Wag More is a canine daycare, boarding and grooming business founded by Kim Houghton. Its rear wall abuts an Arlington County (my home county!) park where residents often take their dogs, known colloquially as the Shirlington Dog Park. In July 2009, Houghton began substantial renovations of her building, including commissioning a local artist to paint a mural of dogs, dog bones, and paw prints on the rear wall. The mural, which is 16 feet by 60 feet, faces the Shirlington Dog Park. Arlington County determined that the mural was an improperly large business sign under its Zoning Ordinance. Wag More claimed a violation of its First Amendment rights.
Wag More admitted in its complaint that the mural was commissioned at least in part to “create goodwill with the people who frequented the [Shirlington] dog park, many of whom were potential Wag More Dogs customers.” The artist who designed and painted the artwork explicitly incorporated “some of the cartoon dogs in Wag More Dogs' logo” into the piece, and the court found that the dogs in the mural bear a striking resemblance to the cartoon dogs on the Wag More website.
Defendant Artman, the Arlington County Zoning Administrator, determined that the mural violated the zoning ordinance and “locked” Wag More’s building permit, preventing any final inspection of the renovated facility. She offered Wag More the options of painting over the artwork, changing the mural to something other than dog images, applying for a special exception permit, adding lettering to the mural saying “Welcome to Shirlington Park's Community Canine Area,” and/or covering the mural with a tarp until the County Board could act on Wag More’s application for a special use permit. Wag More elected the tarp option, and received a certificate of occupancy that was valid as long as the tarp stayed in place.
Wag More sued, arguing that the definition of “sign” was invalid.
The court first held that intermediate scrutiny applied. Wag More argued that the mural was ex-pressive and that the zoning ordinance was impermissibly content-based. The content neutrality question is whether the government adopted a speech regulation because of disagreement with the message of the speech. Here, the restrictions on signs applied based on size and location as well as whether the signs were commercial. This is content-neutral. Comment: this is why “content neutrality” is not very helpful in current First Amendment jurisprudence. Really, distinguishing between commercial and noncommercial speech is clearly content-based, unlike size and placement limitations; it’s just that the commercial/noncommercial distinction is not suspect under current jurisprudence and thus the government just needs a reasonable justification for doing so.
Thus, the court went on to acknowledge that determining whether any particular display is a regulable “business sign” requires “a general inquiry into the nature of the display and its relationship to the business on which it is displayed.” But this is still only aimed at identifying a general category, rather than at targeting speech because of governmental disagreement with the message. (Yes, because the former is content-based or speaker-based and the latter is viewpoint-based, which really would be a problem.) The County didn’t object to the “happy cartoon dogs” message, but neutrally applied its regulations of business signs.
The nub of the problem was to hold that any government effort to classify speech as a business sign rather than as a non-business-related artwork was content-based discrimination triggering strict scrutiny would nullify the Central Hudson line of cases, which apply lesser scrutiny to restrictions on commercial speech. “Arlington County's regulations are therefore content-neutral as a matter of law ….” Indeed, the county’s size restrictions were quintessential commercial speech regulations, and the mural was itself a classic example of commercial speech, as Wag More itself admitted that one primary purpose was to engender goodwill with potential customers. “Furthermore, it simply cannot be a coincidence that the cartoon dogs on the mural are so strikingly similar in appearance to the cartoon dogs in Wag More Dogs' logo, which it prominently displays on its website and in a small sign displayed over its front door.” On this record, the mural was a business sign as a matter of law.
So, did the zoning ordinance survive intermediate/Central Hudson scrutiny? To do so, the ordinance needed to serve a substantial governmental interest, in a manner in proportion to that interest and not more restrictive than necessary to achieve it. The ordinance set out its purposes: to reduce traffic hazards caused by unregulated signs, ensure the effectiveness of public traffic signs and signals, protect property values by insuring the compatibility of property with that surrounding it, provide an attractive visual environment throughout the County, and protect the character and appearance of the various neighborhoods in the County. Such interests in aesthetics and traffic safety have repeatedly been found to be substantial.
The ordinance was also properly tailored. It didn’t ban commercial signs, but restricted their size in designated areas. “The existence of large, obtrusive advertising signs is the very evil sought to be eradicated, and the accumulation of such signs would create the very traffic hazards and visual clutter with which the County was concerned.”
Admittedly, the ordinance was underinclusive, because people can erect some large noncommercial signs, including a mural on Wag More’s building “that depicted generic images of waterfalls, meadows, flowers, or some other object or scenery entirely unrelated to Wag More Dogs' ‘doggy daycare’ business” or “a County informational mural that included images of dogs but said ‘Welcome to Shirlington Park's Community Canine Area.’” In fact, other buildings in the same district have generic artwork painted on them, and the County was not concerned with them. Wag More argued that the county’s interests in safety and visual clutter were therefore not genuine.
