    Certiorari granted by Supreme Court, in case 13-1997, June 29, 2015
   Vacated and Remanded by Supreme Court, in case 13-1997, June 29, 2015



                                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.



Appeals from the United States District Court for the Eastern
District of Virginia, at Norfolk.      Arenda L. Wright Allen,
District Judge. (2:12-cv-00247-AWA-DEM)


Argued:   September 17, 2014                Decided:    January 13, 2015


Before GREGORY, AGEE, and KEENAN, Circuit Judges.
Affirmed by published opinion. Judge Keenan wrote the majority
opinion, in which Judge Agee joined.    Judge Gregory wrote a
separate dissenting opinion.


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    selectively         enforced    in    a   discriminatory

manner by zoning officials.                     Upon our review, we agree with the

district        court      that    the    sign    ordinance       is    a    content-neutral

restriction on speech that satisfies intermediate scrutiny, and

we   find       no     merit      in     the    plaintiffs’        other     constitutional

challenges.          Therefore, we affirm the district court’s judgment.



                                                 I.

                                                 A.

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

that includes a chapter governing the placement and display of

signs (the sign code).                    See Norfolk, Va., Code app. A § 16

(2012).         The City enacted the sign code for several reasons,

including to “enhance and protect the physical appearance of all

areas      of     the        city,”       and     to     “reduce       the    distractions,

                                                  3
obstructions and hazards to pedestrian and auto traffic caused

by the excessive number, size or height, inappropriate types of

illumination, indiscriminate placement or unsafe construction of

signs.”      Id. § 16-1.

       The sign code applies 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,

a “sign” does not include 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 are not subject to regulation under the sign

code.

       With respect to signs that are eligible for regulation, the

sign code generally requires that individuals apply for a “sign

certificate”       verifying            compliance      with     the    sign      code.      Id.

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

City is required to issue a “sign certificate” if the proposed

sign    complies      with    the        provisions      that     apply      in    the    zoning

district where the sign will 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 ordinance provisions include restrictions on the

size    of   signs.         Id.     §    16-8.3.        The    size     restrictions         vary

                                                  4
depending        on    whether    a    sign   is   categorized   as   a   “temporary

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

sign,” which may be as large as 75 square feet, or an “other

than freestanding sign,” which may be as many square feet as the

number      of    linear   feet       of   building   frontage   facing    a   public

street. 1        Id.   The City does not patrol its zoning districts for

violations of size restrictions or other provisions of the sign

code, but does 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.


     1
       Under the sign code, a “temporary sign” is “[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” is “[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 is colloquially described by the parties and
by the district court, is “[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.


                                              5
       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




                                       6
DOMAIN!” 2      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.

After       investigating       the     matter,     a    zoning       official      informed

Central Radio’s managers that the banner violated the applicable

size       restrictions       set    forth   in    the    sign    code.        At   a    later

inspection,       zoning       officials       noted     that     the    plaintiffs         had

failed to bring the display into compliance with the 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. 3



       2
       The Appendix to this Opinion contains an image of the
plaintiffs’ display.
       3
       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 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 Central Radio
to reduce the size of its banner to 60 square feet or less.


                                               7
       In May 2012, the plaintiffs initiated a civil action to

enjoin the City from enforcing its sign code.                             The plaintiffs

alleged      that    the    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.             The plaintiffs also alleged that the

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 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.          The court concluded that the provisions in the

sign   code       exempting    flags,      emblems,      and    works      of    art   were

content-neutral.           Applying intermediate scrutiny, the court held

that the sign code was a constitutional exercise of the City’s

regulatory authority.           The court held that those 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

                                            8
conclusion,     the    court   also    rejected         the   plaintiffs’   prior

restraint and selective enforcement claims.                    After the court

entered final judgment, the plaintiffs filed this appeal. 4



                                       II.

