Wag More Dogs, Limited Liability Corporation v. Norma J. Cozart, in her official No. 11-1226  capacity as (acting) Zoning…

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
 WAG MORE DOGS, LIMITED
LIABILITY CORPORATION,
Plaintiff-Appellant,
v.
NORMA J. COZART, in her official No. 11-1226 
capacity as (acting) Zoning
Administrator for Arlington
County, Virginia; ARLINGTON
COUNTY, Virginia,
Defendants-Appellees. 
Appeal from the United States District Court
for the Eastern District of Virginia, at Alexandria.
Leonie M. Brinkema, District Judge.
(1:10-cv-01347-LMB-TCB)
Argued: March 21, 2012
Decided: May 22, 2012
Before DUNCAN, KEENAN, and DIAZ, Circuit Judges.
Affirmed by published opinion. Judge Diaz wrote the opinion,
in which Judge Duncan and Judge Keenan joined.

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COUNSEL
ARGUED: Robert Peller Frommer, INSTITUTE FOR JUS-
TICE, Arlington, Virginia, for Appellant. Carol Winfield
McCoskrie, COUNTY ATTORNEY’S OFFICE, Arlington,
Virginia, for Appellees. ON BRIEF: Robert J. McNamara,
William H. Mellor, III, INSTITUTE FOR JUSTICE, Arling-
ton, Virginia, for Appellant. MinhChau N. Corr, COUNTY
ATTORNEY’S OFFICE, Arlington, Virginia, for Appellees.
OPINION
DIAZ, Circuit Judge:
Wag More Dogs, LLC appeals the district court’s dismissal
of its complaint, which alleged that Arlington County’s sign
ordinance violated the First Amendment. We agree with the
district court that the ordinance is a content-neutral restriction
on speech that satisfies intermediate scrutiny. Finding no
merit to the other constitutional challenges, we affirm.
I.
A.
Like most local governments throughout the country,
Arlington County ("Arlington") has enacted a comprehensive
zoning ordinance. Several provisions of the zoning ordinance
pertain to the display of signs ("Sign Ordinance"). Arlington
enacted the Sign Ordinance to "regulate the construction,
placement and display of signs in order to maintain the health,
safety, convenience and welfare of residents and businesses of
the County, as well as the overall visual appearance through-
out the County." Arlington County, Va., Zoning Ordinance
§ 34.1 Among other aims, Arlington promulgated the Sign
1We consult the addenda to the parties’ briefs for the text of the Sign
Ordinance.
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Ordinance to "reduce the traffic hazards caused by . . . unreg-
ulated signs" and to enhance the aesthetic environment of the
County. Id.
The Sign Ordinance defines "sign" as "[a]ny word,
numeral, figure, design, trademark, flag, pennant, twirler,
light, display, banner, balloon or other device of any kind
which, whether singly or in any combination, is used to direct,
identify, or inform the public while viewing the same from
outdoors." Id. § 34(B). It further provides as a general rule
that "[a] sign permit shall be obtained from the Zoning
Administrator before any sign or advertising is erected, dis-
played, replaced, or altered so as to change its overall dimen-
sions." Id. § 34(A)(1).
Two categories of signs are not subject to the permit pro-
cess. The first, a list of signs permitted in all zoning districts
without permits, includes fifteen types of signs and covers
such rudimentary postings as official notices required by law,
"no trespassing" signs, and directional signs. Id. § 34(E). A
second category lists fourteen types of prohibited signs—most
of which involve jarring or otherwise-distracting dis-
plays—for which no permit may be issued. Id. § 34(C). A
catchall provision allows noncommercial speech on a sign
wherever commercial speech is permitted. Id. § 34(A)(4).
The Sign Ordinance sets out intricate requirements for vari-
ous types of signs located in different zoning districts. Rele-
vant to this appeal, a provision includes size regulations for
businesses in "C" and "M" districts ("Business Sign Provi-
sion"). Id. § 34(G). The Business Sign Provision mandates
that an individual obtain a sign permit before erecting a "busi-
ness sign"—that is, a sign "identifying the products or ser-
vices available on the premises or advertising a use conducted
thereon." Id. "On the walls of commercial buildings in all ‘C’
and ‘M’ Districts," businesses are allowed to display "up to
three (3) signs for each tenant, up to a maximum total sign
area of sixty (60) square feet per tenant, or a total sign area
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of one (1) square foot per linear foot of the tenant’s frontage,
whichever is greater." Id. § 34(G)(1).
If a proposed sign does not otherwise qualify for a permit
under the Sign Ordinance but does not fall under the
prohibited-signs category, an individual may seek a special
exception through a "comprehensive sign plan." Id.
§ 34(A)(3). The provision detailing the process through which
Arlington evaluates applications for a comprehensive sign
plan ("Comprehensive Sign Plan Provision") states as fol-
lows:
Use permits may be issued for any of the special
exceptions or conditional uses for which a use permit
is required by the provisions of this ordinance; pro-
vided, that the County Board shall find that after a
duly advertised hearing, the use will not: (1) affect
adversely the health or safety of persons residing or
working in the neighborhood of the proposed use;
(2) be detrimental to the public welfare or injurious
to property or improvements in the neighborhood;
(3) be in conflict with the purposes of the master
plans of the County.
