                                PUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                               No. 13-1996


CENTRAL RADIO COMPANY INC; ROBERT WILSON; KELLY DICKINSON,

                Plaintiffs - Appellants,

           v.

CITY OF NORFOLK, VIRGINIA,

                Defendant - Appellee.



                               No. 13-1997


CENTRAL RADIO COMPANY INC; ROBERT WILSON; KELLY DICKINSON,

                Plaintiffs - Appellees,

           v.

CITY OF NORFOLK, VIRGINIA,

                Defendant - Appellant.



     On Remand from the Supreme Court of the United States.
                      (S. Ct. No. 14-1201)


Argued:   September 17, 2014                Decided:   January 29, 2016


Before GREGORY, AGEE, and KEENAN, Circuit Judges.
Dismissed in part, affirmed in part, reversed in part, and
remanded by published opinion. Judge Keenan wrote the opinion,
in which Judge Gregory and Judge Agee joined.


ARGUED: Michael Eugene Bindas, INSTITUTE FOR JUSTICE, Bellevue,
Washington, for Appellants/Cross-Appellees. Adam Daniel Melita,
CITY ATTORNEY'S OFFICE, Norfolk, Virginia, for Appellee/Cross-
Appellant. ON BRIEF: Robert P. Frommer, Erica Smith, INSTITUTE
FOR   JUSTICE,   Arlington,   Virginia,   for  Appellants/Cross-
Appellees.   Melvin W. Ringer, CITY ATTORNEY'S OFFICE, Norfolk,
Virginia, for Appellee/Cross-Appellant.




                               2
BARBARA MILANO KEENAN, Circuit Judge:

       In    this    appeal,    we     consider      whether     the      district        court

erred in granting summary judgment to the City of Norfolk on

claims that the City’s sign ordinance violated the plaintiffs’

rights under the First Amendment and the Equal Protection Clause

of     the    Fourteenth        Amendment.           The      plaintiffs,            a    radio

manufacturing        and    repair     business      and   two       of    its   managers,

asserted      that    the     sign    ordinance      unconstitutionally              exempted

certain displays from regulation, effectuated a prior restraint

on   speech,    and     was    enforced      selectively        in    a    discriminatory

manner by zoning officials.

       Our   resolution       of     this   appeal    is   guided         by   the       Supreme

Court’s recent decision in Reed v. Town of Gilbert, 135 S. Ct.

2218    (2015).        Applying       the   principles     of    content         neutrality

articulated in Reed, we hold that the sign ordinance challenged

in the plaintiffs’ complaint is a content-based regulation that

does not survive strict scrutiny.                    Accordingly, we reverse the

district court’s judgment with respect to the plaintiffs’ First

Amendment challenge and remand that claim to the district court

to award nominal damages to the plaintiffs and for consideration

of other appropriate relief.                However, we find no merit in the

plaintiffs’         selective      enforcement       claim,     and       we   affirm       the

court’s disposition of that claim.



                                             3
     Because the City of Norfolk amended the sign ordinance in

October 2015 following the Court’s decision in Reed, we also

conclude      that     the      plaintiffs’     request     for     prospective         relief

based    on    the    content      restrictions        in   the    prior       ordinance     is

moot.     On remand, the district court may consider whether the

plaintiffs           may        bring      a    new     claim           challenging         the

constitutionality            of     the     amended     ordinance         and        seek   any

associated injunctive relief.



                                               I.

                                               A.

     The City of Norfolk (the City) adopted a zoning ordinance

that included a chapter governing the placement and display of

signs (the former sign code). 1                     See Norfolk, Va., Code app. A

§ 16 (2012).          The City enacted the former sign code for several

reasons,       including          to    “enhance      and    protect           the    physical

appearance      of     all      areas     of   the    city,”      and    to     “reduce     the

distractions, obstructions and hazards to pedestrian and auto

traffic       caused       by     the     excessive    number,          size     or    height,

     1 In November 2014, the City amended the former sign code to
remove the code’s exemption for flags or emblems of “religious
organizations.” See Norfolk, Va., Ordinance 45,769 § 1 & Ex. A
(Nov. 25, 2014).     The City amended the ordinance again in
October 2015, as we discuss further below.       Unless otherwise
noted, all citations in this opinion are to the pre-amendment
version of the former sign code challenged in the plaintiffs’
complaint, see J.A. 231-82.


