Wag More Dogs, Ltd. Liability Corp. v. Cozart

PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

WAG MORE DOGS, LIMITED 

LIABILITY CORPORATION,

Plaintiff-Appellant,

v.

NORMA J. COZART, in her official  No. 11-1226

capacity as (acting) Zoning

Administrator for Arlington

County, Virginia; ARLINGTON

COUNTY, Virginia,

Defendants-Appellees.



Appeal from the United States District Court

for the Eastern District of Virginia, at Alexandria.

Leonie M. Brinkema, District Judge.

(1:10-cv-01347-LMB-TCB)

Argued: March 21, 2012

Decided: May 22, 2012

Before DUNCAN, KEENAN, and DIAZ, Circuit Judges.

Affirmed by published opinion. Judge Diaz wrote the opinion,

in which Judge Duncan and Judge Keenan joined.

2 WAG MORE DOGS v. COZART

COUNSEL

ARGUED: Robert Peller Frommer, INSTITUTE FOR JUS-

TICE, Arlington, Virginia, for Appellant. Carol Winfield

McCoskrie, COUNTY ATTORNEY’S OFFICE, Arlington,

Virginia, for Appellees. ON BRIEF: Robert J. McNamara,

William H. Mellor, III, INSTITUTE FOR JUSTICE, Arling-

ton, Virginia, for Appellant. MinhChau N. Corr, COUNTY

ATTORNEY’S OFFICE, Arlington, Virginia, for Appellees.

OPINION

DIAZ, Circuit Judge:

Wag More Dogs, LLC appeals the district court’s dismissal

of its complaint, which alleged that Arlington County’s sign

ordinance violated the First Amendment. We agree with the

district court that the ordinance is a content-neutral restriction

on speech that satisfies intermediate scrutiny. Finding no

merit to the other constitutional challenges, we affirm.

I.

A.

Like most local governments throughout the country,

Arlington County ("Arlington") has enacted a comprehensive

zoning ordinance. Several provisions of the zoning ordinance

pertain to the display of signs ("Sign Ordinance"). Arlington

enacted the Sign Ordinance to "regulate the construction,

placement and display of signs in order to maintain the health,

safety, convenience and welfare of residents and businesses of

the County, as well as the overall visual appearance through-

out the County." Arlington County, Va., Zoning Ordinance

§ 34.1 Among other aims, Arlington promulgated the Sign

1

We consult the addenda to the parties’ briefs for the text of the Sign

Ordinance.

WAG MORE DOGS v. COZART 3

Ordinance to "reduce the traffic hazards caused by . . . unreg-

ulated signs" and to enhance the aesthetic environment of the

County. Id.

The Sign Ordinance defines "sign" as "[a]ny word,

numeral, figure, design, trademark, flag, pennant, twirler,

light, display, banner, balloon or other device of any kind

which, whether singly or in any combination, is used to direct,

identify, or inform the public while viewing the same from

outdoors." Id. § 34(B). It further provides as a general rule

that "[a] sign permit shall be obtained from the Zoning

Administrator before any sign or advertising is erected, dis-

played, replaced, or altered so as to change its overall dimen-

sions." Id. § 34(A)(1).

Two categories of signs are not subject to the permit pro-

cess. The first, a list of signs permitted in all zoning districts

without permits, includes fifteen types of signs and covers

such rudimentary postings as official notices required by law,

"no trespassing" signs, and directional signs. Id. § 34(E). A

second category lists fourteen types of prohibited signs—most

of which involve jarring or otherwise-distracting dis-

plays—for which no permit may be issued. Id. § 34(C). A

catchall provision allows noncommercial speech on a sign

wherever commercial speech is permitted. Id. § 34(A)(4).

The Sign Ordinance sets out intricate requirements for vari-

ous types of signs located in different zoning districts. Rele-

vant to this appeal, a provision includes size regulations for

businesses in "C" and "M" districts ("Business Sign Provi-

sion"). Id. § 34(G). The Business Sign Provision mandates

that an individual obtain a sign permit before erecting a "busi-

ness sign"—that is, a sign "identifying the products or ser-

vices available on the premises or advertising a use conducted

thereon." Id. "On the walls of commercial buildings in all ‘C’

and ‘M’ Districts," businesses are allowed to display "up to

three (3) signs for each tenant, up to a maximum total sign

area of sixty (60) square feet per tenant, or a total sign area

4 WAG MORE DOGS v. COZART

of one (1) square foot per linear foot of the tenant’s frontage,

whichever is greater." Id. § 34(G)(1).

If a proposed sign does not otherwise qualify for a permit

under the Sign Ordinance but does not fall under the

prohibited-signs category, an individual may seek a special

exception through a "comprehensive sign plan." Id.

§ 34(A)(3). The provision detailing the process through which

Arlington evaluates applications for a comprehensive sign

plan ("Comprehensive Sign Plan Provision") states as fol-

lows:

Use permits may be issued for any of the special

exceptions or conditional uses for which a use permit

is required by the provisions of this ordinance; pro-

vided, that the County Board shall find that after a

duly advertised hearing, the use will not: (1) affect

adversely the health or safety of persons residing or

working in the neighborhood of the proposed use;

(2) be detrimental to the public welfare or injurious

to property or improvements in the neighborhood;

(3) be in conflict with the purposes of the master

plans of the County.