Id. § 36(G)(1).
Individuals who violate the Sign Ordinance are initially
subject to civil penalties. Arlington imposes a $200 fine on a
first-time violator, and fines steadily increase for subsequent
transgressions. Id. § 37(D)(1). When an individual has
accrued $5000 or more in fines, Arlington may prosecute the
violation as a criminal misdemeanor. Id. § 37(G).
B.
Kim Houghton owns and maintains Wag More Dogs, LLC
("Wag More Dogs"), a "doggy daycare" business located in
an "M" district in Arlington, Virginia. Houghton sought to
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position her store near the Shirlington Dog Park, ultimately
renting a space in 2009 adjacent to the park. In an effort to
"beautify the area" and to "create goodwill with the people
who frequented the dog park, many of whom were potential
Wag More Dogs customers," Houghton commissioned a
painting on the rear of the business’s building. J.A. 8. The
final product, measuring approximately 960 square feet,
incorporated some of the cartoon dogs in Wag More Dogs’
logo. Houghton described it as including "happy cartoon
dogs, bones, and paw prints." Id. 5.
On August 13, 2010, Arlington County Zoning Administra-
tor Melinda Artman emailed Houghton to inform her that the
painting violated the Sign Ordinance. Specifically, the paint-
ing exceeded the size limitations imposed on signs displayed
in "M" districts, in contravention of section 34(G)(1) of the
Sign Ordinance. Artman stated that an administrative lock
would remain on the building permit until Houghton cured the
violations. Houghton could either paint over the display or
apply for a comprehensive sign plan to maintain compliance
with the Sign Ordinance, though her chances of success with
the latter option were dubious, according to Artman. In the
interim, Artman told Houghton to cover the painting with
tarps if she elected not to paint over it.
Houghton followed up with Artman by email, asking what
steps she could take to ensure that the painting was not con-
sidered a business sign. Artman responded as follows:
For the mural to NOT be considered a sign, it may
depict anything you like EXCEPT something to do
with dogs, bones, paw prints, pets, people walking
their dogs, etc. In other word [sic], the mural can not
[sic] show anything that has any relationship with
your business. If it does, then it becomes a sign.
Id. 37. Houghton ultimately covered the painting with tarps,
and Artman released the lock on her building. Artman subse-
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quently issued Wag More Dogs a final certificate of occu-
pancy on September 27, 2010, under the condition that the
tarps remain in place over the painting.
About two weeks later, Arlington officials sought to reach
an accommodation with Houghton so that she could remove
the tarps while keeping the painting mostly intact. They told
her that she could include the words "Welcome to Shirlington
Park’s Community Canine Area" above the artwork, which
would convert the painting from an impermissible sign into an
informational sign not requiring a permit under the Sign Ordi-
nance. Houghton declined.
C.
Unable to display the painting because it violated the Sign
Ordinance, Wag More Dogs filed suit against Artman2 and
Arlington. It challenged the Sign Ordinance on a variety of
First Amendment grounds. Wag More Dogs first contended
that the Sign Ordinance was an impermissible content-based
restriction on speech, both facially and as applied to the busi-
ness. It then alleged that the Sign Ordinance was unconstitu-
tionally vague. Augmenting the vagueness attack by
referencing Artman’s email to Houghton, Wag More Dogs
claimed that Artman enforced the ordinance using an imper-
missibly vague "any relationship" test—i.e., she would con-
sider any display to constitute a "business sign" if it had any
relationship to the on-site business. Wag More Dogs further
alleged that the Comprehensive Sign Plan Provision operated
as an unconstitutional prior restraint on speech. Finally, it
claimed that Arlington’s offer of accommodation—in which
Houghton could display the painting if she included above the
artwork "Welcome to Shirlington Park’s Community Canine
Area"—qualified as unconstitutionally compelled speech.
2Norma J. Cozart has since been named Arlington’s acting zoning
administrator, replacing Artman. Cozart has been substituted for Artman
as a defendant on appeal.
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Wag More Dogs sought declaratory and injunctive relief for
these alleged First Amendment violations.
Wag More Dogs filed a motion for a preliminary injunc-
tion, while Arlington and Artman moved to dismiss the com-
plaint. The district court granted the motion to dismiss with
prejudice and denied the motion for a preliminary injunction
as moot. The court initially held that the Sign Ordinance was
a content-neutral restriction on speech that easily satisfied
intermediate scrutiny, rejecting Wag More Dogs’ facial and
as-applied challenges. The court further found no merit to
Wag More Dogs’ vagueness challenges. It first concluded that
the Sign Ordinance’s definition of "sign," when read in the
context of the rest of the regulation, was not impermissibly
vague. The court next held that Wag More Dogs had not plau-
sibly alleged that Arlington uses the "any relationship" test as
a decisive interpretation, and, in any event, the standard is not
unduly vague. Finally, the court rejected Wag More Dogs’
allegations that the Comprehensive Sign Plan Provision quali-
fied as an unconstitutional prior restraint on speech and that
Arlington had impermissibly compelled its speech.