      The core component of the plaintiffs’ challenge to the sign

code is their argument that the sign code constitutes a content-

based restriction on speech, both facially and as applied, that

cannot survive strict scrutiny.                We disagree with this argument,

and   address   each   component      of       the   plaintiffs’   constitutional

challenges in turn.

                                       A.

                                       1.

      In evaluating the content neutrality of a municipal sign

ordinance, our “principal inquiry” is “whether the government

has adopted a regulation of speech because of disagreement with

the message it conveys.”         Hill v. Colorado, 530 U.S. 703, 719


      4
       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).


                                           9
(2000) (citation omitted); see Ward v. Rock Against Racism, 491

U.S.    781,        791     (1989)       (“The           government’s      purpose          is     the

controlling consideration.”).                      We have described this inquiry as

being “practical” in nature, and have noted that the Supreme

Court       has     rejected      any     “formalistic           approach        to   evaluating

content       neutrality          that        looks       only     to     the     terms      of      a

regulation.”             Wag More Dogs, LLC v. Cozart, 680 F.3d 359, 366

(4th Cir. 2012).            Under our precedent,


       [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.


Brown    v.       Town    of   Cary,         706    F.3d    294,    302        (4th   Cir.       2013)

(quoting Wag More Dogs, 680 F.3d at 366).

       We         therefore       have         observed           that         “[a]    statute’s

differentiation           between       types        of    speech       does    not   inexorably

portend its classification as a content-based restriction.”                                        Wag

More    Dogs,       680    F.3d    at    366-67;          see    also    id.     at   368    (“That

[municipal]          officials       must          superficially         evaluate      a     sign’s

content to determine the extent of applicable restrictions is

not an augur of constitutional doom.”).                            Instead, “a distinction

is   only         content-based         if    it     distinguishes         content         ‘with     a


                                                    10
censorial intent to value some forms of speech over others to

distort public debate, to restrict expression because of its

message,    its    ideas,      its    subject     matter,      or    to    prohibit          the

expression    of   an     idea   simply       because    society       finds      the    idea

itself    offensive       or   disagreeable.’”           Clatterbuck         v.   City        of

Charlottesville,        708    F.3d    549,      556   (4th    Cir.    2013)      (quoting

Brown, 706 F.3d at 301-02); see Covenant Media of S.C., LLC v.

City of N. Charleston, 493 F.3d 421, 434 (4th Cir. 2007) (noting

that a sign ordinance may “require[] looking generally at what

type of message a sign carries to determine where it can be

located,” so long as the municipality does not undertake a “more

searching inquiry into the content” that would “regulate the

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

expressed”) (citation and internal quotation marks omitted).                                 We

discern     censorial      intent      by     examining       whether      there        is    a

relationship between an ordinance’s legislative purpose and the

content distinctions addressed in the ordinance, Brown, 706 F.3d

at   303,   and    by     deciding     “whether        the    government’s        content-

neutral     justification        reasonably        comports         with   the     content

distinction on the face of the regulation.”                           Clatterbuck, 708

F.3d at 556.

      In Brown v. Town of Cary, we reviewed a challenge to a sign

ordinance that generally subjected residential signs to certain

quantity    and    size    restrictions,         but    exempted      from     regulation

                                            11
“holiday     decorations”         erected       in    honor       of    governmental         or

religious holidays and “public art” intended to beautify public

areas.      706    F.3d    at     298.      We       held     that      the     municipality

demonstrated a “reasonable relationship” between its exemptions

and its legitimate interests in traffic safety and aesthetics,

concluding that it was “reasonable 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 significant, impact on traffic safety.”                                  Id. at

304.     Although we acknowledged that the exempted displays “may

implicate traffic safety no less than an ordinary residential

sign,”    and     may    even    “impair        rather      than       promote        aesthetic

appeal,” we clarified that “the content neutrality inquiry is

whether [a particular ordinance’s] exemptions have a reasonable,

not optimal, relationship to these asserted interests.”                                Id.   We

also    noted     that    empirical       judgments         regarding          “the    precise

restriction       necessary”       to    carry       out    legitimate           legislative

interests are best left to legislative bodies.                                 Id. (quoting

Randall    v.     Sorrell,       548     U.S.     230,      248      (2006)       (plurality

opinion)).

