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First Amendment Does NOT Protect Doggie Murals in Arlington, VA!

As a dog owner, and an Arlington, Virginia resident, this one hits close to home.  A federal appeals court has upheld a lower court’s decision banning a doggie mural in Arlington County.  The mural must stay in the doghouse!

Wag More Dogs, a local doggie day care center, commissioned a large mural on its building that faced a local dog park.  The sign depicted “happy cartoon dogs, bones, and paw prints” and included the name of the business.  (Admission: I have seen the mural and think its great.).  But then the Arlington County’s Zone Administrator took a look at it.  Melinda Artman (I did not make up that name) told Wag More that the mural was an advertisement for the Wag More business and did not comply with Arlington’s sign regulations.  One of the “solutions” offered by Artman was that Wag More could cover the sign up with tarps (really attractive!), which is what Wag More agreed to do while they fought the battle out in court.

Wag More argued that the Arlington regulation violated their First Amendment rights by banning free speech.  The trial judge smacked that argument down, finding that the regulation was “content neutral,” and that the regulation satisfied “intermediate scrutiny.”

Law explanation coming:  Generally speaking, regulations that are “content neutral” are those that place limits on speech/signs but not by focusing on specific speech/specific signs.  For example, a regulation that limits all business signs to 3 x 5 feet is content neutral, while a regulation that limits signs only for car dealers to 3 x 5 feet is probably not content neutral because it discriminates among types of speech.

Once a regulation has been determined to be “content neutral,” the court then determines whether it survives “intermediate scrutiny.”  A content-neutral regulation passes intermediate scrutiny (and is constitutional) if “it furthers a substantial government interest, is narrowly tailored to further that interest, and leaves open alternative channels of communication.”

Both the trial court and the appeals court found that Arlington’s regulation easily survived intermediate scrutiny because, among other things, it allows Wag More Dogs to post smaller signs or murals.  The case is called Wag More Dogs, Ltd. v. Cozart, No. 11-1226 (4th Cir. 2012).

Translation:  unless they go to the Supreme Court (unlikely), no doggie mural in Arlington.