                                               4
inappropriate types of illumination, indiscriminate placement or

unsafe construction of signs.”             Id. § 16-1.

       The former sign code applied to “any sign within the city

which is visible from any street, sidewalk or public or private

common open space.”          Id. § 16-2.            However, as defined in the

ordinance, the term “sign” did not encompass any “flag or emblem

of    any   nation,    organization     of     nations,     state,   city,   or   any

religious organization,” or any “works of art which in no way

identify or specifically relate to a product or service.”                         Id.

§ 2-3.        Such exempted displays were not subject to regulation

under the former sign code.

       With respect to signs that were eligible for regulation,

the former sign code generally required that individuals apply

for a “sign certificate” verifying compliance with the code.

Id. §§ 16-5.1, 16-5.3.           Upon the filing of such an application,

the    City    was    required   to   issue     a   “sign   certificate”     if   the

proposed sign complied with the provisions that applied in the

zoning district where the sign was to be located.                       Id. §§ 16-

5.4, 16-8.

       In the “I-1” industrial zoning district in which plaintiff

Central       Radio    Company    Inc.’s       (Central     Radio)    property    is

located, the former sign code restricted the size of signs.                       Id.

§ 16-8.3.       The size restrictions varied depending on whether a

sign was categorized as a “temporary sign,” which was permitted

                                           5
to be as large as 60 square feet, a “freestanding sign,” which

was permitted to be as large as 75 square feet, or an “other

than       freestanding   sign,”    which         was    permitted   to   be   as    many

square feet as the number of linear feet of building frontage

facing a public street. 2          Id.    The City did not patrol its zoning

districts       for   violations         of       size    restrictions     or       other

provisions of the former sign code, but did inspect displays in

response to complaints made by members of the public.

                                          B.

       The plaintiffs’ challenges to the City’s sign code relate

to a protest of certain adverse action taken against Central

Radio by the Norfolk Redevelopment and Housing Authority (NRHA).

The NRHA is a chartered political subdivision of Virginia, and

consists of an independent committee of seven members appointed

by the Norfolk City Council.             See Va. Code Ann. § 36-4.




       2
       Under the former sign code, a “temporary sign” was “[a]
sign or advertising display constructed of cloth, canvas,
fabric, paper, plywood or other light material designed to be
displayed   and  removed   within   [specified] time  periods.”
Norfolk, Va., Code app. A § 16-3 (2012). A “freestanding sign”
was “[a]ny sign placed upon or supported by the ground
independently of any other structure.”      Id. An “other than
freestanding sign,” or “wall sign,” as it was colloquially
described by the parties and by the district court, was “[a]
sign fastened to the wall of a building or structure in such a
manner that the wall becomes the supporting structure for, or
forms the background surface of, the sign or a sign painted
directly on the wall of the structure.” Id.


                                              6
       In April 2010, the NRHA initiated condemnation proceedings

against Central Radio and several other landowners, allegedly

intending to take and transfer the various properties to Old

Dominion     University    (ODU).       Central       Radio    and      the    other

landowners      successfully   opposed     the   taking       in   state      court.

Although a trial court initially ruled in favor of the NRHA,

that   ruling    was   reversed   on   appeal    by   the     Supreme    Court    of

Virginia.       PKO Ventures, LLC v. Norfolk Redevelopment & Hous.

Auth., 747 S.E.2d 826, 829-30 (Va. 2013) (holding that the NRHA

lacked the statutory authority to acquire non-blighted property

by eminent domain).         Accordingly, the condemnation proceeding

against Central Radio was dismissed.              Norfolk Redevelopment &

Hous. Auth. v. Central Radio Co., No. CL102965, 2014 WL 3672087

(Va. Cir. Ct. Apr. 15, 2014).

       In March 2012, while the appeal was pending in state court,

Central Radio’s managers placed a 375-square-foot banner (the

banner) on the side of Central Radio’s building facing Hampton

Boulevard, a major, six-lane state highway.              The banner depicted

an American flag, Central Radio’s logo, a red circle with a

slash across the words “Eminent Domain Abuse,” and the following

message in rows of capital letters: “50 YEARS ON THIS STREET /

78 YEARS IN NORFOLK / 100 WORKERS / THREATENED BY / EMINENT




                                       7
DOMAIN!” 3        The plaintiffs intended that the banner “be visible

for    several         blocks    along     Hampton       Boulevard”      and     “make      a

statement        about    Central      Radio’s     fight   with    the    NRHA,”      which

would constitute “a shout” rather than “a whisper.”

