CARY — A federal appeals court has ruled in favor of the town in the Screwed By The Town of Cary lawsuit, signaling that the long saga may be nearing its end.
The Fourth Circuit Court found that the town government did not violate the First Amendment by threatening to fine the late David Bowden for the message he had painted on his house in 2009. Three judges unanimously overturned a lower-court decision in the Bowden estates favor.
We acknowledge that the Towns Sign Ordinance, and in particular its application to Bowden, has aggravated some Cary residents who believe it excessively restrictive, wrote Judge Albert Diaz. But their recourse here lies with the ballot, not the Constitution.
The court released the opinion Tuesday, following a September hearing. Carys Town Council and staff members praised the decision, while the American Civil Liberties Union of N.C., which helped argue the case, warned of a dangerous precedent.
This ruling affords the government great deference to regulate private political messages they disagree with, said Chris Brook, legal director of the state ACLU.
Cary denies that it censored or intended to censor Bowden.
Bowden, who died at age 69 in 2011, painted his protest sign in 2009 because he believed a town construction project caused water damage to his former house on S.W. Maynard Road, a claim the town denies.
The town warned Bowden that the huge painted message violated size rules for signs, then threatened steep fines. The widower and the American Civil Liberties Union soon filed suit, beginning a lengthy legal battle that reached one of the highest courts in the land, despite an attempt at mediation.
The plaintiff and his attorneys claimed the town had violated his First Amendment rights; the town argued that Bowden had every right to make his protest on two five-square-foot signs or in another medium, and that unrestricted signage would lead to visual pandemonium.
The town lost the first legal round in 2010, when U.S. District Court Judge Louise Flanagan ruled the towns sign rules for personal property amounted to a content-based restriction on speech.
Art, holiday exceptions
At issue throughout the case have been the exceptions in town rules for public art and holiday displays, which dont face the same size restrictions in Cary as Bowdens political message. Bowdens lawyers claimed that the town was making an illegal judgment of content in separating those categories.
That argument might have held water in other federal appeals courts, Diaz wrote. But he and his fellow judges believed Cary gave a good rationale for its relaxed rules for Nativity scenes and artistic endeavors.
As Diaz wrote, We think it reasonable to presume that public art and holiday decorations enhance rather than harm aesthetic appeal, and ... seasonal holiday displays have a temporary, and therefore less significant, impact on traffic safety.
And it defies common sense, the judge wrote, to argue that Bowdens fluorescent-orange sign was intended to beautify or was a holiday observance.
The judges also reversed a ruling that Cary pay about $36,000 for the Bowden estates legal bills. However, the family wont be responsible for the fees, according to Brook.
Cost of doing business
Cary, though, will pay about $300,000 or more in legal costs.
Unfortunately it appears to be the cost of doing business, because of course the town must defend its ordinances, said Councilwoman Gale Adcock
Bowdens estate, including his daughter, and the plaintiffs legal team are now considering their next step. They may request an en banc rehearing of the case by all the Fourth Circuit judges which occurs extremely rarely, according to an attorney for the town.
Alternatively, the ACLU and Bowdens estate could appeal to the U.S. Supreme Court, which accepts only a fraction of the cases thrown its way.
Kenney: 919-460-2608 or twitter.com/KenneyOnCary