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.
2

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/CrossAppellant. ON BRIEF: Robert P. Frommer, Erica Smith, INSTITUTE 

FOR JUSTICE, Arlington, Virginia, for Appellants/CrossAppellees. Melvin W. Ringer, CITY ATTORNEY'S OFFICE, Norfolk, 

Virginia, for Appellee/Cross-Appellant.
3

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. 
4

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.
5

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 
6

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.
7

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 
8

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)
9

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.
10

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).
11

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. 
12

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 reenactment 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 
13

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 
14

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 
15

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
16

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 
17

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
18

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
19

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

 6 Given 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)
20

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)
21

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.”
22

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 
23

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
24

APPENDIX