Wag More Dogs appeals the district court’s dismissal of its
complaint and denial of its request for a preliminary injunc-
tion.
II.
We review de novo the district court’s grant of a motion to
dismiss, Lebron v. Rumsfeld, 670 F.3d 540, 547 (4th Cir.
2012), accepting as true the facts alleged in the complaint, see
Aziz v. Alcolac, Inc., 658 F.3d 388, 390 (4th Cir. 2011).
To survive a motion to dismiss, a plaintiff must establish
"facial plausibility" by pleading "factual content that allows
the court to draw the reasonable inference that the defendant
is liable for the misconduct alleged." Ashcroft v. Iqbal, 129 S.
Ct. 1937, 1949 (2009). Although we are constrained to " ‘take
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the facts in the light most favorable to the plaintiff,’ " we need
not accept legal conclusions couched as facts or " ‘unwar-
ranted inferences, unreasonable conclusions, or arguments.’ "
Giarratano v. Johnson, 521 F.3d 298, 302 (4th Cir. 2008)
(quoting E. Shore Mkts., Inc. v. J.D. Assocs. Ltd. P’Ship, 213
F.3d 175, 180 (4th Cir. 2000)). At bottom, a plaintiff must
"nudge[ ] [its] claims across the line from conceivable to
plausible" to resist dismissal. Bell Atlantic Corp. v. Twombly,
550 U.S. 544, 570 (2007).
III.
The heart of Wag More Dogs’ complaint is that the Sign
Ordinance is an impermissible content-based restriction on
speech, both facially and as applied, that cannot survive strict
scrutiny. We disagree and hold that the Sign Ordinance is
content neutral on its face. As applied to Wag More Dogs, the
regulation is a restriction on commercial speech. Because the
Sign Ordinance satisfies intermediate scrutiny, Wag More
Dogs’ content-based challenges lack merit.
A.
Wag More Dogs advances a syllogistic argument to support
its claim that the Sign Ordinance is unconstitutional on its
face as a content-based restriction on speech: Any regulation
that differentiates between types of speech is content based.
The Sign Ordinance imposes different requirements on differ-
ent types of speech. Therefore, the Sign Ordinance is content
based. But Wag More Dogs would have us hew to a Euclid-
ean commitment to wooden logic, where the law instead
demands a more pragmatic judgment. Viewing the Sign Ordi-
nance with reference to precedent that applies a practical anal-
ysis of content neutrality, requiring that a regulation do more
than merely differentiate based on content to qualify as con-
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tent based, we conclude that the Sign Ordinance is content
neutral and satisfies intermediate scrutiny.3
1.
Eschewing a formalistic approach to evaluating content
neutrality that looks only to the terms of a regulation, the
Supreme Court has instead embraced a more practical inquiry.
See, e.g., Hill v. Colorado, 530 U.S. 703, 719–20 (2000).
"The principal inquiry in determining content neutrality," the
Court has declared, "is whether the government has adopted
a regulation of speech because of disagreement with the mes-
sage it conveys." Id. at 719 (quoting Ward v. Rock Against
Racism, 491 U.S. 781, 791 (1989)); see also Ward, 491 U.S.
at 791 ("The government’s purpose is the controlling consid-
eration."). The Court has "repeatedly explained" that "govern-
ment regulation of expressive activity is ‘content neutral’ if it
is justified without reference to the content of regulated
3We reject at the outset Wag More Dogs’ literally unprecedented con-
tention that the district court improperly dismissed the case absent Arling-
ton and Artman’s production of evidence justifying the Sign Ordinance’s
restrictions. Wag More Dogs concedes that, were we to accept the propo-
sition, dismissal would effectively never be appropriate in the context of
a First Amendment challenge, as the inquiry starts and stops with facts
alleged in the plaintiff’s complaint and gives the government no opportu-
nity to test the plausibility of the claim by producing evidence. Unsurpris-
ingly, Wag More Dogs cites no authority supporting this bold argument.
The cases it references stand for nothing more than the unremarkable prin-
ciple that "the party seeking to uphold a restriction of commercial speech
carries the burden of justifying it," a burden that "is not satisfied by mere
speculation or conjecture." Edenfield v. Fane, 507 U.S. 761, 770 (1993)
(internal quotations omitted); see also Sorrell v. IMS Health Inc., 131 S.
Ct. 2653, 2667 (2011) ("[I]t is the State’s burden to justify its content-
based law as consistent with the First Amendment."). As explained below,
consistent with over thirty years of case law from the Supreme Court and
our court, Arlington has established that the Sign Ordinance passes consti-
tutional muster under the rubric of intermediate scrutiny. It need not rein-
vent the wheel by coming forward with voluminous evidence justifying a
regulation of the type that has been upheld several times over. Dismissal
was therefore proper.
