hold that the Sign Ordinance does not violate theFirst Amendment.

A.

"While signs are a form of expression protected by the FreeSpeech Clause, they pose distinctive problems that are subjectto municipalities’ police powers." Ladue, 512 U.S. at 48.Accordingly, "[i]t is common ground that governments mayregulate the physical characteristics of signs—just as theycan, within reasonable bounds and absent censorial purpose,regulate audible expression in its capacity as noise." Id. Whatgovernments may generally not do, however, is "suppress,disadvantage, or impose differential burdens upon speechbecause of its content." Turner Broad. Sys., Inc. v. FCC, 512U.S. 622, 642 (1994). "The principal inquiry in determiningcontent neutrality, in speech cases generally and in time,place, or manner cases in particular, is whether the govern-ment has adopted a regulation of speech because of disagree-ment with the message it conveys." Ward v. Rock AgainstRacism, 491 U.S. 781, 791 (1989).

We consider the Town’s appeal in light of our recent deci-sion in Wag More Dogs, LLC v. Cozart, 680 F.3d 359 (4thCir. 2012), a case the district court did not have before it.There, we assessed the constitutional bona fides of a signordinance that regulated the size of business signs while



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exempting noncommercial signs, as well as several additionaltypes of government signs, from a mandatory permit process.Id. at 362, 368.

In deciding whether these exemptions distinguished basedon content, we read the Supreme Court’s treatment of contentneutrality in Hill v. Colorado, 530 U.S. 703 (2000), as"[e]schewing a formalistic approach to evaluating contentneutrality that looks only to the terms of a regulation . . . [and]instead embrac[ing] a more practical inquiry." Wag MoreDogs, 680 F.3d at 366. Our pragmatic view of First Amend-ment principles in Wag More Dogs cannot be squared withthe formalistic approach relied on by the district court andurged by Bowden on appeal.

As the chief purpose of content neutrality is to prevent agovernment from supervising the "marketplace of ideas . . .[by] choos[ing] which issues are worth discussing or debat-ing," Consol. Edison Co. v. Pub. Serv. Comm’n, 447 U.S.530, 537-38 (1980) (internal quotations omitted), the notionthat any content distinction is intrinsically content based mis-apprehends the proper analysis. Content neutrality bars onlyone particular sort of distinction—those made with a censorialintent "to value some forms of speech over others . . . to dis-tort public debate," Ladue, 512 U.S. at 60 (O’Connor, J., con-curring), "to restrict expression because of its message, itsideas, its subject matter," Police Dep’t of Chicago v. Mosley,408 U.S. 92, 95 (1972), or to "prohibit the expression of anidea simply because society finds the idea itself offensive ordisagreeable," Texas v. Johnson, 491 U.S. 397, 414 (1989).

We acknowledge that several of our sister circuits hew toan absolutist reading of content neutrality. See NeighborhoodEnterprises, Inc. v. City of St. Louis, 644 F.3d 728, 736 (8thCir. 2011), cert. denied, 132 S. Ct. 1543 (2012) (holding signordinance exemptions content based since "one must look atthe content of the object."); Serv. Emp. Int’l Union, Local 5v. City of Houston, 595 F.3d 588, 596 (5th Cir. 2010) ("A reg-



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ulatory scheme that requires the government to examine thecontent of the message that is conveyed is content-basedregardless of its motivating purpose." (internal quotationsomitted)); Solantic, LLC v. City of Neptune Beach, 410 F.3d1250, 1263-66 (11th Cir. 2005) (applying the absolutistapproach).

In our view, however, such an approach imputes a censorialpurpose to every content distinction, and thereby applies thehighest judicial scrutiny to laws that do not always imperil thepreeminent First Amendment values that such scrutiny servesto safeguard. As we did in Wag More Dogs, we again jointhose circuits that have interpreted Hill as supporting a morepractical test for assessing content neutrality. See ACLU of Ill.v. Alvarez, 679 F.3d 583, 603 (7th Cir. 2012) ("A law is notconsidered ‘content based’ simply because a court must ‘lookat the content of an oral or written statement in order to deter-mine whether a rule of law applies.’" (quoting Hill, 530 U.S.at 721)); Melrose, Inc. v. City of Pittsburgh, 613 F.3d 380,389 (3d Cir. 2010) ("[A] consideration of the sign’s content. . . does not by itself constitute a lack of neutrality as to spe-cific content."); H.D.V.-Greektown, LLC v. City of Detroit,568 F.3d 609, 622 (6th Cir. 2009) ("There is simply nothingin the record to indicate that the distinctions between the vari-ous types of signs reflect a meaningful preference for one typeof speech over another."); G.K. Ltd. Travel v. City of LakeOswego, 436 F.3d 1064, 1079 (9th Cir. 2006) ("[The regula-tion] does not require Lake Oswego officials to evaluate thesubstantive message . . . [and] certainly does not favor speechbased on the idea expressed." (internal quotations omitted)).