Id. § 36(G)(1).

Individuals who violate the Sign Ordinance are initially

subject to civil penalties. Arlington imposes a $200 fine on a

first-time violator, and fines steadily increase for subsequent

transgressions. Id. § 37(D)(1). When an individual has

accrued $5000 or more in fines, Arlington may prosecute the

violation as a criminal misdemeanor. Id. § 37(G).

B.

Kim Houghton owns and maintains Wag More Dogs, LLC

("Wag More Dogs"), a "doggy daycare" business located in

an "M" district in Arlington, Virginia. Houghton sought to

WAG MORE DOGS v. COZART 5

position her store near the Shirlington Dog Park, ultimately

renting a space in 2009 adjacent to the park. In an effort to

"beautify the area" and to "create goodwill with the people

who frequented the dog park, many of whom were potential

Wag More Dogs customers," Houghton commissioned a

painting on the rear of the business’s building. J.A. 8. The

final product, measuring approximately 960 square feet,

incorporated some of the cartoon dogs in Wag More Dogs’

logo. Houghton described it as including "happy cartoon

dogs, bones, and paw prints." Id. 5.

On August 13, 2010, Arlington County Zoning Administra-

tor Melinda Artman emailed Houghton to inform her that the

painting violated the Sign Ordinance. Specifically, the paint-

ing exceeded the size limitations imposed on signs displayed

in "M" districts, in contravention of section 34(G)(1) of the

Sign Ordinance. Artman stated that an administrative lock

would remain on the building permit until Houghton cured the

violations. Houghton could either paint over the display or

apply for a comprehensive sign plan to maintain compliance

with the Sign Ordinance, though her chances of success with

the latter option were dubious, according to Artman. In the

interim, Artman told Houghton to cover the painting with

tarps if she elected not to paint over it.

Houghton followed up with Artman by email, asking what

steps she could take to ensure that the painting was not con-

sidered a business sign. Artman responded as follows:

For the mural to NOT be considered a sign, it may

depict anything you like EXCEPT something to do

with dogs, bones, paw prints, pets, people walking

their dogs, etc. In other word [sic], the mural can not

[sic] show anything that has any relationship with

your business. If it does, then it becomes a sign.

Id. 37. Houghton ultimately covered the painting with tarps,

and Artman released the lock on her building. Artman subse-

6 WAG MORE DOGS v. COZART

quently issued Wag More Dogs a final certificate of occu-

pancy on September 27, 2010, under the condition that the

tarps remain in place over the painting.

About two weeks later, Arlington officials sought to reach

an accommodation with Houghton so that she could remove

the tarps while keeping the painting mostly intact. They told

her that she could include the words "Welcome to Shirlington

Park’s Community Canine Area" above the artwork, which

would convert the painting from an impermissible sign into an

informational sign not requiring a permit under the Sign Ordi-

nance. Houghton declined.

C.

Unable to display the painting because it violated the Sign

Ordinance, Wag More Dogs filed suit against Artman2 and

Arlington. It challenged the Sign Ordinance on a variety of

First Amendment grounds. Wag More Dogs first contended

that the Sign Ordinance was an impermissible content-based

restriction on speech, both facially and as applied to the busi-

ness. It then alleged that the Sign Ordinance was unconstitu-

tionally vague. Augmenting the vagueness attack by

referencing Artman’s email to Houghton, Wag More Dogs

claimed that Artman enforced the ordinance using an imper-

missibly vague "any relationship" test—i.e., she would con-

sider any display to constitute a "business sign" if it had any

relationship to the on-site business. Wag More Dogs further

alleged that the Comprehensive Sign Plan Provision operated

as an unconstitutional prior restraint on speech. Finally, it

claimed that Arlington’s offer of accommodation—in which

Houghton could display the painting if she included above the

artwork "Welcome to Shirlington Park’s Community Canine

Area"—qualified as unconstitutionally compelled speech.

2

Norma J. Cozart has since been named Arlington’s acting zoning

administrator, replacing Artman. Cozart has been substituted for Artman

as a defendant on appeal.

WAG MORE DOGS v. COZART 7

Wag More Dogs sought declaratory and injunctive relief for

these alleged First Amendment violations.

Wag More Dogs filed a motion for a preliminary injunc-

tion, while Arlington and Artman moved to dismiss the com-

plaint. The district court granted the motion to dismiss with

prejudice and denied the motion for a preliminary injunction

as moot. The court initially held that the Sign Ordinance was

a content-neutral restriction on speech that easily satisfied

intermediate scrutiny, rejecting Wag More Dogs’ facial and

as-applied challenges. The court further found no merit to

Wag More Dogs’ vagueness challenges. It first concluded that

the Sign Ordinance’s definition of "sign," when read in the

context of the rest of the regulation, was not impermissibly

vague. The court next held that Wag More Dogs had not plau-

sibly alleged that Arlington uses the "any relationship" test as

a decisive interpretation, and, in any event, the standard is not

unduly vague. Finally, the court rejected Wag More Dogs’

allegations that the Comprehensive Sign Plan Provision quali-

fied as an unconstitutional prior restraint on speech and that

Arlington had impermissibly compelled its speech.

