November 10, 2006
Dear City Attorney:
I have reviewed the letter sent to the City by the ACLU, objecting to a provision of your
City’s sign ordinance regulating political signs. The sign ordinance does not appear in the city’s
municipal code; for that reason, I cannot determine whether the language of ' 14.06 of the
ordinance quoted by the ACLU letter is correct. However, assuming that it is correct, the
durational sign limitations contained therein are probably constitutionally defective. Under that
provision [according to the ACLU], political signs cannot be erected more than 30 days prior to
the election to which the campaign pertains, and must be taken down no later than five days after
that election.
As I read it, the ACLU alleges that ' 14.06 violates the First Amendment to the U.S.
Constitution on two grounds:
1. It fails the content neutrality test.
2. It “prohibits too much speech.”
The ACLU is probably correct as to its first allegation, and may be correct as to the
second allegation. The second allegation needs further examination against the backdrop of the
sign ordinance itself.
The Touchstone: City of Ladue v. Gilleo
The touchstone for reviewing political signs regulations is the U.S. Supreme Court case
of City of Ladue v. Gilleo, 512 U.S. 43 (1994). In that case, a wealthy city outside of St. Louis
enacted a sign ordinance that prohibited all signs in residential areas, except:
“[M]unicipal signs”; “[s]ubdivision and residence identification”
signs; “[r]oad signs and driveway signs for danger, direction, or
identification”; “[h]ealth inspection signs”; “[s]igns for churches,
religious institutions, and schools” [subject to certain regulations] ;
“identification signs for other not-for-profit organizations;” signs
“identifying the location of public transportation stops”; “[g]round
signs advertizing the sale or rental of real property,” [subject to
certain conditions]; “[c]ommercial signs in commercially zoned or
industrial zoned districts” [subject to certain conditions]; and signs
that “identify safety hazards.” [At 47]
However, Ms. Gilleo put an 8-1/2 X 11 inch sign in the window of the second story of her
home that read “For Peace in the Gulf.” That sign was not allowed under the Ladue sign
ordinance. The Court struck down the sign ordinance for violating the First Amendment to the
U.S. Constitution.
The reason I listed the signs that were permitted in residential areas in City of Ladue is
that an antecedent line of U.S. Supreme Court cases stand for the proposition that laws and
ordinances that restrict signs must be content neutral. The City of Ladue’s sign ordinance clearly
was not content neutral, as the Eighth Circuit Court of Appeals pointed out in holding the
ordinance unconstitutional. But the U.S. Supreme Court took a different tact than the Eight
Circuit. It assumed that the sign regulation at issue was content neutral and applied this test to
the regulation: Does it prohibit too much speech?
Under the Court of Appeals’ content discrimination rationale, the
City might theoretically remove the defects in its ordinance by
simply repealing all of the exceptions. If, however, the ordinance
is also vulnerable because it prohibits too much speech that
solution would not save it. Moreover, if the prohibitions in
Ladue’s ordinance are impermissible, resting our decision on its
exemptions would afford scant relief for respondent Gilleo. She is
primarily concerned not with the scope of the exemptions available
in other locations, such as commercial areas and on church
property; she asserts a constitutional right to display an anti war
sign at her own home. Therefore, we ask whether Ladue may
properly prohibit Gilleo from displaying her sign, and then, only if
necessary, consider the separate question whether it was improper
for the City simultaneously to permit certain other signs. In
examining the proprietary of Ladue’s near-total prohibition of
residential signs, we will assume, arguendo, the validity of the
City’s submission that the various exemptions are free of
impermissible content or viewpoint discrimination. [At 53]
[Emphasis is the court’s]
The City of Ladue Court was concerned that the city’s sign ordinance:
.... has almost completely foreclosed a venerable means of
communication that is both unique and important. It has totally
foreclosed that medium to political, religious, or personal
messages. Signs that react to local happenings or express a view
on a controversial issue both reflect and animate change in the life
of a community. Often placed on lawns or in windows, residential
signs play an important part in political campaigns, during which
they are displayed to signal the residents support for particular
candidates, parties or causes. They may not afford the same
opportunities for conveying complex ideas as do other media, but
residential signs have long been an important and distinct medium
of expression. [At 54-55]
“Residential signs,” continued the Court:
are an unusually cheap and convenient form of communication.
Especially for persons of modest means or limited mobility, a yard
or window sign may have no practical substitute. [Citations
omitted by me.] Even for the affluent, the added costs in money or
time of taking out a newspaper advertisement, handing out leaflets
on the street, or standing in front of one’s house with a handheld
sign may make the difference between participating and not
participating in some public debate. Furthermore, a person who
puts a sign at her residence often intends to reach neighbors, and
audiences that could not be reached nearly as well by other means.
[At 57] [Emphasis is the Court’s.]
The Court in City of Ladue claimed that the city still had some right to regulate signs:
Our decision that Ladue’s ban on almost all residential signs
violates the First Amendment by no means leaves the City
powerless to address the ills that may be associated with residential
signs. It bears mentioning that individual residents themselves
have strong incentives to keep their own property values up and to
prevent “visual clutter” in their own yards and neighborhoods
incentives markedly different from those persons who erect signs
on others’ land, in other’s neighborhoods, or on public property.
