Dawn Brown v. Town of Cary , 706 F.3d 294 ( 2013 )

PUBLISHED
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.
THE NORTH CAROLINA LEAGUE OF
MUNICIPALITIES; VIRGINIA  No. 11-1480
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
2 BROWN v. TOWN OF CARY
Before NIEMEYER and DIAZ, Circuit Judges, and
Max O. COGBURN, Jr., United States District Judge
for the Western District of North Carolina,
sitting by designation.
Reversed and remanded by published opinion. Judge Diaz
wrote the opinion, in which Judge Niemeyer and Judge Cog-
burn joined.
COUNSEL
ARGUED: Elizabeth A. Martineau, MARTINEAU KING
PLLC, 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, for
Appellant. 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, GREENE
ESPEL PLLP, Minneapolis, Minnesota; Dana K. Maine,
FREEMAN MATHIS & GARY, LLP, Atlanta, Georgia, for
Amici Supporting Appellant. Jeanette K. Doran, Executive
Director and General Counsel, NORTH CAROLINA INSTI-
TUTE FOR CONSTITUTIONAL LAW, Raleigh, North Car-
olina, for Amicus Supporting Appellee.
BROWN v. TOWN OF CARY 3
OPINION
DIAZ, Circuit Judge:
The Town of Cary, North Carolina (the "Town"), appeals
the district court’s invalidation of its municipal sign ordinance
as it applied to resident William David Bowden ("Bowden").
The district court held that the ordinance was a content based
constraint on Bowden’s First Amendment rights. We dis-
agree. Because the ordinance regulates speech for reasons
independent 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 and
reverse.
I.
A.
Pursuant to the authority granted by the North Carolina leg-
islature to state municipalities, the Town has implemented a
comprehensive Land Development Ordinance ("LDO") to
regulate 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 legislative
intent of the Sign Ordinance is to promote aesthetics and traf-
fic safety. Chapter 9.1.1(A) outlines the "purposes" of the
Sign Ordinance:
(1) To encourage the effective use of signs as a
means of communication in the Town;
(2) To maintain and enhance the pleasing look of the
Town, which attracts to the Town major events of
regional, national, and international interest;
4 BROWN v. TOWN OF CARY
(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 signs
on 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 for
aesthetics, appearance, [and] visual appeal is a part of the
Land Use Plan’s focus."), and they pervade the LDO pream-
ble, see J.A. 632 ("The regulations are specifically intended
to: Preserve the character and quality of residential neighbor-
hoods," "[l]essen congestion in the streets," and "[m]aintain
and 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 express
their "opinion on matters of public interest," in January 2005
the Town modified the Sign Ordinance to permit residents to
display up to two residential signs that "shall not exceed five
square 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
BROWN v. TOWN OF CARY 5
or entity, or to communicate information of any kind to the
public." J.A. 1091. But the LDO also states expressly that
"holiday decorations" and "public art" are not signs subject to
the regulation. J.A. 1091.1
The LDO defines "holiday decorations" as "[d]isplays
erected 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 skill
or imagination in a visual form, such as painting or sculpture
which are intended to beautify or provide aesthetic influences
to public areas or areas which are visible from the public
realm," J.A. 883.
B.
William Bowden lived in Cary for many years, and had
long quarreled with the Town over damage to his house alleg-
edly caused by water discharge from municipal road-paving
projects. Dissatisfied with the Town’s efforts to resolve the
dispute, Bowden responded by painting the words "Screwed
by the Town of Cary" across a fifteen foot swath of the facade
of his home. Bowden chose a bright fluorescent orange paint
to express his unhappiness, using lettering that varied in
height from 14 to 21 inches.2
It was not long before a passing motorist alerted the police
to Bowden’s handiwork. Following a short investigation, the
Town issued a "Notice of Zoning Violation" referencing the
chapter 9.3.2(S) size limitations for residential signs. After
Bowden refused to remove the lettering, the Town issued a
second notice citing two different LDO violations. First, as
the display qualified as a "wall sign" rather than a residential
1
The LDO exempts six other categories of signs from regulation, none
of which are at issue in this appeal.