We also reject the analogous principle that the Sign Ordi-nance is necessarily content based because "a searchinginquiry into the content of a particular sign is required." Bow-den, 754 F. Supp. 2d at 803. Rather, a more searching inquiryshould merely be seen as indicative, not determinative, ofwhether a government has regulated for reasons related tocontent. See Reed v. Town of Gilbert, Ariz., 587 F.3d 966, 978



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(9th Cir. 2009) ("If applied without common sense, this prin-ciple would mean that every sign, except a blank sign, wouldbe content based.").

B.

Affirming the practical inquiry propounded in Wag MoreDogs, we reiterate its operative test for content neutrality:

A regulation is not a content-based regulation ofspeech if (1) the regulation is not a regulation ofspeech, but rather a regulation of the places wheresome speech may occur; (2) the regulation was notadopted because of disagreement with the messagethe speech conveys; or (3) the government’s interestsin the regulation are unrelated to the content of theaffected speech.

Id. at 366 (quoting Covenant Media, 493 F.3d at 433). Distill-ing this three-part test into one succinct formulation of con-tent neutrality, if a regulation is "justified without reference tothe content of regulated speech," Hill 530 U.S. at 720 (quot-ing Ward, 491 U.S. at 791), "we have not hesitated to deem[that] regulation content neutral even if it facially differenti-ates between types of speech." Wag More Dogs, 680 F.3d at366.

Our two most recent sign ordinance cases illustrate thispurposive approach. In Covenant Media, the City of NorthCharleston, South Carolina enacted a sign ordinance that dis-tinguished between "off-premises" and "on-premises" com-mercial signs "identifying or advertising a business, person, oractivity, or goods, products, services or facilities." 493 F.3dat 424-25. We applied intermediate scrutiny to this distinctionbecause it served a content neutral purpose "to eliminate con-fusing, distracting and unsafe signs, assure the efficient trans-fer of information; and enhance the visual environment of theCity of North Charleston." Id. at 434 (internal quotation



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marks omitted). And in Wag More Dogs, we similarly con-cluded that an exemption for noncommercial signs could bejustified for reasons independent of content since it served to"among other aims, promote traffic safety and the County’saesthetics, interests unrelated to messages displayed." 680F.3d at 368. Applying intermediate scrutiny, we affirmed thedistrict court’s ruling that the sign ordinance satisfied the FirstAmendment. Id. at 370.

Metromedia, the principal case cited by Bowden and thedistrict court, does not compel a different approach. That caseinvalidated a San Diego ordinance that permitted onsite com-mercial advertising while forbidding non-commercial adver-tising with exceptions for signs such as "religious symbols,""signs carrying news items or telling the time or temperature,"and "temporary political campaign signs." Metromedia, 453U.S. at 494-95, 514.

The fatal defect of the Metromedia ordinance was that SanDiego could not "explain how or why noncommercial bill-boards located in places where commercial billboards are per-mitted would be more threatening to safe driving or woulddetract more from the beauty of the city," 453 U.S. at 513,and that "[n]o other noncommercial or ideological signs meet-ing the structural definition [were] permitted, regardless oftheir effect on traffic safety or esthetics," id. at 514.

Accordingly, it was the relationship—or lack thereof—between the content distinction and the legislative end of traf-fic safety that convinced the Metromedia Court that the cityhad discriminated for reasons of content. Implicit in the city’sfailure to establish a content neutral justification for its con-tent distinction was a belief "that the communication of com-mercial information concerning goods and services connectedwith a particular site is of greater value than the communica-tion of noncommercial messages." Id. at 513.



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The Town, therefore, cannot disguise a content basedrestriction beneath a content neutral justification, but rathermust demonstrate a "‘reasonable fit’ between its legitimateinterests in [traffic] safety and esthetics" and its exemptionsfor public art and holiday decorations. City of Cincinnati v.Discovery Network, Inc., 507 U.S. 410, 416 (1993)7; see alsoTurner Broad., 512 U.S. at 642-43 ("Nor will the mere asser-tion of a content-neutral purpose be enough to save a lawwhich, on its face, discriminates based on content."); Whittonv. City of Gladstone, Mo., 54 F.3d 1400, 1406 (8th Cir. 1995)("[W]hen a government supplies a content-neutral justifica-tion for the regulation, that justification is not given control-ling weight without further inquiry.").