       The content distinctions that we upheld in Brown resemble

those at issue in the present case.                        The plaintiffs, however,

attempt    to    distinguish       the     present       sign      code       exemptions     by

arguing    that     they        facially     are       unrelated          to    legislative

                                            12
interests       in     aesthetics         or     traffic        safety,           whereas       the

exemptions      in    Brown         expressly    involved      decorations             that    were

“not    intended      to       be    permanent       in   nature”      and       art    that    was

“intended to beautify or provide aesthetic influences to public

areas.”       706 F.3d at 298.

       The plaintiffs further characterize the City’s sign code

exemptions as being too narrow, in that they exempt the flags

and emblems only of governmental or religious organizations, and

being too broad, in that they exempt all works of art but do not

specifically define “art.”                 The plaintiffs argue that because

private or secular flags may have the same effect on aesthetics

and traffic safety as exempted displays, and because certain

works of art may have a more detrimental effect with regard to

those     purposes         than       displays       subject      to        regulation,         the

exemptions      lack       a    reasonable       relationship          to    any       legitimate

interests and thus are content-based restrictions on speech.

        The     plaintiffs’           analysis       fails,       however,         because       in

determining the level of scrutiny, we are not concerned with the

“precise”       or    “optimal”         tailoring         of   exemptions          to    a     sign

ordinance,      but    the      extent    to     which     they    bear      a    “reasonable”

relationship to legitimate legislative purposes.                                  Id. at 304.

Indeed, in Brown, we agreed that similar exemptions “may impair”

legislative interests, but concluded that the sign ordinance was

content-neutral because it placed “reasonable time, place, and

                                                13
manner   restrictions        only    on   the     physical      characteristics          of

messages . . . exempt[ing]            certain      categories        of     signs      from

those restrictions solely on the basis of the [municipality’s]

asserted     and    legitimate        interests         of     traffic    safety        and

aesthetics.”       Id. at 304-05.

       We reach a similar conclusion here.                      The City generally

allows signs regardless of the message displayed, and simply

restricts     the    time,     place,      or     manner       of   their     location.

Exemptions to those restrictions may have an “incidental effect

on    some   speakers   or    messages,”         but    such     exemptions       do    not

convert the sign code into a content-based restriction on speech

when   the   exemptions      bear     a   “reasonable        relationship”        to    the

City’s   asserted     interests.          Wag    More    Dogs,      680   F.3d    at    368

(citation omitted); Brown, 706 F.3d at 304.

       We conclude that it is reasonable to presume that works of

art    generally     “enhance       rather      than    harm    aesthetic        appeal,”

Brown, 706 F.3d at 304, and we find it similarly reasonable to

conclude that flags or emblems generally have a less significant

impact on traffic safety than other, more distracting displays.

These exemptions do not differentiate between content based on

“the ideas or views expressed.”                Covenant Media, 493 F.3d at 434

(quoting Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622, 643

(1994)) (internal quotation marks omitted).                         By exempting the

flags or emblems of governmental or religious organizations from

                                          14
reasonable size restrictions, the City has not indicated any

preference for a particular governmental or religious speaker or

message, and the sign code exerts only an “incidental effect” on

the flags or emblems of other organizations.                  Wag More Dogs, 680

F.3d at 368.           Also, by exempting works of art that are non-

commercial        in   character,   the    City     has     not       favored    certain

artistic messages over others.             Given the City’s “clear content-

neutral purpose” and the absence of a more specific inquiry in

the sign code regarding the content of the regulated signs, we

conclude that the sign code is a content-neutral regulation of

speech.     See Covenant Media, 493 F.3d at 434.

                                          2.