       An employee of ODU complained about the banner to a City

official, who notified the City’s zoning enforcement staff.                                The

City official did not identify the source of the complaint to

zoning      officials.          After    investigating      the    matter,       a   zoning

official         informed   Central       Radio’s     managers     that    the       banner

violated         the   applicable       size   restrictions       set    forth       in   the

former sign code.           At a later inspection, zoning officials noted

that       the    plaintiffs     had     failed     to   bring    the    display          into

compliance        with    the    former    sign    code,    and   ultimately         issued

Central Radio citations for displaying an oversized sign and for

failing to obtain a sign certificate before installing the sign. 4


       3
       The Appendix to this Opinion contains a photograph of the
plaintiffs’ display.

       4
       At the time of the first visit, a City zoning official
stated that Central Radio’s banner could not exceed 40 square
feet, because the building wall facing Hampton Boulevard was 40
feet long.   This calculation appeared to treat Central Radio’s
banner as an “other than freestanding sign” or “wall sign” under
the size restrictions of the former sign code.      See Norfolk,
Va., Code app. A § 16-8.3(c) (2012). However, when City zoning
officials returned to the Central Radio site less than a week
later, they stated that Central Radio’s banner could not exceed
60 square feet, a determination apparently based on the
restrictions governing “temporary signs.”   See id. § 16-8.3(a).
Ultimately, the written citation issued by the City required
(Continued)
                                               8
       In May 2012, the plaintiffs initiated a civil action to

enjoin      the    City       from     enforcing          the     former    sign     code.         The

plaintiffs          alleged            that       the           former      sign      code         was

unconstitutional because it subjected their display to size and

location       restrictions,                but     exempted           certain      “flag[s]        or

emblem[s]”        and    “works        of     art”       from    any     similar    limitations.

Although they contended that the former sign code constituted a

content-based           restriction           subject           to    strict      scrutiny,        the

plaintiffs argued in the alternative that the former sign code

also failed to satisfy intermediate scrutiny.                                     The plaintiffs

further alleged that the former sign code’s provision requiring

them   to     obtain      a     sign    certificate             before    erecting     a   display

effectuated an impermissible prior restraint on speech, and that

the    City       selectively          applied       the        former     sign    code    to      the

plaintiffs’ display in a discriminatory manner.                                   In addition to

requesting         declaratory              relief         and       nominal       damages,        the

plaintiffs         moved      for      a     temporary           restraining       order     and    a

preliminary injunction.

       The    district          court       denied        the    plaintiffs’       motions       and,

after discovery was completed, granted summary judgment in favor

of    the    City.         In    doing        so,        the    court    concluded        that     the




Central Radio to reduce the size of its banner to 60 square feet
or less.


                                                     9
provisions in the former sign code exempting flags, emblems, and

works       of    art     were   content-neutral.                 Applying      intermediate

scrutiny,         the    court    held       that    the    former     sign     code     was    a

constitutional            exercise      of    the     City’s      regulatory        authority.

Further,         the    court    held    that       the    challenged        sign    ordinance

exemptions were reasonably related to the City’s interests in

promoting traffic safety and aesthetics, because such exempted

displays “are less likely to distract drivers than signs” and

“are       commonly       designed      to    be     aesthetically          pleasing.”         In

reaching         this      conclusion,         the        court      also     rejected      the

plaintiffs’        prior     restraint        and    selective       enforcement       claims.

After the court entered final judgment, the plaintiffs filed

this appeal. 5

       We heard argument and issued a decision consistent with our

then-applicable case law, which affirmed the district court’s

judgment.              Central   Radio       petitioned        for    certiorari       to   the

Supreme Court, which granted the petition, vacated our opinion,


       5
       We disagree with the City’s contention that the district
court abused its discretion in extending the deadline for filing
the appeal after finding that any neglect by plaintiffs’ counsel
was excusable. Cf. Thompson v. E.I. DuPont de Nemours & Co., 76
F.3d 530, 532 n.2 (4th Cir. 1996) (observing that the decision
to grant an enlargement of time upon a showing of excusable
neglect “remains committed to the discretion of the district
court”).   The district court did not exceed its discretion in
excusing a brief delay that did not prejudice the defendant or
result from any bad faith on the plaintiffs’ part.    See, e.g.,
Salts v. Epps, 676 F.3d 468, 474-75 (5th Cir. 2012).


