**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/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.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 discriminato ry 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 w e affirm the court’s disposition of t hat 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

moo t. O n remand, the district court may con sider 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 ordi nance 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, a ll 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 ina ppropriate 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. § 1 6

- 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 we re eligible for regulation, the former sign code generally require d that individuals apply for a “sign certifi cate” verifying compliance with the code. Id. §§ 16

- 5.1, 16

- 5.3. Upon the filing of such an application, the City wa s required to issue a “sign certificat e” if the proposed sign complied with the provisions that applied in the zoning district where the s ign 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 restrict ions varied depending on whether a sign wa s categorized as a “temporary sign,” which was permitted6 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 wa s 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 provi sions 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 (N RHA). 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 U nder the former sign code, a “temporary sign” wa s “[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” wa s “[a] ny sign placed upon or supported by the ground independently of any other structure.” Id. An “other than freestandin g sign,” or “wall sign,” as it wa s colloquially described by the parties and by the district court , wa s “[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 i nitially 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 fl ag, 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 / EMINENT8 DOMAIN!” 3 The plainti ffs 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 c itations 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 a n “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 requir ed (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 th e 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 requi ring 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
reque sting 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 th e City. In doing so, t he 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 o f the City’s regulatory authority. Further, th e 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 distrac t 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 o pinion,

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 distri ct 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. 3 d 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 am end the former sign code to comply with Reed
. T he 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 certificat e by deeming a request approved if the City has not acted within a prescribed period

. Id. § 16

- 1 0.2(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 wa s 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

wa s 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 s ign 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 3 41, 348 (4th Cir. 2006). As r elevant 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, based13 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
compe nsatory 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 re cently observed that this decision conflicted with, and therefore14 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 , 70 8 F.3d 549, 555 (4th Cir. 2013)); see, e.g. , Clatterbuck , 708 F.3d at 55 6 (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 , t he 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
. Accord ingly, 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 ex pressed.” Reed , 135 S. Ct. at 2227. Only when a r egulation 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 [the15 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 th e 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 be gin 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 wa s
a content

- based restriction of speech

. T he former sign code exempt ed governmental or religiou s flags and emblems, but applied to private and secular flags and emblems. In addition, i t exempted “works of a rt” that “in no way identif[ied] or specifically relate [d] to a product or service ,” but it applied
to art that referen ced a product or service. On its face, the16 former sign code was content

- based because it appl ied 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 Sout h 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 wa s a content

- based regulation of speech , we apply strict scrutiny i n 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. (quot ation omitted). With respect to narrow tailoring , we require the government to prove that no “ less restrictive alternative” would serve its17 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 t hey constitute compelling government inte rests. See, e.g. , Neighborhood Enters., Inc. v. City of St. Louis , 644 F.3d 728, 738 (8th Cir. 2011) ( sta ting 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 restri ction of political speech”). The City’s proffered evidence on this point18 fell far below any threshold by which a trier of fact could conclude that a compe lling 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 assum e , however, that the City’s asserted interests provide d compelling justification for
content

- based restrictions of speech, the City has failed to show that its restrictions we re narrowly tailored to serve t hose interests. Indeed, just as in Reed , the City’s exemptions from the former sign code we re “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 p rivate or secular organization wa s “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 reference d 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 allow ed the unlimited proliferation of g overnmental and religious flags , as well as19 works of art that met the City’s dubious criterion, while sharply restrict ing the number and size of flags and art bearing other messages. See Dimmitt , 985 F.2d at 1570 (stating that the asserted interest s in aesthetics and traffic safety “clearly are not served by the distinction between [exempted] and other types of f lags; 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 reference d products or services, wa s necessary t o eliminate threats to traffic safety. T he re is no evidence in the record that secular flags we re any more distracting than religious ones, or that a large work of art displaying a reference to a product threatened the safety of motorist s 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 wa s narrowly tailored to further a compelling government interest. Accordingly, we conclude that the former sign code fails strict scrutiny, and therefore wa s 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 t hat 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 nat ure 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 t hat 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 me mbers 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 us e 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 i ndependent entity. Also absent from the record is any

enforcement was motivated by a desire to favor some particular messa ge.”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 Ce ntral 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 decisionma ker
. . . 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 whol ly 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 conten t

- based restriction on speech by listing governmental flags and works of23 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 d ecline to consider the plaintiff s ’ 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 c laims or arguments
t he plaintiff s 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 REMANDED24 APPENDIX