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speech." Hill, 530 U.S. at 720. This is so even if the regula-
tion "has an incidental effect on some speakers or messages
but not others." Ward, 491 U.S. at 791.4
Distilling the principles enunciated by the Court in Hill, we
have established a three-pronged test for evaluating content
neutrality:
[A] regulation is not a content-based regulation of
speech if (1) the regulation is not a regulation of
speech, but rather a regulation of the places where
some speech may occur; (2) the regulation was not
adopted because of disagreement with the message
the speech conveys; or (3) the government’s interests
in the regulation are unrelated to the content of the
affected speech.
Covenant Media of S.C., LLC v. City of N. Charleston, 493
F.3d 421, 433 (4th Cir. 2007) (internal quotations and alter-
ation omitted). The plain text of a regulation, to be sure, is a
factor important to our analysis. E.g., Satellite Broad. &
Commc’ns Ass’n v. FCC, 275 F.3d 337, 353–54 (4th Cir.
2001). But we have not hesitated to deem a regulation content
neutral even if it facially differentiates between types of
4Despite Wag More Dogs’ suggestions to the contrary, the Supreme
Court’s decision in Sorrell did not signal the slightest retrenchment from
its earlier content-neutrality jurisprudence. Finding that the statute at issue
discriminated based on content, the Court grounded its holding on the stat-
ute’s facial discrimination between types of speech coupled with legisla-
tive history dispelling "[a]ny doubt that" the regulation "impose[d] an
aimed, content-based burden on [pharmaceutical] detailers" and "bur-
den[ed] disfavored speech by disfavored speakers." Sorrell, 131 S. Ct. at
2663. Indeed, the Court noted that the enacting legislature had hoped to
stymie the speech of pharmaceutical detailers through passage of the stat-
ute. Id. at 2663–64. At its core, the law qualified as content based because
it embodied government creation of " ‘a regulation of speech because of
disagreement with the message it conveys.’ " Id. at 2664 (quoting Ward,
591 U.S. at 791). Preceding Supreme Court decisions—and our analysis
in this case—are entirely consistent with Sorrell.
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speech. E.g., Covenant Media, 493 F.3d at 434–35 (adjudging
city ordinance content neutral, even though it treated different
types of speech differently, because it "serve[d] purposes
unrelated to the content of expression" and "did not regulate
the location of different types of signs based on the ideas or
views expressed" (internal quotations omitted)); Am. Legion
Post 7 v. City of Durham, 239 F.3d 601, 608–09 (4th Cir.
2001) (upholding city ordinance as content-neutral restriction
on speech, even though it differentiated between commercial
and noncommercial speech). A statute’s differentiation
between types of speech does not inexorably portend its clas-
sification as a content-based restriction.
Cognizant that "[e]ach method of communicating ideas is
a ‘law unto itself’ " and that our jurisprudence "must reflect
the ‘differing natures, values, abuses and dangers’ of each
method," Metromedia, Inc. v. City of San Diego, 453 U.S.
490, 501 (1981) (plurality) (quoting Kovacs v. Cooper, 336
U.S. 77, 97 (1949) (Jackson, J., concurring)), we pay here
particular attention to cases addressing sign regulations. The
Supreme Court in Metromedia weighed the constitutionality
of a sign ordinance. Generally speaking, the ordinance permit-
ted on-site commercial advertising but prohibited other forms
of commercial advertising and most noncommercial commu-
nications. Id. at 503. Noncommercial messages were permit-
ted only if they fell into one of twelve specified exceptions.
Id. at 494–95. The Court invalidated the ordinance as an
unconstitutional content-based restriction on speech. The plu-
rality cited two principal constitutional defects. First, the reg-
ulation privileged commercial speech over noncommercial
speech, inverting the constitutional protection afforded each
type of speech. Id. at 513. Second, the city through its excep-
tions to the general ban on noncommercial signs impermiss-
ibly distinguished between "various [noncommercial]
communicative interests." Id. at 514–15.
We drew on Metromedia in evaluating the content neutral-
ity of a sign regulation in Covenant Media. The ordinance
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there distinguished between on-premises signs and off-
premises signs. On-premises signs were defined as "signs
identifying or advertising a business, person, or activity, or
goods, products, services or facilities located on the premises
where the sign is installed." Covenant Media, 493 F.3d at 425
(internal quotations omitted). Off-premises signs were "signs
identifying or advertising a business, person, or activity, or
goods, products, services or facilities not located on the prem-
ises where the sign is installed or directing persons to a differ-
ent location from where the sign is installed." Id. (internal
quotations omitted). The sign regulation imposed size and
location requirements on off-premises signs and mandated
receipt of a permit prior to construction of such a sign. Id. The
regulation drew further distinctions between types of signs
within the two principal categories, imposing varying require-
ments on, e.g., directional, instructional, memorial, and public
signs. Id. at 434.