Wag More Dogs appeals the district court’s dismissal of its

complaint and denial of its request for a preliminary injunc-

tion.

II.

We review de novo the district court’s grant of a motion to

dismiss, Lebron v. Rumsfeld, 670 F.3d 540, 547 (4th Cir.

2012), accepting as true the facts alleged in the complaint, see

Aziz v. Alcolac, Inc., 658 F.3d 388, 390 (4th Cir. 2011).

To survive a motion to dismiss, a plaintiff must establish

"facial plausibility" by pleading "factual content that allows

the court to draw the reasonable inference that the defendant

is liable for the misconduct alleged." Ashcroft v. Iqbal, 129 S.

Ct. 1937, 1949 (2009). Although we are constrained to " ‘take

8 WAG MORE DOGS v. COZART

the facts in the light most favorable to the plaintiff,’ " we need

not accept legal conclusions couched as facts or " ‘unwar-

ranted inferences, unreasonable conclusions, or arguments.’ "

Giarratano v. Johnson, 521 F.3d 298, 302 (4th Cir. 2008)

(quoting E. Shore Mkts., Inc. v. J.D. Assocs. Ltd. P’Ship, 213

F.3d 175, 180 (4th Cir. 2000)). At bottom, a plaintiff must

"nudge[ ] [its] claims across the line from conceivable to

plausible" to resist dismissal. Bell Atlantic Corp. v. Twombly,

550 U.S. 544, 570 (2007).

III.

The heart of Wag More Dogs’ complaint is that the Sign

Ordinance is an impermissible content-based restriction on

speech, both facially and as applied, that cannot survive strict

scrutiny. We disagree and hold that the Sign Ordinance is

content neutral on its face. As applied to Wag More Dogs, the

regulation is a restriction on commercial speech. Because the

Sign Ordinance satisfies intermediate scrutiny, Wag More

Dogs’ content-based challenges lack merit.

A.

Wag More Dogs advances a syllogistic argument to support

its claim that the Sign Ordinance is unconstitutional on its

face as a content-based restriction on speech: Any regulation

that differentiates between types of speech is content based.

The Sign Ordinance imposes different requirements on differ-

ent types of speech. Therefore, the Sign Ordinance is content

based. But Wag More Dogs would have us hew to a Euclid-

ean commitment to wooden logic, where the law instead

demands a more pragmatic judgment. Viewing the Sign Ordi-

nance with reference to precedent that applies a practical anal-

ysis of content neutrality, requiring that a regulation do more

than merely differentiate based on content to qualify as con-

WAG MORE DOGS v. COZART 9

tent based, we conclude that the Sign Ordinance is content

neutral and satisfies intermediate scrutiny.3

1.

Eschewing a formalistic approach to evaluating content

neutrality that looks only to the terms of a regulation, the

Supreme Court has instead embraced a more practical inquiry.

See, e.g., Hill v. Colorado, 530 U.S. 703, 719–20 (2000).

"The principal inquiry in determining content neutrality," the

Court has declared, "is whether the government has adopted

a regulation of speech because of disagreement with the mes-

sage it conveys." Id. at 719 (quoting Ward v. Rock Against

Racism, 491 U.S. 781, 791 (1989)); see also Ward, 491 U.S.

at 791 ("The government’s purpose is the controlling consid-

eration."). The Court has "repeatedly explained" that "govern-

ment regulation of expressive activity is ‘content neutral’ if it

is justified without reference to the content of regulated

3

We reject at the outset Wag More Dogs’ literally unprecedented con-

tention that the district court improperly dismissed the case absent Arling-

ton and Artman’s production of evidence justifying the Sign Ordinance’s

restrictions. Wag More Dogs concedes that, were we to accept the propo-

sition, dismissal would effectively never be appropriate in the context of

a First Amendment challenge, as the inquiry starts and stops with facts

alleged in the plaintiff’s complaint and gives the government no opportu-

nity to test the plausibility of the claim by producing evidence. Unsurpris-

ingly, Wag More Dogs cites no authority supporting this bold argument.

The cases it references stand for nothing more than the unremarkable prin-

ciple that "the party seeking to uphold a restriction of commercial speech

carries the burden of justifying it," a burden that "is not satisfied by mere

speculation or conjecture." Edenfield v. Fane, 507 U.S. 761, 770 (1993)

(internal quotations omitted); see also Sorrell v. IMS Health Inc., 131 S.

Ct. 2653, 2667 (2011) ("[I]t is the State’s burden to justify its content-

based law as consistent with the First Amendment."). As explained below,

consistent with over thirty years of case law from the Supreme Court and

our court, Arlington has established that the Sign Ordinance passes consti-

tutional muster under the rubric of intermediate scrutiny. It need not rein-

vent the wheel by coming forward with voluminous evidence justifying a

regulation of the type that has been upheld several times over. Dismissal

was therefore proper.