2
The Appendix to this opinion contains an image of Bowden’s display.
6 BROWN v. TOWN OF CARY
sign, the Town alleged that it violated the size limitations of
chapter 9.3.2(X)(2)(a), which requires that all such signs "not
exceed two square feet in area."3 J.A. 366. Second, the Town
alleged that the sign violated the color restrictions of chapter
9.8.3(B), which prohibits the "use of high intensity colors or
fluorescent pigments."
The second notice demanded Bowden remove the sign or
suffer daily fines. The Town emphasized that it was not the
content of Bowden’s sign, but rather its size and color, that
was the problem. Accordingly, the Town recommended Bow-
den display his message through a medium that complied with
the Sign Ordinance.4 Bowden refused. Instead, he sued under
42 U.S.C. § 1983, asserting facial and as applied challenges
to 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 Amendment
rights. Both parties moved for summary judgment.
The district court ruled for Bowden. Relying principally on
the Supreme Court’s decision in Metromedia, Inc. v. City of
San 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 holiday
decorations,] which are exempt from the restrictions that
apply 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 searching
inquiry into the content of a particular sign . . . to determine
whether 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
3
The Sign Ordinance allows each homeowner to post one such wall sign
on their property. Bowden does not challenge this particular restriction.
4
The record includes an example of a permissible, alternative way of
displaying Bowden’s message. See J.A. 1924; Appellant’s Br. at 16.
BROWN v. TOWN OF CARY 7
Cary" to discern whether it is a holiday decoration and thus
excluded from regulation, the district court concluded that the
Sign Ordinance was a content based regulation. Applying
strict scrutiny, the court invalidated the Sign Ordinance,
granted Bowden a permanent injunction, and awarded him
nominal damages of one dollar. In a subsequent order, the dis-
trict court also awarded Bowden $36,197.27 in attorney fees
and costs.
This appeal followed.
II.
Before passing on the constitutionality of the Sign Ordi-
nance, we address two issues regarding our jurisdiction to
hear the appeal.
First, Mr. Bowden died during the pendency of this appeal,
and in August 2011 we entered an order substituting the
Administratrix of his estate, Dawn D. Brown ("Brown"), as
Plaintiff-Appellee.5 We then directed supplemental briefing
on the issue of whether Bowden’s § 1983 claim survived his
death.6
Historically, the common law rule for survivability was that
a cause of action died with the person. See Zatuchni v. Sec’y
of Health & Human Servs., 516 F.3d 1312, 1324 (Fed. Cir.
2008) (Dyk, J., concurring) (citing Restatement (Second) of
Torts § 900(a) & cmt. a. (1979)). To displace the common law
rule, some jurisdictions have provided by statute that certain
legal claims survive the death of a party. See Moor v. Ala-
meda County, 411 U.S. 693, 702 n.14 (1973).
5
We use "Bowden" throughout the opinion to refer to Appellee.
6
Both parties contend that the claim survives, but "we are, of course,
duty-bound to examine our jurisdiction, notwithstanding that the parties
concede or stipulate it." Harrison v. Edison Bros. Apparel Stores, Inc., 924
F.2d 530, 531 n.2 (4th Cir. 1991).
8 BROWN v. TOWN OF CARY
As 42 U.S.C. § 1983 does not provide for survival of
claims, 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, 436
U.S. 584, 588-90 (1978). That statute prescribes a default rule
of survival for all claims, with three exceptions, including for
"causes of action where the relief sought could not be
enjoyed, 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 satisfied
that the claim would survive under that statute. While it is axi-
omatic that prospective injunctive relief "could not be
enjoyed" by a deceased litigant, Bowden also asserted a past
deprivation of his constitutional rights. Considering that the
default rule of the North Carolina statute is one of survival,
as well as the fact that courts have applied this particular
exception 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 conclude
that the controversy over this retrospective constitutional inju-
ry—even if only compensable by nominal damages—would
survive under North Carolina law, and therefore does not
abate for our purposes. See McGowen v. Rental Tool Co., 428
S.E.2d 275, 276 (N.C. Ct. App. 1993) (allowing a suit for
retrospective personal injury to survive under North Carolina
survival statute); see also Covenant Media of S.C. LLC v. City
of 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 sign
ordinance because even if claim for injunctive relief had
become moot, plaintiff was still entitled to at least nominal
damages for the alleged constitutional violation).