                                                10
and remanded for us to reconsider the case in light of its June

2015 decision in Reed.              Cent. Radio Co. v. City of Norfolk, 776

F.3d 229 (4th Cir. 2015), vacated and remanded, 135 S. Ct. 2893

(2015).      We later requested that the parties file supplemental

briefing on that issue.

       Following         the    parties’    supplemental       briefing,         the    City

filed    a   motion        suggesting      that     certain    of     the       plaintiffs’

requests for relief are now moot in light of the City’s decision

in October 2015 to amend the former sign code to comply with

Reed.     The current sign code (the amended sign code) no longer

exempts      certain           flags,    emblems,     and     works        of    art    from

regulation, but does specify that works of art and flags are

“examples of items which typically do not satisfy” the code’s

definition of “sign.”              See Norfolk, Va., Ordinance 46,108 Ex. A

§ 2-3 (Oct. 27, 2015).                  The amended sign code also imposes a

time    limit   on       the    City’s    decision    to    issue     or    deny    a   sign

certificate by deeming a request approved if the City has not

acted    within      a    prescribed       period.      Id.    § 16-10.2(b).             The

plaintiffs oppose the City’s request that portions of the appeal

be dismissed as moot.




                                             11
                                    II.

                                    A.

      The parties’ main arguments on appeal concern whether the

former sign code was a content-neutral restriction on speech

reviewed     under   intermediate    scrutiny,       or   a   content-based

restriction subject to strict scrutiny.           As we explain below, we

agree with the plaintiffs that, under Reed, the former sign code

was   a   content-based   restriction     that   cannot   withstand   strict

scrutiny.

                                    1.

      We begin by considering the City’s contention that certain

of the plaintiffs’ requests for relief are now moot because the

amended sign code does not exclude flags, emblems, and works of

art from the definition of “sign.”         Under the mootness doctrine,

we do not have jurisdiction over a case if an actual controversy

does not exist at the time of appeal.            See Brooks v. Vassar, 462

F.3d 341, 348 (4th Cir. 2006).            As relevant here, “[w]hen a

legislature amends . . . a statute, a case challenging the prior

law can become moot even where re-enactment of the statute at

issue is within the power of the legislature,” so long as re-

enactment does not appear probable.          Id. (citation and internal

quotation marks omitted).

      The City appears to concede that the plaintiffs’ request

for retrospective relief in the form of nominal damages, based

                                    12
on   an   alleged       unconstitutional           content-based         restriction   on

speech, is not moot.            We agree.         See Covenant Media of S.C., LLC

v. City of N. Charleston, 493 F.3d 421, 429 n.4 (4th Cir. 2007)

(holding     that       a    plaintiff’s      challenge        to    a    later-amended

ordinance was not moot, because the plaintiff sought nominal and

compensatory damages).

     We    conclude,         however,   that       the    plaintiffs’       request    for

prospective injunctive relief is moot, because the challenged

language     of     the     former    sign    code       exempting       certain   flags,

emblems, and works of art from regulation is no longer in force.

In light of the City’s submission that it amended the former

sign code to comply with the Court’s decision in Reed, we are

confident that there is “little likelihood” that the City will

re-enact the prior version of the ordinance.                        Am. Legion Post 7

of Durham, N.C. v. City of Durham, 239 F.3d 601, 606 (4th Cir.

2001).     We therefore dismiss the portion of this appeal relating

to the plaintiffs’ request for prospective relief on this claim.

                                             2.

     We turn to consider whether the former sign code imposed a

content-neutral or a content-based restriction on speech.                              In

evaluating        the       content   neutrality          of   a     sign       regulation

restricting speech, we focus on the Supreme Court’s decision in

Reed v. Town of Gilbert, 135 S. Ct. 2218 (2015).                            We recently

observed     that       this   decision      conflicted        with,      and   therefore

                                             13
abrogated,      our     Circuit’s        previous        formulation       for    analyzing

content      neutrality,         in      which      we     had     held     that      “[t]he

government’s purpose is the controlling consideration.”                               Cahaly

v.   LaRosa,     796      F.3d         399,   405     (4th       Cir.     2015)     (quoting

Clatterbuck v. City of Charlottesville, 708 F.3d 549, 555 (4th

Cir. 2013)); see, e.g., Clatterbuck, 708 F.3d at 556 (describing

that we applied a “pragmatic rather than formalistic approach to

evaluating content neutrality” under which a regulation “is only

content-based     if     it     distinguishes            content    with     a    censorial

intent”) (citation and internal quotation marks omitted).