      Because the sign code is content-neutral, we evaluate its

constitutionality under intermediate scrutiny.                        Brown, 706 F.3d

at   305.     Under      this   level     of    deference,        a    content-neutral

regulation is valid if it “furthers a substantial government

interest, is narrowly tailored to further that interest, and

leaves open ample alternative channels of communication.”                            Id.

(quoting Wag More Dogs, 680 F.3d at 369) (internal quotation

marks omitted).

      Initially, we observe that the sign code was enacted to

promote     the    City’s   “physical     appearance”       and       to   “reduce   the

distractions, obstructions and hazards to pedestrian and auto

traffic.”         Such   concerns   for        aesthetics    and       traffic    safety

                                          15
undoubtedly         are     substantial      government           interests.         Id.

Moreover,     the    record       contains   evidence        that    Central   Radio’s

banner affected those interests, 5 including testimony that the

banner was sufficiently large to be seen from a distance of

three city blocks, and that passing motorists reacted to the

banner   by     “honk[ing]         their     horns,”        “yell[ing]     things     in

support,”     and    “wav[ing].” 6         See   id.    (noting     that   a   motorist

“beep[ing]     his        horn”   in   response        to   the     plaintiff’s     sign



     5
        The plaintiffs state that the City is obligated “to
proffer actual, objective evidence to support the sign-code
provisions.”   We recently rejected, at the motion to dismiss
stage, this “literally unprecedented” argument, observing that
“were we to accept the proposition, 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
opportunity to test the plausibility of the claim by producing
evidence.”   Wag More Dogs, 680 F.3d at 365 n.3.     But we also
noted that the evidentiary burden is limited in that the City
“need not reinvent the wheel by coming forward with voluminous
evidence justifying a regulation of the type that has been
upheld several times over.”   Id.   We reiterate that the burden
on the governmental defendant in this context is that “of
establishing that the [sign code] passes constitutional muster
under the rubric of intermediate scrutiny.” Id.
     6
       The plaintiffs contend that “[e]xpressions of support are
not evidence of distraction; they are evidence of agreement.”
We fail to see how agreement with a message bears on the issue
whether motorists are distracted by a sign while driving.    The
undisputed fact that passing motorists reacted emphatically to
Central Radio’s banner, regardless whether they privately or
publicly agreed with the banner’s message, constitutes evidence
that the banner contributed to the “distractions, obstructions
and hazards to pedestrian and auto traffic” that the sign code
was intended to reduce.


                                           16
constituted evidence of specific traffic problems relating to

the display).

     Next, we conclude that the sign code is narrowly tailored

because it does not “burden substantially more speech than is

necessary     to    further      the    government’s        legitimate           interests.”

Ward,   491   U.S.    at     799.       Instead,     the       sign    code’s      size    and

location restrictions demonstrate that the City has “carefully

calculated the costs and benefits associated with the burden on

speech . . . .”        City of Cincinnati v. Discovery Network, Inc.,

507 U.S. 410, 417 (1993) (internal quotation marks omitted).

Because such restrictions “do no more than eliminate the exact

source of the evil [the ordinance] sought to remedy,” we are

satisfied that the sign code is sufficiently well-tailored to

withstand     constitutional           scrutiny.          Brown,      706   F.3d     at    305

(citation and internal quotation marks omitted).

     Finally, unlike an outright ban on speech, the sign code

“leaves   open      ample    alternative        channels       of     communication”        by

generally permitting the display of signs “subject only to size

and location restrictions.”                Wag More Dogs, 680 F.3d at 369

(citation and internal quotation marks omitted).                             Although the

plaintiffs argue that there are no reasonable alternatives for

conveying     the    same    message      in    a   way    that       can   be    seen    from

Hampton   Boulevard         by   “the    thousands        of    people      who     pass   by

Central Radio’s property every day,” the plaintiffs do not have

                                           17
a constitutional right to place their sign in the location and

manner that they deem most desirable.                      See Ross v. Early, 746

F.3d    546,    559    (4th    Cir.    2014)       (observing    that      “[t]he       First

Amendment affords no special protection to a speaker’s favored

or    most   cost-effective          mode    of    communication”)      (citation         and

internal     quotation        marks    omitted).          Accordingly,      our   inquiry

“does not rise or fall on the efficacy of a single medium of

expression.”        Id.