C.

Separating the issue of whether the Sign Ordinance has dis-tinguished content from whether it has distinguished becauseof content, we ask in this case whether those distinctions beara reasonable relationship to the Town’s asserted content neu-tral purposes.

Applying that test, it is clear that while the Sign Ordinancedistinguishes content, the distinctions themselves are justifiedfor reasons independent of content. Unlike Cincinnati, wherethe city’s content distinction "ha[d] absolutely no bearing onthe [aesthetic] interests it ha[d] asserted," 507 U.S. at 428, theSign Ordinance’s exemptions reasonably advance the legisla-tive interests of traffic safety and aesthetics. And as with the

7In Cincinnati, the Supreme Court concluded that an ordinance thatbanned only commercial handbills from street newsracks for the purposesof "safety and esthetics" was a content based distinction "bear[ing] norelationship whatsoever to the particular interests that the city hasasserted." 507 U.S. at 424. Because "all newsracks, regardless of whetherthey contain commercial or noncommercial publications, are equally atfault," id. at 426, the city could not justify its decision to restrict certainpublications while exempting others without reference to "the content ofthe publication resting inside that newsrack," id. at 429.



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exemptions at issue in Wag More Dogs, we think it reason-able to presume that public art and holiday decorationsenhance rather than harm aesthetic appeal, and that seasonalholiday displays have a temporary, and therefore less signifi-cant, impact on traffic safety.

We recognize, as Bowden urges, that a nativity scene or anelaborate work of art may implicate traffic safety no less thanan ordinary residential sign. Similarly, a sign erected for a"Town-recognized event" or on behalf of a governmentagency may impair rather than promote aesthetic appeal. Butthe content neutrality inquiry is whether the Sign Ordinance’sexemptions have a reasonable, not optimal, relationship tothese asserted interests. See Cincinnati, 507 U.S. at 424-26.And "[w]e cannot determine with any degree of exactitude theprecise restriction necessary to carry out [the Sign Ordi-nance’s] legitimate objectives. In practice, the legislature isbetter equipped to make such empirical judgments." Randallv. Sorrell, 548 U.S. 230, 248 (2006) (plurality opinion).

Moreover, we agree with the Town that in conducting therelevant content based analysis, a court should not mechani-cally "scour the ordinance in question to see if it omits somecategories of signs." Appellant’s Br. at 25. Rather, we focusour attention on whether the restriction was adopted becauseof a disagreement with the message conveyed. Hill, 530 U.S.at 719. Applying that focus here, we conclude that the SignOrdinance places reasonable time, place, and manner restric-tions only on the physical characteristics of mes-sages—including those voicing political protest—andexempts certain categories of signs from those restrictionssolely on the basis of the Town’s asserted and legitimateinterests of traffic safety and aesthetics.

Accordingly, we hold that the Sign Ordinance is contentneutral and examine its constitutionality under intermediatescrutiny.



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D.

The Sign Ordinance is constitutional if it "furthers a sub-stantial government interest, is narrowly tailored to furtherthat interest, and leaves open ample alternative channels ofcommunication." Wag More Dogs, 680 F.3d at 369 (quotingAm. Legion Post 7 of Durham, N.C. v. City of Durham, 239F.3d 601, 609 (4th Cir. 2001)).

It is beyond dispute that the Town’s stated interests in pro-moting aesthetics and traffic safety are substantial. SeeArlington County Repub. Comm. v. Arlington County Va., 983F.2d 587, 594 (4th Cir. 1993).8 Here, the Town also ade-quately documented its aesthetic concerns. Its legislative find-ings, manifested in the Land Use Plan, the LDO preamble, theSign Ordinance, policy statements, and testimony of Townofficials, were that unregulated signage would depress prop-erty values, cause visual blight, deter commercial and residen-tial growth, harm environmental resources, and diminish thewholesome character of the Town. See J.A. 632-33, 758,1024, 1300-04, 1312-17. We also reject Bowden’s contentionthat "in this case, there was no evidence of any specific trafficproblems." Appellee’s Br. at 24. To the contrary, the recordshows that the bright fluorescent lettering sprayed acrossBowden’s home distracted both a Cary police officer and apassing motorist, who "beeped his horn" to get the officer’sattention. J.A. 1276.

