Cary wins appeal in sign case against homeowner

First Amendment not violated in sign dispute

akenney@newsobserver.comJanuary 22, 2013 

STAFF PHOTOGRAPHER

David Bowden, 67, had an orange sign emblazoned on his house to protest water damage that he blamed on roadwork by the town of Cary.

SHAWN ROCCO - SHAWN.ROCCO@NEWSOBSERVER.COM

— 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 estate’s favor.

“We acknowledge that the Town’s 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. Cary’s 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 town’s 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 don’t face the same size restrictions in Cary as Bowden’s political message. Bowden’s 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 Bowden’s 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 estate’s legal bills. However, the family won’t 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

Bowden’s estate, including his daughter, and the plaintiff’s 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 Bowden’s 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

News & Observer is pleased to provide this opportunity to share information, experiences and observations about what's in the news. Some of the comments may be reprinted elsewhere in the site or in the newspaper. We encourage lively, open debate on the issues of the day, and ask that you refrain from profanity, hate speech, personal comments and remarks that are off point. Thank you for taking the time to offer your thoughts.

Commenting FAQs | Terms of Service