      As   we   explained          in    Cahaly,     the     Supreme      Court     in   Reed

rejected such an approach.                Instead, the Court held that at the

first step of the content neutrality analysis, the government’s

justification      or     purpose        in   enacting       a     sign    regulation      is

irrelevant.      Cahaly, 796 F.3d at 405.                    Accordingly, under the

holding in Reed, “[g]overnment regulation of speech is content

based if a law applies to particular speech because of the topic

discussed or the idea or message expressed.”                            Reed, 135 S. Ct.

at   2227.      Only     when      a     regulation       does     not    expressly      draw

distinctions     based     on      a    sign’s      communicative         content    may   we

examine, at the second step of the Reed analysis, whether the

regulation      “cannot       be       ‘justified        without    reference       to     the

content of the regulated speech,’ or . . . [was] adopted by the

government      ‘because      of        disagreement        with    the     message      [the

                                              14
speech] conveys.’”              Id. (quoting Ward v. Rock Against Racism,

491 U.S. 781, 791 (1989)).

       Although       we    considered       a     sign       ordinance       with   exemptions

similar to those presented by this appeal in Brown v. Town of

Cary, 706 F.3d 294 (4th Cir. 2013), in that case we applied an

analysis that is no longer valid due to the Supreme Court’s

decision in Reed.            Indeed, the panel in Brown was bound by our

earlier precedent, thereby moving directly to the second step of

the    Reed    analysis.             See     id.        at    304-05     (determining       that

exemptions       for       “public        art”     and       governmental       or    religious

“holiday      decorations”           were    reasonably          related       to    government

interests        in    traffic            safety        and     aesthetics,          justifying

application of intermediate scrutiny).

       Now informed by the Supreme Court’s directives in Reed, we

begin our analysis by considering whether the City’s former sign

code    “applie[d]         to   particular             speech    because       of    the   topic

discussed or the idea or message expressed.”                                 Reed, 135 S. Ct.

at 2227.      Based on Reed, we hold that the City’s regulation was

a content-based restriction of speech.                               The former sign code

exempted      governmental           or     religious          flags     and    emblems,     but

applied to private and secular flags and emblems.                                In addition,

it    exempted    “works        of   art”        that    “in    no     way    identif[ied]    or

specifically relate[d] to a product or service,” but it applied

to art that referenced a product or service.                                 On its face, the

                                                  15
former sign code was content-based because it applied or did not

apply as a result of content, that is, “the topic discussed or

the idea or message expressed.”                    Id.; see also Cahaly, 796 F.3d

at     405   (holding      South       Carolina’s      anti-robocall             statute       is

content-based regulation because it “applies to calls with a

consumer or political message but does not reach calls made for

any other purpose”); Solantic, LLC v. City of Neptune Beach, 410

F.3d    1250,    1264-66     (11th      Cir.   2005)        (applying      the    same     test

articulated in Reed to a city sign code, and holding that an

exemption        applicable       to    “flags        and     insignia        only       of     a

‘government,           religious,       charitable,           fraternal,          or     other

organization’” was “plainly content based” because “some types

of signs are extensively regulated while others are exempt from

regulation based on the nature of the messages they seek to

convey”).

                                              3.

       Because the former sign code was a content-based regulation

of     speech,     we     apply     strict         scrutiny       in   determining            its

constitutionality.            Reed,     135    S.     Ct.    at    2231.         Under     this

standard,        the     government       must       show     that      the       regulation

“further[ed] a compelling interest and [wa]s narrowly tailored

to achieve that interest.”              Id. (quotation omitted).

       With respect to narrow tailoring, we require the government

to prove that no “less restrictive alternative” would serve its

                                              16
purpose.      United States v. Playboy Entm’t Grp., Inc., 529 U.S.

803,    813     (2000).              A     regulation            is     unconstitutionally

overinclusive        if     it    “unnecessarily           circumscrib[es]           protected

expression,” Republican Party of Minn. v. White, 536 U.S. 765,

775 (2002) (quotation omitted), and is fatally underinclusive if

it “leav[es] appreciable damage to [the government’s] interest

unprohibited,” Reed, 135 S. Ct. at 2232 (quotation omitted).

