George Will

NORFOLK, Va. -- A drearily familiar dialectic is on display here: Government is behaving badly in order to silence protests of other bad behavior. It is violating the Constitution's First Amendment, stifling speech about its violation of the Fifth Amendment, as it was properly construed until 2005.

Founded in 1934, Central Radio maintains communication, sonar and camera equipment on vessels at Norfolk Naval Station. The business is located in a building designed for its needs near the waterfront. Company Vice President Kelly Dickinson says, "We can drive five minutes and be on board a ship."

But Old Dominion University is nearby and covetous. It wants the land on which Central Radio sits, and through ODU's Real Estate Foundation is well along toward seizing it by inciting the city government to wield the power of eminent domain. Condemnation proceedings against Central Radio have moved to the compensation phase. Dickinson says the compensation will be insufficient to enable the business to construct a comparable building, let alone buy land for it. ODU, whose plans for the neighborhood remain interestingly vague and may include a shopping center, is exploiting the judicial evisceration of the Fifth Amendment's takings clause, the history of which is this:

The Constitution's authors, who did not scatter adjectives carelessly, said property may be taken for "public" uses, meaning things -- roads, bridges, buildings, etc. -- directly owned by government and used by the general public. In 1954, however, in a case arising from what was then complacently called "urban renewal," the Supreme Court expanded the category of "public use" to include the "public purpose" of curing "blight," a concept of enormous elasticity when wielded by rapacious city governments. In 2005, in the Kelo case from New London, Conn., the court radically attenuated the "public use" restriction on takings. The court held, 5-4, that a city government can seize an unblighted neighborhood for the supposed "public" purpose of turning it over to a private business that, being wealthier than the previous owners, would be a richer source of tax revenues for the taking government.

In this appalling decision, the majority serenely said governments could be restrained by public opinion aroused against abuses of eminent domain. Now, however, Norfolk's government is suppressing Central Radio's speech protesting what the city is doing.

In their desperation, the company's executives hung from their building, facing busy Hampton Boulevard, a 375 square-foot banner proclaiming:

50 YEARS ON THIS STREET
78 YEARS IN NORFOLK
100 WORKERS
THREATENED BY EMINENT DOMAIN!

In the banner's lower right-hand corner is a circle with a red slash through the words "Eminent Domain Abuse."

Today that circle is all that is visible. The city, acting on a complaint by ODU's Real Estate Foundation -- the entity trying to seize the company's property -- says the size of the full sign violates Norfolk's sign code. Norfolk's behavior is unconstitutional because:

The city's sign code, which is of rabbinical complexity, has been capriciously enforced -- some banners on city and private buildings violate the code's size restrictions. The code is more permissive regarding signs with particular content (e.g., government messages or religious symbols), which violates First Amendment jurisprudence prohibiting content discrimination. The sign code is suddenly being more evenhandedly enforced but only because, a city official has admitted, since Central Radio began protesting, "people are watching." Furthermore, any content-based speech restriction must pass judicial "strict scrutiny" by establishing that it is necessary to achieve a compelling governmental interest, but the government's only interest in restricting Central Radio's speech is to make it easier for the government to throw its weight around.

We have seen this before. A few years ago, a St. Louis man whose property was being seized under Kelo's permission for government theft adorned his building with a sign similar in size and message to that of Central Radio's. The city government tried to silence him with sign restrictions as flawed and capriciously enforced as Norfolk's are. An alderwoman explained with ruinous candor: "If this sign is allowed to remain, then anyone with property along any thoroughfare can paint signs ... to influence passersby and with no control by any city agency." Uncontrolled speech? Gracious.

The St. Louis man trounced the city in his sign dispute, helped by the Institute for Justice, a little platoon of libertarian litigators who roam the country putting leashes on misbehaving governments. Because IJ is representing Central Radio's First Amendment rights, Norfolk may have to content itself with traducing only one rather than two provisions of the Bill of Rights.

(c) 2013, Washington Post Writers Group