Wag More Dogs, Ltd. Liability Corp. v. Cozart
2012 U.S. App. LEXIS 10264
| 4th Cir. | 2012Background
- Arlington's Sign Ordinance regulates the display of signs to promote traffic safety and aesthetics, with a general permit requirement and a detailed regime for business signs, noncommercial signs, and a comprehensive sign plan process.
- Two sign categories are exempt from permits; a list of prohibited signs exists; a catchall allows noncommercial speech where commercial speech is permitted.
- The Business Sign Provision in the M and C districts sets size limits (up to 60 square feet per tenant or 1 square foot per linear foot of frontage, whichever is greater).
- Comprehensive Sign Plan provisions allow conditional or special uses via a plan reviewed after a public hearing and tailored to health, safety, welfare, and master plan goals.
- Wag More Dogs painted a large mural on its building adjacent to Shirlington Dog Park; Arlington deemed it a sign and violated the size limits, threatening penalties and a permit process.
- Wag More Dogs sued challenging the ordinance on First Amendment grounds, and the district court dismissed the case as presenting a content-neutral regulation that satisfies intermediate scrutiny.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Is the Sign Ordinance content-neutral and subject to intermediate scrutiny? | Wag More Dogs argues the ordinance is content-based and stricter on certain speech. | Arlington contends the ordinance regulates locations and signs for land-use reasons unrelated to content. | Yes; the ordinance is content-neutral and passes intermediate scrutiny. |
| Is Wag More Dogs' mural commercial speech, and is the application constitutional? | The mural is noncommercial speech and should receive greater protection. | The mural is commercial speech because it advertises Wag More Dogs' services and branding. | The mural is commercial speech; regulation satisfies intermediate scrutiny as applied. |
| Are the Sign Ordinance's vagueness challenges to the definition of 'sign' and the 'any relationship' enforcement theory valid? | The broad 'sign' definition and alleged 'any relationship' enforcement create vagueness. | The definition is sufficiently clear; no pattern of arbitrary enforcement is alleged. | No; the definition is not unconstitutionally vague and enforcement standards are not inherently vague. |
| Does the Comprehensive Sign Plan Provision operate as an unconstitutional prior restraint? | The plan grants unfettered discretion to officials and chills speech. | The provision provides adequate standards and effective judicial review for licensing decisions. | No; the provision meets standard-based licensing requirements and is constitutional. |
Key Cases Cited
- Hill v. Colorado, 530 U.S. 703 (2000) (content-neutrality hinges on government purpose unrelated to message)
- Ward v. Rock Against Racism, 491 U.S. 781 (1989) (government regulation of speech depends on purpose, not content)
- Metromedia, Inc. v. City of San Diego, 453 U.S. 490 (1981) (sign regulation with commercial vs noncommercial distinctions; invalidated in Metromedia)
- Covenant Media of S.C., LLC v. City of North Charleston, 493 F.3d 421 (4th Cir. 2007) (content-neutral sign regulation upheld despite distinctions among signs)
- American Legion Post 7 v. City of Durham, 239 F.3d 601 (4th Cir. 2001) (commercial vs noncommercial speech distinctions upheld under intermediate scrutiny)
- Thomas v. Chicago Park Dist., 534 U.S. 316 (2002) (adequate standards and judicial review sustain licensing regulations)
- Sorrell v. IMS Health Inc., 131 S. Ct. 2653 (2011) (content-based restrictions require substantial justification; yet controls depend on context)
- Bolger v. Youngs Drug Prods. Co., 463 U.S. 60 (1983) (three-factor test to classify speech as commercial)