Residents’ self-interest diminishes the danger of the “unlimited”
proliferation of residential signs that concerns the City of Ladue.
We are confident that more temperate measures could in large part
satisfy Ladue’s stated regulatory needs without harm to the First
Amendment rights of its citizens. As currently framed, however,
the ordinance abridges those rights. [At 57]
Speaking in Footnote 17, the Court also said that:
Nor do we hold that every kind of sign must be permitted in
residential areas. Different considerations might apply, for
example, in the case of signs (whether political or otherwise)
displayed by residents for a fee, or in the case of off-site
commercial advertisements on residential property. We also are
not confronted here with mere regulation short of a ban. [At 59]
But when the content neutrality cases and the “Does it prohibit too much speech?” test of
City of Ladue are added together, it is virtually impossible to figure out precisely what kind of
political sign regulations, especially in residential areas, will pass constitutional muster. Ladue
emphasizes the self-regulation that will arise from private property ownership in neighborhoods.
If that worked in all cases there would be no need for sign ordinances regulating residential
property. Common sense suggests that cities can at least require campaign signs to be removed
within X number of days after an election. But Justice Sandra Day O’Conner, in her concurring
opinion in City of Ladue, had this to say about common sense in speech regulations:
It is unusual for us, when faced with a regulation that on its face
draws content distinction, “to assume, arguendo, the validity of the
City’s submission that the various exceptions are free of
impressible content or viewpoint discrimination” [Citation omitted
by me.] With rare exceptions, content discrimination in regulations
of the speech of private citizens on private property or in a
traditional public forum is presumptively impermissible, and this
presumption is a very strong one. [Citations omitted by me.].....
Over the years, some cogent criticisms have been leveled at our
approach. [Citations omitted by me.] And it is quite true that
regulations are occasionally struck down because of their contentbased nature, even though common sense may suggest that they are
entirely reasonable. The content distinction present in this
ordinance may be a good example of this. [At 59] [Emphasis is
mine.]
The cases on political signs indicate that common sense plays little role in the courts
where that subject is concerned.
Political Sign Ordinances that Prohibit Too Much Speech
The letter from the ACLU cites Curry v. Prince George’s County, 33 F. Supp.2d 447 (4th
Cir. D. Maryland 1999), and City of Painesville Bldg. Dep’t v. Dworker & Bernstein Co., 733
N.E.2d 1152 (Ohio 2000), apparently for the proposition that the durational requirements of any
length on political signs on residential property are flatly unconstitutional. In Curry, that is what
the Court, relying on City of Ladue, concluded. The Court acknowledged that other courts had
upheld durational regulations.
Similarly, in City of Painesville, the Court struck down a durational limitation that
applied to a political sign placed at a law office, and, for all practical purposes declared that
durational signs were unconstitutional. It pointed to the problem with political signs to which
other cases have also pointed: That some political “campaigns” are not tied to a particular
election date. That is obvious from Ms. Gilleo’s sign in City of Ladue. Her window sign placed
there probably sometime in 1991, was tied to the Iraq War. Fifteen years later in 2006, the Iraq
War is still a current hot topic! City of Painesville also pointed to signs that contained messages
that have no “campaign season,” such as “Support Life [or Choice],” “Impeach [or Support] the
President,” “America: Love it or Leave it.” That case suggests that cities can enact durational
ordinances based on the type of sign construction, on the theory that the life span of signs are
based on the materials from which they are made, and as they deteriorate can cause liter and
safety hazards. Needless to say, such ordinances would be difficult to administer and enforce.
At first glance, those cases appear to reflect the outer edge of the “prohibits too much
speech” cases. But in Union City Board of Zoning Appeals v. Justice Outdoor Displays, Inc.,
467 S.E.2d 875 (Ga. 1996), the Georgia Supreme Court struck down a limitation of six weeks
prior to, and one week following, an election as being unconstitutional for prohibiting too much
speech.
In addition, as will be pointed out below, even after City of Ladue, the courts still apply
the content neutrality test to sign ordinances before they apply the “restricts too much speech”
test, and most ordinances fail the content neutrality test. If the ordinance fails the content
neutrality test, strict scrutiny applies to the ordinance. Under the strict scrutiny standard it does
not appear to matter what durational limitations apply to either side of the election. Ordinances
that have failed on content neutral grounds since City of Ladue, and the durational limitations
they involved, include: Whittson v Gladstone, 54 3d 1400 (Eighth Cir. 1995): thirty days prior,
seven days after, the election; Dimas v. Warren, 939 F. Supp. 554 (E.D. Mich) forty-five days
prior, seven days after election; Knoeffler v. Mamakating, 87 F. Supp.2d 322 (S.D.N.Y. 2000)-for signs beyond a certain size, 15 days before, fifteen days, after the election.
In Gladstone, above, in dictum in Footnote 13 suggested that:
....Gladstone could require that any political sign be posted for a
maximum period of 90 days before its is removed or replaced. See
City of Waterloo v. Markham, 234 Ill. App.2d 744, 175 Ill. Dec.