       The   former       sign    code     was       enacted    to    promote       the   City’s

“physical      appearance”           and       to      “reduce         the     distractions,

obstructions       and      hazards       to     pedestrian           and    auto    traffic.”

Although      interests      in     aesthetics          and     traffic      safety       may    be

“substantial government goals,” Metromedia, Inc. v. City of San

Diego, 453 U.S. 490, 507-08 (1981) (plurality opinion), neither

we nor the Supreme Court have ever held that they constitute

compelling      government          interests.             See,       e.g.,     Neighborhood

Enters., Inc. v. City of St. Louis, 644 F.3d 728, 738 (8th Cir.

2011) (stating that interests in aesthetics and traffic safety,

“while significant, have never been held to be compelling”);

McCormack     v.     Twp.    of    Clinton,          872   F.    Supp.       1320,   1325       n.2

(D.N.J.      1994)     (noting       that        “while         courts       certainly      have

recognized states’ and municipalities’ interests in aesthetics

and safety, no court has ever held that these interests form a

compelling      justification            for     a    content-based          restriction        of

political speech”).              The City’s proffered evidence on this point

                                               17
fell far below any threshold by which a trier of fact could

conclude that a compelling government interest existed.                                     See

Dimmitt v. City of Clearwater, 985 F.2d 1565, 1569-70 (11th Cir.

1993)    (“The     deleterious           effect     of    graphic        communication     upon

visual aesthetics and traffic safety, substantiated here only by

meager    evidence          in    the    record,         is    not   a    compelling      state

interest     of       the        sort    required        to      justify       content    based

regulation of noncommercial speech.”).

     Even    if       we     were       to   assume,          however,    that    the    City’s

asserted     interests             provided       compelling             justification      for

content-based restrictions of speech, the City has failed to

show that its restrictions were narrowly tailored to serve those

interests.        Indeed, just as in Reed, the City’s exemptions from

the former sign code were “hopelessly underinclusive.”                                   135 S.

Ct. at 2231.

     With respect to the City’s stated interest in preserving

aesthetic appeal, for example, the flag of a private or secular

organization was “no greater an eyesore” than the flag of a

government       or   religion,          id.   (quoting          City     of   Cincinnati    v.

Discovery Network, Inc., 507 U.S. 410, 425 (1993)), and works of

art that referenced a product or service did not necessarily

detract from the City’s physical appearance any more than other

works of art.          Yet, the former sign code allowed the unlimited

proliferation of governmental and religious flags, as well as

                                               18
works       of   art      that   met     the   City’s     dubious    criterion,     while

sharply restricting the number and size of flags and art bearing

other messages.            See Dimmitt, 985 F.2d at 1570 (stating that the

asserted interests in aesthetics and traffic safety “clearly are

not served by the distinction between [exempted] and other types

of flags; therefore, the regulation is not ‘narrowly drawn’ to

achieve its asserted end”).

       The City also has not shown that limiting the size and

number of private and secular flags, as well as works of art

that referenced products or services, was necessary to eliminate

threats to traffic safety.                    There is no evidence in the record

that       secular     flags     were    any    more    distracting    than     religious

ones, or that a large work of art displaying a reference to a

product threatened the safety of motorists any more than any

other large, exempted pieces of artwork.

       Given the underinclusiveness of the former sign code, the

City       has   failed     to   satisfy       its     burden   of   proving    that     its

restriction          of    speech       was    narrowly    tailored     to     further     a

compelling government interest.                      Accordingly, we conclude that

the former sign code fails strict scrutiny, and therefore was

unconstitutional under the First Amendment. 6


       6Given our conclusion that the former sign code was
unconstitutional, we need not reach the plaintiffs’ alternative
argument that the former sign code’s requirement that a
(Continued)
                                                19
                                           B.

      The    plaintiffs      also        argue    that     the     City      selectively

enforced     the    former     sign      code     in     violation     of    the     First

Amendment    and     the   Equal    Protection         Clause     of   the    Fourteenth

Amendment when the City issued the citations to the plaintiffs

but   allowed      analogous       displays       to     stand    unchallenged.           A

selective enforcement claim of this nature requires a plaintiff

to demonstrate that the government’s enforcement process “had a

discriminatory        effect       and     that     it     was     motivated         by   a

discriminatory purpose.”            Wayte v. United States, 470 U.S. 598,

608 (1985).        Thus, a plaintiff must show not only that similarly

situated individuals were treated differently, but that there

was “clear and intentional discrimination.”                       Sylvia Dev. Corp.

v. Calvert Cnty., Md., 48 F.3d 810, 825 (4th Cir. 1995) (citing

Washington v. Davis, 426 U.S. 229, 239 (1976)).