The court disagreed. A single informational sign or generic mural might be just as unsightly or distracting as a large business sign. “But the crucial distinction is that there are far greater economic incentives for businesses to erect advertising signs on their exterior walls than for those same businesses to spend their own money commissioning generic murals on their buildings merely to beautify the surrounding areas.” Commercial speech is much more durable and resistant to chill. “Meanwhile, there is every risk that if large commercial advertising murals like Wag More Dogs' were permitted, other business might well emblazon the sides of their buildings with such paintings. The result, in the aggregate, could be a virtual cacophony of competing commercial signs, with substantially adverse effects on traffic safety and visual aesthetics.”
Wag More next challenged the county’s definition of a “sign” as unconstitutionally vague and standardless. The court disagreed. Recall the definition: a “sign” is “any word, numeral, [or] figure ... [that] is used to direct, identify, or inform the public ...” To prevail on its facial challenge, Wag More had to show that no set of circumstances exists under which the law would be valid, but all it argued was that there were some limited, hypothetical circumstances in which those words might be unclear. In fact, Wag More admitted that in many circumstances, the County's definition of a “sign” was perfectly clear.
Moreover, many cases hold that common words, when given their plain and ordinary meanings, do not need to be exhaustively defined, or even defined at all within a given regulation, to survive a challenge for vagueness. Rather, a statute need only be set out in terms that the ordinary person exercising ordinary common sense can sufficiently understand and comply with. The county’s ordinance satisfied that basic requirement, especially since it adds clarity by spelling out the def-inition of “business signs” as signs identifying the products or services available on the premises or advertising a use conducted thereon. The statutory scheme as a whole therefore gave adequate notice of the types of signs subject to regulation.
Wag More’s argument that it didn’t realize its mural was barred by the ordinance was belied by the facts alleged in the complaint: the nature of its business and the fact that the huge mural features the same dogs in its logo. The mural was “a classic form of branding and advertising, and it plainly ‘directs ... and informs’ the public, ‘identif[ies] the products or services available on the premises, [and] advertis[es] a use conducted thereon.’” Its ignorance doesn’t mean that the mural doesn’t meet the definition of a sign, or wasn’t clearly barred by the 60-square-foot sign limit.
Wag More also challenged Artman’s interpretation of the ordinance in an informal email exchange, when Houghton asked what correction would be needed to change the sign into a mural. Artman wrote:
[For] the mural to NOT be considered a sign, it may depict anything you like EX-CEPT something to do with dogs, bones, paw prints, pets, people walking their dogs, etc. In other word [sic], the mural cannot show anything that has any relationship with your business. If it does, then it becomes a sign.First, Wag More didn’t plausibly allege that the county used the “any relationship” test to make formal zoning decisions. Virginia law makes clear that informal statements by Zoning Administrators are not official interpretations. Assuming arguendo that this was an official interpretation, it was adequately squared with the ordinance itself. “It is entirely appropriate for the County to draw such distinctions between signs that bear a relationship to the business and those that are unrelated to the business; after all, the former are commercial advertising signs, and as explained above, the government may validly impose greater restrictions on them than on noncommercial speech.” Nor is that standardless or vague because “a reasonable person could easily understand and apply that very basic test.” Nor was it substantially overbroad, judged in relation to the ordinance’s plainly legitimate sweep in regulating potentially harmful commercial speech.
Wag More next challenged the county’s proffered alternatives. First, Wag More argued that the requirement for a special exception permit was an unconstitutional prior restraint. Next, it argued that the proposal to paint “Welcome to Shirlington Park's Community Canine Area” below the artwork would be compelled speech. The court disagreed.
Content-neutral licensing and permitting regulations are not unconstitutional prior restraints as long as they have adequate standards to cabin official discretion and a fair opportunity for judicial review. These existed.
The most interesting part for me is the “Welcome” message. The court found that there was no unconstitutional compulsion given the multiple options offered by the county. “In its discretion … the County offered plaintiff an alternative that would respect its professed desire to retain its ‘happy cartoon dog’ artwork, which the Complaint alleges beautifies the neighborhood, while simultaneously ensuring that the mural complies with the Zoning Ordinance and does not invite other businesses to skirt the 60-square-foot sign limitation with similar paintings.” This offer in the interest of reaching a mutually acceptable compromise did not constitute a First Amendment violation. (Suppose the county now offers to grant the exception if Wag More adds the message—would that be an unconstitutional exaction under Nollan/Dolan?)