As a general rule, progressives do not get worked up about property rights the way conservatives do. This is a mistake—as a case out of Norfolk shows.
To the progressive eye property is bound up with materialism and wealth and greed and other yucky things. But property is also bound up with some things progressives hold dear. And even progressives were outraged when, in its 2005 Kelo decision, the Supreme Court said governments could take property from the poor and give to the rich.
That is what has been happening in Norfolk, where the city’s Redevelopment and Housing Authority has been using eminent domain to take dozens of pieces of private property for resale to a foundation run by Old Dominion University. The housing authority has been collecting commissions on the sales; the foundation has then been turning the property over to developers for their use as part of a swanky new University Village.
Among those properties is the building that houses Central Radio, whose story was detailed here back in May, 2010. Some years ago Norfolk offered to buy the property for a lowball price of $700,000 (more than a decade before, a developer had offered more than $1 million). Central Radio’s president, Bob Wilson, turned the city down. So the city slapped a spurious designation of “blighted” on the property and condemned it.
Norfolk couldn’t get away with that today. Virginia’s General Assembly has sharply curtailed such abusive use of eminent domain, precisely because of cases such as this one and others like it. Roanoke, for instance, seized a property it wanted to give to Carillion Clinic. Carillion later said it didn’t want the property; Roanoke went ahead and took it anyway.
But the legislature’s changes to eminent-domain law included a grandfather clause, allowing Norfolk to proceed. Wilson is naturally cheesed off. He has vented his frustration by putting up on the side of his building a protest banner. (“50 years on this street,” it reads. “78 years in Norfolk. 100 workers. Threatened by eminent domain.” The words “eminent domain abuse” are surrounded by a red circle with a slash through it.)
But Norfolk officials apparently feel it is not enough to take away Wilson’s property. They also are trying to take away his right to free speech, by insisting that his banner violates the city’s sign ordinance.
At 41 pages and more than 11,0000 words, that ordinance is a bureaucrat’s dream come true. Norfolk cites it to say Wilson can put up a sign no larger than 60 square feet. That would render it unreadable even from much smaller distances than those at which the current sign, at 375 square feet, is legible.
Such petty Bonapartism is not unique. After the Kelo case the city of Freeport, Texas, tried to take a family shrimping business on behalf of a Dallas developer, H. Walker Royall. Journalist Carla Main wrote about the ensuing fight in her book, Bulldozed. Royall didn’t care for the coverage. So he sued both Carla Main and her publisher. He also sued a Galveston newspaper that reviewed the book. And the book reviewer. And Richard Epstein, a well-known law professor who gave the book a dust-jacket blurb. Royall lost on all counts.
In an even more apposite case, the city of St. Louis went after a nonprofit landlord, Jim Roos, who – like Central Radio – objected when the city exploited eminent domain to condemn properties he used to house the poor. Roos painted a large “End Eminent Domain Abuse” mural on the side of one of the buildings. The city told him he needed a permit for the mural. So he applied for one – and the city turned him down. Roos sued on First Amendment grounds. Incredibly, a federal judge ruled that (as Reason magazine put it) “Mural Protesting Government Policies Isn’t Free Speech.” The Eighth circuit wisely overruled that decision.
The Institute for Justice, which is headquartered in Arlington, represented Roos. It is now representing Wilson and Central Radio. IJ will argue that Norfolk’s code unconstitutionally forbids Wilson from using the most effective means to express his objections. It will also argue, as it did in St. Louis, that the city is engaging in unconstitutional viewpoint discrimination. Of that there can be little doubt.
And this is why progressives should care. All of these cases started out as disputes over property rights. Each of them is also a tale of David and Goliath, in which government and deep-pocketed development interests double-team the little guy.
And all three of them ended up as arguments over free expression. In St. Louis and Norfolk, governments have sought to silence individuals who were speaking out not in the public square, but in the last refuge there is for the exercise of individual rights: private property.
A. Barton Hinkle is a columnist at the Richmond Times-Dispatch, where this article originally appeared.