We held that the ordinance was content neutral. We first
stressed that the city adopted the ordinance to regulate land
use, "not to stymie any particular message." Id. Indeed, the
interests proffered by the city—securing traffic safety, pro-
moting the efficient transfer of information, and enhancing
the area’s aesthetics—were completely unrelated to the con-
tent of messages displayed. Id. We succinctly rejected the
argument advanced by the plaintiff, one that mirrors that set
forth by Wag More Dogs:
To be sure, the Sign Regulation defined and distin-
guished between different types of signs. And we
recognize that distinguishing between different types
of signs and where those signs may be located may
also in effect distinguish where certain content may
be displayed. But a regulation that serves purposes
unrelated to the content of expression is deemed neu-
tral, even if it has an incidental effect on some
speakers or messages but not others. The Sign Regu-
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lation did not regulate the location of different types
of signs based on the ideas or views expressed.
Id. (citations and internal quotations omitted). The regulation
moreover did not suffer from the constitutional infirmities that
plagued the ordinance in Metromedia. First, the regulation did
not afford greater protection to commercial speech than non-
commercial speech. Id. at 433 n.9. Second, although the regu-
lation drew distinctions between types of noncommercial
speech—imposing different restrictions on directional signs,
memorial signs, and the like—the framework of the ordinance
counseled reaching a different outcome from the Metromedia
Court. Id. Whereas the ordinance in Metromedia operated as
a general prohibition on noncommercial signs, the regulation
in Covenant Media "generally allowed all signs regardless of
message, applying only time, place, and manner restrictions."
Id.
Applying Hill and Covenant Media to the Sign Ordinance,
we have no trouble concluding that it is a content-neutral reg-
ulation. As an initial matter, Wag More Dogs has not
alleged—nor could it—that Arlington has regulated speech
through the Sign Ordinance "because of disagreement with
the message it conveys," which is the "principal inquiry in
determining content neutrality," Hill, 530 U.S. at 719 (quoting
Ward, 491 U.S. at 791). As with the city in Covenant Media,
Arlington adopted the Sign Ordinance to regulate land use,
not to stymie a particular disfavored message. On this score,
then, the Sign Ordinance’s content neutrality is incandescent.
Moving to the text of the Sign Ordinance, we acknowledge
that Arlington has differentiated between types of speech. For
instance, the regulation imposes size requirements on "busi-
ness signs" that do not similarly apply to noncommercial
signs, and it exempts fifteen types of signs from its coverage.
But this varying treatment is not sufficient to convert the Sign
Ordinance into a content-based restriction on speech. Arling-
ton enacted the ordinance to, among other aims, promote traf-
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fic safety and the County’s aesthetics, interests unrelated to
messages displayed. Thus " ‘even if it has an incidental effect
on some speakers or messages but not others,’ " the Sign
Ordinance is nevertheless content neutral because it " ‘serves
purposes unrelated to the content of expression,’ " Covenant
Media, 493 F.3d at 434 (quoting Ward, 491 U.S. at 791). The
Sign Ordinance is moreover distinguishable from the invali-
dated regulation in Metromedia. In contrast to that enactment,
the Sign Ordinance does not privilege commercial speech
above noncommercial speech, Arlington County, Va., Zoning
Ordinance § 34(A)(4) ("Wherever commercial speech is per-
mitted on a sign under this section of the ordinance, noncom-
mercial speech also is permitted."). And like the ordinance in
Covenant Media, the Sign Ordinance departs from the
Metromedia regulation in that it "generally allow[s] all signs
regardless of message, applying only time, place, and manner
restrictions." Covenant Media, 493 F.3d at 433 n.9.
That Arlington officials must superficially evaluate a sign’s
content to determine the extent of applicable restrictions is not
an augur of constitutional doom. See, e.g., Hill, 530 U.S. at
722 ("We have never held, or suggested, that it is improper to
look at the content of an oral or written statement in order to
determine whether a rule of law applies to a course of con-
duct."). "For a regulation with a clear content-neutral purpose
to be content based, there must be a more searching inquiry
into the content." Covenant Media, 493 F.3d at 434. As in
Covenant Media, the Sign Ordinance’s objectives, which seek
to "address problems caused by signs wholly apart from any
message conveyed," mitigate any concern that the " ‘kind of
cursory examination’ " brought about by "looking generally
at what type of message a sign carries to determine where it
can be located" renders the regulation content based. See id.
at 434–35 (quoting Hill, 530 U.S. at 721).
2.
Deeming the Sign Ordinance content neutral, we now read-
ily conclude that it satisfies intermediate scrutiny. A content-
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neutral regulation passes constitutional muster "if it furthers
a substantial government interest, is narrowly tailored to fur-
ther that interest, and leaves open ample alternative channels
of communication." Am. Legion, 239 F.3d at 609. The Sign
Ordinance meets all three standards.
Arlington enacted the Sign Ordinance to, in part, promote
traffic safety and enhance the County’s aesthetics. Both are
substantial government interests. Members of the City Council
of L.A. v. Taxpayers for Vincent, 466 U.S. 789, 805 (1984)
(aesthetics); Metromedia, 453 U.S. at 507–08 (plurality) (aes-
thetics and traffic safety). The Sign Ordinance is narrowly tai-
lored to further its interest in traffic safety and aesthetics, as
its size and location restrictions "d[o] no more than eliminate
the exact source of the evil it sought to remedy," Taxpayers,
466 U.S. at 808 (ruling that government may impose even a
flat ban on certain classes of signs). Finally, the Sign Ordi-
nance "leaves open ample alternative channels of communica-
tion," Am. Legion, 239 F.3d at 609, by generally permitting
the display of all types of signs, subject only to size and loca-
tion restrictions. To take an example from this dispute, Wag
More Dogs could display its painting if it were no larger than
sixty square feet.