10 WAG MORE DOGS v. COZART

speech." Hill, 530 U.S. at 720. This is so even if the regula-

tion "has an incidental effect on some speakers or messages

but not others." Ward, 491 U.S. at 791.4

Distilling the principles enunciated by the Court in Hill, we

have established a three-pronged test for evaluating 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.

Covenant Media of S.C., LLC v. City of N. Charleston, 493

F.3d 421, 433 (4th Cir. 2007) (internal quotations and alter-

ation omitted). The plain text of a regulation, to be sure, is a

factor important to our analysis. E.g., Satellite Broad. &

Commc’ns Ass’n v. FCC, 275 F.3d 337, 353–54 (4th Cir.

2001). But we have not hesitated to deem a regulation content

neutral even if it facially differentiates between types of

4

Despite Wag More Dogs’ suggestions to the contrary, the Supreme

Court’s decision in Sorrell did not signal the slightest retrenchment from

its earlier content-neutrality jurisprudence. Finding that the statute at issue

discriminated based on content, the Court grounded its holding on the stat-

ute’s facial discrimination between types of speech coupled with legisla-

tive history dispelling "[a]ny doubt that" the regulation "impose[d] an

aimed, content-based burden on [pharmaceutical] detailers" and "bur-

den[ed] disfavored speech by disfavored speakers." Sorrell, 131 S. Ct. at

2663. Indeed, the Court noted that the enacting legislature had hoped to

stymie the speech of pharmaceutical detailers through passage of the stat-

ute. Id. at 2663–64. At its core, the law qualified as content based because

it embodied government creation of " ‘a regulation of speech because of

disagreement with the message it conveys.’ " Id. at 2664 (quoting Ward,

591 U.S. at 791). Preceding Supreme Court decisions—and our analysis

in this case—are entirely consistent with Sorrell.

WAG MORE DOGS v. COZART 11

speech. E.g., Covenant Media, 493 F.3d at 434–35 (adjudging

city ordinance content neutral, even though it treated different

types of speech differently, because it "serve[d] purposes

unrelated to the content of expression" and "did not regulate

the location of different types of signs based on the ideas or

views expressed" (internal quotations omitted)); Am. Legion

Post 7 v. City of Durham, 239 F.3d 601, 608–09 (4th Cir.

2001) (upholding city ordinance as content-neutral restriction

on speech, even though it differentiated between commercial

and noncommercial speech). A statute’s differentiation

between types of speech does not inexorably portend its clas-

sification as a content-based restriction.

Cognizant that "[e]ach method of communicating ideas is

a ‘law unto itself’ " and that our jurisprudence "must reflect

the ‘differing natures, values, abuses and dangers’ of each

method," Metromedia, Inc. v. City of San Diego, 453 U.S.

490, 501 (1981) (plurality) (quoting Kovacs v. Cooper, 336

U.S. 77, 97 (1949) (Jackson, J., concurring)), we pay here

particular attention to cases addressing sign regulations. The

Supreme Court in Metromedia weighed the constitutionality

of a sign ordinance. Generally speaking, the ordinance permit-

ted on-site commercial advertising but prohibited other forms

of commercial advertising and most noncommercial commu-

nications. Id. at 503. Noncommercial messages were permit-

ted only if they fell into one of twelve specified exceptions.

Id. at 494–95. The Court invalidated the ordinance as an

unconstitutional content-based restriction on speech. The plu-

rality cited two principal constitutional defects. First, the reg-

ulation privileged commercial speech over noncommercial

speech, inverting the constitutional protection afforded each

type of speech. Id. at 513. Second, the city through its excep-

tions to the general ban on noncommercial signs impermiss-

ibly distinguished between "various [noncommercial]

communicative interests." Id. at 514–15.

We drew on Metromedia in evaluating the content neutral-

ity of a sign regulation in Covenant Media. The ordinance

12 WAG MORE DOGS v. COZART

there distinguished between on-premises signs and off-

premises signs. On-premises signs were defined as "signs

identifying or advertising a business, person, or activity, or

goods, products, services or facilities located on the premises

where the sign is installed." Covenant Media, 493 F.3d at 425

(internal quotations omitted). Off-premises signs were "signs

identifying or advertising a business, person, or activity, or

goods, products, services or facilities not located on the prem-

ises where the sign is installed or directing persons to a differ-

ent location from where the sign is installed." Id. (internal

quotations omitted). The sign regulation imposed size and

location requirements on off-premises signs and mandated

receipt of a permit prior to construction of such a sign. Id. The

regulation drew further distinctions between types of signs

within the two principal categories, imposing varying require-

ments on, e.g., directional, instructional, memorial, and public

signs. Id. at 434.

We held that the ordinance was content neutral. We first

stressed that the city adopted the ordinance to regulate land

use, "not to stymie any particular message." Id. Indeed, the

interests proffered by the city—securing traffic safety, pro-

moting the efficient transfer of information, and enhancing

the area’s aesthetics—were completely unrelated to the con-

tent of messages displayed. Id. We succinctly rejected the

argument advanced by the plaintiff, one that mirrors that set

forth by Wag More Dogs:

To be sure, the Sign Regulation defined and distin-

guished between different types of signs. And we

recognize that distinguishing between different types

of signs and where those signs may be located may

also in effect distinguish where certain content may

be displayed. But a regulation that serves purposes

unrelated to the content of expression is deemed neu-

tral, even if it has an incidental effect on some

speakers or messages but not others. The Sign Regu-

WAG MORE DOGS v. COZART 13

lation did not regulate the location of different types

of signs based on the ideas or views expressed.