       It is undisputed here that the plaintiffs’ 375-square-foot

banner would comport with the City’s sign code if the banner

were reduced to a size of 60 square feet.                            We recently have

deemed such an alternative to be adequate upon comparable facts.

See    Wag   More     Dogs,    680    F.3d    at    369    (reasoning      that     a    sign

ordinance left open ample alternative channels of communication

because the plaintiff was allowed to display a 60-square-foot

version of a 960-square-foot painting).                       Accordingly, because

the    City’s    content-neutral            sign    code    satisfies      intermediate

scrutiny       both    facially       and    as     applied     to   the    plaintiffs’

display, we agree with the district court’s holding that the

sign code satisfies the constitutional requirements of the First

Amendment.

                                             B.

       The plaintiffs additionally argue that the City selectively

enforced its sign code in violation of the First Amendment and

                                             18
the Equal Protection Clause of the Fourteenth Amendment when the

City       issued       the   citations      to   the    plaintiffs           but     allowed

analogous displays to stand.                  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 sign code constituted evidence

of discriminatory effect, 7 dismissal of the plaintiffs’ 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:



       7
       On appeal, the City appears to have conceded that it
declined to enforce its 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
enforcement was motivated by a desire to favor some particular
message.”


                                             19
     (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 its 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

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 its sign code strictly, and the City’s more


                                          20
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.

                                                C.

       Finally,    the    plaintiffs         argue     that    the   sign          code    is    an

unconstitutional prior restraint on speech because it required

them to obtain a sign certificate evidencing compliance with the

sign     code,    but    failed       to     impose     time    limits         or     adequate

standards on the City’s decisionmaking process.                        We disagree.

       The    Supreme         Court   requires        procedural        safeguards              for

certain speech licensing schemes, which protections include time

limitations      on     the    decisionmaking         process.         See     Freedman          v.

Maryland, 380 U.S. 51, 58-60 (1965); 11126 Balt. Blvd., Inc. v.

Prince George’s Cnty., Md., 58 F.3d 988, 997 (4th Cir. 1995) (en

banc).       Those safeguards, however, apply only to content-based

                                                21
“subject-matter        censorship,”       not       to       “content-neutral            time,

place, and manner regulation.”              Thomas v. Chi. Park Dist., 534

U.S. 316, 322 (2002).

       Because we have held that the City’s sign code was content-

neutral, we further conclude that the sign code was not required

to   impose    a   constitutional     protection             of   time    limits    on     the

decisions of zoning officials.             See Covenant Media,                 493 F.3d at

435.      However,     this    conclusion      does      not      necessarily      end    the

inquiry, because a decisionmaker cannot use the absence of such

requirements to stifle an individual’s First Amendment rights.

Id. (citing Thomas, 534 U.S. at 323).

       Here,    the    plaintiffs    do     not     allege         that     the    City    is

responsible for any undue delay in enforcing the sign code.                                 In

fact, it appears that City zoning officials informed Central

Radio’s managers that their sign failed to comply with the sign

code immediately upon inspecting Central Radio’s property, and

issued    written      citations    less       than      a    week    later       when    the

officials      observed   that     the    sign      had      not     been      modified    or

removed despite the warning.

       The plaintiffs argue, nevertheless, that the City’s sign

code confers too much discretion on the zoning officials who

process applications for sign certificates.                          Under the Supreme

Court’s     decision      in    Thomas,        “a     content-neutral             licensing

regulation      must    ‘contain     adequate         standards           to    guide     the

                                          22
official’s decision and render it subject to effective judicial

review.’”     Wag More Dogs, 680 F.3d at 372 (quoting Thomas, 534

U.S. at 323).         “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

neighborhood.”        Id. (citation, brackets, and internal quotation

marks omitted).