B.
Wag More Dogs also attacks the Sign Ordinance as applied
to it. Characterizing its painting as noncommercial speech,
Wag More Dogs maintains that Arlington impermissibly
restricted its sign while allowing other noncommercial mes-
sages to stand. We reject the premise, however, and conclude
that the painting is commercial speech. Because Arlington’s
regulation of Wag More Dogs’ commercial speech satisfies
intermediate scrutiny, we must turn aside the business’s as-
applied challenge.
1.
"Because the degree of protection afforded by the First
Amendment depends on whether the activity sought to be reg-
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ulated constitutes commercial or non-commercial speech, we
must first determine the proper classification of the [mural] at
issue here." Bolger v. Youngs Prods. Corp., 463 U.S. 60, 65
(1983). In Bolger, the Supreme Court observed that "the core
notion of commercial speech" is "speech which does ‘no more
than propose a commercial transaction.’ " Id. at 66 (quoting
Va. State Bd. of Pharmacy v. Va. Citizens Consumer Council,
Inc., 425 U.S. 748, 762 (1976)); see also Cent. Hudson Gas
& Elec. Corp. v. Pub. Serv. Comm’n, 447 U.S. 557, 561
(1980) (stating that commercial speech is "expression related
solely to the economic interests of the speaker and its audi-
ence").
Bolger recognized a broader definition of commercial
speech, encompassing speech that "cannot be characterized
merely as proposals to engage in commercial transactions."
463 U.S. at 66. Before the Court in Bolger was an informa-
tional pamphlet distributed by a manufacturer of prophylac-
tics. Id. at 68. The pamphlet discussed the utility of condoms
in preventing the spread of sexually transmitted diseases. Id.
at 62 & n.4. It identified the manufacturer only on the last
page, which stated that the firm had contributed the pamphlet
as a public service. Id. Despite the pamphlet’s plainly not fall-
ing within "the core notion of commercial speech," the Court
nevertheless deemed it commercial speech. Id. at 66–68. A
combination of three factors "provide[d] strong support" for
the Court’s conclusion: the manufacturer conceded that the
pamphlet was advertising, a specific product was referenced,
and the manufacturer had an economic motivation for mailing
the pamphlets. Id. at 66–67. The Court cautioned that it did
not "mean to suggest that each of the characteristics present
in this case must necessarily be present in order for speech to
be commercial." Id. at 67 n.14.
The three factors relied on by the Court in Bolger similarly
counsel classifying Wag More Dogs’ painting as commercial
speech. First, Wag More Dogs alleged in its complaint that
the painting was meant to attract customers from the nearby
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dog park, which is tantamount to conceding that it was adver-
tising. Second, the painting included cartoon dogs from the
business’s logo. Because Wag More Dogs offers services
rather than goods, the inclusion of part of its logo is analogous
to referencing a specific product. Third, Wag More Dogs cer-
tainly had an economic motivation for displaying the painting,
as it admitted in its complaint that it sought to "create good-
will with the people who frequented the dog park, many of
whom were potential . . . customers," J.A. 8. When viewed
through the lens of Bolger, Wag More Dogs’ complaint fails
to plausibly allege that the painting qualifies as noncommer-
cial speech.
2.
As applied to Wag More Dogs, the Sign Ordinance’s regu-
lation of commercial speech satisfies intermediate scrutiny.
To sustain its content-based regulation of commercial speech,
Arlington "must show at least that the [Sign Ordinance]
directly advances a substantial governmental interest and that
the measure is drawn to achieve that interest," Sorrell, 131 S.
Ct. at 2667–68. Arlington has met that burden. See supra Part
III.A.2. The Sign Ordinance is therefore constitutional as
applied to Wag More Dogs.
IV.
Wag More Dogs asserts finally that the Sign Ordinance is
unconstitutionally vague and that the Comprehensive Sign
Plan Provision operates as an unlawful prior restraint.5 We
disagree.
5On appeal, Wag More Dogs has abandoned its claim of compelled
speech.
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A.
Wag More Dogs alleges that the Sign Ordinance is vague
in two respects: in its definition of "sign," and through Arling-
ton’s enforcement of the regulation pursuant to a purported
"any relationship" test. Both assertions lack merit.
1.
We first consider—and reject—Wag More Dogs’ conten-
tion that the capaciousness of the Sign Ordinance’s general
definition of "sign" renders the entire regulation void for
vagueness.
Regulations can be struck down as impermissibly vague for
either of two reasons. First, a regulation can "fail[ ] to provide
people of ordinary intelligence a reasonable opportunity to
understand what conduct it prohibits." Hill, 530 U.S. at 732.
