The Fourth Circuit today affirmed the dismissal of a First Amendment challenge to Arlington, Virginia’s prohibition of a doggy daycare’s mural near the Shirlington Dog Park. Judge Diaz wrote the opinion for the Court in Wag More Dogs, LLC v. Cozart, which was joined in by Judge Duncan and Judge Keenan. The challenger was represented by the Institute for Justice, which has a case page with background and more information, together with a response to today’s decision.
My preliminary reaction is that the opinion’s First Amendment analysis is overly deferential to the government. In assessing whether the challenged sign ordinance is content-based or content-neutral, the opinion follows the regrettable path of focusing almost exclusively on whether the ordinance was enacted because of disagreement with the message conveyed. The most underdeveloped part of the opinion, however, is its application of intermediate scrutiny, particularly the narrow tailoring prong. The county asserted that its ordinance serves two interests: promoting traffic safety and enhancing the County’s aesthetics. The county’s enforcement of its ordinance with respect to the challenged mural raises serious questions about how the ordinance is “narrowly tailored” to serve these interests, questions that the opinion simply does not address. The county told Wag More Dogs that the mural would not run afoul of the ordinance if (1) it depicted anything other than pictures relating to the doggy daycare business, or (2) it included the phrase “Welcome to Shirlington Park’s Community Canine Area.” Given the conceded lawfulness of hypothetical alternative murals that comply with either (1) or (2), it is hard to see how the ordinance is tailored at all, much less narrowly tailored, to the promotion of traffic safety or the enhancement of the County’s aesthetics. Instead of examining this issue, however, the opinion conclusorily asserts that the ordinance’s sign and location restrictions do no more than eliminate the exact source of the evil it sought to remedy.