Id. (citations and internal quotations omitted). The regulation

moreover did not suffer from the constitutional infirmities that

plagued the ordinance in Metromedia. First, the regulation did

not afford greater protection to commercial speech than non-

commercial speech. Id. at 433 n.9. Second, although the regu-

lation drew distinctions between types of noncommercial

speech—imposing different restrictions on directional signs,

memorial signs, and the like—the framework of the ordinance

counseled reaching a different outcome from the Metromedia

Court. Id. Whereas the ordinance in Metromedia operated as

a general prohibition on noncommercial signs, the regulation

in Covenant Media "generally allowed all signs regardless of

message, applying only time, place, and manner restrictions."

Id.

Applying Hill and Covenant Media to the Sign Ordinance,

we have no trouble concluding that it is a content-neutral reg-

ulation. As an initial matter, Wag More Dogs has not

alleged—nor could it—that Arlington has regulated speech

through the Sign Ordinance "because of disagreement with

the message it conveys," which is the "principal inquiry in

determining content neutrality," Hill, 530 U.S. at 719 (quoting

Ward, 491 U.S. at 791). As with the city in Covenant Media,

Arlington adopted the Sign Ordinance to regulate land use,

not to stymie a particular disfavored message. On this score,

then, the Sign Ordinance’s content neutrality is incandescent.

Moving to the text of the Sign Ordinance, we acknowledge

that Arlington has differentiated between types of speech. For

instance, the regulation imposes size requirements on "busi-

ness signs" that do not similarly apply to noncommercial

signs, and it exempts fifteen types of signs from its coverage.

But this varying treatment is not sufficient to convert the Sign

Ordinance into a content-based restriction on speech. Arling-

ton enacted the ordinance to, among other aims, promote traf-

14 WAG MORE DOGS v. COZART

fic safety and the County’s aesthetics, interests unrelated to

messages displayed. Thus " ‘even if it has an incidental effect

on some speakers or messages but not others,’ " the Sign

Ordinance is nevertheless content neutral because it " ‘serves

purposes unrelated to the content of expression,’ " Covenant

Media, 493 F.3d at 434 (quoting Ward, 491 U.S. at 791). The

Sign Ordinance is moreover distinguishable from the invali-

dated regulation in Metromedia. In contrast to that enactment,

the Sign Ordinance does not privilege commercial speech

above noncommercial speech, Arlington County, Va., Zoning

Ordinance § 34(A)(4) ("Wherever commercial speech is per-

mitted on a sign under this section of the ordinance, noncom-

mercial speech also is permitted."). And like the ordinance in

Covenant Media, the Sign Ordinance departs from the

Metromedia regulation in that it "generally allow[s] all signs

regardless of message, applying only time, place, and manner

restrictions." Covenant Media, 493 F.3d at 433 n.9.

That Arlington officials must superficially evaluate a sign’s

content to determine the extent of applicable restrictions is not

an augur of constitutional doom. See, e.g., Hill, 530 U.S. at

722 ("We have never held, or suggested, that it is improper to

look at the content of an oral or written statement in order to

determine whether a rule of law applies to a course of con-

duct."). "For a regulation with a clear content-neutral purpose

to be content based, there must be a more searching inquiry

into the content." Covenant Media, 493 F.3d at 434. As in

Covenant Media, the Sign Ordinance’s objectives, which seek

to "address problems caused by signs wholly apart from any

message conveyed," mitigate any concern that the " ‘kind of

cursory examination’ " brought about by "looking generally

at what type of message a sign carries to determine where it

can be located" renders the regulation content based. See id.

at 434–35 (quoting Hill, 530 U.S. at 721).

2.

Deeming the Sign Ordinance content neutral, we now read-

ily conclude that it satisfies intermediate scrutiny. A content-

WAG MORE DOGS v. COZART 15

neutral regulation passes constitutional muster "if it furthers

a substantial government interest, is narrowly tailored to fur-

ther that interest, and leaves open ample alternative channels

of communication." Am. Legion, 239 F.3d at 609. The Sign

Ordinance meets all three standards.

Arlington enacted the Sign Ordinance to, in part, promote

traffic safety and enhance the County’s aesthetics. Both are

substantial government interests. Members of the City Council

of L.A. v. Taxpayers for Vincent, 466 U.S. 789, 805 (1984)

(aesthetics); Metromedia, 453 U.S. at 507–08 (plurality) (aes-

thetics and traffic safety). The Sign Ordinance is narrowly tai-

lored to further its interest in traffic safety and aesthetics, as

its size and location restrictions "d[o] no more than eliminate

the exact source of the evil it sought to remedy," Taxpayers,

466 U.S. at 808 (ruling that government may impose even a

flat ban on certain classes of signs). Finally, the Sign Ordi-

nance "leaves open ample alternative channels of communica-

tion," Am. Legion, 239 F.3d at 609, by generally permitting

the display of all types of signs, subject only to size and loca-

tion restrictions. To take an example from this dispute, Wag

More Dogs could display its painting if it were no larger than

sixty square feet.