Next, the Town contends that Bowden lacks standing to
challenge the exemptions of the Sign Ordinance but instead
may challenge only the provisions regulating the size and pig-
BROWN v. TOWN OF CARY 9
ment of residential signs, since only those restrictions caused
him actual injury. The district court rejected this argument, a
ruling that we consider de novo. See Piney Run Pres. Ass’n
v. County Comm’rs, 268 F.3d 255, 262 (4th Cir. 2001).
As the district court correctly noted, Bowden’s complaint
alleges 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 the
Town’s conscious choice to exempt certain signs from regula-
tion, Bowden’s legal injury derives from the exemptions no
less than from the substantive restrictions themselves, and he
may 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 exemptions
exists where "others similarly situated were exempt from the
operation 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 regulate
and what speech it has chosen to exempt. Accordingly, we
reject 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 under
the First Amendment, we review the district court’s summary
judgment order de novo. Webster v. U.S. Dep’t of Agric., 685
F.3d 411, 421 (4th Cir. 2012). Our first task is to determine
whether the Sign Ordinance "is content based or content neu-
tral, and then, based on the answer to that question, to apply
the proper level of scrutiny." Ladue, 512 U.S. at 59(O’Connor, J., concurring).
Not surprisingly, the parties present opposing views of how
we should assess content neutrality. Bowden argues that a
regulation that depends on content distinctions is necessarily
10 BROWN v. TOWN OF CARY
content based, while the Town argues that its regulation may
distinguish speech based on its content so long as its reasons
for doing so are not based on the message conveyed. We think
the Town has the better argument.
For reasons we explain below, we reject any absolutist
reading of content neutrality, and instead orient our inquiry
toward why—not whether—the Town has distinguished con-
tent in its regulation. Viewed in that light, we are satisfied that
the Sign Ordinance is content neutral. Applying the interme-
diate scrutiny required for content neutral restrictions on
speech, we hold that the Sign Ordinance does not violate the
First Amendment.
A.
"While signs are a form of expression protected by the Free
Speech Clause, they pose distinctive problems that are subject
to municipalities’ police powers." Ladue, 512 U.S. at 48.
Accordingly, "[i]t is common ground that governments may
regulate the physical characteristics of signs—just as they
can, within reasonable bounds and absent censorial purpose,
regulate audible expression in its capacity as noise." Id. What
governments may generally not do, however, is "suppress,
disadvantage, or impose differential burdens upon speech
because of its content." Turner Broad. Sys., Inc. v. FCC, 512
U.S. 622, 642 (1994). "The principal inquiry in determining
content 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 Against
Racism, 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 (4th
Cir. 2012), a case the district court did not have before it.
There, we assessed the constitutional bona fides of a sign
ordinance that regulated the size of business signs while
BROWN v. TOWN OF CARY 11
exempting noncommercial signs, as well as several additional
types of government signs, from a mandatory permit process.
Id. at 362, 368.
In deciding whether these exemptions distinguished based
on content, we read the Supreme Court’s treatment of content
neutrality in Hill v. Colorado, 530 U.S. 703 (2000), as
"[e]schewing a formalistic approach to evaluating content
neutrality that looks only to the terms of a regulation . . . [and]
instead embrac[ing] a more practical inquiry." Wag More
Dogs, 680 F.3d at 366. Our pragmatic view of First Amend-
ment principles in Wag More Dogs cannot be squared with
the formalistic approach relied on by the district court and
urged by Bowden on appeal.
