Sign code as a weapon
By George F. Will
Published: Wednesday, January 23, 2013, 9:00 p.m.
Updated: Monday, February 4, 2013
A drearily familiar dialectic is on display here: Government is behaving badly in order to silence protests of other bad behavior. It is violating the Constitution's First Amendment, stifling speech about its violation of the Fifth Amendment, as it was properly construed until 2005.
Founded in 1934, Central Radio maintains communication, sonar and camera equipment on vessels at Norfolk Naval Station. The business is located in a building near the waterfront. Company Vice President Kelly Dickinson says, “We can drive five minutes and be on board a ship.”
But Old Dominion University is nearby and covetous. It wants the land on which Central Radio sits and, through ODU's Real Estate Foundation, is well along toward seizing it by inciting the city government to wield the power of eminent domain. Condemnation proceedings against Central Radio have moved to the compensation phase.
Dickinson says the compensation will be insufficient to enable the business to construct a comparable building, let alone buy land for it. ODU is exploiting the judicial evisceration of the Fifth Amendment's takings clause, the history of which is this:
The Constitution's authors said property may be taken for “public” uses, meaning things — roads, bridges, buildings, etc. — directly owned by government and used by the general public. In 1954, however, the Supreme Court expanded the category of “public use” to include the “public purpose” of curing “blight,” a concept of enormous elasticity when wielded by rapacious city governments. In 2005, in the Kelo case, the court held that a city government can seize an unblighted neighborhood for the supposed “public” purpose of turning it over to a private business that would be a richer source of tax revenues for the taking government.
In this appalling decision, the majority serenely said governments could be restrained by public opinion aroused against abuses of eminent domain. Now, however, Norfolk's government is suppressing Central Radio's speech protesting what the city is doing.
In their desperation, the company's executives hung from their building a 375-square-foot banner proclaiming: 50 YEARS ON THIS STREET; 78 YEARS IN NORFOLK; 100 WORKERS; THREATENED BY EMINENT DOMAIN! In the banner's corner is a circle with a red slash through the words “Eminent Domain Abuse.”
Today that circle is all that is visible. The city says the size of the full sign violates Norfolk's sign code.
Norfolk's behavior is unconstitutional because the city's sign code has been capriciously enforced. The sign code is suddenly being more evenhandedly enforced but only because, a city official has admitted, since Central Radio began protesting, “people are watching.”
We have seen this before. A few years ago, a St. Louis man whose property was being seized under Kelo's permission for government theft adorned his building with a sign similar in size and message to Central Radio's. The city government tried to silence him with sign restrictions as flawed and capriciously enforced as Norfolk's.
The St. Louis man trounced the city in his sign dispute, helped by the Institute for Justice, a little platoon of libertarian litigators who roam the country putting leashes on misbehaving governments. Because IJ is representing Central Radio's First Amendment rights, Norfolk may have to content itself with traducing only one rather than two provisions of the Bill of Rights.
George F. Will is a columnist for The Washington Post and Newsweek.
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