     Although the plaintiffs acknowledge that the City’s sign

code does not provide officials any discretion to deny a sign

certificate     when     the    requisite    standards    are       satisfied,   the

plaintiffs argue that the standards governing size restrictions

and exemptions for “works of art” are so vague and indeterminate

that they do not provide any guide for official decisions.                        We

disagree with this argument.

     The sign code clearly defines the circumstances in which

size restrictions apply based on a sign’s classification as a

“temporary      sign,”         “freestanding     sign,”        or     “other     than

freestanding sign,” see Norfolk, Va., Code app. A §§ 16-3, 16-

8.3 (2012), and limits the “works of art” exemption to displays

“which in no way identify or specifically relate to a product or

service,”     id.     § 2-3.        Although     arbitrariness        in   applying

restrictions        or     exemptions        “would      pose       constitutional

difficulty,” any such abuse must be addressed “if and when a

pattern of unlawful favoritism appears, rather than by insisting

                                        23
upon     a    degree     of    rigidity    that       is    found     in    few     legal

arrangements.”         Wag More Dogs, 680 F.3d at 373 (quoting Thomas,

534 U.S. at 325) (internal quotation marks omitted).

       The plaintiffs have failed to show any such “pattern of

unlawful favoritism.”           Id.   Nor have the plaintiffs argued that

the    sign    code    fails   to   satisfy      Thomas’s        requirement     that   an

ordinance provide for decisions “subject to effective judicial

review,” 534 U.S. at 323, perhaps because the plaintiffs had a

statutory right to appeal their citations to the board of zoning

appeals, Va. Code Ann. § 15.2-2311, and to file a petition for

judicial review of any final decision by that body, id. § 15.2-

2314.        Cf. Wag More Dogs, 680 F.3d at 373 (noting that the

existence of an adequate statutory review process for certain

zoning       decisions    satisfied     the      second     prong     of   the     Thomas

formulation).            Accordingly,      because         the    City’s    sign    code

satisfies      the    standards     required     of   content-neutral          licensing

regulations, we conclude that the district court did not err in

rejecting      the    plaintiffs’     challenge       to    the     sign   code    as   an

unconstitutional prior restraint on speech.



                                          III.

       For these reasons, we affirm the district court’s judgment.



                                                                                 AFFIRMED

                                           24
GREGORY, Circuit Judge, dissenting:

         Central Radio challenges the City of Norfolk’s restrictions

on its sign protesting the seizure of its land by eminent domain

–    a    protest        that     the   Virginia      Supreme      Court     ultimately

vindicated.         See PKO Ventures, LLC v. Norfolk Redev. & Hous.

Auth., 747 S.E.2d 826, 833 (Va. 2013).                       I write separately to

dissent from Part II.A.1 of the majority opinion, as I do not

believe our precedent compels application of a content-neutral

inquiry.

         I would apply a content-based test to the City’s Sign Code.

As   the       majority    opinion       recognizes,    this       Court’s    so-called

practical        inquiry    is    meant    to    determine    if    the    government’s

regulation is “justified without reference to the content of

regulated speech.”              Brown v. Town of Cary, 706 F.3d 294, 303

(4th Cir. 2013) (quoting Hill v. Colorado, 530 U.S. 703, 720

(2000)).         As we stated in Brown, the lack of any relationship

between a law’s content distinction and its legislative end is

probative of whether the government has discriminated on the

basis of content.           See 706 F.3d at 303 (citing Metromedia, Inc.

v. City of San Diego, 453 U.S. 490, 513-14 (1981) (plurality)).