      Even   assuming,       without       deciding,       that    the      City’s    past

refusal to enforce strictly the former sign code constituted

evidence of discriminatory effect, 7 dismissal of the plaintiffs’




certificate be obtained before displaying a sign, without
imposing time limits or standards on the City’s method for
granting such certificates, constituted an impermissible prior
restraint on speech under the First Amendment.
     7 On appeal, the City appears to have conceded that it

declined to enforce the former sign code against the oversized
electronic message board of a local museum, but maintains that
“Central Radio failed to show that the decision to forego
(Continued)
                                           20
selective   enforcement     claim    was     proper       because   there     was

insufficient     evidence   that     the     City    was    motivated    by     a

discriminatory intent.       We have recognized several factors as

probative in determining discriminatory intent, including:


     (1) evidence of a “consistent pattern” of actions by
     the decisionmaking body disparately impacting members
     of a particular class of persons; (2) historical
     background of the decision, which may take into
     account   any   history   of  discrimination  by   the
     decisionmaking body or the jurisdiction it represents;
     (3) the specific sequence of events leading up to the
     particular decision being challenged, including any
     significant departures from normal procedures; and (4)
     contemporary statements by decisionmakers on the
     record or in minutes of their meetings.


Sylvia Dev., 48 F.3d at 819 (citing Vill. of Arlington Heights

v. Metro. Hous. Dev. Corp., 429 U.S. 252, 266-68 (1977)).

     None   of   these   factors    weighs    in    the    plaintiffs’   favor.

Although the plaintiffs attempt to impugn the City’s motives in

enforcing the former sign code against their banner protesting

the use of eminent domain by the NRHA, the record is devoid of

evidence that the City attempted to reduce the size of Central

Radio’s sign because the City disagreed with Central Radio’s

message or sought to suppress a message that was critical of the

NRHA, an independent entity.        Also absent from the record is any




enforcement was motivated by a desire to favor some particular
message.”


                                     21
indication of “significant departures from normal procedures” by

City zoning officials, id., who received a complaint about a

sign, conducted an investigation, consulted with one another,

and issued Central Radio a verbal warning followed by written

citations.

       We   agree    with   the   district      court    that     the      City’s    past

failure to enforce the former sign code strictly, and the City’s

more zealous efforts to do so since the commencement of this

litigation, are not sufficient to substantiate the “invidiously

discriminatory        intent”     that     is    required       of        a     selective

enforcement claim.          Sylvia Dev., 48 F.3d at 819 (citations and

internal quotation marks omitted).              Instead, the plaintiffs must

show    “that   the    decisionmaker . . . selected             or      reaffirmed      a

particular course of action at least in part ‘because of,’ not

merely ‘in spite of,’ its adverse effects upon an identifiable

group.”     Id. at 819 n.2 (citation and internal quotation marks

omitted).       Such    evidence    is     wholly       lacking      in       this   case.

Accordingly, we affirm the district court’s award of summary

judgment on the plaintiffs’ selective enforcement claim.



                                         III.

       Finally, the plaintiffs maintain that the amended sign code

continues       to     impose      an      unconstitutional               content-based

restriction on speech by listing governmental flags and works of

                                          22
art as examples of items that typically will not qualify as

signs.   We decline to consider this new challenge to the amended

sign code in the first instance.           We also decline to consider

the plaintiffs’ argument that the amended sign code continues to

impose   an   unconstitutional    prior    restraint     despite   the    time

limits   included   in   the   amended    sign   code.     On   remand,   the

district court is free to consider any new claims or arguments

the plaintiffs wish to raise related to the amended sign code,

as the court deems appropriate.

     For the foregoing reasons, we dismiss the appeal in part,

and we affirm in part and reverse in part the district court’s

judgment.     We remand the issue of nominal damages on Count Two

to the district court for a determination in the first instance.



                                 DISMISSED IN PART, AFFIRMED IN PART,
                                       REVERSED IN PART, AND REMANDED




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APPENDIX




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