Second, a regulation can "authorize[ ] or even encourage[ ]
arbitrary and discriminatory enforcement." Id. We do not hold
legislators to an unattainable standard when evaluating enact-
ments in the face of vagueness challenges. "[W]hile there is
little doubt that imagination can conjure up hypothetical cases
in which the meaning of . . . terms will be in nice question,
because we are condemned to the use of words, we can never
expect mathematical certainty from our language." Id. at 733
(citation and internal quotations omitted); see also Imaginary
Images, Inc. v. Evans, 612 F.3d 736, 749 (4th Cir. 2010)
("[P]erfect clarity and precise guidance have never been
required even of regulations that restrict expressive activity."
(quoting Ward, 491 U.S. at 794)). Thus we "must ask whether
the government’s policy is ‘set out in terms that the ordinary
person exercising ordinary common sense can sufficiently
understand and comply with.’ " Imaginary Images, 612 F.3d
at 749 (quoting Giovani Carandola, Ltd. v. Fox, 470 F.3d
1074, 1079 (4th Cir. 2006)). Dictionary definitions and old-
fashioned common sense facilitate the inquiry. Id. at 750; see
also United States v. Cullen, 499 F.3d 157, 163 (2d Cir. 2007)
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("[T]o meet the fair warning prong an ounce of common
sense is worth more than an 800-page dictionary.").
We are mindful that our task is not to dream scenarios in
which a regulation might be subject to a successful vagueness
challenge. The Supreme Court has instructed that "speculation
about possible vagueness in hypothetical situations not before
the Court will not support a facial attack on a statute when it
is surely valid ‘in the vast majority of its intended applica-
tions.’ " Hill, 530 U.S. at 733 (quoting United States v.
Raines, 362 U.S. 17, 23 (1960)).
Because the Sign Ordinance "provide[s] people of ordinary
intelligence a reasonable opportunity to understand what con-
duct it prohibits" and does not "authorize[ ] . . . arbitrary and
discriminatory enforcement," id. at 732, it is not susceptible
to attack on vagueness grounds. First, we note that Wag More
Dogs’ attempts to attack the Sign Ordinance’s general defini-
tion of "sign" are unavailing. That definition necessarily inter-
acts with the other provisions of the Sign Ordinance,
including, as is pertinent here, the Business Sign Provision.
Wag More Dogs’ entreaties to view the definition of "sign" in
a vacuum and envision ways in which the provision is inade-
quate amount to no more than the kind of "speculation about
possible vagueness in hypothetical situations" that we will not
consider, id. at 733. Wag More Dogs has simply not alleged
that application of the "sign" definition undermines the con-
clusion that the Sign Ordinance "is surely valid ‘in the vast
majority of its intended applications,’ " id. (quoting Raines,
362 U.S. at 23).
Concluding that Wag More Dogs is unable to prevail on its
attack of the general "sign" definition, we turn to its challenge
to the Business Sign Provision. Wag More Dogs effectively
grants that the Sign Ordinance’s definition of "business sign"
is valid—and for good reason. The regulation defines "busi-
ness sign" as a sign "identifying the products or services
available on the premises or advertising a use conducted
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thereon." Arlington County, Va., Zoning Ordinance § 34(G).
We have little trouble finding that "the ordinary person exer-
cising ordinary common sense can sufficiently understand and
comply with" the Business Sign Provision, see Imaginary
Images, 612 F.3d at 749 (quoting Carandola, 470 F.3d at
1079). Indeed, other courts and litigants confronting similar
definitions in sign codes have not questioned them on vague-
ness grounds. See, e.g., Metromedia, 453 U.S. at 493–94;
Clear Channel Outdoor, Inc. v. City of New York, 594 F.3d
94, 98 n.3 (2d Cir. 2010).
2.
Turning to the standards of enforcement, Wag More Dogs
alleges that Arlington subjects to the strictures of the Business
Sign Provision a display "that has any relationship" to an on-
site business. Even casting aside the dubious plausibility of its
allegations that Arlington employs such a standard, we find
that Wag More Dogs has fallen far short of alleging a pattern
of discriminatory enforcement necessary to give rise to a
vagueness challenge on these grounds.
When the terms of a regulation are clear and not subject to
attack for vagueness, the plaintiff bears a high burden to show
that the standards used by officials enforcing the statute nev-
ertheless give rise to a vagueness challenge. See Green v. City
of Raleigh, 523 F.3d 293, 306 (4th Cir. 2008). We will evalu-
ate alleged vagueness in the enforcement of an otherwise-
valid statute only "if and when a pattern of unlawful favorit-
ism appears." Id. (internal quotations omitted). "Until this
occurs, however," a plaintiff pressing such a challenge will
have "failed to demonstrate that the ordinance[ ] [is] unconsti-
tutional." Id.
Wag More Dogs has not come close to alleging that Arling-
ton’s enforcement of the Sign Ordinance reveals " ‘a pattern
of unlawful favoritism,’ " id. (internal quotations omitted).