As the chief purpose of content neutrality is to prevent a
government 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 notion
that any content distinction is intrinsically content based mis-
apprehends the proper analysis. Content neutrality bars only
one particular sort of distinction—those made with a censorial
intent "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, its
ideas, its subject matter," Police Dep’t of Chicago v. Mosley,
408 U.S. 92, 95 (1972), or to "prohibit the expression of an
idea simply because society finds the idea itself offensive or
disagreeable," Texas v. Johnson, 491 U.S. 397, 414 (1989).
We acknowledge that several of our sister circuits hew to
an absolutist reading of content neutrality. See Neighborhood
Enterprises, Inc. v. City of St. Louis, 644 F.3d 728, 736 (8th
Cir. 2011), cert. denied, 132 S. Ct. 1543 (2012) (holding sign
ordinance exemptions content based since "one must look at
the content of the object."); Serv. Emp. Int’l Union, Local 5
v. City of Houston, 595 F.3d 588, 596 (5th Cir. 2010) ("A reg-
12 BROWN v. TOWN OF CARY
ulatory 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) (applying the absolutist
approach).
In our view, however, such an approach imputes a censorial
purpose to every content distinction, and thereby applies the
highest judicial scrutiny to laws that do not always imperil the
preeminent First Amendment values that such scrutiny serves
to safeguard. As we did in Wag More Dogs, we again join
those circuits that have interpreted Hill as supporting a more
practical test for assessing content neutrality. See ACLU of Ill.
v. Alvarez, 679 F.3d 583, 603 (7th Cir. 2012) ("A law is not
considered ‘content based’ simply because a court must ‘look
at 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 nothing
in the record to indicate that the distinctions between the vari-
ous types of signs reflect a meaningful preference for one type
of speech over another."); G.K. Ltd. Travel v. City of Lake
Oswego, 436 F.3d 1064, 1079 (9th Cir. 2006) ("[The regula-
tion] does not require Lake Oswego officials to evaluate the
substantive message . . . [and] certainly does not favor speech
based on the idea expressed." (internal quotations omitted)).
We also reject the analogous principle that the Sign Ordi-
nance is necessarily content based because "a searching
inquiry into the content of a particular sign is required." Bow-
den, 754 F. Supp. 2d at 803. Rather, a more searching inquiry
should merely be seen as indicative, not determinative, of
whether a government has regulated for reasons related to
content. See Reed v. Town of Gilbert, Ariz., 587 F.3d 966, 978
BROWN v. TOWN OF CARY 13
(9th Cir. 2009) ("If applied without common sense, this prin-
ciple would mean that every sign, except a blank sign, would
be content based.").
B.
Affirming the practical inquiry propounded in Wag More
Dogs, we reiterate its operative test for content neutrality:
A regulation is not a content-based regulation of
speech if (1) the regulation is not a regulation of
speech, but rather a regulation of the places where
some speech may occur; (2) the regulation was not
adopted because of disagreement with the message
the speech conveys; or (3) the government’s interests
in the regulation are unrelated to the content of the
affected 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 to
the 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 at
366.
Our two most recent sign ordinance cases illustrate this
purposive approach. In Covenant Media, the City of North
Charleston, South Carolina enacted a sign ordinance that dis-
tinguished between "off-premises" and "on-premises" com-
mercial signs "identifying or advertising a business, person, or
activity, or goods, products, services or facilities." 493 F.3d
at 424-25. We applied intermediate scrutiny to this distinction
because 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 the
City of North Charleston." Id. at 434 (internal quotation
14 BROWN v. TOWN OF CARY
marks omitted). And in Wag More Dogs, we similarly con-
cluded that an exemption for noncommercial signs could be
justified for reasons independent of content since it served to
"among other aims, promote traffic safety and the County’s
aesthetics, interests unrelated to messages displayed." 680
F.3d at 368. Applying intermediate scrutiny, we affirmed the
district court’s ruling that the sign ordinance satisfied the First
Amendment. Id. at 370.