B.

Wag More Dogs also attacks the Sign Ordinance as applied

to it. Characterizing its painting as noncommercial speech,

Wag More Dogs maintains that Arlington impermissibly

restricted its sign while allowing other noncommercial mes-

sages to stand. We reject the premise, however, and conclude

that the painting is commercial speech. Because Arlington’s

regulation of Wag More Dogs’ commercial speech satisfies

intermediate scrutiny, we must turn aside the business’s as-

applied challenge.

1.

"Because the degree of protection afforded by the First

Amendment depends on whether the activity sought to be reg-

16 WAG MORE DOGS v. COZART

ulated constitutes commercial or non-commercial speech, we

must first determine the proper classification of the [mural] at

issue here." Bolger v. Youngs Prods. Corp., 463 U.S. 60, 65

(1983). In Bolger, the Supreme Court observed that "the core

notion of commercial speech" is "speech which does ‘no more

than propose a commercial transaction.’ " Id. at 66 (quoting

Va. State Bd. of Pharmacy v. Va. Citizens Consumer Council,

Inc., 425 U.S. 748, 762 (1976)); see also Cent. Hudson Gas

& Elec. Corp. v. Pub. Serv. Comm’n, 447 U.S. 557, 561

(1980) (stating that commercial speech is "expression related

solely to the economic interests of the speaker and its audi-

ence").

Bolger recognized a broader definition of commercial

speech, encompassing speech that "cannot be characterized

merely as proposals to engage in commercial transactions."

463 U.S. at 66. Before the Court in Bolger was an informa-

tional pamphlet distributed by a manufacturer of prophylac-

tics. Id. at 68. The pamphlet discussed the utility of condoms

in preventing the spread of sexually transmitted diseases. Id.

at 62 & n.4. It identified the manufacturer only on the last

page, which stated that the firm had contributed the pamphlet

as a public service. Id. Despite the pamphlet’s plainly not fall-

ing within "the core notion of commercial speech," the Court

nevertheless deemed it commercial speech. Id. at 66–68. A

combination of three factors "provide[d] strong support" for

the Court’s conclusion: the manufacturer conceded that the

pamphlet was advertising, a specific product was referenced,

and the manufacturer had an economic motivation for mailing

the pamphlets. Id. at 66–67. The Court cautioned that it did

not "mean to suggest that each of the characteristics present

in this case must necessarily be present in order for speech to

be commercial." Id. at 67 n.14.

The three factors relied on by the Court in Bolger similarly

counsel classifying Wag More Dogs’ painting as commercial

speech. First, Wag More Dogs alleged in its complaint that

the painting was meant to attract customers from the nearby

WAG MORE DOGS v. COZART 17

dog park, which is tantamount to conceding that it was adver-

tising. Second, the painting included cartoon dogs from the

business’s logo. Because Wag More Dogs offers services

rather than goods, the inclusion of part of its logo is analogous

to referencing a specific product. Third, Wag More Dogs cer-

tainly had an economic motivation for displaying the painting,

as it admitted in its complaint that it sought to "create good-

will with the people who frequented the dog park, many of

whom were potential . . . customers," J.A. 8. When viewed

through the lens of Bolger, Wag More Dogs’ complaint fails

to plausibly allege that the painting qualifies as noncommer-

cial speech.

2.

As applied to Wag More Dogs, the Sign Ordinance’s regu-

lation of commercial speech satisfies intermediate scrutiny.

To sustain its content-based regulation of commercial speech,

Arlington "must show at least that the [Sign Ordinance]

directly advances a substantial governmental interest and that

the measure is drawn to achieve that interest," Sorrell, 131 S.

Ct. at 2667–68. Arlington has met that burden. See supra Part

III.A.2. The Sign Ordinance is therefore constitutional as

applied to Wag More Dogs.

IV.

Wag More Dogs asserts finally that the Sign Ordinance is

unconstitutionally vague and that the Comprehensive Sign

Plan Provision operates as an unlawful prior restraint.5 We

disagree.

5

On appeal, Wag More Dogs has abandoned its claim of compelled

speech.

18 WAG MORE DOGS v. COZART

A.

Wag More Dogs alleges that the Sign Ordinance is vague

in two respects: in its definition of "sign," and through Arling-

ton’s enforcement of the regulation pursuant to a purported

"any relationship" test. Both assertions lack merit.

1.

We first consider—and reject—Wag More Dogs’ conten-

tion that the capaciousness of the Sign Ordinance’s general

definition of "sign" renders the entire regulation void for

vagueness.

Regulations can be struck down as impermissibly vague for

either of two reasons. First, a regulation can "fail[ ] to provide

people of ordinary intelligence a reasonable opportunity to

understand what conduct it prohibits." Hill, 530 U.S. at 732.