862, 865, 600 N.e2d 1320, 1323 (1992) (“Nothing in the ordinance
prohibits the defendants from erecting different temporary sign one
day after dismantling their first temporary sign.”) Whitton
concedes that such a measure would be constitutional. [At 1409]
But in Sugarman v. Village of Chester, 192 F. Supp.2d 282 (S.D.N.Y.2002), about which
more will be said in the Content Neutrality section, upheld against a content neutrality
challenge a durational limitation of fourteen days for temporary signs, that required all such signs
to be removed within 48 hours after the expiration of the permit, but that required temporary
political signs to be removed within 20 days after the date of the election to which they applied.
Content Neutrality
The ACLU letter also points to the requirement that sign ordinances be content neutral.
Even if a sign passes the “prohibits too much speech” test applied in City of Ladue, it must
satisfy the content neutrality test. In fact, as pointed out above, most courts still apply the content
neutrality test first, and regularly find that sign ordinance at issue fails that test (as probably does
your City’s sign ordinance). It is exceedingly difficult to draft content neutral sign ordinances.
A long line of U.S. Supreme Court and other federal court cases have held that
restrictions on the speech that signs contain must be content neutral. [See Metromedia, Inc. v.
City of San Diego, 453 U.S. 490 (1981); Members of the City Council of Los Angeles v.
Taxpayers for Vincent, 466 U.S. 789 (1984), and Wheeler v. Commissioner of Highways,
Commonwealth of Kentucky, 884 F.2d 586 (6th Ct. 1987). Also see H.L. Messengers, Inc. v.
City of Brentwood, 577 S.W.2d 444 (1979), for a Tennessee case that points in that direction.]
Even before City of Ladue, time limits on the display of political signs had been struck
down for the failure to be content neutral. [See Collier v. City of Tacoma, 854 P.2d 1046 (Wash.
1993); Fisher v City of Charleston, 425 S.E.2d 194 (W. Va. 1993 ; State v. Miller, 418 A.2d 821
(N.J. 1980)]. Following City of Ladue can be added Knoeffler v. Town of Mamakating, 87
F.Supp.2d 322 (S.D.N.Y. 2000); Wittson v. city of Glandstone, 54 F.2d 1400 (8th Cir. 1995);
Sugarman v. Village of Chester, 192 F.Supp.2d 283 (S.D.N.Y. 2002); Dimas v. City of Warren,
939 F. Supp. 554 (E.D. Mich. 1996); McCormack v. Township of Clinton, 872 F. Supp. 1320
(D.N.J. 1994). Also see Quinly v. City of Prairie Village, 466 F.Supp.2d 1233 (D. Kansas 2006),
in which the court enjoined the enforcement of a sign ordinance pending a trial on the merits.
Knoeffler v. Town of Mamakating, 87 F.2d 322 (S.D. N.Y. 2000) is somewhat unique
with respect to the number of signs at issue. There a resident of the town had problems with a
neighbor’s dog and wood stove, and with the municipal court to which he had apparently
unsatisfactorily complained. For that reason he posted a number of signs on his property reading:
“Warning: Town Justice Allows Neighbor’s Biting Dog to Run Loose.!!;” “Tie Up Your Biting
Dog;” “Poison Your Own Air, Not Ours;” “Stop the Smoke Pollution;” “God Will Not Forsake
Us;” and “Let the Truth be Known.” He subsequently added to those signs one that read,
“Neighbors and Town Want to Do Away with Our Freedom of Speech and Our Right to Protest.”
That case involved two different versions of the city’s sign ordinance, both of which the
Court found failed the content neutrality test. The signs stayed.
But at least one sign ordinance following City of Ladue has been upheld against a
challenge that it was not content neutral. In Sugarman v. Village of Chester, 192 F.Supp.2d 293
(S.D.N.Y. 2002), the plaintiff, a prominent lawyer, who ran for the office of county attorney
general, sued eight cities alleging that their political sign ordinances were unconstitutional on a
number of grounds.
In that case, the City of Greenwood Lake’s ordinance stood up to the content neutrality
challenge, even though its temporary sign provision contained a requirement that political signs
be removed 20 days after the election, but required other temporary signs to be removed within
48 hours after their permits expired. Due to the length of Greenwood Lake’s temporary sign
provisions, I have attached that case. The provisions of that ordinance, and the Court’s analysis
of them are found on pp. 293B296. The ordinances of the seven other cities were all found to fail
the content neutrality test. Sugarman obviously points to the difficulty of drafting sign ordinances
that are content neutral.
In attempting to update my research on this topic, I found an excellent article by Jerard,
Jules B., Election Signs and Time Limits, 3 WASH. U.J.L. 7 POLICY 379. It outlines the issues
involved in sign regulation generally, as well as durational time limits. I have attached a copy of
that article for your use. It is an excellent primer on the subject. You may want to read it before
you go any further in this matter.
Sincerely,
Sidney D. Hemsley
Senior Law Consultant
SDH/