Next, we ask whether the Sign Ordinance is narrowly tai-lored to further the Town’s substantial interests. Specifically,we must be satisfied that the Sign Ordinance does not "burden

8In Arlington County Repub. Comm., we invalidated a sign ordinancethat imposed a "two-sign limit," similar to the Town’s Sign Ordinance, onall political signs. We did so on the ground that the county in that casefailed to show that the restriction was narrowly tailored to serve ArlingtonCounty’s legislative interests of traffic safety and aesthetics. 983 F.2d at595. Because Bowden does not challenge the Sign Ordinance’s quantita-tive limits on signs, we express no view on that question.



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substantially more speech than is necessary to further the gov-ernment’s legitimate interests." Ward, 491 U.S. at 799. Wethink the Sign Ordinance passes constitutional muster on thisscore, as its size, color and positioning restrictions "do nomore than eliminate the exact source of the evil it sought toremedy[.]" Wag More Dogs, 680 F.3d. at 369 (internal quota-tions omitted). Finally, unlike the flat ban of residential signsinvalidated by Ladue, 512 U.S. at 56, the Sign Ordinance"leave[s] open ample alternative channels of communication"by generally permitting residential signs subject to reasonablerestrictions. Id. (internal quotations omitted); see also J.A.1924 (depicting permissible signage displaying Bowden’smessage). Within such limits, a sign can contain any messagethe speaker wishes to convey.

Accordingly, we conclude that the Sign Ordinance survivesintermediate scrutiny.

IV.

Bowden also contends that the Sign Ordinance exemptionsare unconstitutionally vague. We do not agree.

"A statute can be impermissibly vague for either of twoindependent reasons. First, if it fails to provide people of ordi-nary intelligence a reasonable opportunity to understand whatconduct it prohibits. Second, if it authorizes or even encour-ages arbitrary and discriminatory enforcement." Hill, 530 U.S.at 732.

In this case, the Town has supplied definitions of public artand holiday decorations, see J.A. 869, 883, and if they lackthe clarity Bowden would insist on, it is because the conceptsdo not lend themselves to easy definition. Because laws are"condemned to the use of words, we can never expect mathe-matical certainty from our language." Hill, 530 U.S. at 732(quoting Grayned v. City of Rockford, 408 U.S. 104, 110(1972)). Nevertheless, the vagueness doctrine does not pre-



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vent governments from regulating vague concepts—it onlyrequires that they provide some guidance for citizens tounderstand the reach of a law’s application. See Farrell v.Burke, 449 F.3d 470, 486-87 (2d Cir. 2006).

The Town has done its best to do just that through defini-tions "set out in terms that the ordinary person exercisingordinary common sense can sufficiently understand and com-ply with." Broadrick v. Oklahoma, 413 U.S. 601, 608 (1973).It defies common sense to argue—as Bowden does—that it isunclear under the Sign Ordinance whether the sign "Screwedby the Town of Cary" qualifies as "public art" or "holidaydecorations." Bowden cannot reasonably contend that his signwas "intended to beautify" or was an "observance" of a holi-day.

It is true that the exemptions at issue—public art and holi-day decorations—involve subjective determinations, and thatthe Sign Ordinance must contain "adequate standards to guide[an] official’s decision and render it subject to effective judi-cial review." Thomas v. Chicago Park Dist., 534 U.S. 316,323 (2002). But the fact that "esthetic judgments are necessar-ily subjective, defying objective evaluation," only means thatthey "must be carefully scrutinized to determine if they areonly a public rationalization of an impermissible purpose."Metromedia, 453 U.S. at 510. As we have already dispelledsuch a purpose, we reject this argument.

V.

"Unlike oral speech, signs take up space and may obstructviews, distract motorists, displace alternative uses for land,and pose other problems that legitimately call for regulation."Ladue, 512 U.S. at 48. The content neutrality doctrine of theFirst Amendment does not impose an all-or-nothing ultima-tum upon municipalities that confront these problems. Whatit requires is that any content distinction a government makesmust have a reasonable relation to a content neutral purpose.



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What it forbids are content distinctions that jeopardize ourmost venerated First Amendment principles by regulatingpublic opinion under the guise of public welfare.

We acknowledge that the Town’s Sign Ordinance, and inparticular its application to Bowden, has aggravated someCary residents who believe it excessively restrictive. See J.A.1026-68, 1107-10. But their recourse here lies with the ballot,not the Constitution. Because the Sign Ordinance has distin-guished content for a constitutionally permissible purpose, wehold that it does not violate the First Amendment. Accord-ingly, we reverse the judgment of the district court and theaccompanying order awarding Bowden attorney fees andcosts, and remand with instructions to enter summary judg-ment for the Town.

REVERSED AND REMANDED



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APPENDIX



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