Metromedia, the principal case cited by Bowden and the
district court, does not compel a different approach. That case
invalidated 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, 453
U.S. at 494-95, 514.
The fatal defect of the Metromedia ordinance was that San
Diego 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 would
detract 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 of
their 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 city
had discriminated for reasons of content. Implicit in the city’s
failure 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 connected
with a particular site is of greater value than the communica-
tion of noncommercial messages." Id. at 513.
BROWN v. TOWN OF CARY 15
The Town, therefore, cannot disguise a content based
restriction beneath a content neutral justification, but rather
must demonstrate a "‘reasonable fit’ between its legitimate
interests in [traffic] safety and esthetics" and its exemptions
for public art and holiday decorations. City of Cincinnati v.
Discovery Network, Inc., 507 U.S. 410, 416 (1993)7; see also
Turner Broad., 512 U.S. at 642-43 ("Nor will the mere asser-
tion of a content-neutral purpose be enough to save a law
which, on its face, discriminates based on content."); Whitton
v. 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 because
of content, we ask in this case whether those distinctions bear
a reasonable relationship to the Town’s asserted content neu-
tral purposes.
Applying that test, it is clear that while the Sign Ordinance
distinguishes content, the distinctions themselves are justified
for reasons independent of content. Unlike Cincinnati, where
the city’s content distinction "ha[d] absolutely no bearing on
the [aesthetic] interests it ha[d] asserted," 507 U.S. at 428, the
Sign Ordinance’s exemptions reasonably advance the legisla-
tive interests of traffic safety and aesthetics. And as with the
7
In Cincinnati, the Supreme Court concluded that an ordinance that
banned only commercial handbills from street newsracks for the purposes
of "safety and esthetics" was a content based distinction "bear[ing] no
relationship whatsoever to the particular interests that the city has
asserted." 507 U.S. at 424. Because "all newsracks, regardless of whether
they contain commercial or noncommercial publications, are equally at
fault," id. at 426, the city could not justify its decision to restrict certain
publications while exempting others without reference to "the content of
the publication resting inside that newsrack," id. at 429.
16 BROWN v. TOWN OF CARY
exemptions at issue in Wag More Dogs, we think it reason-
able to presume that public art and holiday decorations
enhance rather than harm aesthetic appeal, and that seasonal
holiday displays have a temporary, and therefore less signifi-
cant, impact on traffic safety.
We recognize, as Bowden urges, that a nativity scene or an
elaborate work of art may implicate traffic safety no less than
an ordinary residential sign. Similarly, a sign erected for a
"Town-recognized event" or on behalf of a government
agency may impair rather than promote aesthetic appeal. But
the content neutrality inquiry is whether the Sign Ordinance’s
exemptions have a reasonable, not optimal, relationship to
these asserted interests. See Cincinnati, 507 U.S. at 424-26.
And "[w]e cannot determine with any degree of exactitude the
precise restriction necessary to carry out [the Sign Ordi-
nance’s] legitimate objectives. In practice, the legislature is
better equipped to make such empirical judgments." Randall
v. Sorrell, 548 U.S. 230, 248 (2006) (plurality opinion).
Moreover, we agree with the Town that in conducting the
relevant content based analysis, a court should not mechani-
cally "scour the ordinance in question to see if it omits some
categories of signs." Appellant’s Br. at 25. Rather, we focus
our attention on whether the restriction was adopted because
of a disagreement with the message conveyed. Hill, 530 U.S.
at 719. Applying that focus here, we conclude that the Sign
Ordinance places reasonable time, place, and manner restric-
tions only on the physical characteristics of mes-
sages—including those voicing political protest—and
exempts certain categories of signs from those restrictions
solely on the basis of the Town’s asserted and legitimate
interests of traffic safety and aesthetics.
Accordingly, we hold that the Sign Ordinance is content
neutral and examine its constitutionality under intermediate
scrutiny.
BROWN v. TOWN OF CARY 17
D.
