Dawn Brown v. Town of Cary

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