"Screwed by the Town"— When land use codes kill free speech

February 04, 2013 | By J. DAVID BREEMER

It is said that a person’s home is his castle, but it is apparently not a personal billboard, at least according to a recent decision from the 4th Circuit Court of Appeals. In Brown v. Town of Cary, 2013 U.S. App. LEXIS 1423 (4th Cir., Jan 22, 2013), that court held that a homeowner had no free speech right to put a “Screwed by the Town of Cary” message on his home to voice displeasure with local government activities.

The case began when a homeowner repeatedly objected to Town-run road paving operations that had caused water damage to his property. When Town officials did nothing, the aggrieved property owner used his home to send a painted –and pointed — message to the Town. Using orange florescent paint, the homeowner wrote “Screwed by the Town of Cary” across a fifteen foot swath of the facade of his home, using lettering between 14 to 21 inches high. A photo is here.

Well, this was too much for a passing motorist . . . and the Town. When the motorist complained, the Town sent its officials out, and they cited the homeowner for a “zoning violation” due to his message. When he refused to take it down, they pulled out their rule book, came back later and found some more violations. This time, the officials said, the message violated a local sign ordinance. That ordinance only allows signs that are 2×2 feet in height or less, and the homeowner’s message was over that limit. What’s more, Chapter 9.8.3(B) of the Town’s sign code prohibited the “use of high intensity colors or fluorescent pigments.” Orange was just not an okay color for the message. Accordingly, the Town cited the homeowner for violating both restrictions.

But the homeowner, who by this time must have been thinking (like Jefferson), they “sent hither swarms of Officers to harass our people,” was not ready to roll over. He filed a lawsuit in federal court, asserting that his “Screwed by the Town” message was protected free speech that survived the Town’s sign rules. The district court agreed, but last month, the Fourth Circuit reversed.

The Fourth Circuit held that the Town could prohibit the message under its sign ordinances, without violating the First Amendment, for “aesthetic” reasons (message not pretty enough) and “traffic safety” concerns (message might cause a passing motorist to be distracted).

While judges and lawyers might debate the court’s use of intermediate scrutiny and content neutrality to decide if the message was protected speech, for most Americans, no legal gymnastics are necessary.  After all, the “Screwed by the Town of Cary” message is a protest message and political protest is the most traditional and revered form of American free speech. No parsing of precedent and no regulatory purpose can change a message of political dissatisfaction -even when it is “in your face” — into something less than a protected form of free expression. See Cohen v. California, 403 U.S. 15 (1971) (holding that a t-shirt saying “F*** the Draft,” and worn in a court room, was protected speech). And yet, that is what happened in this case. The right to object to being “Screwed by the Town” government was trumped by the regulatory minutia that has become the land use regulatory state.

It may not be a surprise that near-sighted local officials blanched at allowing a property owner to use his home as a canvass of political protest, but we expect more from the courts. Indeed, when obviously political expression on private property can be penalized and halted by a simple sign ordinance, it is hard not to conclude that “something has gone seriously awry with the Court’s interpretation of the Constitution,” as Justice Thomas said in his dissent in Kelo v. City of New London. All of which suggests that the homeowner’s next message might refer to the courts. Its permissible– as long as he uses an aesthetically pleasing color on a 2×2 surface that does not bother passing drivers.