The Fourth Circuit addressed this issue in Wag More Dogs v. Cozart–a suit brought by the Institute for Justice challenging an Arlington ordinance that limits what can be displayed on signs:
3We reject at the outset Wag More Dogs’ literally unprecedented contention that the district court improperly dismissed the case absent Arlington and Artman’s production of evidence justifying the Sign Ordinance’s restrictions. Wag More Dogs concedes that, were we to accept the proposition, 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 opportunity to test the plausibility of the claim by producing evidence. Unsurprisingly, Wag More Dogs cites no authority supporting this bold argument. The cases it references stand for nothing more than the unremarkable principle 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 contentbased 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 constitutional muster under the rubric of intermediate scrutiny. It need not reinvent 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.
Contrary to Justice Holmes’s–err—Breyer’s protestations, Sorrell did not bring Lochner back:
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 statute’s facial discrimination between types of speech coupled with legislative history dispelling “[a]ny doubt that” the regulation “impose[d] an aimed, content-based burden on [pharmaceutical] detailers” and “burden[ 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 statute. 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.
For purposes of full disclosure, I am friends with the IJ attorneys who litigated this case, but have no involvement in the case.