The Sign Ordinance is constitutional if it "furthers a sub-
stantial government interest, is narrowly tailored to further
that interest, and leaves open ample alternative channels of
communication." Wag More Dogs, 680 F.3d at 369 (quoting
Am. Legion Post 7 of Durham, N.C. v. City of Durham, 239
F.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. See
Arlington County Repub. Comm. v. Arlington County Va., 983
F.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, the
Sign Ordinance, policy statements, and testimony of Town
officials, were that unregulated signage would depress prop-
erty values, cause visual blight, deter commercial and residen-
tial growth, harm environmental resources, and diminish the
wholesome character of the Town. See J.A. 632-33, 758,
1024, 1300-04, 1312-17. We also reject Bowden’s contention
that "in this case, there was no evidence of any specific traffic
problems." Appellee’s Br. at 24. To the contrary, the record
shows that the bright fluorescent lettering sprayed across
Bowden’s home distracted both a Cary police officer and a
passing motorist, who "beeped his horn" to get the officer’s
attention. 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
8
In Arlington County Repub. Comm., we invalidated a sign ordinance
that imposed a "two-sign limit," similar to the Town’s Sign Ordinance, on
all political signs. We did so on the ground that the county in that case
failed to show that the restriction was narrowly tailored to serve Arlington
County’s legislative interests of traffic safety and aesthetics. 983 F.2d at
595. Because Bowden does not challenge the Sign Ordinance’s quantita-
tive limits on signs, we express no view on that question.
18 BROWN v. TOWN OF CARY
substantially more speech than is necessary to further the gov-
ernment’s legitimate interests." Ward, 491 U.S. at 799. We
think the Sign Ordinance passes constitutional muster on this
score, as its size, color and positioning restrictions "do no
more than eliminate the exact source of the evil it sought to
remedy[.]" Wag More Dogs, 680 F.3d. at 369 (internal quota-
tions omitted). Finally, unlike the flat ban of residential signs
invalidated 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 reasonable
restrictions. Id. (internal quotations omitted); see also J.A.
1924 (depicting permissible signage displaying Bowden’s
message). Within such limits, a sign can contain any message
the speaker wishes to convey.
Accordingly, we conclude that the Sign Ordinance survives
intermediate scrutiny.
IV.
Bowden also contends that the Sign Ordinance exemptions
are unconstitutionally vague. We do not agree.
"A statute can be impermissibly vague for either of two
independent reasons. First, if it fails to provide people of ordi-
nary intelligence a reasonable opportunity to understand what
conduct 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 art
and holiday decorations, see J.A. 869, 883, and if they lack
the clarity Bowden would insist on, it is because the concepts
do 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-
BROWN v. TOWN OF CARY 19
vent governments from regulating vague concepts—it only
requires that they provide some guidance for citizens to
understand 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 exercising
ordinary 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 is
unclear under the Sign Ordinance whether the sign "Screwed
by the Town of Cary" qualifies as "public art" or "holiday
decorations." Bowden cannot reasonably contend that his sign
was "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 that
the 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 that
they "must be carefully scrutinized to determine if they are
only a public rationalization of an impermissible purpose."
Metromedia, 453 U.S. at 510. As we have already dispelled
such a purpose, we reject this argument.
V.
"Unlike oral speech, signs take up space and may obstruct
views, 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 the
First Amendment does not impose an all-or-nothing ultima-
tum upon municipalities that confront these problems. What
it requires is that any content distinction a government makes
must have a reasonable relation to a content neutral purpose.
20 BROWN v. TOWN OF CARY
What it forbids are content distinctions that jeopardize our
most venerated First Amendment principles by regulating
public opinion under the guise of public welfare.
We acknowledge that the Town’s Sign Ordinance, and in
particular its application to Bowden, has aggravated some
Cary 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, we
hold that it does not violate the First Amendment. Accord-
ingly, we reverse the judgment of the district court and the
accompanying order awarding Bowden attorney fees and
costs, and remand with instructions to enter summary judg-
ment for the Town.
REVERSED AND REMANDED
BROWN v. TOWN OF CARY 21
APPENDIX