Second, a regulation can "authorize[ ] or even encourage[ ]

arbitrary and discriminatory enforcement." Id. We do not hold

legislators to an unattainable standard when evaluating enact-

ments in the face of vagueness challenges. "[W]hile there is

little doubt that imagination can conjure up hypothetical cases

in which the meaning of . . . terms will be in nice question,

because we are condemned to the use of words, we can never

expect mathematical certainty from our language." Id. at 733

(citation and internal quotations omitted); see also Imaginary

Images, Inc. v. Evans, 612 F.3d 736, 749 (4th Cir. 2010)

("[P]erfect clarity and precise guidance have never been

required even of regulations that restrict expressive activity."

(quoting Ward, 491 U.S. at 794)). Thus we "must ask whether

the government’s policy is ‘set out in terms that the ordinary

person exercising ordinary common sense can sufficiently

understand and comply with.’ " Imaginary Images, 612 F.3d

at 749 (quoting Giovani Carandola, Ltd. v. Fox, 470 F.3d

1074, 1079 (4th Cir. 2006)). Dictionary definitions and old-

fashioned common sense facilitate the inquiry. Id. at 750; see

also United States v. Cullen, 499 F.3d 157, 163 (2d Cir. 2007)

WAG MORE DOGS v. COZART 19

("[T]o meet the fair warning prong an ounce of common

sense is worth more than an 800-page dictionary.").

We are mindful that our task is not to dream scenarios in

which a regulation might be subject to a successful vagueness

challenge. The Supreme Court has instructed that "speculation

about possible vagueness in hypothetical situations not before

the Court will not support a facial attack on a statute when it

is surely valid ‘in the vast majority of its intended applica-

tions.’ " Hill, 530 U.S. at 733 (quoting United States v.

Raines, 362 U.S. 17, 23 (1960)).

Because the Sign Ordinance "provide[s] people of ordinary

intelligence a reasonable opportunity to understand what con-

duct it prohibits" and does not "authorize[ ] . . . arbitrary and

discriminatory enforcement," id. at 732, it is not susceptible

to attack on vagueness grounds. First, we note that Wag More

Dogs’ attempts to attack the Sign Ordinance’s general defini-

tion of "sign" are unavailing. That definition necessarily inter-

acts with the other provisions of the Sign Ordinance,

including, as is pertinent here, the Business Sign Provision.

Wag More Dogs’ entreaties to view the definition of "sign" in

a vacuum and envision ways in which the provision is inade-

quate amount to no more than the kind of "speculation about

possible vagueness in hypothetical situations" that we will not

consider, id. at 733. Wag More Dogs has simply not alleged

that application of the "sign" definition undermines the con-

clusion that the Sign Ordinance "is surely valid ‘in the vast

majority of its intended applications,’ " id. (quoting Raines,

362 U.S. at 23).

Concluding that Wag More Dogs is unable to prevail on its

attack of the general "sign" definition, we turn to its challenge

to the Business Sign Provision. Wag More Dogs effectively

grants that the Sign Ordinance’s definition of "business sign"

is valid—and for good reason. The regulation defines "busi-

ness sign" as a sign "identifying the products or services

available on the premises or advertising a use conducted

20 WAG MORE DOGS v. COZART

thereon." Arlington County, Va., Zoning Ordinance § 34(G).

We have little trouble finding that "the ordinary person exer-

cising ordinary common sense can sufficiently understand and

comply with" the Business Sign Provision, see Imaginary

Images, 612 F.3d at 749 (quoting Carandola, 470 F.3d at

1079). Indeed, other courts and litigants confronting similar

definitions in sign codes have not questioned them on vague-

ness grounds. See, e.g., Metromedia, 453 U.S. at 493–94;

Clear Channel Outdoor, Inc. v. City of New York, 594 F.3d

94, 98 n.3 (2d Cir. 2010).

2.

Turning to the standards of enforcement, Wag More Dogs

alleges that Arlington subjects to the strictures of the Business

Sign Provision a display "that has any relationship" to an on-

site business. Even casting aside the dubious plausibility of its

allegations that Arlington employs such a standard, we find

that Wag More Dogs has fallen far short of alleging a pattern

of discriminatory enforcement necessary to give rise to a

vagueness challenge on these grounds.

When the terms of a regulation are clear and not subject to

attack for vagueness, the plaintiff bears a high burden to show

that the standards used by officials enforcing the statute nev-

ertheless give rise to a vagueness challenge. See Green v. City

of Raleigh, 523 F.3d 293, 306 (4th Cir. 2008). We will evalu-

ate alleged vagueness in the enforcement of an otherwise-

valid statute only "if and when a pattern of unlawful favorit-

ism appears." Id. (internal quotations omitted). "Until this

occurs, however," a plaintiff pressing such a challenge will

have "failed to demonstrate that the ordinance[ ] [is] unconsti-

tutional." Id.

Wag More Dogs has not come close to alleging that Arling-

ton’s enforcement of the Sign Ordinance reveals " ‘a pattern

of unlawful favoritism,’ " id. (internal quotations omitted).

