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Three years after David Bowden painted his “Screwed By The Town of Cary” sign, his daughter has carried his lawsuit against the town to the federal courthouse in Richmond, Va.
A three-judge panel for the U.S. Fourth Circuit Court of Appeals on Sept. 21 heard arguments from the town and the estate of the late Bowden, who said the town had no right to restrict the size of the florescent protest message he put on his Maynard Road house.
The Bowden estate won the 2009 lawsuit’s round in district court, when a judge ruled in 2010 that the town had discriminated against the sign based on its content.
But the panel of appeals judges this month nibbled away at the plaintiff’s argument against the size restrictions.
“If we take your argument, though, aren’t we … essentially saying that each house is a billboard for protest signs, and that you could just drive down the street, just every house having something painted that they wanted everybody to see, and nobody could do anything?” asked Judge Max Cogburn, a University of North Carolina graduate, in an audio recording. “… The town’s totally powerless to stop it, based on size, color, anything else?”
Mark Sigmon, the Bowden estate’s attorney, said the right to political speech without restriction should be protected, especially on private property.
But that argument, Judge Paul Niemeyer interjected, seems “inconsistent with the whole scheme of towns having the ability to regulate the aesthetics of the town,” which has been upheld in many previous cases, according to the judge.
The court also questioned the plaintiff’s claim that the town had judged against Bowden’s message based on its content. Bowden’s estate argues that because the town doesn’t place restrictions on public art or holiday decorations, it implicitly judged Bowden’s sign not to be art or a decoration – which amounts to a forbidden “content-based” judgment by the government, the lawsuit claims.
But Bowden never claimed to town staff that his sign was art, the judges said, though his estate now says it is.
“He was upset with the town because of the way they treated him” when he claimed runoff from a town project had damaged his home, Niemeyer said. “That’s just an old political protest, isn’t it? You’re not talking about making a decision based on that. It clearly violated the size” restriction.
Earlier in the hearing, Niemeyer said that Bowden didn’t seem to have the legal right to challenge the art and holiday portions of the ordinance – only the size restriction that he violated.
Even so, Sigmon responded, shouldn’t the right to political speech outweigh the aesthetic and traffic-safety concerns that the town says underpin its sign laws?
“You certainly give creedence to aesthetics … but they need to be a little more substantial in the case of core political speech,” he said.
And the amount of attention the sign has received, he said, only proves that the sign restriction was squelching Bowden’s message.
“The point of this case is, it worked,” the attorney said.
Bowden died in June 2011 while suffering lung cancer, and his house has since been painted over, sold and repaired, but the case’s ruling still will matter when it arrives, likely within three to six months.
If the ruling stands in favor of Bowden’s estate, the town likely would pay the estate’s court bills, along with $1 in nominal damages – and the local government could be forced to rewrite its sign laws.
If the town succeeds, it will find some redemption in a story that drew national attention, though it won’t get any of its legal fees back. The town has spent about $282,000 covering the case, but expects insurance to cover most of the bills beyond a $75,000 deductible.
Either way, it may be the end of the line. The only court above the Court of Appeals is the U.S. Supreme Court.