In   a    case    like    this,    involving      political     speech     against   the

heaviest hand of government attempting to seize its citizen’s

land,     we     must    ensure    a    “reasonable    fit”     between      the   City’s

asserted interests in aesthetics and traffic safety, and the

                                            25
Code’s       exemptions    for   government      and   religious         emblems     and

flags.       Id.

       I disagree that the City has demonstrated this “reasonable

fit.”    Why is it that the symbols and text of a government flag

do     not     affect     aesthetics       or   traffic        safety     and    escape

regulation, whereas a picture of a flag does negatively affect

these    interests       and   must   be   subjected      to    size    and     location

restrictions?        I see no reason in such a distinction.                   This is a

much different case from the exemptions we confronted in Brown

for temporary holiday decorations and public art.                        See 706 F.3d

at 304-05.         There, we thought it “reasonable to presume” that

decorations        and   art   enhance     aesthetic    appeal,         and   that   the

seasonal       nature     of   holiday     displays    had      a   “temporary,      and

therefore less significant, impact on traffic safety.”                           Id. at

304.     Unlike in our case, the exemptions in Brown could be

justified on the basis of aesthetics and safety concerns.                              I

find no such justification here, where the City’s regulatory

scheme perpetually disadvantages dissidents like Central Radio.

The danger is not that the City has “indicated any preference

for a particular governmental or religious speaker or message,”

Maj. Op. at 15, but that it declines to regulate entirely and

therefore favors all official government and religious speakers

and speech.        For this reason, the exemptions should be forced to

withstand heightened scrutiny under a content-based test.

                                           26
    Furthermore, the City has not adequately demonstrated that

its adoption of the Code and its exemptions was unrelated to

disagreement with a particular message.                   See Wag More Dogs, LLC

v. Cozart, 680 F.3d 359, 368 (4th Cir. 2012) (“[D]isagreement

with the message [speech] conveys . . . is the principal inquiry

in determining content neutrality.”) (internal quotation marks

and citation omitted).           Although the City maintains this is the

case, it references only the Purpose Statement within the Code

as support.       In Brown, we warned that “the mere assertion of a

content-neutral purpose” is not “enough to save a law which, on

its face, discriminates based on content.”                        706 F.3d at 304

(quoting Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622, 642-43

(1994)); see also id. (“[W]hen a government supplies a content-

neutral justification for the regulation, that justification is

not given controlling weight without further inquiry.”) (quoting

Whitton    v.    City   of   Gladstone,     54     F.3d   1400,    1406   (8th   Cir.

1995)).         Even    if   a   party     need    not    “com[e]    forward     with

voluminous evidence justifying a regulation,” Wag More Dogs, 680

F.3d at 365 n.3, surely it must do something more than simply

point to a content-neutral justification written into the law’s

preface.        At least in Brown, the city “adequately documented”

that its legislative interests were unrelated to the ordinance’s

content    distinctions          through        legislative    findings,       policy



                                           27
statements, and testimony of Town officials.              Brown, 706 F.3d at

305.       I find no such showing in this record. *

       This case implicates some of the most important values at

the heart of our democracy:             political speech challenging the

government’s seizure of private property – exactly the kind of

taking that our Fifth Amendment protects against.                   If a citizen

cannot speak out against the king taking her land, I fear we

abandon a core protection of our Constitution’s First Amendment.

Here, Central Radio spoke out against the king and won.                   It may

be that the Code passes the heightened scrutiny of a content-

based       inquiry.      But   to   stop    short   without   subjecting      the

regulation to a more rigorous examination does a disservice to

our    cherished       constitutional   right   to   freedom   of    speech.    I

respectfully dissent.




       *
       In fact, one of the drafters of the Code revealed in his
deposition: “Why do we create exemptions for government flags,
is that what you’re asking? Because I believe we believe that’s
the right thing to do . . . I think we consider the importance
of an American flag or a state flag to far exceed that of an
enthusiastic sports flag.” J.A. 1012-13.


                                        28
APPENDIX




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