Wag More Dogs’ complaint focuses exclusively on its dispute

WAG MORE DOGS v. COZART 21

with Arlington, failing to detail other enforcement actions that

would evince the requisite pattern of arbitrariness. Finding its

contentions on this score nothing more than "speculation

about possible vagueness in hypothetical situations not before

[us]," Hill, 530 U.S. at 733, we reject Wag More Dogs’ chal-

lenge to Arlington’s standards of enforcement.

B.

Finally, Wag More Dogs alleges that the Comprehensive

Sign Plan Provision operates as an unlawful prior restraint on

speech. We disagree, concluding that the provision meets the

standards required of content-neutral licensing regulations.

To pass constitutional muster, a content-neutral licensing

regulation must "contain adequate standards to guide the offi-

cial’s decision and render it subject to effective judicial

review." Thomas v. Chicago Park Dist., 534 U.S. 316, 323

(2002). Adequate standards are those that "channel[ ] the

[decision maker’s] discretion, forcing it to focus on concrete

topics that generate palpable effects on the surrounding neigh-

borhood." Steakhouse, Inc. v. City of Raleigh, 166 F.3d 634,

639 (4th Cir. 1999). Effective judicial review is not synony-

mous with certain and prompt consideration of the merits of

a licensing denial, at least where—as here—we deal not with

time-sensitive forms of speech. Id. at 641. Indeed, in Steak-

house we held that a licensing scheme provided effective judi-

cial review even though such review was contingent on a

court’s grant of certiorari, which raised the specter of the

court’s either refusing to grant certiorari and not hearing the

case or granting the writ but delaying to decide the case. Id.

at 641–42.

The Comprehensive Sign Plan Provision "contain[s] ade-

quate standards to guide the official’s decision and render it

subject to effective judicial review," Thomas, 534 U.S. at 323,

and we therefore affirm its constitutionality. Under the Provi-

sion’s terms, the Arlington Board may grant an exemption

22 WAG MORE DOGS v. COZART

from otherwise-applicable restrictions if it finds that the pro-

posed use will not "(1) affect adversely the health or safety of

persons residing or working in the neighborhood of the pro-

posed use; (2) be detrimental to the public welfare or injurious

to property or improvements in the neighborhood; [or] (3) be

in conflict with the purposes of the master plans of the

County." Arlington County, Va., Zoning Ordinance

§ 36(G)(1). Like the ordinance upheld in Steakhouse, the

Comprehensive Sign Plan Provision "force[s] [the County

Board] to focus on concrete topics that generate palpable

effects on the surrounding neighborhood," 166 F.3d at 639.

Although the provision speaks of the normally amorphous

concept of "public welfare," we find that its placement along-

side the phrase "injurious to property or improvements in the

neighborhood" militates against an expansive reading of the

provision, confined as it is to concerns about land and infra-

structure.

Wag More Dogs nevertheless maintains that, no matter the

adequacy of the factors listed in the Comprehensive Sign Plan

Provision, the regulation confers unfettered discretion on offi-

cials because it provides merely that a permit "may" be

granted when the requisite standards are satisfied. This use of

discretionary language, according to Wag More Dogs, vitiates

the standards that follow and compels invalidating the provi-

sion. The Supreme Court has expressly foreclosed resort to

this argument, however. Although a showing of arbitrariness

in granting waivers would pose constitutional difficulty, the

Court reasoned "that this abuse must be dealt with if and

when a pattern of unlawful favoritism appears, rather than by

insisting upon a degree of rigidity that is found in few legal

arrangements." Thomas, 534 U.S. at 325. Wag More Dogs has

not alleged such "a pattern of unlawful favoritism," id., so its

challenge to the use of discretionary language must fail.

The Comprehensive Sign Plan Provision also satisfies the

second prong of the Thomas formulation, as it "render[s]

[decisions] subject to effective judicial review," id. at 323.

WAG MORE DOGS v. COZART 23

Virginia law provides for judicial review of "[e]very action

contesting a decision of the local governing body . . . granting

or failing to grant a special exception." Va. Code Ann. § 15.2-

2285(F). Wag More Dogs argues that the statutory review

process is insufficient because Arlington could elect to take

no action on an exception request, thereby frustrating the pos-

sibility of an applicant’s securing meaningful review. We

decline to join Wag More Dogs’ foray into the world of hypo-

theticals. See Thomas, 534 U.S. at 325 (refusing to consider

speculation about potential for abuse of discretion until "a pat-

tern of unlawful favoritism appears"). Moreover, an applicant

in the situation Wag More Dogs conjures could nevertheless

seek judicial review. The Virginia statute allows for judicial

review of decisions "granting or failing to grant a special

exception." Va. Code Ann. § 15.2-2285(F) (emphasis added).

Thus an applicant whose request is indefinitely tabled might

receive a judicial hearing on the matter, as such delay could

be considered a "fail[ure] to grant" an exception. See Steak-

house, 166 F.3d at 642 ("The respect that comity requires we

accord state courts invokes a presumption that the superior

court would provide [plaintiff] expeditious review.").6

V.

For the foregoing reasons, we affirm the judgment of the

district court.

AFFIRMED

6

Because we agree with the district court that Wag More Dogs has

failed to state a claim, we also affirm the court’s denial of Wag More

Dogs’ request for a preliminary injunction.