Wag More Dogs’ complaint focuses exclusively on its dispute
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with Arlington, failing to detail other enforcement actions that
would evince the requisite pattern of arbitrariness. Finding its
contentions on this score nothing more than "speculation
about possible vagueness in hypothetical situations not before
[us]," Hill, 530 U.S. at 733, we reject Wag More Dogs’ chal-
lenge to Arlington’s standards of enforcement.
B.
Finally, Wag More Dogs alleges that the Comprehensive
Sign Plan Provision operates as an unlawful prior restraint on
speech. We disagree, concluding that the provision meets the
standards required of content-neutral licensing regulations.
To pass constitutional muster, a content-neutral licensing
regulation must "contain adequate standards to guide the offi-
cial’s decision and render it subject to effective judicial
review." Thomas v. Chicago Park Dist., 534 U.S. 316, 323
(2002). Adequate standards are those that "channel[ ] the
[decision maker’s] discretion, forcing it to focus on concrete
topics that generate palpable effects on the surrounding neigh-
borhood." Steakhouse, Inc. v. City of Raleigh, 166 F.3d 634,
639 (4th Cir. 1999). Effective judicial review is not synony-
mous with certain and prompt consideration of the merits of
a licensing denial, at least where—as here—we deal not with
time-sensitive forms of speech. Id. at 641. Indeed, in Steak-
house we held that a licensing scheme provided effective judi-
cial review even though such review was contingent on a
court’s grant of certiorari, which raised the specter of the
court’s either refusing to grant certiorari and not hearing the
case or granting the writ but delaying to decide the case. Id.
at 641–42.
The Comprehensive Sign Plan Provision "contain[s] ade-
quate standards to guide the official’s decision and render it
subject to effective judicial review," Thomas, 534 U.S. at 323,
and we therefore affirm its constitutionality. Under the Provi-
sion’s terms, the Arlington Board may grant an exemption
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from otherwise-applicable restrictions if it finds that the pro-
posed use will not "(1) affect adversely the health or safety of
persons residing or working in the neighborhood of the pro-
posed use; (2) be detrimental to the public welfare or injurious
to property or improvements in the neighborhood; [or] (3) be
in conflict with the purposes of the master plans of the
County." Arlington County, Va., Zoning Ordinance
§ 36(G)(1). Like the ordinance upheld in Steakhouse, the
Comprehensive Sign Plan Provision "force[s] [the County
Board] to focus on concrete topics that generate palpable
effects on the surrounding neighborhood," 166 F.3d at 639.
Although the provision speaks of the normally amorphous
concept of "public welfare," we find that its placement along-
side the phrase "injurious to property or improvements in the
neighborhood" militates against an expansive reading of the
provision, confined as it is to concerns about land and infra-
structure.
Wag More Dogs nevertheless maintains that, no matter the
adequacy of the factors listed in the Comprehensive Sign Plan
Provision, the regulation confers unfettered discretion on offi-
cials because it provides merely that a permit "may" be
granted when the requisite standards are satisfied. This use of
discretionary language, according to Wag More Dogs, vitiates
the standards that follow and compels invalidating the provi-
sion. The Supreme Court has expressly foreclosed resort to
this argument, however. Although a showing of arbitrariness
in granting waivers would pose constitutional difficulty, the
Court reasoned "that this abuse must be dealt with if and
when a pattern of unlawful favoritism appears, rather than by
insisting upon a degree of rigidity that is found in few legal
arrangements." Thomas, 534 U.S. at 325. Wag More Dogs has
not alleged such "a pattern of unlawful favoritism," id., so its
challenge to the use of discretionary language must fail.
The Comprehensive Sign Plan Provision also satisfies the
second prong of the Thomas formulation, as it "render[s]
[decisions] subject to effective judicial review," id. at 323.
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Virginia law provides for judicial review of "[e]very action
contesting a decision of the local governing body . . . granting
or failing to grant a special exception." Va. Code Ann. § 15.2-
2285(F). Wag More Dogs argues that the statutory review
process is insufficient because Arlington could elect to take
no action on an exception request, thereby frustrating the pos-
sibility of an applicant’s securing meaningful review. We
decline to join Wag More Dogs’ foray into the world of hypo-
theticals. See Thomas, 534 U.S. at 325 (refusing to consider
speculation about potential for abuse of discretion until "a pat-
tern of unlawful favoritism appears"). Moreover, an applicant
in the situation Wag More Dogs conjures could nevertheless
seek judicial review. The Virginia statute allows for judicial
review of decisions "granting or failing to grant a special
exception." Va. Code Ann. § 15.2-2285(F) (emphasis added).
Thus an applicant whose request is indefinitely tabled might
receive a judicial hearing on the matter, as such delay could
be considered a "fail[ure] to grant" an exception. See Steak-
house, 166 F.3d at 642 ("The respect that comity requires we
accord state courts invokes a presumption that the superior
court would provide [plaintiff] expeditious review.").6
V.
For the foregoing reasons, we affirm the judgment of the
district court.
AFFIRMED
6Because we agree with the district court that Wag More Dogs has
failed to state a claim, we also affirm the court’s denial of Wag More
Dogs’ request for a preliminary injunction.
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